S. Hrg. 103-328
REAUTHORIZATION OF THE CLEAN WATER ACT
Y4,P 96/10:8. HRG. 103-328
Reauthorization of the Clean Uater.
:INGS
.AE THE
SUBCOMMITTEE ON
CLEAN WATER, FISHERIES, AND WILDLIFE
OF THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED THIRD CONGRESS
FIRST SESSION
ON
S. 1114
A BILL TO AMEND AND REAUTHORIZE THE FEDERAL WATER
POLLUTION CONTROL ACT, AND FOR OTHER PURPOSES
AND
S. 1302
A BILL TO AMEND THE FEDERAL WATER POLLUTION CONTROL ACT TO
IMPROVE THE CONSERVATION OF WETLANDS AND THEREBY RE-
STORE AND MAINTAIN THE PHYSICAL, CHEMICAL, AND BIOLOGICAL
INTEGRITY OF THE NATION'S WATERS, AND FOR OTHER PURPOSES
JUNE 16, 23; JULY 1, 14, 27; AUGUST 4, 5; AND SEPTEMBER 15, 1993
Printed for the use of the Committee on Environment and Pubhc Works
S. Hrg. 103-328
REAUTHORIZATION OF THE CLEAN WATER ACT
HEARINGS
BEFORE THE
SUBCOMMITTEE ON
CLEAN WATER, FISHERIES, AND WILDLIFE
OF THE
COMMITTEE ON
ENVIEONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED THIRD CONGRESS
FIRST SESSION
ON
S. 1114
A BILL TO AMEND AND REAUTHORIZE THE FEDERAL WATER
POLLUTION CONTROL ACT, AND FOR OTHER PURPOSES
AND
S. 1302
A BILL TO AMEND THE FEDERAL WATER POLLUTION CONTROL ACT TO
IMPROVE THE CONSERVATION OF WETLANDS AND THEREBY RE-
STORE AND MAINTAIN THE PHYSICAL, CHEMICAL, AND BIOLOGICAL
INTEGRITY OF THE NATION'S WATERS, AND FOR OTHER PURPOSES
JUNE 16, 23; JULY 1, 14, 27; AUGUST 4, 5; AND SEPTEMBER 15, 1993
Printed for the use of the Committee on Environment and Public Works
^''^^ 9m^
'^^y
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1993
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington. DC 20402
ISBN 0-16-043358-A
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
MAX BAUCUS, Montana, Chairman
DANIEL PATRICK MOYNIHAN, New York JOHN H. CHAFEE, Rhode Island
GEORGE J. MITCHELL, Maine ALAN K. SIMPSON, Wyoming
FRANK R. LAUTENBERG, New Jersey DAVE DURENBERGER, Minnesota
HARRY REID, Nevada JOHN W. WARNER, Virginia
BOB GRAHAM, Florida ROBERT SMITH, New Hampshire
JOSEPH I. LIEBERMAN, Connecticut LAUCH FAIRCLOTH, North Carolina
HOWARD M. METZENBAUM, Ohio DIRK KEMPTHORNE, Idaho
HARRIS WOFFORD, Pennsylvania
BARBARA BOXER, California
Peter L. Scher, Staff Director
Steven J. SmMBERG, Minority Staff Director and Chief Counsel
Subcommittee on Clean Water, Fisheries, and Wildufe
BOB GRAHAM, Florida, Chairman
GEORGE J. MITCHELL, Maine JOHN H. CHAFEE, Rhode Island
FRANK R. LAUTENBERG, New Jersey DAVE DURENBERGER, Minnesota
HARRY REID, Nevada LAUCH FAIRCLOTH, North Carolina
JOSEPH I. LIEBERMAN, Connecticut DIRK KEMPTHORNE, Idaho
HARRIS WOFFORD, Pennsylvania
(II)
CONTENTS
JUNE 16, 1993
THE CLEAN WATER ACT IN GENERAL
Page
OPENING STATEMENTS
Chafee, Hon. John H., U.S. Senator from the State of Rhode Island 16
Graham, Hon. Bob, U.S. Senator from the State of Florida 1
Lautenberg, Hon. Frank R., U.S. Senator from the State of New Jersey 3
Lieberman, Hon. Joseph I., U.S. Senator from the State of Connecticut 5
Metzenbaum, Hon. Howard M., U.S. Senator from the State of Ohio 19
WITNESSES
Browner, Hon. Carol M., Administrator, Environmental Protection Agency 7
Prepared statement " 44
Conway, Robert, Senior Corporate Fellow, Union Carbide Corporation ............... 31
Prepared statement " g4
Responses to additional questions ' 79
Cooper, William, Institute for Environmental Toxicology, Michigan State Uni-
versity 25
Prepared statement ...............\ 52
Responses to additional questions "" 59
Huggett, Robert, College of William and Mary, Virginia institute of Meirine
Sciences 28
Prepared statement g3
Karr, James, Institute for Environmental Studies, University of Washington... 32
Prepared statement 85
Responses to additional questions 89
ADDITIONAL MATERIAL
S. 1114 94
JUNE 23,1993
FUNDING; STORMWATER AND COMBINED SEWER OVERFLOWS
OPENING STATEMENTS
Baucus, Hon. Max, U.S. Senator from the State of Montana 315
Chafee, Hon. John H., U.S. Senator from the State of Rhode Island 316
Durenberger, Hon. Dave, U.S. Senator from the State of Minnesota 331
Faircloth, Hon. Lauch, U.S. Senator from the State of North Carolina 318
Graham, Hon. Bob, U.S. Senator from the State of Florida 311
Lautenberg, Hon. Frank R., U.S. Senator from the State of New Jersey 349
WITNESSES
Adler, Robert, Senior Attorney, Natural Resources Defense Council 325
Prepared statement 368
Agriss, Terry, President, New York Environmental Facilities Corporation,
representing the CouncU of Infrastructure Financing Authorities 339
Prepared statement 397
(in)
IV
Page
Brnzelius, Kenneth, President, Rural C!ommunity Assistance Program, New
Prague, Minnesota 342
Prepared statement 403
Responses to questions from Senator Kempthome 405
Fraser, Hon. Donald, Mayor, Minneapolis, Minnesota, representing the Na-
tional League of Cities 319
Prepared statement 350
Marchetti, Paul, Executive Director, Pennsylvania Infrastructure Investment
Authority, Harrisbui^, Pennsylvania 345
Prepared statement 408
Responses to questions from Senator Kempthome 411
Marino, Ronald, Vice President, Public Finance Division, Smith Barney,
Harris, Upham & Ck>, Inc., representing the Public Securities Association 347
Prepared statement 414
Responses to questions from Senator Kempthome 416
Prothro, Martha, Acting Assistant Administrator, OfRce of Water, Environ-
mental Protection Agency 327
Prepared statement 389
Smith, Greg, Chairman, Municipal Assistance Task Force, Ohio Environmen-
tal Protection Agency, representing the Association of State and interstate
Water Control Administrators 321
Prepared statement 357
Wagner, Ekiweird, Deputy Commissioner, New York City Department of Envi-
ronmental Protection, representing the Association of Metropolitan Sewer-
age Agencies 323
Prepared statement 363
ADDITIONAL MATERIAL
Washington Post, editorial from 314
JULY 1, 1993
TOXIC POLLUTION: PREVENTION AND CONTROL
OPENING STATEMENTS
Baucus, Hon. Max, U.S. Senator from the State of Montana 420
Graham, Hon. Bob, U.S. Senator from the State of Florida 419
WITNESSES
Baker, Bruce, Director, Water Resources Management, Wisconsin Depart-
ment of Natural Resources, representing the Association of State and Inter-
state Water Pollution Control Administrators, Washington, DC 423
Prepared statement 474
Batchelder, James R., Vice President, Environmental Affairs & Technical
Services, Koopers Industries, representing the American Wood Institute 466
Prepared statement 539
Responses to questions from Senator Kempthome 543
Dawson, Anita, Memager, Environmental Affairs, American Cyanamid Com-
pany, representing the Chemical Manufacturers Association, Washington,
DC 424
Prepared statement 479
Hackmann, Frank H., representing the U.S. Chamber of Commerce 456
Prepared statement 533
Hartman, Caroljoi, Staff Attorney, U.S. Public Interest Research Group 436
Prepared statement 492
Hulsey, Brett, Director, Great Lakes Program, Sierra Club, Washington, DC.... 454
Prepared statement 521
Landman, Jessica C, Senior Attorney, Natural Resources Defense CovmcU 444
Prepared statement 506
Prothro, Martha, Acting Assistant Administrator, Office of Water, Environ-
mental Protection Agency 425
Prepared statement 481
Rees, Morgan, Deputy Assistant Secretary for Policy, Planning, and Legisla-
tion, U.S. Army Corps of Engineers 457
Prepared statement 535
V
Roy, Manik, Pollution Prevention Specialist, Environmental Defense Fund 4?2
Prepared statement Irq
Silliman, Jeffrey, representing the Anierican' Textiie Mg^iifacturere 449
Prepared statement cTr
Stein, John, Director, Strategic Environmentsd Stui'^','Anheuser-Bu^
Louis, Missouri, representing the National Environmental Development As-
sociation ^07
Prepared statement ..."."!."."!."!!!."!!!!!! 488
ADDITIONAL MATERIAL
Statements:
Hembra, Richard, United States General Accounting Office 548
JULY 14, 1993
NON-POINT SOURCE POLLUTION
OPENING STATEMENTS
Baucus, Hon. Max, U.S. Senator from the State of Montana 573
Chafee, Hon. John H., U.S. Senator from the State of Rhode Island '.'. 555
Durenberger, Hon. Dave, U.S. Senator from the State of Minnesota 563
Faircloth, Hon. Lauch, U.S. Senator from the State of North Carolina 574
Graham, Hon. Bob, U.S. Senator from the State of Florida 553
Kempthome, Hon. Dirk, U.S. Senator from the State of Idaho 575
Lieberman, Hon. Joseph I., U.S. Senator from the State of Connecticut 564
WITNESSES
Appleton, Albert, Commissioner, New York City Department of Environmen-
tal Protection 558
Prepared statement 625
Cameron, Diane, Natural Resources Defense Council 564
Prepared statement 635
De Golyer, Willard, Dairy Farmer, National Council of Farmer Cooperatives... 591
Prepared statement 663
Genho, Paul, Chairman, Private Lands and Environmental Management
Committee, National Cattlemen's Association 596
Prepared statement 689
Grubbs, Geoffrey, Director, Assessment and Watershed Protection Division,
Environmental Protection Agency 560
Prepared statement 630
McGuire, Richard, New York State Commissioner of Agriculture and Markets 556
Prepared statement 610
Olson, Judy, Vice President, National Association of Wheat Growers, Gar-
field, Washington 594
Prepared statement 686
Olszewski, Robert, representing American Forest and Paper Association 567
Prepared statement 660
Tucker, L. Scott, Chairman, Stormwater Committee, National Association of
Flood and Stormwater Management Agencies 598
Prepared statement 698
Vap, Gerald, Vice President, National Association of Conservation Districts,
McCook, Nebraska 566
Prepared statement 656
Weeks, Stanley, Director, Farm Research Systems and Product Development,
Agway, Inc., Syracuse, New York 593
ADDITIONAL STATEMENTS
Association of State and Interstate Water Pollution Control Administrators 706
Coastal States Organization, Inc 711
VI
Page
JULY 27, 1993
WATERSHED PLANNING AND MANAGEMENT; MONITORING AND
ENFORCEMENT
OPENING STATEMENTS
Faircloth, Hon. Lauch, U.S. Senator from the State of North Carolina 715
GrgJiam, Hon. Bob, U.S. Senator from the State of Florida 713
Lautenberg, Hon. Frank R., U.S. Senator from the State of New Jersey 745
WITNESSES
Anderson, Blake, County Ssinitation District of Orange County 719
Prepared statement 762
Dooley, Marlen, Assistant Commissioner for Enforcement, New Jersey De-
partment of Environmental Protection and Energy 746
Prepared statement 785
Gauvin, Charles, President, Trout Unlimited 720
Prepared statement 767
Herman, Steve, Assistant Administrator for Enforcement, Environmental
Protection Agency 749
Prepared statement 801
Response to a request for additional information 813
Lloyd, !^ward, General Counsel, New Jersey Public Interest Research Group . 747
Prepared statement 786
MarzuUa, Roger, Partner, Akin, Gump, Strauss, Hauer & Feld, Washington,
DC 752
Prepared statement 815
Spalding, Curt, Executive Director, Save the Bay, Providence, Rhode Island 722
Prepared statement 770
Stickel, Lorna, representing the Western Governors Association, Denver, Col-
orado 725
Prepared statement 774
Tedder, Steve, Chief, Water Quality Section, Environmental Maneigement
Division, State of North Carolina, representing the Association of State and
Interstate Water Pollution Control Agencies 716
ADDITIONAL STATEMENTS
American Planning Association 818
California Association of Sanitation Agencies 826
Chemical Manufacturers Association 630
Davies, Tudor T., Acting Deputy, Assistant Administrator, Office of Water,
Environmental Protection Agency 837
National Environmental Development Association 831
AUGUST 4, 1993
REGIONAL ISSUES
OPENING STATEMENTS
Baucus, Hon. Max, U.S. Senator from the State of Montana 863
Boxer, Hon. Barbara, U.S. Senator from the State of California 910
Graham, Hon. Bob, U.S. Senator from the State of Florida 849
Lautenberg, Hon. Frank R., U.S. Senator from the State of New Jersey 851
Metzenbaum, Hon. Howard M., U.S. Senator from the State of Ohio 889
Mitchell, Hon. George J., U.S. Senator from the State of Maine „ 850
Warner, Hon. John W., U.S. Senator from the Commonwealth of Virginia 871
Wofford, Hon. Harris, U.S. Senator from the State of Pennsylvania 876
WITNESSES
Atkin, John, Clean Water Jobs Coalition, Norwalk, Connecticut 885
Prepared statement 965
Baker, William, President, Chesapeake Bay Foundation, Annapolis, Maryland 879
Prepared statement 955
VII
Behr, Tom, Deputy Mayor, City of San Diego q^
Prepared statement qpf'
Bingaman, Hon. Jeff, U.S. Senator from the SteteorNew Mexico 897
982
^'^^^JrS^'f.Liy^^r'' ^"^^'•'^ Coalition orAridStei^r^csoniAi^oria
Prepared statement
858
932
Caliban, ^nny, a Representative in Congres^fromthe Stete orAlab^^^^ 896
i rGpflrGQ st3,t€in6nt oqi
Cellucci, A. Paul, Lieutenant Governor.Commonwe^th'of M^ach^^^^^^ 906
Prepared statement goV
Coling, George, Great Lakes Specialist, The Sieri^a Club,' W^hii"^^^ 877
Prepared statement glr
Coy, Jeffrey, Chairman, Pennsylvania House of Representetives, ChesaTOak^
Bay Commission ^ og.
Prepared statement "!"'.'!!!."!."!."!."."!!!"!!!. 957
Espinosa, Judith, Cabinet Secretary, New Mexico En^i^onmentai'Departme^ 899
Fmgerhut, Enc, a Representative in Congress from the State of Ohio 894
Prepared statement qoq
Glotfelty, Caren, Pennsylvania Department oif Environmental Resources 883
Prepared statement qqq
Gramm, Hon. Phil, U.S. Senator from the State of Texas......."......" 897
Hansen, Paul, Director, Midwest Regional Office, Izaak Walton League of
America, Minneapolis, Minnesota 888
Prepared statement !!!!!!!!!!!!!!!!!!!! 970
Kaptur, Marcy, a Representative in Congress from the State of Ohio............... 892
Prepared statement ' Qrjrj
Kennedy, Hon. Edward, U.S. Senator from the Commonwealtii of Massacliu-
setts 902
Prepared statement 983
Kerry, Hon. John, U.S. Senator from the State of Nebraska !..".."................"... 904
Prepared stetement ' 984
MacDonald, Doug, Executive Director, Massachusetts Water Resources Au-
thority 908
Prepared statement 989
Martin, Dawn, American Oceans Campaign, Washington, DC 853
Prepared stetement 915
Responses to additional questions 927
Sarbanes, Hon. Paul S., U.S. Senator from the State of Maryland 866
Prepared stetement 937
Wedepohl, Richard, North American Lake Management Society, Madison,
Wisconsin 855
Prepared stetement 930
ADDITIONAL STATEMENTS
American Automobile Manufacturers Association 997
dela, Garza, E. (Kika), a Representative in Congress from the State of Ohio 993
Glenn, Hon. John, U.S. Senator from the Stete of Ohio 995
LaughJin, Greg, a Representetive in Congress from the Stete of Texas 996
AUGUST 5, 1993
FEDERAL AGENCIES; MONITORING; AND OTHER ISSUES
OPENING STATEMENT
Graham, Hon. Bob, U.S. Senator from the Stete of Florida 1001
WITNESSES
Adelsman, Hedia, representing the Western Governors Association 1031
Prepared stetement 1075
Hall, Douglas K., Assistant Secretary for Oceans and Atmosphere, U.S. De-
partment of Commerce 1009
Prepared stetement 1053
Hecker, JayEtte Z., Director, Resources, Community, and Economic Develop-
ment Information Systems, General Accounting Office 1028
Prepared stetement 1071
VIII
Page
Lyons, James R., Assistant Secretary for Natural Resources and Environ-
ment, Department of Agriculture 1003
Prepared statement 1047
Nero, Wendy, Water Conservation Manger, City of Tampa, Florida 1037
Prepared statement 1090
Peck, Dallas, Director, U.S. Geological Survey, U.S. Department of Interior 1012
Prepared statement 1057
Spear, Michael, Assistant Director, Fish and Wildlife Service, U.S. Depart-
ment of the Interior 1013
Prepared statement 1061
Wayland, Robert H., m. Director, Office of Wetlands, Oceans, and Water-
sheds, Environmental Protection Agency 1016
Prepared statement ttt ■;:•■
Woodworth, Roger, President, National Hydropower Association, Washmgton,
DC 1034
Prepared statement J^"o^
SEPTEMBER 15, 1993
WETLANDS ISSUES
OPENING STATEMENTS
Baucus, Hon. Max, U.S. Senator from the State of Montana 1142
Boxer, Hon. Barbara, U.S. Senator from the State of California 1129
Duren'berger, Hon. Dave, U.S. Senator from the State of Minnesota 1098
Faircloth, Hon. Lauch, U.S. Senator from the State of North Carolina 1096
Graham, Hon. Bob, U.S. Senator from the State of Florida 1093
Kempthorne, Hon. Dirk, U.S. Senator from the State of Idaho 1095
Lieberman, Hon. Joseph I., U.S. Senator from the State of Connecticut 1100
Reid, Hon. Harry, U.S. Senator from the State of Nevada 1097
WITNESSES
Bierly, Ken, Wetlands Program Manager, Oregon Division of State Lands 1165
Prepared statement ••••"■• 1245
Brown, Ted, Vice President and General Counsel, Arvida Company 118^
Prepared statement •••":••• jVtt-VV' ^^^^
Cooper, David J., Senior Research Scientist, Department of Fishery and Wild-
life Biology, Colorado State University 1124
Prepared statement ••••• ~-;\"\:n v Iflo
Edwards, Hon. Don, a Representative in Congress from the State of Calilomia 11^7
Prepared statement ••• ;••••••■ ••••■•• •• 1219
Hausmann, Scott, Chairman, Association of State Wetland Managers, and
Chief, Water Regulations, Wisconsin Department of Natural Resources 1159
Prepared statement -: ••.•. v;-;: V ^^^^
Inkley, Douglas B., Director, Biodiversity Conservation Division, National
Wildlife Federation 11J9
Pr6D3.r©<l st3.t©ni6iit l^oo
James, Dan, Federal Affairs Representative, Pacific Northwest Waterways
Association 11°°
Prepared statement •• ; JYa^
Kleckner, Dean R., President, American Farm Bureau Federation 1177
Prepared statement ••••• -.• •••••: 1277
Larson, Joseph S., Professor of Biology, The Environmental Institute, Univer-
sity of Massachusetts at Amherst 1121
Prepared statement "•"•••. V"i"ii""L
Latch, Mark, Division Director, Florida Department of Environmental Protec-
tion 11"^
Prepared statement ....^...... 1235
Lyons, James R., Assistant Secretary, Natural Resources and Environment,
U.S. Department of Agriculture 1104
Prepared statement 1^01
Responses to additional questions ••• •"• 1^05
Marsh, Langdon, Executive Deputy Commissioner, New York State Depart-
ment of Environmental Conservation 1161
Prepared statement ••••• •• •• ]^°°l
Martin, Kevin C, President, Soil and Environmental St ,co, Inc 1184
IX
Martin. Kevin C, President, Soil and Environmental Services. Inc.-Contin- ^^'^
Prepared statement
"""^r^S^ J'S^ti;^ H;;.u-s. sena^r -fronT tiy; s^t^-^xia^i^:::::::::: llll
Szabo. Robert. Counsel. The National' Wetland^ i5o'^ition }??J
Prepared statement \^'^
l^Uo
ADDITIONAL MATERIAL
S. 1304
Statements: 1^02
Alaska. State of. ,„„_
Alaska Wetlands Coalition '""ZZZZZ i qqi
Arco lool
Breaux. Hon. John, U.S/Senatorfro^^ Jfno
Chamber of Commerce of the United States 1 ooo
Confederated Salish and Kootenai Tribes jo^n
Marin Conservation League \o7jr
Montana Audubon Council .,,,"]] jo^I?
Ormond Beach Observers jqeq
Pryor, Hon. David. U.S. Senator from the Stete of Arkaiis^' i iaq
Resource Development Council for Alaska i q^n
WUdlife Society, The '""ZZZZZZZZ"'""''' 1377
APPENDIX-GENERAL STATEMENTS
Americem:
Public Power Association -iaaq
Enterprise Institute .....!..."."!!.!..."!!..". 145O
Farm Bureau Federation i^Rn
Rivers :::::::::::::::::::;:::::::::: mS
Arizona Center for Law in the Public Interest I493
Association of State and Interstate Water Pollution Control Administrator 1501
Chemical Manufacturers Association jcqo
Composting Council, The !!!."!!!!!!!!!!."!!!!!! 1557
Environmental and Energy Study Institute ........"!!.............. 1560
Environmental Health Coalition !1"!!!!!."!!!!!!!!!!" 1578
Honolulu. Hawaii, city and county of .!!...".."!.."!."!."!!." 1583
Independent Liquid Terminals Association !!."!.".."..."...!!.." 1591
Marina Operators Association of America !."!!!!!!!!!!!!."!. 1596
Marine Retailers Association of America .""."!.."!!."! 1601
Metropolitan Water District of Southern California ..!1"!."!.."!!!!!."!.."!."!."!."."!!. 1603
National Association of:
Home Builders I610
Towns and Townships 1633
National:
Marine Manufacturers Association 1639
Utility Contractors Association 1641
Northeast Ohio Regional Sewer District [ 1652
Northwest Marine Trade Association "|""' I657
Silver Coalition 1662
Synthetic Organic Chemical Manufacturers Association 1676
Water Environment:
Federation 1685
Research Foundation 1691
REAUTHORIZATION OF THE CLEAN WATER ACT
WEDNESDAY, JUNE 16, 1993
U.S. SENATE,
Committee on Environment and Public Works,
Subcommittee on Clean Water, Fisheries, and Wildlife,
Washington, DC.
THE CLEAN WATER ACT IN GENERAL
The subcommittee met, pursuant to notice, at 9:35 a.m. in room
SD-406, Dirksen Senate Office Building, Hon. Bob Graham [chair-
man of the subcommittee] presiding.
Present: Senators Graham, Lieberman, Lautenberg, Chafee and
Metzenbaum.
OPENING STATEMENT OF HON. BOB GRAHAM, U.S. SENATOR
FROM THE STATE OF FLORIDA
Senator Graham. I will call the meeting to order.
Today, the subcommittee on Clean Water, Fisheries and Wildlife
begins a series of hearings on legislation to reauthorize the Clean
Water Act. It is an ambitious schedule of hearings over the next 8
weeks. Our hearings will cover the most significant issues that
remain to be addressed in the Act. We will invite witnesses with
divergent views and we will use the bill filed yesterday by Senators
Baucus and Chafee to guide our discussions.
Today, we will not focus, to any great extent, upon that bill for
two reasons. First, it has just been filed and it hardly seems fair to
expect our witnesses to have so quickly digested its provisions.
More importantly, there are some fundamental issues that I be-
lieve need to be explored.
At earlier hearings of this committee regarding the Clean Water
Act, I suggested that we are like the person who owns an automo-
bile who is drawn into a detailed examination of the transmission
without ever stepping back to ask the fundamental questions, why
he owns the automobile and what is his destination? During the
next two months, this subcommittee will have ample time to look
at the hood, to examine the transmission, and to decide whether to
tune the engine or change the oil.
Today, we focus on purpose and destination. The goals of the
Clean Water Act in 1972 were ambitious, to assure that our Na-
tion's waters were fishable and swimmable by 1984 and to elimi-
nate the discharge of pollutants into the Nation's waters by 1985.
We've come a long way, especially with respect to the treatment of
sewage, but we have failed to meet these goals.
(1)
Today, a third of our waters still fail to meet their designated
water quality. We've imposed significant controls over toxics and
other pollutants from industrial dischargers and now find that be-
tween one-third and two-thirds of our remaining pollution comes
from nonpoint sources. So it is time, 21 years later, to reexamine
these goals.
I also believe it is appropriate to examine the appropriate Feder-
al role in meeting these goals. Back in 1972, the national debt was
$436 billion. The Congress was more free to decide how it might
wish to spend Federal dollars toward the goal of protecting the
chemical, biological and physical integrity of the Nation's waters.
Today, the national debt is not $436 billion but is $4.4 trillion, over
ten times the figure of 1972. We are being asked today to do more
with fewer Federal resources.
A fundamental question is what is the Federal Government's
role in relationship to the States and local communities? At what
point should the Federal Government insist on its values and what
is its responsibility to accept the financial ramifications when it
does so? I believe we must carefully assess what we can reasonably
expect to accomplish and how we can best assist our States, cities
and our citizens in assuring that our Nation's waters are safe and
that our environment is protected.
I also want to explore the manner in which we hold our Federal
agencies accountable for their administration of these programs.
We have elected a President who wishes to reinvent government.
Part of reinventing government is to establish a clear set of goals
for governmental programs — if at all possible, goals which are
quantifiable — and then to establish procedures to measure the at-
tainment of those goals in relation to the tax dollars expended to
achieve them.
When I first began to study the Clean Water Act and the many
issues that face us, I was struck by how difficult it is for EPA or
anyone else to tell us exactly how successful the Act has been. We
certainly know anecdotally that many of our rivers, lakes and
streams are cleaner than they were 20 years ago. Certainly none
have caught fire lately, but I am troubled by the absence of base-
line measurements and by the fact that we collect a great deal of
data that fails to answer the questions a decisionmaker needs to
ask.
It is my hope that we can use this opportunity of reauthorizing
the Clean Water Act to help the agency set specific program goals
and then put in place the means to measure performance and
achievement of those goals. In the past, the EPA has measured its
success by how many permits or effluent guidelines it has issued.
Instead, Congress and the public need to know how much cleaner
our lakes, rivers and streams have become. We need also to know
that we are addressing those problems that pose the greatest risk
to human health and to the health of our ecosystems.
We begin our journey with the Administrator of the Environ-
mental Protection Agency, Carol Browner. Ms. Browner is an
American that I have known for many years and I can say without
qualification that Nation is fortunate to have her in its service. It
seems to me appropriate to discuss these fundamental issues with
her and to learn of the issues which her agency believes remain to
be addressed. She will be followed by a panel of distinguished scien-
tists whose testimony I hope wUl help the subcommittee under-
stand the importance and direction of this Act.
In 1991, EPA asked a panel of scientists, headed by Dr. Bill
Cooper, to explore how reauthorization of the Clean Water Act
could be used to address existing environmental problems that are
critical to the long-term, economic, ecological and human health
components of the quality of our lives. They were asked to identify
and rank the most important environmental risks affecting our
aquatic ecosystems.
While that report did not result in legislation by EPA in 1991, it
remains topical today in its identification of those issues that
remain for our attention. We hope to generally explore some of
those issues today.
It is also my hope that we can learn from them what we know
and do not know about the health of our waters. We seek knowl-
edge that will guide us as we explore the difficult issues that will
face us over these hearings this summer. Have we done enough to
protect the waters from toxic substances? Do we need to focus more
upon nonpoint source pollution? Should we shift greater resources
and attention to pollution prevention? How can we balance compet-
ing interests regarding wetlands? How do we help our cities ad-
dress their vast infrastructure problems? Should we shift our focus
to watershed management?
Our challenge is daunting and the issues are complex. I look for-
ward to working with the members of the subcommittee over the
next eight weeks.
OPENING STATEMENT OF HON. FRANK R. LAUTENBERG, U.S.
SENATOR FROM THE STATE OF NEW JERSEY
Senator Lautenberg?
Senator Lautenberg. Thank you very much, Mr. Chairman, and
welcome, Ms. Browner.
Today, we begin the important task of revisiting the Clean Water
Act. We've made a lot of progress over the last few decades in
cleaning up our waters. Fortunately, they no longer catch on fire,
the fish are returning largely to our Nation's waters and raw
sewage is no longer indiscriminately pumped into our waterways.
Yet, significant problems remain. We have barely begun to ad-
dress the problems caused by urban and agricultural runoff which
is responsible for a large portion of our remaining pollution. Indus-
try continues to pour poisons into our waters which sewage treat-
ment plants are not designed to control. Overflows of combined
sanitary and storm sewers pollute our estuaries with raw sewage,
toxic chemicals and garbage which winds up on our coastal beach-
es. We have over $100 billion in sewage treatment needs.
Yet, with the defeat of President Clinton's stimulus package, we
now face the prospect of reductions in sewage treatment funding
for 1994. We still have startling high levels of significant noncom-
pliance with the Act and too often, it's cheaper for the polluters to
violate their permits than to pay the penalties which are being
charged.
While one of the goals of the Act is to make our waters swimma-
ble, we still have no meaningful program to ensure that those
waters are safe for swimming, certainly not on a universal basis.
So the results are not surprising.
In 1990, one-third of our rivers, lakes, and estuaries, which have
been assessed throughout the country, either are failing to achieve
or are threatened with failing to achieve water quality levels which
would support uses such as swimming and fishing. States issued
998 fish advisories and established 50 bans on fish consumption.
Nearly 26 million fish were killed by pollution in over 1,000 in-
stances. Over 2,000 square miles of shellfish harvesting restrictions
were in effect and 300 beach closures were reported by 20 States
because of bacteria from sewage treatment plants, combined
sew£ige overflows and urban runoff. This only includes States that
monitor beach water quality.
It's clear that despite our past successes, we cannot afford to
reduce our commitment to clean up our waters. We're going to
need to strengthen the Clean Water Act and I'm pleased that Ad-
ministrator Browner joins us today to help us in this effort.
When the Congress last passed the amendments to the Clean
Water Act in 1987, we faced serious opposition from the Reagan
Administration and had to pass the bill over the President's veto.
With Administrator Browner's commitment to work with us to ad-
dress the challenges we have to address in this reauthorization, I'm
encouraged that we are going to be able to get the job done.
Mr. Chairman, the people in my State and across the Nation un-
derstand that clean water is essential to human life. They want us
to make the commitment to rid our waters of bacteria and toxic
garbage. Clean water also is essential for our economic well-being.
The New Jersey shore is a driving force behind our $18 billion
tourism sector. Certainly, Mr. Chairman, your State and my col-
league from Connecticut, both have very significant vested inter-
ests in tourism and high water quality.
The tourism business is the second largest revenue producer in
my State. In 1991, almost 9 million people, 8.8 million people,
stayed overnight at the shore and an additional 59 million made
day trips to New Jersey beaches. Further, there were over 350,000
people who serviced these visitors in some capacity, making tour-
ism the number one employer in my State.
Therefore, Mr. Chairman, I look forward to working with you,
the committee Chairman, Mr. Baucus, and the committee on this
reauthorization. Consistent with New Jersey's key concerns, I urge
the committee to work to ensure needed levels of sewage treatment
funding as well as the programs needed to correct the problems of
combined sewer overflows. In addition, I'm going to seek enactment
of provisions to improve enforcement and mandate the testing of
waters off our recreational shores.
I want to assure you, Mr. Chairman, of my commitment to work
for a bill which will address the remaining water challenges and I
commend you for holding this hearing.
Senator Graham. Thank you very much. Senator.
Senator Lieberman?
OPENING STATEMENT OF HON. JOSEPH I. LIEBERMAN U S
SENATOR FROM THE STATE OF CONNECTICUT
Senator Lieberman. Thank you, Mr. Chairman.
We begin today along march not unUke that we began a few
years ago m the reauthorization of the Clean Air Act and I am
hopeful and confident that under your leadership we will complete
this effort as successfully as we completed that one with equally
important consequences for our society.
I commend you, Mr. Chairman, for casting this first hearing on
the reauthorization of the Clean Water Act, as an opportunity to
identify the present quality of the Nation's waters to imagine
where we would like to be and then to determine the steps we can
take to bridge the distance between our goals and the reality.
I look forward to hearing from Administrator Browner as to
what the Clinton Administration most values in the Clean Water
Act and I join you in welcoming the distinguished panel of scien-
tists you've invited to educate us further.
Mr. Chairman, you and I, and Senator Lautenberg, come from
coastal States where people tend to define their communities by
their proximity to the water and often think in very possessive
terms of our beaches, our coves, our bays, our inlets, or our inland
waterways. The health of each of these waterways determines, in
important ways, the health of our communities and, because we
are so close the water, we can more readily emd immediately see
the effects of water pollution.
Birds and other wildlife start to disappear as their habitat is di-
minished. Shellfish and finfish can no longer be harvested in the
same abundance. Boaters begin to complain about unpleasant
water conditions and bathers are kept from the beach. So water
pollution is not just an aesthetic threat, it is a threat to human
health and, as my colleague from New Jersey has said, it cuts di-
rectly into the economies of our States. The degradation of a large
body of water diminishes the quality of life of those who live near
it.
I must say that I was particularly interested in the Form of Sci-
entists Report, which is the focus of this hearing's second panel,
that coastal areas are precisely where the rate of erosion of the
world's biodiversity is occurring fastest. I was also impressed that
the panel would note that the human values derived from an in
tact biodiversity "range from medicine and biological control
agents to tourist economies and spirited belief systems." That such
a distinguished panel of scientists would note the linkage of water
quality with the quality of both our physical and spiritual well-
being gives us another reason, should we need one, Mr. Chairman,
for a strong reauthorization of the Clean Water Act.
The report before us expands our notions of what cleaning up the
Nation's waters really means. It cautions us to think of rivers, for
example, as not simply channels through which water passes, but
as part of an ecosystem. The river's health may be as dependent on
what remains of the vegetation on its banks as it is on which in-
dustrial plants use it for discharge.
The report reminds us that it was not just the chemical but also
the physical and biological integrity of the Nation's waters that
Congress sought to restore in the 1972 law. That means rethinking
the impact of physical silterations to river and stream flow, for ex-
ample. Again, it requires considering changes in terrestrial activi-
ties— if I can use that term — that impact upon the Nation's waters.
Simply stated, dams kill fish too by altering water temperature,
changing the pattern and speed of a river's flow, physically pre-
venting the fish from returning to spawn up river. Similarly, urban
sprawl exacerbates stormwater runoff by paving over permeable
land and replacing it with new roads, parking lots and the waste
from construction sites, all to be washed into the nearest stream or
pond.
Wetlands receive particular notice in this context. Their func-
tional values of stormwater retention, pollutant and sewage filter-
ing and flood prevention all must be replaced by artificial means,
which again costs the taxpayers dearly.
So the report before us makes clear that while we have come a
long way toward realizing some of the objectives of the 1972 law,
there are new objectives that have really only just begun to be
clear to us, problems that were not addressed in 1972 because we
did not know their impact on us in 1972 such as the cumulative
effect of the releases of toxic chemicals into our Nation's water-
ways or what happens when toxics accumulate in sediment or work
their way into the water column or up the food chain.
Mr. Chairman, 20 years ago, to bring this home for me, the Con-
necticut River was known as "the prettiest sewer in America."
Last year, salmon spawned in the Connecticut River and that
shows the value of the Clean Water Act of 1972. Congress made a
commitment to this country when it pgissed the Clean Water Act.
We improved upon and made good on that commitment with the
Water Quality Amendments of 1987 and now, we have the opportu-
nity under your leadership to address the problems which remain.
'These will be more difficult because nonpoint source pollution,
for example, is less discreet, more varied and variable than point
source pollution. Restricting certain activities on land are much
more troublesome than rewriting effluent guidelines or permits.
Acknowledging that toxics build up in our near coaistal sediments
is more alarming than committing only to further study.
So it will be harder this time around, Mr. Chairman, because we
have some real choices to make. I think it will be made easier only
if we agree on the premise which I believe we do, that clean water
is a critical and widely held value in our country among our con-
stituents.
Mr. Chairman, I want to thank you for calling this hearing. I
look forward to the testimony of our witnesses and I look forward
to working with you on this reauthorization.
Senator Graham. Thank you very much. Senator.
Our first witness is the Administrator of the Environmental Pro-
tection Agency, Ms. Carol Browner. Ms. Browner?
STATEMENT OF HON. CAROL M. BROWNER, ADMINISTRATOR EN-
VIRONMENTAL PROTECTION AGENCY, ACCOMPANIED' BY
MARTHA PROTHRO, ACTING ASSISTANT ADMINISTRATOR FOR
WATER, ENVIRONMENTAL PROTECTION AGENCY
Ms. Browner. Good morning, Mr. Chairman and members of the
subcommittee. I am pleased to be here.
Accompanying me today is Martha Prothro, Actmg Assistant Ad-
mmistrator for Water with the Environmental Protection Agency
I applaud you, Mr. Chairman, and the committee for undertak-
mg this series of hearings. I think it will be extremely informative
as we move forward together, I hope, in the reauthorization proc-
ess. I think the committee has already demonstrated leadership as
it has undertaken to draft what I believe will ultimately be a fo-
cused, effective and realistic legislation to reauthorize the Clean
Water Act.
I think we all understand that the task before us is a very diffi-
cult one because, although the Act is fundamentally sound, the
challenges that we face today are more subtle and perhaps more
elusive to traditional legislative and regulatory solutions than the
challenges we faced in the 1970's and 1980's. Today, we need new
and innovative approaches to complement the existing array of suc-
cessful tools and programs we already have to protect human
health and the environment.
Although I have not yet had an opportunity to review in great
detail the bill introduced yesterday by Senators Baucus and
Chafee, I do believe, as I understand it, that it generally focuses
upon the themes that need to be addressed. I am pleased that the
bill acknowledges the importance of developing effective controls
on polluted runoff which is the leading problem facing our Nation's
waters today.
I also want to thank the Subcommittee and the full committee
for involving the Environmental Protection Agency staff in your
deliberations on the technical aspects of the development of this
bill. We welcome the spirit of cooperation and believe that our in-
volvement demonstrates not only the administration's support of
this endeavor but also that we share the view that reauthorizing
legislation must be focused, realistic and implementable.
I would like to begin by briefly commenting on the role of the
Federal Government in regulating and funding to protect and en-
hance our Nation's water quality.
As you all are aware. Congress passed the Federal Clean Water
Act in the early 1970's in part to assure that individual States
would not be economically disadvantaged by efforts to protect
public health and ecological resources. The Act recognized that
States and locsdities should continue to be the primary implemen-
tors of water quality programs. At the same time, the Act rein-
forced a strong national interest in public health and ecosystem
protection and, therefore, a need for Federal support of State pro-
grams. Out of this vision grew a partnership among local authori-
ties, States and the Federal Government which remains very
strong and viable today.
Over its 20 years of implementation, the Clean Water Act is
widely regarded as one of our best environmental statutes. Its
\
8
broad and flexible authorities have made the Act one of the easiest
laws to implement, manage and enforce. I believe it has delivered
perhaps some of the most important environmental impacts of all
of our statutes and I think the example used by Senator Lieberman
is one that we can point to in many instances across this country.
Twenty years ago, we did have rivers, lakes and streams on fire in
this country. We don't have that situation today. We have made
progress, but there is the need for more progress.
I look forward to working with the Subcommittee in making fur-
ther refinements to the Act. I believe that we are off to a good
start.
Today, I would like to focus on five critical issues that it would
certainly be our hope will be thoroughly considered during this
hearing process and in the final product that leaves the committee
and moves forward to the full Senate.
First and foremost is funding. Funding is one of the most critical
issues in the Clean Water Act reauthorization. As we address the
remaining threats to our waters, we must recognize that new ini-
tiatives place a significant increased burden on State and Federal
water quality protection programs. Without adequate funding.
State and local water and wastewater programs will not be able to
fulfill the mandates of the Act or meet the expectations of the
public. We need to ensure that adequate resources are available
and available for the right purposes.
Long ago, Congress recognized the inextricable link between ade-
quate funding and water quality achievements. In 1981, the Feder-
al Government committed to a 10-year program of $2.4 billion per
year to finance construction of municipal wastewater treatment fa-
cilities under the Act's Title II Construction Grants Program. This
level of funding was considered adequate to meet the estimated re-
maining highest priority needs. Other major needs such as correc-
tion of combined sewer overflows were not fully considered at that
point in time.
In 1987, Congress established the State Revolving Fund Program
in an effort to provide long-term financial assistance for municipal
wastewater infrastructure needs and phased out the Title II Con-
struction Grant Program. A total of $18 billion was authorized for
both of these programs through fiscal year 1994.
The transition from the Title II Construction Grant Program to
the Title VI State Revolving Fund Program, I think, has essential-
ly gone well. All States now have approved programs and are re-
ceiving their capitalization grants. Over $7 billion of Federal capi-
talization funds and $6 billion of State matching funds and bond
proceeds have been made available for needed wastewater projects.
More than 1300 municipalities have received low interest loans
through the State Revolving Fund.
Every two years, EPA undertakes a needs survey. Although we
have not yet published the data from the 1992 survey of the States,
preliminary estimates confirm that the needs continue to grow.
Total documented needs have increased in constant dollars from
$90 billion in 1988 to $108 billion in 1992. As daunting as these fig-
ures are, there is reason to believe that some needs may be serious-
ly underestimated in that analysis.
EPA, States and localities are still determining how to meet the
Act s requirements for combined sewer overflows, stormwater man-
agement, and nonpoint source pollution control. States and local
communities will not be able to meet these challenges without con-
tmued Federal support.
Investment in our natural resources not only reflects our obliga-
tion to act as stewards of our environment, to hold the environ-
ment m trust for our children, but also represents sound economic
policy. I believe we need to improve our ability to address current
water quality problems. We should support community investments
in more efficient water use. We expect water safe enough to swim
in, to fish from and to drink, and we expect healthy and diverse
populations of plants and animals in our lakes, streams, wetlands,
estuaries and oceans. Consequently, we must also expect to address
the cost incurred by States, municipalities and Federal agencies to
treat our wastewater.
The second issue I would like to address is watershed planning.
The principal goal of the Act is to protect and restore water body
uses by ensuring their biological, chemical and physical integrity.
As the water program matures, we are expanding our focus beyond
a simple emphasis on chemical pollution to one that provides a
greater understanding of ecosystems.
EPA strongly supports what we call the watershed protection ap-
proach. By focusing on the watersheds as a whole, we believe that
we can address problems more comprehensively, efficiently and ef-
fectively and at the same time, take better advantage of the energy
and resources of our public and private partners.
The watershed approach is not new to EPA. This approach has
been effectively used in several geographically targeted programs,
including the National Estuary Program and initiatives focusing on
the Great Lakes, the Gulf of Mexico, and the Chesapeake Bay Pro-
gram to name a few.
We need to provide incentives to the States to voluntarily devel-
op watershed plans for all impaired and threatened waters as well
as waters that merit special protection or restoration, such as out-
standing national resource waters, wetlands and drinking water
supplies. Incentives could include rewarding watersheds for which
a State has completed watershed planning with higher priority for
SRF funding, harmonizing reporting requirements, and allowing
States greater flexibility in developing site-specific pollutant runoff
control plans.
We must also apply a similar approach for the Nation's ground
water. Eighty-nine percent of our Nation's community water sys-
tems rely on ground water. Eighty-six percent of small and very
small systems serving fewer than 3300 people rely on ground water
as a source of drinking water. Given the hydrological link between
ground water and surface waters, the Clean Water Act should ex-
pressly recognize protection of public water supplies and ecological-
ly important ground water as a goal of the Act.
We have also overlooked our urban waterways. I firmly believe
we have an obligation as a country to return these waterways to
their communities for recreation and other uses. The Anacostia
River, as I think many of us know, was recently named one of the
Nation's most polluted water bodies. It's right down the street. This
10
river belongs to the people who live in Anacostia, who work in the
communities adjacent, who want to recreate in those waters. We
need to give it back to the people so that they can enjoy it.
Similarly, we have also overlooked the needs of disadvantaged
communities. We must work to ensure greater environmental
equity, particularly among the subpopulations of pregnant women,
children. Native, ethnic and minority groups.
We should also address the special needs and water quality de-
mands of interstate waters. Water doesn't recognize political
boundaries. Many water bodies are shared by one or more States.
We need to recognize that; we need to bring together States so that
we can do the very best to protect those shared resources.
Wetlands also are critical components of healthy watersheds. We
must include wetlands restoration and enhancement as part of our
overall watershed protection strategy. EPA is working with other
Federal agencies. States, local governments and private landowners
to encourage a better understanding of wetlands restoration protec-
tion and to deal with some of the problems that have been raised
with regard to the 404 Program.
Polluted runoff, which is the contaminated runoff from agricul-
tural lands, grazing and forestry operations, urban areas and com-
mercial activities, is one of the Nation's most vexing water quality
problems. Much of the most serious nonpoint source pollution
comes from agricultural runoff, including crops, grazing and
animal waste. Problems are particularly acute in rural areas of in-
tense agricultural activity where excessive fertilizer use and other
activities have been linked to ground water contamination.
We already possess some tools to help. Section 319 of the Act en-
acted in 1987 required States to assess their nonpoint source pollu-
tion problems and to develop programs for managing nonpoint
source pollution backed by Federal grants. Over the last four years,
we have provided both technical assistance and more than $190
million in financial assistance to help States with approved non-
point management programs to provide technical assistance, educa-
tion and implementation of best management practices. We believe
that we are making progress with these and other tools.
At this stage, I believe there are several basic principles that
should guide our discussions of the problem of polluted runoff. Spe-
cifically, State nonpoint source management programs based on ef-
fective local participation should be strengthened. EPA should help
to set clearer technical baselines for nonpoint source controls and
management practices. We must improve our scientific understand-
ing of the means to control problems such as nutrient and filtra-
tion pollution and improve the tools to address them, working
closely with other Federal agencies such as NOAA, the U.S. De-
partment of Agriculture, the Department of Interior and the De-
partment of Transportation.
A stronger watershed focus should be brought to bear so that
farmers, foresters and other stakeholders can better understand
the connection between what they do on their land and the bene-
fits they can help to bring to water quality.
We should encourage innovation, where appropriate, including
public-private partnerships and greater use of market-based incen-
tives. Federal funding should support State and local actions but
11
should not be a prerequisite to accelerating progress. We should
implement nonpoint source programs on large tracts under the
stewardship of Federal land management agencies. Where feasible,
pollution prevention should be the approach of first choice for ad-
dressing polluted runoff. Voluntary target approaches should
remain the primary focus but backup enforcement requirements at
the State and Federal levels are needed when voluntary approach-
es fail to produce adequate incentives and necessary environmental
improvements.
Although I have addressed problems that have been overlooked
in the past, I think we also need to be reminded that toxic pollut-
ants remain a critical threat to our Nation's waters despite our
substantial progress over the last two decades. In the water pro-
gram, as in all environmental programs, the traditional end-of-the-
pipe approaches have often served us well and have been the driv-
ing force behind the significant water quality gains of the past.
However, we have learned that treatment and disposal are
simply not enough if we wish to continue to make progress. A more
comprehensive prevention-oriented approach, coupled with a strong
base program, will allow us to move more effectively toward meet-
ing the overall goals of the Clean Water Act. I believe this is par-
ticularly important if we are to achieve additional reductions in
the discharge of toxics.
We would like to explore ways to help larger dischargers develop
pollution prevention plans tailored to their specific industries. We
also believe the statute should be amended to discourage controls
that simply transfer pollutants from one media to the next. Pollu-
tion prevention approaches can produce permanent solutions to en-
vironmental problems, solutions that require less investment in ex-
pensive pollution control and greater emphasis on good planning
and strategic designs. Prevention, in fact, may be the most cost-ef-
fective way to address many of the remaining sources of water pol-
lution while complementing the watershed approach.
Finally, a vigorous enforcement program must remain an inte-
gral component of successful Clean Water Act implementation. We
believe the Act can be strengthened to improve our enforcement
authority and ultimately to enhance State and Federal administra-
tion of water quality programs. A strengthened enforcement pro-
gram will allow us to respond more effectively to the facilities that
are not in compliance with the requirements of the Act.
In conclusion, Mr. Chairman and members of the subcommittee,
reauthorization of the Clean Water Act provides us with a valuable
opportunity to focus on the most important problems facing our
Nation's waters. We believe control of polluted runoff is a critical
component of an amended Clean Water Act. We also believe that
adopting a watershed approach to protect the biological and physi-
cal as well as the chemical integrity of our Nation's waters is very
important. Similarly, we must recognize that we need to increase
our emphasis on pollution prevention as the most practical and
cost-effective means of meeting the goals of the Act. Finally, we
must help ensure that funding is available to States and munici-
palities to enable them to execute the responsibilities and obliga-
tions that the Act entrusts to them.
12
I recognize that I have described a large task, but our Nation's
waters and our Nation's citizens demand that we address these
problems, that we face — and not ignore — the challenge.
I look forward to working with the Subcommittee and the full
Committee as we move forward in this process.
Again, I appreciate the opportunity to be here today.
Senator Graham. Thank you very much for that extremely help-
ful, thoughtful analysis of history and the future.
Senator Lautenberg?
Senator Lautenberg. If I might be excused and be permitted to
submit questions for the record?
Senator Graham. Senator Lautenberg, if you would like to ask
any questions at this time before you have to leave, I would be
pleased to defer to those questions.
Senator Lautenberg. Mr. Chairman, your kindness is well-
known and emphasized today. I'll even decline that generous op-
portunity, if I might. I have another subcommittee that I've got to
attend.
Thank you very much.
Senator Graham. Thank you. Senator.
Ms. Browner, as I indicated in my opening statement, I am inter-
ested in talking about some first purpose questions here. High on
that list is the fundamental rationale for the current level and the
proposed future level of Federal involvement in this issue.
Traditionally, water has been a State responsibility. The States
have jealously guarded their rights to determine quantity alloca-
tions of water and most other ramifications. In 1972, when the first
Clean Water Act was passed, there was sufficient evidence that re-
sponsibility was not being discharged adequately, with dramatic ex-
amples of highly polluted water and that the national interest was
being affected.
There was also, as you suggest, the concern about competitive-
ness among the States, that the States might be competing to see
who had the worse water quality standards in order to gain the
economic advantages of that.
We also were at a point in time where the State governments
were just beginning to establish competencies in effective environ-
mental control. Our own State of Florida had just five years prior
to 1972 established its first pollution control agency and the Feder-
al Government was in a financial situation and status in which it
could make fairly generous commitments to this as well as other
environmental programs.
Much of that history of 21 years ago has altered. So the question
I have is, in the context of 1993, what do you feel is the rationale
and what should be the touchstone as we come to the various vexa-
tious issues from wetlands control to toxics that we should repair
to in terms of justifying the Federal involvement?
Ms. Browner. Mr. Chairman, I would make two points in re-
sponse to your question.
The first is, again, to recognize the need to maintain the flexibil-
ity and the partnership between the Federal Government and the
State and local governments that has been created in the Clean
Water Act. I think that while there are changes and corrections we
would like to see made, most people would agree in general that it
13
has been a successful partnership and that it has been bringing all
parties to the table to develop programs that seek to address the
concerns of individual States and local or regional components of
that State.
In terms of the Federal Government's financial commitment ob-
viously we are dealing in difficult financial times with a very large
deficit — the President, in his Vision for America budget, has called
for a Clean Water State Revolving Fund because he recognizes, I
think in part as a former Governor, the need to assist our States
and municipalities as they come into compliance with the Federal
standards and that we should provide those funds to them. While
there are some cities that in fact may be able to deal with these
issues outside of the SRF, there are many small and medium-sized
communities that will not be able to deal with these problems with-
out some Federal support, and that is an appropriate role for the
Federal Government to play.
Senator Graham. You talk about partnership, I described histori-
cally what the States' role has been relative to water policy, what
do you think are the fundamental characteristics of the Federal
role in that State-Federal partnership?
Ms. Browner. I think it's to provide a framework within which
the States can act. You made some very significant comments in
your opening statement, Mr. Chairman, about the data. We recog-
nize at EPA that we have a challenge in terms of better meinaging
the data, being better able to provide a snapshot to individual
States and to the country as a whole in terms of water quality.
That is something that we think we can do. We are seeking to ad-
dress those concerns and that would be sort of a piece of the puzzle
that we bring to the table.
What States are uniquely qualified to do is to develop the local
plans. I think if you look at the National Estuary Program, it's a
very good example of where you bring that partnership together —
Federal, State and local government — with each one bringing their
set of tools to the table to look at a watershed in its entirety, to
develop a solution and to seek to implement that solution.
Senator Graham. It's been suggested that if the Federal Govern-
ment is going to be imposing some of its values on State and local
communities that it is a necessary corollary that the Federal Gov-
ernment provide a significant amount of the funding to pay the
cost of reaching those values.
Do you agree that there is that linkage and do you believe that
the current level of Federal financial support is adequate to fulfill
the Federal responsibility?
Ms. Browner. I believe that we all share the water resources of
this country and that it is important that the Federal Government
look across the country at the whole in establishing the framework
for protecting those waters and for improving the quality of those
waters. I believe that it is appropriate for us to provide funds to
States as they seek to come into compliance.
The level of funding that the President has called for in terms of
the State Revolving Fund, we believe, is an appropriate level of
funding. The needs are tremendous. As I said earlier, we esti-
mate— and we have not published the final report yet, but in terms
of the recent survey— that there are $127 billion in needs just
14
under Title II, which covers secondary treatment, advanced treat-
ment, combined sewer overflows and all of that, and an additional
almost $10 billion when you add in nonpoint source, ground water
and some of the other issues that we believe need to be addressed.
So there is a very significant need out there. I think for the Feder-
al Government to provide some assistance in meeting that is abso-
lutely essential and appropriate.
Senator Graham. In your statement, you mention that in 1984, it
w£is assumed that $2.5 billion a year for 10 years would meet the
Federal role at least insofar as the most urgent water pollution
problems. Three years later, that program was shifted from a grant
progrsmi to the current Revolving Loan Fund. Almost 10 years
after that 1987 assessment, you indicate the outstanding need is
$108 billion and could be more than that.
Were our estimates in 1984 that far off the mark or have our
standards changes, have the conditions deteriorated? Why nine
years later instead of having come close to meeting what we
thought were the most urgent needs are we over $100 billion
behind?
Ms. Browner. Well, our analysis a decade ago focused on the
traditional municipal wastewater needs. It was a more narrow pic-
ture, if you will, of the problems out there. In the last decade, we
have come to understand that in fact we need to focus on a larger
set of problems, including such things as combined sewer overflow,
abatement, stormwater mansigement and nonpoint source control.
Those sorts of issues were not included in the needs assessment of
a decade ago. That, I think, represents some of the differences you
see in the numbers.
I think we all now recognize that, if we are going to seriously
deal with the remaining water quality issues facing this country, it
will have to be not just municipal wastewater but it will also be
combined sewer overflows and nonpoint source.
Senator Graham. Thank you, Ms. Browner.
My time has expired. Senator Chafee, who is the ranking
member of the subcommittee and the full committee and one of the
most committed members of the Congress for effective protection of
our Nation's waters has joined us, but in his graciousness, has de-
ferred to our colleague. Senator Lieberman, to ask the next round
of questions.
Senator Lieberman?
Senator Lieberman. I would defer back to Senator Chafee if I
didn't think that he was deferring so he wouldn't have to go back
to the Finance Committee.
Senator Chafee. Would that I was invited to the Finance Com-
mittee meeting.
Senator Lieberman. Oh, I'm sorry.
[Laughter.]
Senator Graham. We purposely scheduled this meeting at this
time. Senator, to give you something to do.
[Laughter.]
Senator Chafee. Thank you. There were only 11 invitees to the
Finance Committee meeting recently, regrettably.
Why don't you go ahead Senator Lieberman?
Senator Lieberman. I'd be glad to.
15
I wanted to start, Ms. Browner, with some discussion about wa-
tershed base planning which you emphasized in your talk. I think
we are all concerned with the theory that watersheds are the best
way to look at water quality and planning but we have this reality
which you referred to which is that political jurisdictions generally
don't follow the boundaries of watersheds.
I wonder what thoughts you have about how we can assure that
watershed plans will be implemented by political jurisdictions
which do not follow those watershed boundaries. Do we need, for
instance, to create new overarching jurisdictions for this particular
purpose?
Ms. Browner. I don't think that you absolutely have to do that.
Some States have chosen to do that. The Chairman in my home
State of Florida in fact has set up water management districts
based on watersheds in an effort to manage activities in that way. I
think that you can achieve the goal of watershed protection with-
out those sort of jurisdictions, but some States have found them
helpful.
I think as we look at the Act and the reauthorization, it is very
important that we look at what are the incentives we can place in
the Act to encourage States to act that way and that we remove
barriers. I think that, particularly because of the framework of the
Act as it has existed since its original passage in 1972, it is impor-
tant that we continue the structure of incentives and partnerships
and not look to some heavy hammers in terms of "you have to do
this or you won't get that", but rather if you can develop a water-
shed protection plan, then perhaps you move up higher on a par-
ticular list for funds.
Senator Lieberman. The nonpoint source pollution control pro-
grams which currently require the States to produce at least a
statewide plan and the National Estuary Program are probably the
closest things we've got to real watershed based planning. I wonder
if you would more specifically at this point or later recommend
changes in those programs that would improve the States' ability
to draft and implement watershed plans?
Ms. Browner. Changes in the Clean Water Act?
Senator Lieberman. Yes.
Ms. Browner. Yes, we would be more than happy to provide
some specific recommendations. I think that the bill introduced
yesterday by Chairman Baucus and Senator Chafee does include
some provisions that we think are important and move us in the
right direction. We are completing our analysis of that and we
would be more than happy to provide our analysis when it is com-
pleted. (See testimony of Steven A. Herman, Assistant Administra-
tor for Enforcement, July 27, 1993, p. 813.)
Senator Lieberman. Let me ask you something based on a specif-
ic experience we've had with Long Island Sound. The Long Island
Sound Studies Management Conference is now drafting or redraft-
ing its comprehensive conservation and management plan as re-
quired by the National Estuary Program. I think a lot of us who
looked over the first draft, into which a lot of effort and money was
put, were troubled that it may be easier to imagine these water-
shed-based planning documents than it is to actually produce them
effectively and that in that sense, there may well be a shortage, at
16
least at the local level, of the expertise to turn out programs that
work.
I wanted to ask you, based on that experience, if you would con-
sider ways in which EPA nationally might provide technical assist-
ance to local groups such as this one to upgrade the quality of
these watershed-based programs that are hopefully going to be im-
plemented?
Ms. Browner. I think your point is very valid. While we do
make some funds available in terms of technical assistance grants,
there is probably a need to do more. Some communities, you are
right, have had better access to the technical input in terms of de-
veloping their plans than other communities and that is something
we should address, I would agree.
Senator Lieberman. Let me ask you a final question about the
State revolving funds which are very much in our minds as the
questions have indicated.
A while ago. Senators Moynihan, D'Amato, Dodd and I intro-
duced legislation that would strengthen the National Estuary Pro-
gram to ensure watershed-based planning and would set aside an
increasing percentage of monies each year for coastal States in the
argument that is where the most significant need is, that's where
the population is moving, set aside an increasing percentage for
those coastal States which complied with the stricter requirements
of the National Estuary program. In a way, this is an attempt not
only to create an incentive system, but to try to create an alloca-
tions system understanding that we don't have enough money to
meet the need to try to target it to the areas of greatest need and
also greatest local effort.
I wondered if you had any reaction to that idea or any other
thoughts about allocation formulas for the SRF?
Ms. Browner. I think that the issues facing our coastal cities are
obviously large ones and I think you are quite right in calling to
everybody's attention that, when you look at where the population
is growing in this country, when you look at the impacts to those
water bodies, it is significant.
In terms of how we should structure, perhaps, a recognition of
that in the law, I think it is important to recognize that the SRF
formula does recognize need and that should be continued. We
would agree that the recognition of need should be a part of any
formula discussion.
We are in the process of looking at the legislation that you have
introduced and will be talking to your staff about it in the not too
distant future.
Senator Lieberman. Good. I'll look forward to working with you
on that.
Thank you, Mr. Chairman.
Senator Graham. Senator Chafee?
OPENING STATEMENT OF HON. JOHN H. CHAFEE, U.S. SENATOR
FROM THE STATE OF RHODE ISLAND
Senator Chafee. Thank you, Mr. Chairman. Thank you for your
kind comments about my interest in these areas earlier and I ap-
preciate that.
17
I also want to say that you have been a tremendous mover in
connection with Clean Water and other activities and we are de-
lighted that you are heading the subcommittee.
I have a statement that I will submit for the record.
Ms. Browner, when are we going to get an Administrator for
Water? As I figure it, it is June 17th, isn't it?
Ms. Browner. Yes, you are right.
Senator Chafee. June 16th.
Ms. Browner. We will do it by June 17th. No, Senator, we are, I
think, very close.
Senator Chafee. That's a big term. That allows you a lot of
leeway.
I hope you get going because I think that it is very important for
us to have some guidance in what the administration truly wants.
You've got a big office you're trying to handle and obviously you
can't handle all of these things, so I hope you get on with the selec-
tion of your people. I don't know whether the tie-up is at the White
House or where it is, but I hope you can move rather quickly.
You acknowledge in your testimony that one of the major prob-
lems is nonpoint source pollution. In the past, when it came to seri-
ously dealing with that, we tiptoed around it because of the danger
of land use planning. That was something that got the hackles up
of all the locals, the Governors and the mayors, and the Congress-
men and Senators would get very excited if we indicated we were
going to do anj^hing that involved land use planning.
In this legislation, it does require the farmers, in impaired water-
sheds, to adopt the best management practices. As I understand,
EPA has put out a volume on best management practices. Some-
body told me that it is the size of a phonebook. They didn't say
which phonebook, but that is a threatening term. Is that so?
Ms. Browner. As I understand, perhaps the document you are
referring to doesn't just speak to farming activities, but to a varie-
ty of activities.
Senator Chafee. But best management practices?
Ms. Browner. That is correct.
Senator Chafee. How are we going to get a farmer to cooperate?
If he's a dairy farmer in Maryland not so far from the Susquehan-
na River and he's got enough problems without worrying about
best management practices as EPA defines it. Why should he par-
ticipate? Why should he keep his cattle from breaking down the
banks of the river of the little stream that runs through his proper-
ty? Why should he worry about the fertilizer runoff on his corn
fields?
Ms. Browner. Senator, I think there is a tremendous resource in
the U.S. Department of Agriculture and the Soil Conservation
Service in terms of reaching out and working with these farmers,
working with them in a way that they can understand and relate
to.
Senator Chafee. You've got some of the largest dairy farms in
the United States I guess in Florida. What did they think when
you came around telling them how to behave?
Ms. Browner. Before my tenure in Florida, and the Chairman
will remember this because as Grovemor, he certainly participated
in it, the State had undertaken a comprehensive analysis of the
18
dairy farmers in the Lake Okechobee area because of the effects of
the runoff from those dairy farms on the water bodies. It has been
a program that has had its ups and downs, I'll be very honest with
you.
I have met with the farmers. I did meet with the dairy farmers
down there and it was a real hands-on thing. The way it worked
was people were out in the field on almost a monthly bsisis early on
and that's what it is going to take. It's going to take using people
out in the field who understand farming practices, who understand
what are the changes that can work for farmers and, quite frankly,
what are the changes that will not work for farmers.
Senator Chafee. I'm all for this but the practicalities of it, the
farmer isn't affected by the pollution that shows up in Chesapeake
Bay, he's upstream. So how do you get him to put a fence along the
banks of the stream and just have one place and maybe have a con-
crete apron of some type, all of which costs money? In Florida, in
comparative situations, how did you get the farmer to invest that
money when there is no return for him? What does he care if the
banks of his stream are broken down?
Ms. Browner. In some instances, there is a return. Best manage-
ment practices can sometimes be very cost effective in terms of
how a farmer is using fertilizers or is managing the water. There
are, in fact, monies to be saved as you implement these best man-
agement practices.
In Florida, we also have funds available to assist the dairy farm-
ers. There was State money available. I think there is also the
issue of farmers recognizing the importance of their soil and of pro-
tecting the soil, and that frequently these best management prac-
tices will also help to protect their soil and the quality of the soil.
Senator, I don't want to suggest in any way that we don't think
this is difficult. It is difficult.
Senator Chafee. But you had some success?
Ms. Browner. We have had success, yes. There are other States
that have had successes.
Senator Chafee. My time is just about out.
[Senator Chafee's opening statement follows:]
OPENING STATEMENT OF HON. JOHN H. CHAFEE, U.S. SENATOR FROM
THE STATE OF RHODE ISLAND
Mr. Chairman, I want to join with you in welcoming Administrator Browner and
the other witnesses to our hearing this morning.
We're off to a good start on reauthorization of the Clean Water Act. As you indi-
cated, I joined with Senator Baucus on a reauthorization bUl that was introduced
yesterday. We very much appreciate your willingness to use that bUl as the text for
these hearings and are grateful for the time you have set aside for this task in the
coming weeks.
Perhaps the most important principle that guided our drafting efforts was the
desire for a bill that is workable. The Clean Water Act has been a big success in my
view. We need to keep it on course. When we work on reauthorization bills in this
Committee, there is always a temptation to address every environmental problem
... to pUe on one mandate after another.
But we have to be realistic about the resources that are available to EPA, to the
states and cities, and to the regulated community. Our responsibility is to identify
the most important priorities that can be accomplished with the resources we have
and to muster the political will to follow through on the requirements that we
enact.
19
I have heard Administrator Browner say on more than one occasion that the
work of EPA is driven too much by litigation . . . citizen suits seeking court orders
to carry out non-discretionary duties. She wants to carry out the law. But she has
said that in the past EPA has not been frank with Congress on what can be accom-
plished and what must wait for another day.
Today is her chance to be frank with us. We have already cut back on the man-
dates in this bill. This bill is less demanding than Clean Water proposals circulated
in the last Congress. But there may still be items in the bill that give EPA concern
. . . things that can't be done ... or things that shouldn't be mandated because
they are of a low priority. The success of this bill, both in the legislative process and
as it is implemented in the future, depends to a considerable degree on the quality
of the advice we get from EPA now. Be tough. Be specific. Be frank. That's what we
need.
Thank you.
Senator Graham. We've been joined by Senator Metzenbaum
who has an opening statement.
Senator?
OPENING STATEMENT OF HON. HOWARD M. METZENBAUM, U.S.
SENATOR FROM THE OF OHIO
Senator Metzenbaum. I'm not a member of this subcommittee,
but I wanted to attend today's hearing to begin the very important
process of reauthorizing the Clean Water Act. Few issues could be
more important or more necessary than cleaning up and protecting
the Nation's precious waters.
I have to doff my hat to Senators Baucus and Chafee for intro-
ducing legislation to reauthorize the Clean Water Act. With the in-
troduction of their bill yesterday, they put us on the right path
toward enhancing and protecting water quality in this country.
There is no doubt about it, tremendous progress has been made
in cleaning up our rivers, our lakes, our streams and our ocean
coasts, but much more remains to be done. Untreated sew£ige, in-
dustrial discharges of toxic pollutants, pollution from urban and
agricultural runoff still threaten our waterways. The Clean Water
Act legislation addresses these water pollution problems on a na-
tional basis.
Very shortly, I plan to introduce legislation which will focus on
the special pollution problems of the Great Lakes, which I might
point out represents 95 percent of the Nation's freshwater surface
water. My legislation will expand upon the proposal which I of-
fered last year to the water resources bill and which I've reintro-
duced this year dealing with sediment management and control. I
can't think of a more critical issue as far as the Great Lakes are
concerned.
Right now, thousands of acres of underwater sediment are con-
taminated by toxic pollutants dumped by factories, sewage treat-
ment plants, hazardous waste sites and other sources. In fact, these
sediments are the main reasons for fishing restrictions in the lakes.
Improper dredging and disposal of these contaminated sediments in
the lakes cause us further harm.
My legislative proposal wiU require the Corps of Engineers to
pay more attention to environmental concerns when deciding
where to dispose of dredge spoils in the lakes and give EPA bigger
role in this disposal process. The bill will also facilitate the cleanup
and removal of contaminated sediments and help develop ways to
reduce sedimentation of the lakes.
20
The bill will move beyond the sediments problem and investigate
such issues as pollution prevention and lakewide management
plans and Federal research activities on the lakes. These are not
simple issues, but they are very important ones.
I look forward to working with the members of the Great Lakes
community, members of the subcommittee and the full committee
on my legislative issues as well as on the broader clean water reau-
thorization legislation.
I know the subcommittee will spend the summer holding a series
of hearings on clean water-related issues. I look forward to them,
but the truth is, I also look forward to the day when we in Con-
gress craft the final measure that will protect and enhance the
quality of our Nation's water.
I commend you, Mr. Chairman, for chairing this hearing and I
commend Senators Baucus and Chafee for their leadership in this
area. I think together we can do a job that is very worthwhile.
Senator Graham. Thank you, Senator.
We'll have one more round of questions for Ms. Browner before
we move to the second panel.
Ms. Browner, in your opening statement, you alluded to the im-
portance of data collection. I share that feeling. If we are going to
try to take a performance-based approach, which watershed man-
agement entails, it is imperative that there be a capability of moni-
toring that performance.
Could you give us your comments as to where you think we are
today in terms of having adequate data collection systems in order
to support the decisions that will have to be made under an in-
creasingly performance-based management system?
Ms. Browner. Mr. Chairman, we recognize that we need to do a
better job. This is quite frankly an issue not just in terms of our
water program but an issue across the agency. We collect an awful
lot of information, we're required to collect a lot of information
within the agency. Frequently, when those original requirements
are established, the information is collected for one sort of specific
reason; over time, we recognize that there are many other uses
that can be made of that information.
We are seeking across the agency to make sure that we have an
integration of our data management systems so that we can under-
take the analysis that we believe is appropriate for the Federal en-
vironmental agency in this country to be doing in order to provide
the policymakers, the Congress, with this sort of information.
The process that had begun in the agency had been estimated at
full funding to take about 3 years. We are still dealing with some
funding issues but we are moving forward within existing resources
to do what we can. I think we will also need to look at how we re-
quire information, what is the information that we require, and to
perhaps broaden some definitions so that we get a wider variety of
information so that we can provide that analysis to the public and
to the Congress.
Senator Graham. I am pleased that you are focusing on the ne-
cessity to have in hand, to the best of our ability, what are the
questions you want to have answered before you proceed to collect
data. It has been my experience in a whole range of areas from
education to the environment that the tjrpical problem is not that
21
you don't have enough information, it's just irrelevant to the ques-
tion that you want to ask. So I strongly encourage you to continue
your commitment to shaping what are the management issues that
decisionmakers at the Federal level, as well as States and commu-
nities, will need better data with which to make improved judg-
ments and then develop the data systems that will facilitate sup-
porting those management structures.
You discussed in your statement, Ms. Browner, the strategy of
pollution prevention. This has been a major focus in other areas of
national environmental concern, particularly in the Clean Air Act.
What are some initiatives that you think we could help enhance
through the reauthorization of the Clean Water Act that would fa-
cilitate the reduction of pollution?
Ms. Browner. I think again we need to make sure that we, first
of all, put in place every incentive we can to encourage people to
move in the direction of pollution prevention and to avoid uninten-
tional disincentives. As we look at the very pressing problem of pol-
luted runoff, pollution prevention will offer us some real opportuni-
ties in terms of creative ways of addressing the nonpoint pollu-
tion— the agricultural, urban and other runoff— and actually pre-
venting the pollution from occurring in the first place.
I thmk that the effluent guidelines will also provide us with an
opportunity to incorporate pollution prevention goals and pollution
prevention techniques, if you will, into the work that we do under
the Act.
One of the other things we could do, and there has not been as
much of this in the Clean Water Act, is require facilities to actual-
ly incorporate pollution prevention into their planning. There is
some of that in some of our other statutes, but it's not really in the
Clean Water Act. Perhaps we should look at how we could
strengthen it to say to facilities, you have to actually think about
this, you have to develop plans for pollution prevention.
I want to be clear, it may be in the draft that has been put for-
ward and if it is, we applaud the work on that.
Senator Graham. We're celebrating the first anniversary of the
1992 Rio Conference. One of the areas of emphasis there was pre-
vention pollution. It was stated that the Ehiropeans had developed
both a philosophy and some technolc^es that had reduced the
amount of their pollutant discharges, both air and water.
Are there some lessons that we might learn fi*om what other in-
dustrialized societies have already implemented that would contrib-
ute to our ability to prevent water pollution?
Ms. Browner. There do appear to be some lessons that we can
learn, particularly from some of the European countries who have
moved out in terms of some pollution prevention activities. We do
seek to work with other countries in terms of understanding tech-
nologies and sharing those sorts of things.
It may be appropriate for us to look at some of these activities
and see if they can be incorporated into some of our guidelines to
industries and municipalities so that they could also seek to imple-
ment them here.
Senator Graham. Thank you, Ms. Browner.
Senator Chafee?
Senator Chafee. Thank you, Mr. Chairman.
22
The Baucus-Chafee bill we've introduced requires EPA to publish
a list of pollutants that are highly toxic and that bioaccumulate in
the food chain. After you list these pollutants, you mean to ban
their discharge from all sources.
Let's take mercury. Thirty percent of the mercury in our waters
comes from the burning of coal. How are you going to tackle that
one? We say in the bill it is bioaccumulated and highly toxic.
Ms. Browner. Senator, in looking at the bill, we feel, as I said in
my opening statement, it is a very good bill and a very strong bill.
We would like to continue to work on the toxics section with the
Committee and the Subcommittee staff. I made reference to it in
my opening statement, we certainly recognize the continuing need
to address toxics in our waterways in terms of how we can do that
as an agency within our resources. That is a question for us and we
would like to continue those discussions with the committee.
Senator Chafee. When you testified before us at your confirma-
tion, you said you wanted to get away from this business of every-
body suing EPA, but one of the problems we find, and your prede-
cessor talked about this, was the shortage of personnel. He told us,
and I can only assume that it's accurate, that there's been no
growth in the number of people in EPA in the Water Program
during the whole Bush Administration.
So if we're going to start out with a whole new series of pro-
grams and if we take the pollution or nonpoint source situations
we were just discussing, how are we going to support these? Are we
going to resort to fees or how are we going to do it? I think one of
the things you can do for us is to tell us the requirements you are
not going to be able to meet.
It seems to me also there's a series of deadlines that are mandat-
ed deadlines in the bill. If you can tell us where you think you
can't meet those because of lack of resources or lack of innovation,
that would be very helpful. I would assume you could send that list
up to us?
Ms. Browner. Absolutely, Senator. We are in the process right
now of costing out the resources we would have to bring to bear
and looking at the very specific issue of the deadlines. We will give
you our best analysis as soon as that is available.
Senator Chafee. There may be some fees that we can charge.
Ms. Browner. I think that the States very much appreciate the
idea of sort of a backup, if you will, in terms of some of the permit
fees. NPDES may be a good example where the States would prob-
ably like to see some Federal pressure put on them to put in place
a fee structure so that they have adequate resources to actually
manage the program. I think a lot of States actually like the fact
that there is a Federal framework for establishing fees; it has given
them something to work within in their State legislatures. That is
probably something that is appropriate to look at in terms of some
of the permitting activities, particularly with respect to the States
under the Clean Water Act.
Senator Chafee. Thank you, Mr. Chairman.
Senator Graham. Thank you. Senator.
Senator Lieberman?
Senator Lieberman. Just a few questions related to biological
and physical integrity of the Nation's waters.
23
As you know, the panel of scientists we're going to hear from in
the next panel issued a report that suggests that we've neglected to
address the biological and physical integrity of the Nation's water
with the same zeal that we've addressed chemical integrity. Would
you agree with that?
Ms. Browner. I think that we have a much greater understand-
ing today than we did 20 years ago of the need to protect the bio-
logical integrity of our water. Our focus in the passage of the Clean
Water Act was on the chemical integrity, on the sewage and things
like that. What we understand now is that we've got to address all
of these components if we are going to have healthy, viable, usable
water resources in this country.
Senator Lieberman. I was happy to learn recently that you've
been meeting with the heads of other departments and agencies
that are responsible for stewardship of our natural resources. I
wondered whether there's been any discussion about how to in-
volve some of those departments like Interior or Energy and
NOAA, and perhaps even the Corps of Engineers more directly in
ecological restoration activities that would have the effect of restor-
ing some of the biological integrity of our Nation's waters?
Ms. Browner. Senator, you're exactly right. At a variety of
levels, there are discussions that have been going on with the
heads of the departments and agencies, the deputies and on down
to the various staff levels. We have had some very good conversa-
tions with Interior and NOAA specifically in terms of thinking
about how we can address some of the biological concerns.
In fact, one of the things we are working on right now across the
three agencies is the whole question of information collection, anal-
ysis, and mapping. The biological mapping and ecological mapping
program has been ongoing for some time we are tr5dng to deter-
mine, what each of us can do and how we can bring that together.
There is an Interagency Working Group that is focusing on these
issues across all the agencies that is incredibly enthusiastic and
has really been a forum for raising these things and seeing what
we can do both in terms of our existing activities and in terms of
the reauthorization.
Senator Lieberman. That's good news, good to hear.
Last Sunday's New York Times ran a story about the devastation
of the Chesapeake Bay oyster industry. There was a series of facts
quoted there. I've heard them before but they startle me every
time I hear them about the functional value of the Chesapeake
oyster.
Apparently, 100 years ago, the oysters filtered the volume of
water equal to that of the entire 18 trillion gallon Bay once a week.
Today, it takes the remaining oysters a year to perform that same
function.
My question is, as we look for assistance from all quarters in
cleaning up our Nation's waters, should we be doing something
more to protect the living organisms which naturally improve
water quality?
Ms. Browner. I absolutely think so. I'm sure the scientists can
address this much better than I but there are lots of natural orga-
nisms that when in proper balance, do act almost as a kidney for
nature. When they are in healthy water bodies, they can perform
24
and provide this function and when they are in unhealthy water
bodies, they can't. You even have areas Uke the San Francisco Bay,
which I guess 100 years ago had a very healthy oyster population
but where today I don't think you can even eat the oysters and
crabs there. The oyster population out there has been experiencing
some problems. It is an indication that the system to is starting to
fail. We need to take those indications seriously. Those little crit-
ters can do an awful lot of good.
Senator Lieberman. Is there something we should be doing for
those little critters or as we clean up the water, do we naturally
help them and then they help us in return?
Ms. Browner. As with all water issues, when it comes to assist-
ance it is a combination of water quantity and quality. We have to,
in our nonpoint source discussions, in our watershed protection dis-
cussions, recognize that both of those components must come to-
gether in a way to provide ecological balance that is so necessary to
protect those sorts of animals and those sorts of systems.
Senator Lieberman. Thank you, Mr. Chairman.
Senator Graham. Thank you very much. Senator.
Ms. Browner, thank you for your extremely helpful testimony
today. We will look forward to hearing from you on a regular basis
as we proceed through this process.
Ms. Browner. Thank you, Mr. Chairman.
Senator Graham. Will members of the second panel please come
forward?
I'd like to welcome the members of the second panel to our hear-
ing this morning. I will briefly introduce the members of the panel
and ask if they will proceed in the order in which they are intro-
duced.
Dr. Bill Cooper is with the Institute for Environmental Toxicol-
ogy at the Michigan State University. He heads the panel of scien-
tists asked by EPA in 1991 to review the Clean Water Act and
make recommendations. I might say. Dr. Cooper, that we have had
an opportunity to review your report and find it an excellent con-
tribution to our deliberations.
We also have Dr. Robert J. Huggett, Professor of Marine Sci-
ences at the College of William & Mary. He is a member of the
panel of scientists.
The third member of the panel is Mr. Robert Conway, an envi-
ronmental engineer for Union Carbide Corporation.
The final member of the panel is Dr. James Karr, Director of the
Institute for Environmental Studies at the University of Washing-
ton.
I would like to make this discussion today as informal as possi-
ble. Some logistical problems for the round table discussion I had
envisioned make that not feasible, but I would like to maintain a
level of informality and particularly encourage the panelists to
engage each other. I have found a greater degree of \yisdom is
shared when you have people who actually know something about
the topic engaging each other as well as those of us who are mem-
bers of this committee asking questions. I would encourage that
degree of free-flowing discussion after we have received your initial
statements.
Dr. Cooper?
25
STATEMENT OF WILLIAM COOPER, INSTITUTE FOR
ENVIRONMENTAL TOXICOLOGY, MICHIGAN STATE UNIVERSITY
Mr. Cooper. Thank you, Senator.
In the spirit of keeping it short and in the spirit of looking at a
big issue, let me just kind of hit some of the highlights of the obser-
vations the scientific group put in the report. Some of them were
obviously touched on by you folks today and maybe we can embel-
lish upon them.
In terms of the goals, what are you trying to do, the whole con-
cept of intergenerational equity, making decisions today about eco-
nomic growth, land use decisions, so that your grandkids also have
some choices. The same thing we put in the report for Bill Reilly,
that it's not a matter of jobs versus environmental quality. If you
don't invest in a higher quality environment, you can't maintain a
sustainable economy or a sustainable level of public health. So we
don't perceive these things as competitive, they are complimentary.
In terms of the kind of historical aspects of the approach to clean
water, I think all of us agree that we've made a tremendous
amount of progress in the last 20 years. The original Clean Water
Act was mostly command and control, end of the pipe, come up
with technology, slap on a number and regulate it. We did end of
the pipe control because it was efficient, it was cheap and you
could enforce it.
I guess after 20 years, you look at it and ask, was it enough? You
look at your environment in terms of its quality, in terms of its bio-
diversity, in terms of its assets, in some places, it's not, in many
places, it's not quite enough, so then you get into areas like non-
point source and the other kinds of more difficult implementation
phases in terms of regulating discharge.
I think one of the big issues is multimedia. Historically, in the
1970's, most of our environmental legislation was media specific,
Clean Air Act, Clean Water Act, TSCA, FIFRA and that kind of
stuff. Basically, what we see today is most of the toxicants that
bother us in terms of ecologists are moving between media. A good
portion of the toxicants in the Great Lakes, where I'm from, are
not coming from point sources and they are not coming from
groundwater, they are coming from atmospheric discharge. Eighty-
five percent of the mercury that's coming into the Great Lakes is
coming from the atmosphere. That's true of PCBs, dioxins and
DDT.
The Clean Air Act actually, for the first time, does have some
multimedia responsibilities. I think it's very important that the
Clean Water Act match that in terms of its recognition to what the
transport and fate of chemicals are in the environment.
When we talk about persistent toxicants, I think you've got to be
real careful. The problem was we talked about compounds, nonde-
gradation, zero discharge, banning products that are persistent.
That was all right when you could measure things in milligrams.
As my chemist friend will tell you, zero no longer exists and I'm
very concerned when you go out and make promises you can't
match.
When it comes to mercury, for instance, we just finished our
mercury budget in Michigan; 50 percent of it is anthropogenic and
26
50 percent of it is natural mercury cycling out there where you
can't stop. The 50 percent of it that is anthropogenic, half of it is
coal and half of it is incinerators.
Senator Chafee. What is that word?
Mr. Cooper. Anthropogenic means it is human-based, you guys
generate it.
The point is mercury is a very volatile compound, it cycles on its
own. So you've got to be careful you don't promise somebody that
you're going to ban mercury from aquatic food chains because you
can't do it. You could ban the human component maybe but in
Michigan right now, if we did those calculations, that would only
reduce the mercury by 10 percent and 90 percent of it is coming
from out of State.
You've got to get some reality in terms of what you can physical-
ly do. You might have it as a goal but I think you've got to recog-
nize the fact that it there are limits to what you can crank down.
Most of the persistent compounds can be regulated just by banning
them, just outright stop producing them. That's all right for PCBs,
that's all right for persistent pesticides. When it comes to things
like dioxins that are formed by bleaching and by fire, or mercury
which is natural, you've got to be real careful that you recognize
the fact that you can minimize the amounts fluctuating out there
but real careful you don't promise people you can ban theni.
When it comes to, for instance, nonpoint source, it's obvious now
that we've cleaned up a lot of the big point sources, we look out
there and the nonpoint source is the biggest single mass loading
that is left. They come in many forms. Most of the approaches in
the States have been for voluntary, best management practices —
agricultural, forestry, highways, whatever it is going to be.
I don't think the problem is planning for that. Most States have
a pretty good idea in their own ecosystems as to how you can ap-
proach nonpoint source. I think the problem is implementation.
How do you get the clout in a voluntary program? You do it saying
if you're in agriculture, you can't get accessibility to subsidies,
you're not eligible for Federal subsidies. If it's in forestry, maybe
you couldn't be eligible to cut timber on State and Federal forests
if you don't cooperate. The mafia a long time ago learned that
bribes worked better than penalties. The idea is coming up with
some ingenuous way to make it in their best interest to cooperate
if it's going to be a volunteer program. It's that kind of level of
debate we're having right now in terms of nonpoint source.
Senator Chafee. That's an unhappy analogy, I think.
[Laughter.]
Mr. Cooper. Well, the Senator asked us to be blunt.
Basically, when it comes to watershed management, one of the
recommendations in the report is that you rename the Clean
Water Act to the Watershed Management Act because that's what
we are doing. You can't manage the chemicals once they are in the
water. It's like pollution prevention; watershed management is an
analog to pollution prevention. It's far more cost effective to do in
the watershed than it is once it hits the sediments of the Great
Lakes. That involves again a great degree of different ways of
thinking.
27
You can take a watershed and for instance, put a total mass load
as your end point, and a certain total amount of material that can
be processed with some kind of sustainability. How do you allocate
the access to that processing capability, that free good? You could
do it essentially with best management practices and agriculture
you could do it with the European approach that you talked about'
the life cycle analysis, go to the best production process and do best
production processes and allocate the various access on a water-
shed basis — quite different from what we are doing today which is
mostly concentration-based discharges.
That gives the watershed some choice and flexibility as to what
mix of industry are they welcome to accept based on how they can
trade off, those kind of internal versus external kinds of controls.
When we talk about environmental data collection, there's no
question there's all kinds of data being collected on the environ-
ment nowadays. Most of the States rely on the Federal Govern-
ment to come up with the databases.
One of the things that happens when you cut out the data acqui-
sition systems and we lose our monitoring programs, most of the
enforcement is at the State level but most of the monitoring is at
the Federal level. Again, you monitor for three different reasons.
You can monitor for regulations, which means compliance to your
discharge permits and usually that's chemicals. You can monitor in
terms of long-term trends. The Administrators of EPA for years
have stood up and said to Congress, I think EPA is doing a good job
but I can't prove it to anybody. There are no long-term databases
to show are you over regulating, under regulating or right on
target.
For that kind of trend analysis, you need biological indicators as
well. If your purpose is to protect the integrity of the ecosystems,
you can't just look at the water chemistry, you've got to look at the
biocriteria, the various kinds of populations and community param-
eters that indicate you are in fact protecting the biological re-
source. It's a different set of data in many cases.
The other thing you regulate or get numbers for is damage as-
sessment when you want to go to court and sue somebody for dam-
ages. In most cases, that is specifically biological kinds of data but
usually things that have economic interests. The dollar value of an
oyster, you don't worry about a marine algae usually. So there is
different kinds of data depending on what datasets you want to col-
lect.
In terms of the habitat and biodiversity, the components in our
report that are nonchemical, if you ask ecologists what are the big-
gest threats to the integrity of our aquatic fauna and flora in this
country, it's not chemicals, it's habitat destruction and the intro-
duction of exotic species. That's not human health, that's ecological
risks.
Part of the reason they want it emphasized is because some of
the original goals were looking at human health and weren't look-
ing at ecology. There was a very different set of factors you look at
in terms of integrity of aquatic ecosystems.
I guess the last thing I'd say, then I'll be quiet, is the whole con-
cept of quantity and quality. If you look at habitat destruction, a
lot of it is not necessarily the quality of the water, it's the quantity
28
of the water and the way it's treated in terms of riparian vegetari-
an where the cattle tromp down the banks, where you have peak
flows downstream from hydroelectric plants, where you're fluctuat-
ing the water levels, a lot of damage is done by quantities and fluc-
tuating levels of quantities as much as necessarily quality.
With that, I'll stop.
Senator Chafee. Mr. Chairman, regrettably there is a vote and
unfortunately I have to go over for the early part of this vote. I
don't know what your plans are.
Mr. Cooper, we had a history professor like you who spoke so fast
they said if you dropped a pencil, you missed two centuries.
[Laughter.]
Senator Graham. He must have started very early in history in
order to fill up a full semester, if he moved at that speed.
[Laughter.]
Senator Graham. Since this vote has just started, Senator Chafee
if you would like to ask any questions of Dr. Cooper, we would take
those questions. Then we will take a pause to vote and return and
pick up with Dr. Huggett as the next presenter. I apologize for this
interruption.
Senator Chafee. I definitely will come back. I don't have any
questions. I think it was very interesting. What he said is, as we
were mentioning before, a lot of this pollution is atmospheric, it's
not from point discharges. We've got some big decisions to make if
we're going to ban burning of coal, for example.
Senator Graham. We will recess until we return from this vote.
[Recess.]
Senator Graham. The meeting will reconvene.
Dr. Robert Huggett?
STATEMENT OF ROBERT HUGGETT, COLLEGE OF WILLIAM AND
MARY, VIRGINIA INSTITUTE OF MARINE SCIENCES
Mr. Huggett. Thank you, Senator.
Mr. Chairman, I was a member of the panel in Michigan that
wrote the report you have. I have also recently been involved with
the Water, Science and Technology Board of the National Research
Council.
We have been studying ways to more efficiently mana^ge waste
water in our coastal environment. All of that effort has just been
published and I believe your staff has a copy. It is entitled, "Man-
aging Waste Water in Coast Urban Areas." I would like to take
this opportunity to present a few of the findings of that study be-
cause I think they are pertinent to the reauthorization of the Clean
Water Act.
Finally, I would like to pick up on some of the things said by my
colleague. Bill Cooper, as well as some members of your committee.
More than a third of all Americans live along the coast in urban
areas. Every day we have 1400 wastewater treatment plants dis-
charging approximately 10 billion gallons of treated effluent. The
annual treatment cost alone is somewhere between $1.1 and $1.8
billion. We have another $11.3 billion gallons of treated industrial
wastewater and spent cooling water generated by approximately
1300 additional facilities.
29
In addition, nonpoint sources, which have been mentioned a
number of times here, including urban and agricultural runoff, at-
mospheric input and groundwater input are growing problems Pol-
lution can come from outside of the region and come not only, as
Bill said, from a watershed but can come from other States and
now we find even other countries.
We recently analyzed a coelecanth collected off the coast of
Madagascar in approximately 2,000 feet of water that had a very
high concentration of polychlorinated biphenyls. Obviously, the pol-
lutants didn't come from there.
There are other human activities that can affect the coastal
marine systems. For example, increased irrigation by farmers can
reduce the amount of fresh water flowing into our estuaries and
overfishing can alter the ecological balance in marine waters.
It was mentioned earlier that the oysters in the Chesapeake Bay
have diminished to the point that the volume of the Chesapeake
Bay is filtered now on the order of once a year where before at the
turn of the century and probably up through the 1950's, on the
order of once a week. Not many people realize the devastating
effect the loss of the oysters had, not just to the Chesapeake Bay
but all up and down the East Coast of the United States. My per-
sonal opinion is that it has probably been the most devastating
event or happening in the coastal waters of the United States in
the history of this country.
A single oyster can filter approximately 100 gallons of water a
day, filtering out particles between 2 and 18 microns with up to a
90 percent efficiency. If you can imagine these animals filtering the
largest estuary in the United States, the Chesapeake Bay, on the
order of once a week. When you disrupt or change the flow of par-
ticles in an estuarian system or freshwater system, for that matter,
you change or alter the flow of all the chemicals in that system.
Many of the toxic or hazardous chemicals are associated with parti-
cles. When they are not filtered out of the water column and
placed into the bottom of the system by its fecal material, the
system changes.
The increased turbidity of the water column, since it's not being
filtered, can block sunlight so it doesn't penetrate as deeply into
the water column thereby affecting the submerged aquatic vegeta-
tion.
I would submit that perhaps one of the best ways we could spend
some of our money may not be in upgrading sewage treatment
plants, but putting the oyster back in the water to filter as it once
did.
Our current wastewater and stormwater management policies
are rooted, as mentioned, in the 1972 amendments to the Federal
Water Pollution Control Act, reauthorized in 1977 and 1987 as the
Clean Water Act. The 1972 legislation asserted authority over the
quality of navigable waters such as rivers, lakes and coastal
waters, required establishment of uniform minimum standards for
municipal and industrial wastewater treatment, set strict deadlines
for compliance, and provided Federal funds to help pay for newly
acquired projects.
Under the statute, efforts to protect coastal water quality have
focused mainly on regulating city sewer systems and other single
30
point sources of pollution such as industrial plants. This approach
has been effective, there is no doubt about that. There is no ques-
tion the Clean Water Act has produced great benefits for this coun-
try.
However, the law's uniform requirements have not allowed a
process that adequately addresses regional variations in environ-
mental systems around the country or that responds to changing
needs or improved science and technology. To more efficiently pro-
tect coastal waters from pollution, the Nation must begin moving
on a more flexible, Integrated Management Approach that takes
into account the full range of factors that affect coastal pollution
and the efforts to control it.
This recently released report calls upon the use of Integrated
Coastal Management. It says that "ICM, Integrated Coastal Man-
agement, aims to protect coastal ecosystems while recognizing the
importance of human activities such as boating or commercial fish-
ing."
Under the approach, the Federal role in integrated coastal man-
agement shifts from proscriptive mandates. For instance, now you
must have secondary treatment, there is no other alternative basi-
cally. It shifts from that proscriptive-mandated approach to a part-
nership with regional authorities in developing a management
system that meets the coastal quality objectives. The authors of
ICM suggest several modifications to the Clean Water Act and the
Coastal Zone Management Act, including establishment of the Na-
tional Coastal Quality Program as a supplement to the National
Estuary Program.
The study identifies several key issues that planners and legisla-
tors must consider when thinking about wastewater management.
Many of these issues are not effectively addressed by the current
clean water strategies and point to a need for an integration of
function among the agencies, including those that are concerned
with stormwater and wastewater and runoff, wastewater agencies
themselves and agricultural agencies.
For instance, treatment levels, the cost and complexity of treat-
ment are a major factor that vary greatly from area to area. Re-
gional, environmental and health concerns also vary. Wastewater
treatment levels and related management concerns need to be
guided by water quality concerns rather than by technology-based
regulation. By that, we mean that one should look at all of the
sources of material within a given water body, be it a watershed or
an ecosystem, and decide how best to regulate them. Perhaps sec-
ondary treatment is not the best way. There are some areas that
have enough receiving water that secondary treatment is probably
not required. There are areas where the receiving waters are very
limited wand more than secondary treatment is necessary. It needs
to be done on a case-by-case basis but the ultimate selection should
be based on water quality, sediment quality or biological quality.
Relative to excess nutrient enrichment, we find that nitrogen
and phosphorus from both point and nonpoint sources can deplete
dissolved oxygen resulting in fish kills, ALGAE blooms and other
environmental problems. Secondary treatment of water, however,
as prescribed by the existing Clean Water Act, does not remove sig-
nificant amounts of nitrogen.
31
It has already been mentioned that source control or pollution
prevention is a very, very important factor to consider and I won't
expand on that here.
I think that it is important to realize that the way we are now
managing our coastal environment is by command and control. We
can move beyond that. We have the scientific technical capability
to now perform risk assessments and relative risk assessments so
that we can decide scientifically and technically where the best
place to spend our money might be and how to do it.
I recommend highly that as you work on reauthorization of the
Clean Water Act that you allow risk-based management to be an
integral part.
Thank you.
Senator Graham. Thank you very much, Doctor.
Mr. Richard Conway?
STATEMENT OF RICHARD CONWAY, SENIOR CORPORATE
FELLOW, UNION CARBIDE CORPORATION
Mr. Conway. Mr. Chairman, I also was involved in the Michigan
forum and the National Academy of Sciences study of urban coast-
al discharges and the EPA Science Advisory Board's study of reduc-
ing risks. I testified before this body on the 1972 Act and I'm
pleased to be asked to return.
The Clean Water Act has resulted in major reductions in indus-
trial discharges; receiving water quality has improved and that
should continue. For example, since 1987, Union Carbide has re-
duced its water discharge of known and suspected carcinogens by
90 percent. The BAT standards are just being included in the re-
newed permits, so improvements are going to continue.
I am in accord with the four consensus studies I cite in my testi-
mony by scientific groups that the existing Clean Water Act will
adequately control industrial point source discharges. Ratcheting
down point source discharges beyond what is already scheduled
would impose severe economic penalties with little benefit.
As Congress looks forward to reauthorizing the Clean Water Act,
it should take a risk-based approach to determine the appropriate
focus. Specifically, it should include four points: flexibility, physical
loss of habitat, peer review, and preservation of combined treat-
ment.
First, flexibility through alternative compliance mechanisms
should be provided where overall risk at a site can be reduced by
an alternative approach. The examples I've cited in the testimony
include a stabilization pond at our Seadrift, Texas plant and a pol-
lution prevention project at our Taft, Louisiana plant. These will
reduce total environmental releases but don't quite meet the efflu-
ent guidelines in terms of suspended solids. So under the present
law, we'd be forced to use higher risk alternatives, i.e. higher total
releases. Some flexibility is needed to correct this problem.
Second, the areas of greatest risk should be addressed. I agree
with the previous speakers that physical alteration of aquatic habi-
tat is the greatest risk to be addressed.
Third, if additional materials our to be regulated, the proposed
requirements should be subject to public comment and peer review.
32
This was not done in the present Act. It is necessary to have this
review by qualified scientists.
Fourth, the combined treatment of domestic and industrial
wastewater should not be curtailed as suggested by some, but
rather controlled by pretreatment standards both nationally and
locally. This approach offers treatability, accessibility and economic
advantages.
In conclusion, the Clean Water Act does adequately address in-
dustrial effluent quality but not the remaining high risks like
physical loss of habitat. The reauthorization should include alter-
native compliance mechanisms considering total releases, peer
review of any material that is to be regulated, and continued reli-
ance on pretreatment standards to control combined treatment of
industrial and domestic wastewater.
I thank the committee for allowing me to testify.
Senator Graham. Thank you very much, Mr. Conway.
Dr. James Karr?
STATEMENT OF JAMES KARR, INSTITUTE FOR ENVIRONMENTAL
STUDIES, UNIVERSITY OF WASHINGTON
Mr. Karr. Thank you, Mr. Chairman, for inviting me to appear
before this committee to comment on the chemical, physical, and
biological health of the waters in the United States and whether
and to what extent the Clean Water Act has achieved its goals.
Abundant evidence indicates that the quality of water resources
is being degraded and the supply of fresh water is being depleted.
Degradation continues, I would argue, because we have implement-
ed the Clean Water Act as if crystal clear, distilled water running
down concrete conduits was the goal of the Act. Although the man-
date was to restore and maintain the physical, chemical, and bio-
logical integrity of the Nation's waters, its implementation has con-
centrated on two issues, effectiveness of wastewater treatment
technology to control point sources and human cancer risks. The
dominance of these two issues has prevented program managers,
political leaders and the public at large from tracking the actual
condition of water resources.
In drafting a solution, we must keep in mind the admonition
from Albert Einstein that goes something like, "You cannot solve a
problem by applying the conceptual framework that created it." To
change the conceptual framework, we need to shift the societal
focus from water quality to a broader concept, the ecological health
of the water resource system.
Another shift involves the use of the word "pollution." Pollution
is usually assumed to mean chemical contamination, but human
influences on water resources are broader than chemical contami-
nation, as already stated by a number of people today.
Humans may degrade or pollute by withdrawing water for irriga-
tion, by overharvesting fish populations, or by introducing exotic
species or chemical contaminants. We need a framework that goes
beyond faith in chemical criteria and technological solution, a
framework that addresses all of these influences.
Using chemical criteria, USEPA acknowledges that water re-
sources throughout the United States are significantly degraded.
33
More than one-third of river miles assessed do not fully meet their
designated uses, more than half the assessed lakes, but EPA under-
estimates the magnitude of the problem because their analyses are
based on chemical rather than biological criteria.
Under Section 805(b) of the Clean Water Act, States are required
to report the status of water resources within their boundaries
When those status reports include biological evaluations, they show
that conventional chemical criteria fail to recognize 50 percent of
the degradation that actually exists. That conclusion is reinforced
when one examines the biotas of fresh waters and near coastal en-
vironments. Threatened and endangered species, fish consumption
advisories in over 40 States each year and declines in commercial
fish harvests that run 80 to 100 percent degradation, disappearance
of that resource, during this century indicate that the degraded
condition of our resources is far more severe than is reflected in
the conventional analyses using chemical criteria.
How would we respond as a society if our agricultural productivi-
ty declined by more than 80 percent in any agricultural sector?
How can we continue to ignore declines of that magnitude in water
resources that are essential to the economic and ecological health
of human society? Put simply, our dependence on technology-based
standards and chemical criteria has failed to protect the quality of
our water resources.
Two important advances in the past decade are key to protection
of those resources. First is development of a broader conceptusd
perspective to protect the health of the entire resource system from
a diverse array of human influences not just chemical contamina-
tion, and the second is the use of biological evaluations to protect
the quality of water resources.
The classic arguments against the use of biological monitoring
are of little importance relative to the benefits to resource protec-
tion that result from their use. Recent studies show that biological
monitoring is cost effective, broadly based ecologically, flexible for
special needs, sensitive to a broad range of degradation, and easy to
relate to the general public.
Three major issues are critical, in my view, to reauthorization of
the Clean Water Act. First, the phrase "water quality" should be
replaced by a broader concept such as protection of the ecological
health of water resource systems. That really, I submit, was the
goal of Senator Muskie in 1972. We have not come close to even
addressing that issue, let alone accomplishing it.
Second, ambient biological monitoring should be central to as-
sessing the quality of the Nation's water resources. All environ-
mental legislation is grounded in biology, not chemistry, physics or
mathematics. It reflects society's biological goals. The objective of
ecological health is a biological objective and thus, biological eval-
uations are critical to all water resource assessments.
"Third, we have to evaluate the actual results of management and
protection programs. For decades, we have operated water quality
programs as if the relationship between societal action and re-
source condition were known. In fact, our policies are untested hy-
potheses that continue to result in resource degradation.
In conclusion, reduction in ecological risk should be a central
component of the reauthorization of the Clean Water Act because
34
healthy, ecological systems are the foundation of a healthy econo-
my and society. Society would not tolerate an approach that de-
fined the medical technology to be used rather than £in appropriate
health end point. The time is right for using the same wisdom to
protect the ecological health of water resources by explicitly defin-
ing and protecting ecological end points.
Thank you very much.
Senator Graham. Thank you very much, Dr. Karr and the other
members of the panel.
I apologize, we have another vote that is underway. Senator
Chafee and I will both return as soon as we've completed our demo-
cratic duty.
[Recess.]
Senator Graham. Call the meeting to order.
Senator Chafee will be joining us shortly.
I'd like to start with the same question that I asked Ms. Browner
and that is I stated in my opening statement what the purpose was
of this Act and what the rationale of the Federal participation was
in the Nation's water cleanup in 1972. Many things have changes
since 1972.
Several of you have talked about a new, less command and con-
trol or proscriptive role for the Federal Government and more one
of partnership. I'd like to ask if those of you who would care to do
so would elaborate on what you think the rationale and the charac-
teristics for a Federal role in water pollution avoidance or cleanup
is in 1993?
Mr. Cooper. I think in terms of the States looking at the part-
nership with the Federal Government, first of all, since many of
these things are, in fact, inter-State roles, you need some uniform
minimum standards that you must meet. Individual States could
have tougher standards like in the Great Lakes, they are much
more concerned about surface water than maybe some other States
are; there's tourism — fishing is the second largest industry in the
State — so uniformity at least in terms of minimum base lines.
I think the States need flexibility to find solutions to meet those
standards regionally and where watersheds are State-based. They
need the flexibility to use common sense which is very difficult to
put into law. Often common sense is only visible when you're actu-
ally living with it and doing it.
I think also you need the Federal Government as kind of a big
stick backup. Many of these command and control kinds of solu-
tions are going to require some degree of voluntary participation.
We aren't going to go out and license farmers; we're not going to
go out and license somebody with a chainsaw. You're going to have
to get them to comply with good common sense, best management
practices and it might well be that the Federal Government needs
to be there as kind of a bad cop to encourage, demand, whatever it
takes to get a certain amount of compliance.
Senator Graham. Anybody else?
Mr. HuGGETT. I agree with Dr. Cooper. I do think, however, that
the criteria and standards should be broadened not necessarily to
end-of-the-pipe or effluent standards or criteria, but rather to re-
ceiving water or water body standards or criteria. In other words,
assume that the health of the ecosystem would be preserved if the
35
dissolved oxygen were not below some amount then rather than try
to prescribe that every pipe has to have no more than such and
such, one might be able to reduce dissolved oxygen-consuming ma-
terial to some acceptable level by controlling non-point source
runoff rather than putting the burden on industry.
AUoAV the flexibility to determine, on a relative risk basis, which
source is presenting the most risks and then spend your money and
effort to reduce it.
Senator Graham. Yes, Mr. Conway?
Mr. Conway. I have two points. When you look at controlling
loss of terrestrial habitat and aquatic habitat, I think it's going to
take a multidepartmental kind of effort between the EPA. Interior
and NOAA.
My second point is regarding flexibility in the permit system. I
think some new means besides a series of numbers none of which
can exceeded even minimally needs to be introduced to allow these
permits be written on a total release basis and not just a bright
line kind of single number guideline.
Mr. Karr. I would make a couple of comments.
I think the most important step we can take is to establish a co-
operative and collaborative arrangement between Federal Govern-
ment and all of the appropriate agencies and the States with an
understanding of a common goal. I think again, as I said earlier, in
Albert Einstein's quote, we have to have a new conceptual frame-
work, we can't use the old conceptual framework to fix what is
broken.
By working with the States to define the broader goal with re-
spect to water resources, including in that the recognition that re-
gional variation in ecological systems is real, we then establish
rules and principles to meet general goals that are region specific. I
think it's very important.
We recognize in our educational system that all children are not
equally skilled at learning. We have to recognize that biological
systems, ecological systems are not equally capable of taking the
many punches that human societies direct at them. We have to be
more careful about deciding where and when they can be directed
without having the same standards of chemical criteria apply ev-
erywhere.
Senator Graham. If I could pick up on the comment that you
have made, that is the need to develop a new concept, could you
help me think through an intellectual framework for directing the
Federal effort and resources? That is, how do we tradeoff, if such a
tradeoff is necessary and it will be, the relative amount of Federal,
human and financial resources that we should devote toward non-
point pollution initiatives as opposed to combined sewer overflow
initiatives? Those are just two examples of activities which prob-
ably have a cost to remedy that is more than we are going to
commit to the entire Clean Water Act funding for the period of
this reauthorization.
How do we go about thinking through the problem of where our
efforts will have the greatest return in terms of the goal of main-
taining the biological integrity of our water systems?
Mr. Cooper. I'd like to comment on that.
36
Many of us were involved with the risk analysis exercise we did
for Bill Reilly on setting the relative risk analysis or the priorities
in terms of where do you get the biggest bang for your buck, reduc-
ing risk to ecology and human health that came out in 1991.
Since then, EPA has funded a number of States to do the same
thing. I just got done leading the one in Michigan. We did this kind
of State risk assessment analysis and there are about 25 States
now doing it but they are setting their own priorities — ^where do
you get the best tradeoff; is it CSOs; is it nonpoint source, and if so,
which watersheds. Some environments, as Jim (Karr) said, can
take a lot, and some can't. It's kind of a local sensitivity that one
gets.
The big problem is the flexibility because most of the monies in
the past have gone from the Federal Government to the State to
pay for these programs and has been almost like entitlements.
They go with a particular mandate, you must spend it on sewer
pipes, you must spend it on air, you must spend it on groundwater.
So on the one hand, you have a conduit for funneling monies to
help support these programs at the State level that are very in-
flexible, that are usually tied into a media or a commodity. At the
same time, you have the States doing what you're asking for, set-
ting their own site-specific priorities as to where they think the
biggest bang for the buck is and somehow you're going to have to
get that flexibility that you can reorient or redirect funds to where
the local needs are even though they come from a historical source,
the Federal Government. That's one I think everyone is going to
struggle with somewhat.
Senator Graham. So you would say direct the States to prepare
that kind of risk analysis and cost benefit and then have the Feder-
al funds with sufficient flexibility that they can flow into where
that State determined they would do the most good?
Mr. Cooper. In fact, they are doing that right now. The big prob-
lem is I think the tendency for people to want to over plan things.
A lot of States know what they've got to do and they want to get
on to implementation. I would urge that money doesn't go into
plans just to sit on the shelf but to go into programs that actually
get out and start solving problems known by us.
Mr. HuGGETT. I think in addition, in the relative risk arena, we
have to be very careful that it's not just a social exercise where ev-
erybody decides this is what we think is important, it has to get
scientific and technical input. I would dare say there are not too
many people in the Chesapeake Bay region, for example, that know
about the importance of the oyster. So I think you have to have a
very prescribed, good procedure that you have to go through. It
can't be just a roundtable discussion where one person says we
ought to do this and somebody else thinks we ought to do that.
Mr. Karr. I'd like to make a comment on that as well.
If there is one thing that I think would accomplish the goal that
we ought to be attacking, that is to move beyond thinking narrowly
about what pollution is. In the work that we've done in the last 20
years, we've identified five major ways that humans alter the qual-
ity of water resources and almost all of the energies over the past
20 years have been directed at resolving and dealing with only one
of those five ways.
37
Until we see that water resource in a larger context, evaluate
which ot the factors, not nonpoint versus point, but which of the
factors beyond chemical contamination that are degrading the
water resource, we will simply not accomplish our water resource
goals.
Senator Graham. Senator Chafee?
Senator Chafee. Thank you, Mr. Chairman.
As I understand what Dr. Cooper just said, and the rest of you
have reinforced is that the Federal Government provided money in
very substantial sums to waste treatment facilities and so there-
fore, the sewage that comes out of any municipality in the United
States now meets primary and secondary standards and has had
that treatment.
Furthermore, we have required industries on a technology-based
mandate that they reach certain standards of cleanliness for their
outflow and that has been expensive for industry.
What you are sa3dng, if I understand this correctly, is that you
should have what's known as risk-based decisions and you deter-
mine how great a risk is it to have this outflow from City X's
sewage treatment plant. Suppose it came out totally raw and that
treatment plant was going to get $16 million to be fixed up, what
you would say is, let's look and see in this watershed where that
$16 million could be most effectively spent and you might well find
that it isn't for the sewage treatment plant, this raw sewage
doesn't amount to a hill of beans out there, it's no problem.
Indeed, in Narragansett Bay, we've discovered that the raw
sewage causes our hardshell clams to grow strong and bigger — not
so much for eating but it certainly promotes growth.
[Laughter.]
Senator Chafee. Do I understand this correctly? Also, I'm not
sure that I understand this risk-based business because these are
incredibly complicated matters and for you to come along and say,
OK, we don't care what happens at Narragansett Bay with the out-
flow from the problem sewage plant, what we've really got to
tackle is all these septic systems.
Mr. HuGGETT. Senator, I think you're exactly right.
Senator Chafee. In my description?
Mr. Huggett. Yes, sir.
Senator Chafee. I'm not choosing sides here. I'm trying to see if
I understand what you're sajdng.
Mr. Huggett. Let me give you a firm example of what happened
last year. This is not specifically water but it is the same process.
The U.S. Environmental Protect Agency and the Amoco Oil Com-
pany had a joint project at the Amoco refinery on York River in
Virginia to catalog and characterize all of the emissions from its
facility and in doing so, to do a human health risk assessment
based on the admissions, i.e., how many people are at risk in the
area around the oil refinery from breathing benzoic emissions.
In doing so, they found that the major source or a major source,
it could have been the major but I'm not certain, was from an un-
regulated emission from the filling of barges with refined oil. When
they filled the barge, there are vapors of oil in the barge and as the
liquid gets higher, it forces the vapors out into the atmosphere —
totally unregulated.
38
At that time, EPA was I believe was requiring all refineries to
update their storm drains and so forth because of benzene emis-
sions. Benzene coming out of the storm drains was trivial compared
to the barge emissions. They were going to have to spend $41 mil-
lion to upgrade the storm drains whereby changing the nozzles on
the hoses to take care of the emissions from the barge, was I be-
lieve on the order of $4 to $7 million. They didn't have the extra $4
to $7 million in addition to the $41 million, so they had to spend
the $41 million on controlling a trivial amount of the emission
when they could have controlled much more. That's a relative risk-
b£ised approach. That's very simple to do.
Your example of Narragansett Bay and the leaking septic tanks,
that is also a relatively simple risk assessment to do. If you are
concerned with the harvest and consumption of hard clams in your
case, you would look at the area exposed by the leaking septic
tanks relative to the area exposed by the sewage treatment plant
and you could make the tradeoff.
Senator Chafee. This is the problem, we sit up here and dispense
the $2.4 billion for waste treatment plants and you come along and
say, don't do it that way, do it on a risk-based method. First of all,
that makes life very difficult, it's pretty clear we can come up with
some needs assessment. In Florida, for example, they've got a need
for $2 billion for treatment facilities based on the population and
so forth. Whereas, if you say, no, you're not going to go that direc-
tion, come and tell us what you need under this risk-based assess-
ment to figure out how you are going to take care of the swam-
plands, wetlands, and rivers and so forth. That makes life very dif-
ficult because Florida can come up with untold needs. With out-
standing Governors like they have had in past years who are in-
genuous, I can't help but believe that their list would be quite im-
pressive.
Also, this maybe is a dangerous game to play, isn't it, because
you say, well, what do we care, the sewage really isn't doing much
harm at Narragansett Bay, but you're dealing with these very,
very complex ecosystems and for you to say that it doesn't do any
harm, what we really ought to do is deal with the leaking septic
tanks, maybe the answer is we ought to deal with both of them.
Mr. HuGGETT. Quite possibly.
Mr. Cooper. Let me address that because we spend a lot of time
going around the country trying to convince people and talk to
people about what these relative risks mean. A lot of environmen-
tal groups didn't want it done at all. They said, all environmental
issues are important. If you rank them, the Government just cut
the budget on the bottom ones and laugh all the way to the bank.
They didn't want any part of it, they wanted to maintain that all
environmental issues are of Grade Al importance, that they all
must be fixed as soon as possible.
Our argument was, you don't have enough money in the Federal
Government; you can't print money fast enough to do all of them
simultaneously to zero risk. You're kidding yourself and if you
don't put some kind of a scientific-based priority setting in, the
lawyers will do it and they aren't constrained by any science. So it
might not be a precise science but at least it gets some kind of a
quantitative criteria for saying, if I can only do one or two of them
39
today, we've got to live with three or four and just cross our fin-
gers, which ones can you afford to put off and which ones you
can t. That s what it basically does.
It acknowledges the fact that you can't go out there and have an
affluent society and synthetic chemistry that's throw away and
risk free at the same time. Technically, you're kidding yourself A
certain amount of risk might just be a function of your affluence
the way we live. '
Senator Chafee. My time is up.
Senator Graham. I think that the questions that Senator Chafee
has been raising are very fundamental. They are a part of the new
conceptualization of what it is we are trying to accomplish in an
era of limited resources and I would hope that we would have an
opportunity either at another forum such as this or through some
exchange of correspondence to further extend this discussion of a
new risk-based concept.
Senator Chafee. Mr, Chairman, could I ask a couple more ques-
tions? I don't want to hold you up if you have to leave. I could
chair or do whatever you want.
Senator Graham. I am going to have to leave in about five min-
utes. I'd like to use my five minutes to move to a different subject
and that is the issue of pollution prevention, which is a phrase that
has a lot of appeal.
Where is the state-of-the-art being practiced in terms of the pre-
vention of water pollution? If you were to go to a city, a country,
an industry, to see the best practices in that area, where would you
go?
Mr. Conway. I'd like to comment about that. We have a plant in
Taft, Louisiana where we're faced with reducing our discharges, es-
pecially in terms of BOD and solids. We developed a solution at the
end of the pipe which cost $7 million, but the process people have
developed a pollution prevention project which cost $16 million but
recovers 40,000 pounds of product a day and cuts down on releases
into the air, but doesn't quite allow us to meet this bright line solid
discharge.
We're faced with building an additional treatment plant which
can meet this bright line effluent guideline and not through the
pollution prevention project which nearly meets this guideline,
plus reduces discharges into the air and to the land.
The companies are prepared to do pollution prevention projects,
but they need some modest flexibility by their permit writers to do
that.
Mr. Cooper. I'd like to comment on kind of a conceptual frame-
work of that. The whole life cycle analysis is being practiced right
now in Western Europe. It is actually required by the OECD; they
have a green logo labeling that if you go and do that analysis from
cradle to grave — ^you start with mining, cutting a tree, pumping oil
to get the plastic, the precursor to polyethylene sacs, cutting the
tree for paper sacs — you go all the way through until you recycle
it, dump it, incinerate it, and dispose it. You do total cost of the
cycle, maybe nine different industries involved. It has both private
and public components to it. You do total energy costs, water costs,
pollution costs, labor costs and what is the bottom line for this
product versus that product? It is a total systems cost accounting
40
where you calibrate different alternative production processes
based on the common units, environmental cost per unit per good
produced from cradle to grave.
It is something that is coming. There are some industries in this
country that are doing it. Canada is talking about having that kind
of green label, friendly consumer type. It's all based on these cradle
to grave kind of mass balances, what are the total costs in real,
consumable and nonconsumable goods.
In the long run, that's the way to go. It's very data intensive.
The cycle itself is not just one industry. One person does the
mining, some other company does the precursors, someone else
does the product, someone else sells it, someone else markets it,
someone else picks it up and incinerates it. So the information is
scattered but there is a real, good conceptual framework out there
to use if you want to start doing it.
Mr. Karr. Some call it industrial ecology. It's the application of
ecological principles and efficiency to the industrial process from
the beginning to the end of that process.
Senator Graham. I mentioned earlier that at the conference in
Rio last June, there was a lot of discussion about this from the Eu-
ropeans who indicated or at least gave the impression that they
thought they were ahead of the United States in the application of
these principles. Do you think that is true and if so, what could we
learn from the Europeans?
Mr. Cooper. My impression is it's true. That's where a lot of the
stuff has been developed. We've talked about it and they've done it.
They've actually got the labeling, they've got the legislation
through Brussels, the whole works.
In terms of does it work, I guess you've got to wait and see in the
sense that the ultimate test of if it will work is whether the con-
sumer will cast their ballot by how they spend their money in the
marketplace. If they're willing to spend a little bit more to buy
something that's environmentally safe, then the system works. I'm
not sure it has been out there long enough to really know whether
people talk green or whether they actually behave green. That will
be the bottom line.
Senator Graham. On the issue of giving States more flexibility
relative to the use of Federal funds so that they can apply it
against a broader range of potential activities. Senator Chafee has
talked about some of the practical political problems that raises.
Another is the fact that we allocate the Federal money now in
large part on an assessment of needs, the needs being defined as
requirements to bring wastewater treatment plants into compli-
ance.
If you are going to delink funding from wastewater treatment
plants and allow States to utilize their available funds against a
risk analysis of greatest cost benefit, what would you recommend
might be the criteria for the distribution of the Federal funds to
the States?
Mr. HuGGETT. First of all, I think you have to have some goal
established for the bodies to work. This is perhaps the cooperation
that Administrator Browner was talking about and some of us
have mentioned. You have to get all the players in the room, in-
41
eluding the scientists, and decide what do you want of this body of
water. Obviously, it can't be a sewer.
Senator Graham. Our problem is a more immediate problem
Currently, we have a law that says whatever Federal funds are
available are gomg to be allocated among the 50 States and partici-
patmg territories and the District of Columbia on a formula which
takes into account quantifiable items like what's it going to cost to
bring all the sewage treatment plants in the State of Michigan up
to an acceptable standard and as a percentage of the national uni-
verse of costs to achieve the same objective, what is Michigan? Is it
5 percent of what it's going to cost the Nation? Then we factor in
some population factors.
If you're going to go to a more flexible standard, what would be a
fair way to go about the process of allocating the Federal funds?
Mr. Cooper. I think Bob actually came close. If you give categori-
cal grants based on population, miles of river, square miles of sur-
face area, all the mechanical things, the problem is you come up
with a fixed kind of formula for allocating your scarce resources
without factoring in have you solved the problem.
We've been spending millions of dollars in the Great Lakes since
the 1940's. I keep arguing if you keep saying the Great Lakes are
dying, that means you wasted the first $100 million with no bene-
fits. If you don't see any further gain, you ought to get to a point
where enough is enough and you can allocate fewer funds to the
Great Lakes because you are on top of most of the problems and
spend it on the Chesapeake Bay or Narragansett Bay or the Gulf of
Mexico.
Obviously from a political point of view, you've probably got a lot
of people who don't want to hear that, but if some see a gain, if
you're doing a good job, you're mitigating or remediating the
sources, the systems ought to clear up to the point where you don't
need to continue to dump money at the same rate.
If I were doing it, I'd start with a goal of how clean is clean and
as you approach it, you get the squeal out of the pig and you can
put your money and energy somewhere else. My governor is not
going to like me to say that.
Senator Graham. Dr. Karr and then Mr. Conway.
Mr. Karr. The issue to me is not how clean is clean, but how
does society derive values from those water resources in a much
larger context. As long as we're asking the question, how do we
decide whether we should put it into more £md more secondary
treatment, we have missed the question, in my view. The question
is, what is the end point that we want in terms of the quality of
water resources? Then we ask the question is putting more money
into wastewater treatment plants the solution to that? I submit, of-
tentimes, it will not be. What we have to do is get a better process
to ask that first question, not be driven by chemical criteria and
technological applications.
Senator Graham. Yes, Mr. Conway?
Mr. Conway. Being an engineer, my comments are more quanti-
tative perhaps.
What I would do to set priorities is look at risk reduction, the
amount of risk reduction which the State can associate with these
requests and have the environmental economists dollarize these
42
risk reductions in some standard way which is agreed to by a group
of them.
Senator Graham. Gentlemen, I appreciate very much your par-
ticipation today. I regret that I'm going to have to leave. Senator
Chafee can stay and has further questions. If you would indulge us
further, we may have some written questions based on the testimo-
ny that you have given that we would like to submit for your fur-
ther response.
Again, thank you very much.
I might say, Dr. Cooper, my father was an alumnus of Michigan
State University and I am pleased to see the leadership which that
great institution is continuing to provide.
Senator Chafee. [Presiding] Thank you, Mr. Chairman.
Let me give you a hypothetical. You have a pristine stream, you
have a chemical company that's going to set up on the stream that
is going to discharge x amount into it that will cause 10 percent
degradation of the stream — acceptable, no problem.
Under the currently existing system that we have, which was
technology-based, we say you've got to eliminate or reduce the
waste that is coming out from Company A on this stream. That's
what we say now.
Under your system, as I understand it, you'd take a look at the
stream and say risk-based, no problem. For the illustration I'm
using here, let's assume that 10 percent causes no problem, no rec-
ognizable problem. Along comes chemical Company B, again emit-
ting just 10 percent of damage to the stream. You can obviously see
where my question is leading.
Let's say when you get to 50 percent, you get to damage where in
your risk assessment you can spot the damage, so plants A, B and
C and D with 40 percent are home free. Along comes plant E, who
is going to go over the hump, get it up to 50 percent. Now you
would say, you take a risk-based assessment and you say to plant
E, you've got to monitor your discharges, you've got to put in best
available technology because under our risk-based assessment you
are causing damage to the stream. You've gone over the hump. So
it goes for each of the successors.
Indeed, you might say this might be a synergistic effect here
where E just produces that final amount that causes terrific
damage, so that you say to E, you've really got to strap way, way
down because you're the people that have just pushed this thing
over the hump.
What do you say now?
Mr. Cooper. Dow Chemical, Midland, Michigan, the City of Mid-
land, Michigan had a nuclear plant they wanted to go on-line and
their emission zones all overlapped. The way we do it in Michigan
is if you're far enough downstream where the chemicals are de-
graded back to background so there is no overlap in the mixing
zones, they are independent assessments. If, in fact, those mixing
zones are going to overlap and in fact, they are adding to the
amount of chemical in the water itself, if you add that fifth individ-
ual, the other four have to back off first to make room for it or you
don't license to go on-line. That's an alternative strategy.
Senator Chafee. This is the thing that absolutely drives those
companies crazy. You've got a moving target, they say to us. We
43
came here, we built our plant on this lovely stream, you said it was
OK. We could have mvested money at a far lower rate at lower
cost at the tmie to take care of this and you said no problem Now
five years later, you're coming along and harassing us. I'm talking
Company A now.
Mr. Cooper. In the real case, since Midland, Michigan and Dow
Chemical wanted that nuclear plant because they were sharing the
steam, there was cogeneration, it was in their best interest to coop-
erate. If they don't, then that plant doesn't go on-line, period It
goes to some other stream. You can't just assume that economic de-
velopment can locate anywhere it wants irrespective of the density
that's already there.
Senator Chafee. It seems to me that what you've set up under
your suggestion — I'm not dropping this on you— but you're saying
to a plant that might locate in Pawtucket, Rhode Island on the
Blackstone River, you've got to meet all kinds of technology-based
standards; you've got to have the very best equipment, but if you
go down to Alabama where there is a perfectly lovely, clean
stream, go to it, pollute aU you want imtil you get up to that
threshold where the stream is being ruined.
Mr. Cooper. But see, it depends on the State. In my particular
State, we have four numbers. We have best available technology,
which is technology-driven; we have a himian health standard in
terms of drinking water; we have a human quality contact stand-
ard if you swim in it; and we have an ecological standard we get
from fish and zooplankton. Whichever the lower number is drives
the permit, the lower of the four numbers is the one that drives
the permit.
If the technology is there, it's economically viable, it's used by
your competitors, it's not way out in left field, you're going to put
that on just because it's available and it's cost effective.
Senator Chafee. I think that there is a lot in what you say, and
this has been stimulating. Maybe the solution is that you would
continue with our waste treatment grants, shave them down some
and give the States some money for totally discretionary expendi-
tures. The case you used, Dr. Huggett, of the barge where instead
of spending $41 million, if somebody spent $7 million, you'd do a lot
more for the cleanliness of the lakes and the waters.
I just want to ask you one question. Dr. Karr. I don't know what
biological monitoring means. I perhaps would use it sometime be-
cause it's a wonderful sounding word and I ought to incorporate it
in some of the speeches I give, but what exactly do you mean by
biological monitoring?
Mr. Karr. Ambient biological monitoring involves examing the
biota (fish, invertebrates, plants, and so on) of a water body. The
species composition, relative abundance, and health of individual
organisms measure local biological conditions and, thus hxmian-in-
duced degradation of streams, lakes, and estuaries.
Biological monitoring is an essential supplement to chemical
monitoring because it provides a more direct and accurate evalua-
tion of resource condition. Biological monitoring is going into the
field and asking about the quality of the environment that the or-
ganisms live in, the quality of the water resource system. Does it
support a high quality, biological community, say salmon in the
44
rivers of the Northwest or does it support nothing but sludge
worms and carp? Society would like to have biological communi-
ties, I submit, that are of high quality that produce harvestable
cport and commercial fish for clams, oysters and so forth.
We must monitor the biology of the river, like we sample blood
from humans. It tells the health of the human or it tells the health
of the watershed. The only direct way to determine the health of
the watershed in an integrated fashion is to ask the biology that
lives out there whether it is the way it ought to be or not. That's
what I mean by biological monitoring. It reflects a broad range of
biological conditions and attributes. It's a direct assessment of the
end point, the societal goal, that we have in terms of quality of
v/ater resources.
You can do this with fish, you can do it with invertebrates, you
can do it with algae. It's better to do it with all of them. Let me
give you an example. I was just involved in a case in an eastern
State where there were small package wastewater treatment
plants around a suburban environment. These were put in rather
than major sewage treatment systems because they are cheaper for
small, local housing areas.
They discovered that the outflow of some of these package treat-
ment plants violated chemical criteria. The city then proposed to
spend $13 million to put in a sewer collector system and a major
wastewater treatment plant. In doing that, they would have de-
stroyed all of the water resources in that area. They would have
completely destroyed the channels and the biology of the river.
By the use of biological monitoring, the State showed that this
activity would degrade the resource rather than improve it and
they stopped that project.
Senator Chafee. I think that's interesting.
Mr. Huggett, in the last part of your statement, you made the
following quote, which I hope you're right. You say, "Our ability to
manage wastewater in coastal areas has improved greatly over the
past decade because of advances in science and engineering."
I've been on this committee for 17 years and I'm not so sure that
I've seen the management of waste water greatly improved because
of advances in engineering.
Mr. Huggett. I would agree with you. I haven't seen it either. I
said the capability is there.
Senator Chafee. You're saying that we can do it but we don't?
Mr. Huggett. Yes, sir.
Senator Chafee. Which is kind of an indictment of our system.
I appreciate all of you coming. You've been very helpful and
stimulative. You're nice to help us out.
The hearing is adjourned.
[Whereupon, at 1:00 p.m., the subcommittee was recessed, to re-
convene at the call of the Chair.]
[Statements submitted for the record and the bill, S. 1114,
follow:]
TESTIMONY OF CAROL M. BROWNER, ADMINISTRATOR, ENVIRONMENTAL
PROTECTION AGENCY
Good morning, Mr. Chairman and Members of the Subcommittee. I am Carol
Browner, Administrator of the Environmental Protection Agency (EPA). Accompa-
45
n^g me this morning is Martha Prothro, Acting Assistant Administrator for
Water Thank you for mviting me to testify before you today. I look forward to ou^
Immg for you my vision for Qean Water Act reauthorization
Firet however, I would like to applaud the leadership demonstrated already by
** . . * . ™^t\*.^ ^^ \^^ *^ Committee as it undertakes to draft Clean Water
Act (Act or CWA) reauthorization legislation that I hope will be focused, effective
and realistic The task before us is a very difficult one, because although the Act is
fundamentally sound today's new challenges are more subtle and perhaps less read-
fe^®"f ^ifoA° ^^^^^^ legislative and regulatory solutions than those of the
1970s and 1980s. The CWA gives us broad and flexible authorities and is considered
by many experts to be one of the best federal environmental statutes. Nevertheless
we need new and innovative approaches to complement the existing array of suc-
cessful tools and programs we already have to protect human health and the envi-
ronment, and we need ways to promote the concept of pollution prevention through
Although I have not had the opportunity to review in detail the bill introduced by
Senators Baucus and Chafee, I believe it generally focuses upon the themes that
must be addressed. For example, I am very pleased to be advised by my staff that
the bill does acknowledge in part the importance of developing effective controls on
polluted runoff, which is the leading problem facing our Nation's waters today. In
my view, if we accomplish nothing more that this through reauthorization, we can
credit the legislation a success.
I also want to thank the Subcommittee and the full Committee for involving EPA
staff in your deliberations on the technical aspects of the development of this bill.
That spirit of cooperation shows that you not only value the expertise of EPA staff
and the support of the Administration in this legislative endeavor, but also that we
share the view that reauthorizing legislation must be focused, realistic and imple-
mentable.
The new Clean Water Act must focus effectively on the most important water pol-
lution problems to the extent they cannot be adequately addressed under current
law. Its mandates must also be realistic in light of the resources we can reasonably
expect to be available to federal. State and local governments and the private
sector. I am concerned that an attempt to enact comprehensive changes to the Act
may distract us from these paramount objectives and may divert scarce resources
away from our true priorities. I hope we share the goal of developing and ultimately
enacting legislation that strikes an appropriate balance between continuing to em-
phasize traditional water pollution controls and addr^sing the broader ecological
risks threatening the int^rity of our waters. We pledge to you that a realistic law
will be fully and enthusiastically implemented by EIPA. We continue to be willing to
help you embody these principles into law. I look forward to studying the Baucus/
Chafee bill in detail with these principles in mind. In the coming weeks, we wUl
work with you to help determine whether the provisions proposed wiU accomplish
their goals effectively and to help estimate the costs to government and society to
implement their specific mandates.
I would like to begin by commenting on the role of the federal government in reg-
ulating and funding to protect and enhance water quality. The federal Clean Water
Act, roughly in its current form, was deemed necessary in the early 1970s in part to
assure that individual States would not be economically disadvantaged by their ef-
forts to protect public health and ecological resources. It provided a level "pla3dng
field" by setting minimum technology-based requirements for pubUcly owned
wastewater treatment plants and industrial dischargers across the nation. It provid-
ed for scientific research and technical guidance on water quality to be developed at
a nationsd level because individual Stetes could not acquire or maintain the exper-
tise and abilities to do all this on their own. It recc^nized that Stetes and localities
should continue to be the primary implementers of water quality programs but that
there is also a strong national interest in public health and ecosystem protection
and, therefore, a need for federal support of these Stete pn^reims. Because the ben-
efits of pollution control often accrue mainly to those downstream, it also provided
for federal financial assistance to local communities facing significant costs for mu-
nicipal sewage treatment.
Out of this vision grew a partnership among local wastewater treatment authori-
ties, Stete water pollution control agencies, and the federal EPA. That partnership
remains strong and viable today. Over the coming weeks, you will undoubtedly hear
a lot about the areas of tension and fHction among the partners. A full airing of any
problems among partners is appropriate in the development of new l^islation.
After all, you may be able to address some of the sources of these problems during
reauthorization of the Act. But the partnership is still strong, still essential. The
46
partners have achieved a great deal together. By some estimates, we have reduced
water quality impairments by over 50%, even though economic growth has contin-
ued in the same period. The partners continue to work towards a common vision of
clean water for all our people's health, recreations and economic well-being. We
need to foster the partnership because without it we will surely fail.
One issue for all of us, of course, is how to measure our progress. The water qual-
ity program has been struggling with this issue from its earliest days. Our people
want clean water and healthy ecosystems, but what does this mean? How clean is
clean? We have counted the numbers of permits issued, the pounds of pollutants re-
moved from effluents through treatment, the numbers of enforcement actions, the
number of fish kills, shellfish bed closures, recorded exceedances of water quality
standards, dollars spent on pollution control, and on and on. All of this information
is helpful and meaningful at some level in judging our progress. But the overall suc-
cess of the national program. State programs and local programs must be judged
more wisely, more comprehensively than in the past. We need to develop indicators
of success based to the extent possible on environmental results, not just adminis-
trative actions. EPA is now working to achieve this for the water program and we
have reduced the administrative "beancounting" requirements previously imposed
on States in order to move towards a more meaningful measurement of progress in
achieving health and environmental goals. We will continue to work with States
and other federal agencies to improve our ability to judge success in a way that fos-
ters innovation on site-specific solutions.
FUNDING
As we work to address the remaining threats to our Nation's waters, we must also
recognize that new initiatives place a significant increased burden on State and fed-
eral water quality protection programs. Without adequate funding, State and local
water and wastewater programs will not be able to fulfill the mandates of the CWA
or meet the expectations of the public. Therefore, we need to be sure that adequate
resources are available — and available for the right purposes — in order to ensure
continued progress in protecting water quality.
In 1981, the federal government committed to a ten-year program of $2.4 billion
per year for financing the construction of municipal wastewater treatment facilities
under the CWA's Title II Construction Grants Program. This level of funding was
considered adequate to meet the estimated remaining highest priority needs for in-
terceptor sewers, wastewater treatment plants, and sewer rehabilitation projects to
correct infiltration and inflow problems. Other major infrastructure needs, such as
correction of combined sewer overflow (CSO) pollution problems, were not fully con-
sidered in the 1981 plan. In 1987, Ck)ngress established the State Revolving Fund
(SRF) program to provide long-term financial assistance for municipal wastewater
infrastructure needs, and phased out the Title II construction grant program. A
total of $18 billion was authorized for these two programs through fiscal year 1994,
principally to assist municipalities with their remaining municipal sewerage needs
and to start to address the more recently identified needs such as CSO correction.
The SRF program also provides support for nonpoint source and estuary manage-
ment activities.
The transition from the Title II construction grant program to the Title VI bUb
program has gone well. All States now have approved programs and are receiving
capitalization grants. Over $7 billion dollars of federal capitalization funds and $6
billion of State matching funds and bond proceeds have been made available for
needed wastewater projects. More than 1300 municipalities have received low inter-
est loans through the SRF. Approximately 70% of the loan assistance provided to
date has been for financing the construction of secondary and advanced wastewater
treatment plants. Another 25% has been used for sewer construction, with the re-
maining 5% available for storm water and nonpoint source management and other
Although EPA has not yet published data from the 1992 survey of the States re-
garding needs for municipal wastewater treatment, preliminary estimates confirm
that needs continue to grow. Total documented needs have increased in constant
dollars from $90 billion in 1988 to $108 billion in 1992. In general, this increase is
caused by one or more of four factors: (1) continued population growth and redistri-
bution; (2) deterioration of older sewers and other facilities; (3) new requirements to
protect water quality; and (4) newly eligible activities. For example, advanced treat-
ment needs have grown by $10 billion in constant dollars because secondary treat-
ment controls have proved insufficient to meet water quality standards. Document-
ed needs for CSOs have increased by $5 billion largely because the costs of CSO con-
47
trols are better understood today. The $3 bUlion increase for new collectors is attrib-
utable to population growth and redistribution since the last survey
As daunting as these figures are, there is reason to believe that some needs are
^'■TnfcA"''*^^'"^^*™^*f*r^^'^'-^^^H^' ^^ localities are still determining how to
meet CWA requirements for CSOs and storm water management; therefore the doc-
umented needs may not yet fuUy reflect the costs of correcting these problems In
addition to sewer and wastewater treatment construction needs, States reported in-
iZ^^^no^^ °" ^Y** ^^"^ significant categories of needs prompted by new mandates of
the 1987 amendments: storm water pollution management and nonpoint source pol-
lution control The estimates reported for these two categories in the 1992 survey
are at least $10 bUhon m constant dollars. And, we have no precise estimate regard-
mg the funding needed for aquatic ecosystem protection and restoration.
In general, States and local communities cannot afford these activities without
contmued federal support. Because of its revolving fund characteristic over a
twenty year period the SRF can fund three times the value of projects that could be
funded by outright grants. Consequently, while $18 billion was authorized in 1987 to
end federal wastewater assistance, the President is seeking a new authorization for
clean water State revolving funds to help communities address these new storm
water needs, as well as traditional wastewater needs. The President's investment
proposal would provide $7.2 billion in capitalization grants between fiscal year 1994
and fiscal year 1997 to capitalize these State revolving funds.
WATERSHED PLANNING
The principal goal of the CWA is to protect and restore waterbody uses by ensur-
ing their biological, chemical and physical integrity. As the water program matures,
we are expanding our focus beyond a simplistic emphasis on chemical pollution to
one that provides a greater understanding of ecosystems. Therefore, EPA strongly
supports what we call the "watershed protection approach," which is a way of pro-
moting a more holistic, targeted approach to the complex and often persistent prob-
lems in watersheds around the Nation. By focusing on the important stressors
within each unique watershed rather than trying to apply the same remedies to all
watersheds, we believe that we can address the watershed's problems more compre-
hensively, efficiently and effectively, and at the same time take better advantage of
the energy and resources of our public and private partners.
We can no longer assume that "national" solutions will solve all local problems.
By adding a stronger geographically-beised approach to protecting our aquatic re-
sources, we can ensure that solutions — shaped by the local community as well as by
State and federal participgints — are carefully tailored to address the highest prior-
ities and unique circumstances facing each locality. This local tailoring can help
ensure that we achieve the dual goals of adequately protecting our water resources
and doing it in the most cost-eff'ective fashion. We plan to continue working with
USDA's Soil Conservation Service in delivering the watershed approach where wa-
tersheds are predominantly agricultural. And, we will work with the Forest Service
and the Bureau of Land Management to deal with pollution emanating from federal
lands. As we buUd partnerships, we concentrate our resources on locally targeted
problems, foster new, innovative approaches and solutions, and promote implemen-
tation of these solutions through the empowerment of local stakeholders.
The watershed approach is not new to EPA and components of the approach have
been used effectively in several geographically-targeted programs, including the Na-
tional Estuary Program (NEP) and initiatives focusing on the Great Lakes, the Grolf
of Mexico, and the Chesapeake Bay, and the Near Coastal Waters Program. For ex-
ample, the Great Lakes Program establishes a partnership of the federal govern-
ment and appropriate State, tribal, and international agencies to work together in
remedjdng the problems facing the lakes, which together comprise 20% of the
world's supply of fresh surface water. The Chesapeake Bay Program calls for EPA
and other federal agencies, in concert with the Bay States, to implement programs
to abate pollution for the protection and restoration of living resources in this won-
derfully vigorous estuary — the largest in the U.S. Under the NEP, States nominate
and EPA selects nationally significant estuaries threatened by pollution, develop-
ment, or overuse. EPA, other federal agencies, the States, local governments, inter-
est groups, and the public jointly identify problems, and develop and carry out com-
prehensive management plans to protect these recognized estuaries. In addition, by
adopting State water quality standards. States tailor water uses and criteria to meet
unique, local requirements. Yet these are only a start. We must evaluate the water-
sheds individually and let the people who depend on them have a principal role in
deciding what solutions may be appropriate.
48
In order to promote integrated plginning and watershed protection, I believe we
need to provide incentives to the States to develop plans, on a watershed basis, for
all impaired and threatened waters, as well as waters that the State determines
need special protection or restoration, such as outstanding national resource waters,
wetlands, estuaries and drinking water supplies. We are currently examining op-
tions for appropriate incentives.
We must also apply a similar approach for the Nation's ground waters. We are
increasingly finding that in certain watersheds ground water recharge to surface
waters can be a critical factor in determining the ecological health of aquatic sys-
tems. We need to ensure that ground water is incorporated into our watershed ap-
proach when it significantly influences surface water quality, and we need to guard
against the possibility of transferring a pollution problem from surface water to un-
derground sources of drinking water.
I believe the CWA generally provides EPA and the States with the authority we
need to look holistically at the entire aquatic ecosystem. By focusing our attention
on watershed management in the context of reauthorization, however, I would like
to encourage Congress to promote this approach by: harmonizing, and where neces-
sary, improving our ability to address the physical and biological, as well as chemi-
cal, integrity of our Nation's waters; emphasizing watershed-level ecological risk
management; coordinating water quality standard reviews; consolidating planning
and priority setting requirements under the Act; and modifying the timing of bien-
nial water quality assessments and reporting under 1305(b).
The watershed approach I have sketched focuses on carefully-tailored, cost-effec-
tive solutions to address important sources of risk to the watershed, including non-
point source pollution, habitat degradation, wetlands loss, and threats to ground
water. I believe that by focusing on watersheds as a whole, we can better identify
causes gind effects of high-priority problems and develop effective, practical solutions
while at the same time maintaining strong national programs to protect the gains of
the past. TTie watershed approach is essential to ensure that we succeed in restoring
and protecting the Nation's aquatic resources. I would also like to point out that the
application of the watershed approach does not imply a backsliding of current re-
quirements. For example, national secondary treatment requirements would
remain, and the focus would be on eliminating threats that are not addressed
through such requirements.
POLLUTED RUNOFF (NONPOINT SOURCE POLLUTION)
Polluted runoff, which is the contaminated runoff from agricultural lands, grazing
and forestry operations, and those urban areas and commercial activities not regu-
lated by NPDES permits, is one of our most vexing water quality problems. Silta-
tion, nutrients, and pathogens are the most common pollutants causing the degrada-
tion, which is also ^own as nonpoint source pollution. In addition, polluted runoff
stemming from increased population growth in sensitive ecosystems, such as in
coastal areas and wetlands, also poses a serious threat to waterbody integrity. Much
of the most serious pollution comes from agricultural runoff, including crops, graz-
ing, and animal waste.
Polluted runoff most commonly results in damage to natural ecosystems, includ-
ing alteration and destruction of habitats. Fertilizer use, and other activities such as
faulty septic systems, inadequate waste water treatment facilities, industry, feedlots,
and pesticide use have also been linked to contamination of ground water. These
problems are particularly acute in rural areas of intense agricultural activity where
ground water is used as the primary source of drinking water for 95% of the popula-
tion.
We already possess some tools to help. Section 319 of the CWA, enacted in 1987,
required States to assess their nonpoint source problems and to develop programs
for mgmaging nonpoint source pollution, backed by federal grants. The Coastal Zone
Act Reauthorization Amendments of 1990 provided a somewhat stronger approach
for coastal areas in 29 States and territories, centering on new State programs to
implement the best available management measures economically achievable for
categories of nonpoint sources, i.e., agriculture, silviculture, urban activities, mari-
nas, hydromodification, and loss of vegetated ecosystems. The new State programs
will also provide for the implementation of additional management measures as
necessary to achieve and maintain water quality standards and protect designated
uses. We believe that these coastal nonpoint programs will represent an important
tool in the restoration and protection of our Nation's impaired and threatened coast-
al waters. The 1990 Farm Bill also helps, especially through its Conservation Re-
serve and Conservation Compliance, and Wetlands Reserve programs.
49
The CWA recogmzes t^t States and local governments should play major roles in
addre^mg polluted runoff because of its diffuse nature and because of the need for
broad-based teamwork to identify and implement the solutions. Over the last four
years, we have pro>aded both technical assistance and over $190 million in financial
assistance to help States with approved nonpoint management programs provide
technical assistance, education, and implementation of best management practices
both btate-wide and m priority watersheds, in addition to the $50 mUlion per year
currently being appropriated for nonpoint source grants, the President is proposing
^n"S^^®^^ f^J^^^^^^ *^^^ million in nonpoint source grants between fiscal yeare
1994 and 1997. These mvestments would help restore watersheds currently being de-
graded by polluted runoff.
We believe that we and our many partners are making progress with these and
other tools. Based on my experience in Florida, however, I believe that State and
federal programs alone will not work. Local initiatives, commitments and incentives
are crucial to creatmg the sense of volunteerism and long-lasting change that will
be necessary for success.
At this stage, I believe there are several basic principles that should guide our
discussions of the problem of polluted runoff. Specifically:
• While §319 nonpoint management programs provide a good starting point,
stronger measures are needed.
• A stronger watershed focus should be brought to bear so that farmers, foresters,
and other stakeholders can better understand the connection between what
they do on the land and the benefits they can help to bring to water quality.
• Where feasible, pollution prevention should be the approach of first choice for
addressing polluted runoff.
• Voluntary, targeted approaches should remain the primary focus, but backup
enforcement requirements at the State and federal levels are needed when vol-
untary approaches fail to produce adequate incentives and necessary environ-
mental improvements.
• EPA should help to set clearer performance expectations and technical base-
lines for nonpoint source controls and management practices. We must improve
our scientific understanding of the transport, impacts, and means to control
problems such as nutrient and siltation pollution, and improve the tools to ad-
dress them. In the effort, we will need to work closely with other federal agen-
cies, such as the National Oceanic and Atmospheric Administration, the U.S.
Department of Agriculture and the Departments of Interior and Transporta-
tion.
• We should encourage innovation where appropriate, including pubUc-private
partnerships and greater use of market-based incentives. Federal funding
should support State and local actions but should not be a prerequisite to accel-
erating progress.
• We should also work closely with other federal agencies to provide for the im-
plementation of similar programs on large tracts under the stewardship of Fed-
eral land management agencies.
• We should set clear expectations that water quality programs will be focused on
aquatic ecosystem protection, not just on the water column.
OTHER WET WEATHER FLOW ISSUES
Storm Water
Storm water is a major program area in which EPA and the States together have
made some important progress. As you know, the 1987 amendments to the CJWA re-
quired the Agency to establish a two-phased regulatory program to address the dis-
charge of contaminated storm water to our Nation's waters. States have reported
that storm water discharges from diffuse sources are responsible for approximately
one third of remaining assessed surface water impairments in lakes and estuaries.
With the promulgation of the Agency's Phase I storm water regulations in No-
vember 1990, implementation of the program is well underway. Over 100,000 indus-
trial activities and more than 250 mimicipalities and counties are covered under
Phase I. To date, tens of thousands of facilities and storm water activities are cov-
ered under general NPDES storm water permits (although many more remain to be
permitted). EPA and the States are now beginning the more difficult process of as-
suring that necessary controls are implemented as required by those permits. We
are in the process of developing individual NPDES permits for municipalities and
counties covered under Phase I. Both EPA and the States have placed a very heavy
50
emphasis on pollution prevention and implementation of best management practices
as the first step in implementing storm water progrgims.
WhUe Phase I is a major challenge and much more work remains, Phase II of the
storm water program represents an even larger undertaking with as many as one
million additional commercial, retail, and light industrial activities potentially af-
fected. Also potentially included in this Phase II group are municipalities under
100,000, as well as emerging growth and new development areas around existing
urban centers that are not covered under Phase I. A number of issues must be ad-
dressed in connection with the implementation of Phase II, notably whether certain
dischargers should be targeted for permitting before others, the possible menu of
regulatory and nonregulatory mechanisms that could be used to address high priori-
ty sources, and appropriate deadlines.
We are presently developing different options for a Phase II strategy that will
provide for the most effective targeting of high risk sources, identify appropriate
roles for federal. State and local government, and strike the right balance between
pollution control under the nonpoint source program and the issuance of permits
under the NPDES program. We think potential Phase II sources outside urbemized
areas may best be addressed under an expanded and strengthened nonpoint source
program.
Combined Sewer Overflows
Another remaining point source problem is combined sewer overflows (CSOs).
More than 1100 cities (85 percent of which are located in the Northesist and Great
Lakes areas) which serve a total population of 43,000,000 have antiquated combined
sewer systems. During wet weather events, uncontrolled combined sewer systems
discharge raw sewage, commercial and industrial wastes and storm water. States'
water quality assessments have shown CSOs to contribute to water quality impair-
ments, beach closures, fish kills and shellfish bed closures.
In 1989, EPA took steps to address the CSO problem by issuing a CSO Strategy
calling for States and municipalities to focus greater attention on controlling CSO
discharges such that waters impaired by CSOs would attain water quality stand-
ards. EPA has recently circulated a new draft Combined Sewer Overflow Control
Policy that provides additional guidance on meeting the 1989 CSO Strategy.
Through negotiated dialogue with State, environmental, and municipal representa-
tives, the draft policy developed a framework for future action. Public comment has
been supportive of the draft policy. The draft policy contains provisions for develop-
ing appropriate, site-specific NPDES permit requirements for all combined sewer
systems that overflow as a result of wet weather, including requirements to ensure
attainment of water quality standards. The policy also announces an enforcement
initiative to require immediate elimination of overflows that occur during dry
weather. The existing statute appears to provide sufficient legal authority to imple-
ment the draft policy and to bring CSOs into compliance with statutory require-
ments, including the attainment of State water quality standards.
POLLUTION PREVENTION
We must also focus on pollution prevention. In the water program, as in other
environmental programs, traditional end-of-the-pipe approaches have yielded signifi-
cant gains in environmental quality. However, we now realize that treatment and
disposal will not be sufficient to ensure continued progress and that end-of-pipe ap-
proaches can raise costs. A more comprehensive, cost-effective prevention-oriented
approach within our base regulatory program will allow us to move even more effec-
tively toward meeting the overall goals of the CWA.
There are numerous other benefits offered by implementing a pollution preven-
tion philosophy. By reducing reliance on end-of-pipe or permit-by-permit controls,
prevention also reduces the likelihood that a "solution" to one pollution problem
will simply transfer significant risks from the residual pollutants to different taedia.
In particular, we have seen the transfer of surface water contamination to ground
water contamination. Pollution prevention approaches, such as switching to differ-
ent process solvents and reducing water use, have the potential to produce perma-
nent solutions to environmental problems — solutions that require less investment in
expensive pollution control and greater emphasis on good planning and strategic de-
signs. Pollution prevention includes conservation techniques and changes in man-
agement practices to reduce significant adverse effects to sensitive ecosystems and
resources such as wetlands, ground water and estuaries. In addition, prevention
may be the most cost-effective way to address many of the remaining sources of
water pollution such as agriculture and urban runoff, the cumvdative effects of in-
51
cremental habitat loss, or numerous smaU sources, which can result in significant
impairmente of our water resources at the local level. Pollution prevention also
complements the watershed approach It offers additional tools that give us greater
capability and greater flexibility to address localized problems requiring heightened
attention.
TOXICS/WATER QUALITY STANDARDS
The goal of the CWA is to "restore and maintain the chemical, physical, and bio-
logical mtegrity of our Nation's waters." Under this mandate, we have developed
sound programs to reduce point source discharges of pollutants entering all surface
waters, mcluding lakes, rivers, estuaries, oceans, and wetlands. Under the CWA
EPA develops national uniform effluent limitation guidelines, new source perform-
ance standards, and pretreatment standards for categories of industries, such as
electroplating, pharmaceutical manufacturing, and textiles. These effluent guide-
lines and standards generally reflect application of the best available technology
that is economically achievable. They also include best management practices. Early
guidelines covered roughly 129 toxic pollutants, while our more recent guidelines
have covered over 400 toxic pollutants. Sewage treatment plants, in turn, are sub-
ject to secondary treatment requirements. Those regulations set end-of-pipe perform-
ance standards, based on the treatment technology available at the time, allowing
dischargers flexibility in choosing the method of compliance.
The Clean Water Act gives States the primary responsibility to develop water
quality standards for waters within their jurisdiction. State water quality standards
provide the basis for many federal and State water quality management decisions.
In developing these standards, States designate specific uses for their waters — such
as fishing, swimming, or drinking — and, adopt criteria to protect these uses. Tradi-
tionally, criteria are pollutant-specific and define levels of pollutants that will not
interfere with the designated use. States typically use both national criteria guid-
ance issued by EPA and other scientific information to develop their standards. Re-
cently, through State and federal rulemaking, numeric water quality criteria for
"priority" toxic pollutants, are now in place for waters impaired or threatened by
those pollutants. However, as States' own water quality assessments point out,
chemical-specific standards edone are inadequate to protect waters from the greatest
threats to their full use. EPA is therefore developing criteria guidance for States to
use in adopting standards to address physical and biological parameters. In addition
to uses and criteria, State water quality standards programs must include an antide-
gradation policy to ensure that existing uses and high quality water resources are
maintained £ind protected. States must review their standards every three years to
ensure that they remain adequate to address emerging problems, reflect new scien-
tific and technical information, such as additional criteria that may need to be
adopted to fully protect designated uses, and are updated to account for improve-
ments gained.
Historically, EPA has emphasized chemical-specific pollutant criteria to address
impairments in our Nation's waters. Not only the goals of the Act, but also the con-
dition of our waters have convinced us that EPA needs to focus not only on the
chemical, but also the physical and biological components of the aquatic ecosystem.
We need to set priorities — and to involve the public, States and federal resources
meinagement agencies in setting priorities — so that we focus our criteria develop-
ment resources on the highest priority problems where we can get the greatest re-
duction in risk. As a result, we would have a sounder basis for devising solutions to
the problems causing the greatest impairment of our waterbodies, including habitat
destruction and species loss and reduced diversity.
ENFORCEMENT
Essential to the success of the CWA is the presence of a vigorous enforcement pro-
gram. Enforcement and the manner in which we exercise the discretion to use en-
forcement tools remain an integral component of a successful environmental pro-
gram. One successful example of EPA's enforcement effort is the National Munici-
pal Policy, under which States and EPA assured municipal facilities met the CWA
July 1, 1988 statutory deadline for wastewater treatment. Largely as a consequence
of the National Municipal Policy, of the 4,000 major municipal NPDES permittees,
the number in significant non-compliance has decreased from an average of 150 A in
fiscal year 1986 to 90A for the first quarter of 1993. In 1987, 74% of the municipal
facilities had installed treatment necessary to meet basic technology-based require-
ments. In 1993, that number has increased to 97%.
52
EPA has also implemented an aggressive administrative and judicial enforcement
program. In fiscal year 1992, EPA took approximately 1450 formal enforcement ac-
tions under the CWA. Of these, 272 involved the assessment of penalties totalling
$23,066,200. Further, over the period of time from 1989 through 1992, the average
judicial penalty has increased from about $ 143,800 to about $414,500. The average
administrative penalty has also increased over the same time period from $17,080 to
$22,895. Since 1975, the Agency, along with the assistance of the Department of Jus-
tice, has concluded 904 judicial cases and, since 1987, 802 administrative penalty
cases, for a total of over $125 million in penalties.
CONCLUSION
Reauthorization of the CWA provides us with a valuable opportunity to focus on
the most important problems facing our Nation's waters and to address them in a
realistic, implementable way. We believe that controlling of polluted runoff can and
should be the single greatest achievement of an amended Clean Water Act. We also
believe that adopting a watershed protection approach to protect the biological and
physical, as well as the chemical, integrity of our Nation's waters is very important.
Similarly, we recognize that we must increase our emphasis on pollution prevention
as the most practical and cost-effective means of meeting the goals of the Act. In
addition, in concert with a strong point source program, we must focus considerably
more attention on the sources of polluted runoff and wet weather flows; we cannot
forget that these pollution sources contribute heavily to the persisting impairments
our waters experience. We must undertake to streamline the process of administer-
ing and enforcing the CWA. We must consider how to better address ground water
protection.
I recognize that I have described a large task, but our Nation's waters issue us a
stark challenge that we cannot ignore, except at our own cost. I believe you share
with me a respect for the purity of our streams, the diversity of life in our estuaries,
the high productivity of our wetlands, the dsoiamic interplay of forces in our water-
sheds, and the safety of our drinking water. Therefore, I look forward to working
with you, Mr. Chairman, this Subcommittee, the Members of Congress and their
staff, our sister federal agencies. State and local governments, and industry and en-
vironmental groups to meet this challenge.
SUBMISSION BY WILLIAM COOPER, INSTITUTE FOR ENVIRONMENTAL
TOXICOLOGY, MICHIGAN STATE UNIVERSITY
Report from the Forum of Scientists: Reauthorization of the Clean Water Act
[NOTE: The following has been excerpted from the above named report. The
report, in its entirety, has been retained in committee files.]
Introduction
The SAB report entitled Reducirig Risk submitted to the USEPA in November
1990, identified several ecological risks that-deserved equal attention to those deal-
ing with public health. As a follow up, I was asked to assemble a group of scientists
to explore how the reauthorization of the 1972 Clean Water Act could be used to
address these remaining environmental problems that are critical to the long-term
economic, ecological and human health components of our quality of life. In particu-
lar, we were asked to identify and rank the most important environmental risks as-
sociated with our aquatic ecosystems. Furthermore, specific suggestions were made
as to how these scientists would address these problems. The analyses and recom-
mendations of our group will now be reviewed by comparable groups of economists
and lawyers. These deliberations will then be used by the USEPA as they develop
their strategy for the reauthorization in 1992.
The members of the Forum are given in Table I. We met for 1 and 1/2 days at
Michigan State University in late February 1991. The report is organized in four
sections:
I. General Comments: Generic issues that are not pollutant or program specific.
II. Nutrients and Hazardous Chemicals: Specific pollutants and institutional re-
sponses.
III. Habitat Loss and Species: Basic concepts and priority problems.
IV. Infrastructure and Institutions: Generic problems associated with federal in-
stitutions.
53 \
We only had time to focus on those residual risks that we thought to be high-high
medium-high and low-higtu There are many risks that we considered low s^Uar tci
those m the SAB report. These were not discussed in detail
Generally, the feeling was the Clean Water Act of 1972 has done a very good job
?l P?Q^n "^ ''"u- '^^*^'" "^so^c^for those issues that were of primary interest in
the 1970s. Combmed sewer overflows and many persistent toxics remain prioritv
problems. Nutrient loading of nitrate, phosphate and organic matter of marine estu-
aries are potentiaUy a very big problem. Other significant risks stUl exist because
the source of the stress was not addressed or was explicitly exempted from the ini-
tial act. Agricultural poUcies and practices, habitat destruction and the introduction
ot exotic species are the most important new issues that must be incorporated into
the reauthorization. The detailed rankings, the logic for the rankings, and the rec-
ommendations for reducing risk are all included in the individual sections.
I. General Comments:
The Clean Water Act (CWA) must recognize the dependency of sustainable eco-
nomic development and public health on self sustaining aquatic ecosystems. The
CWA must be broadened to incorporate ecological as well as public health dimen-
sions.
Also, the preamble to the CWA should provide the reader with the clear under-
standing that "human health related to-drinking water quality must be protected
under the CWA. The CWA must provide the same status for drinking water protec-
tion as it does for protection and propagation of fish, shellfish, wildlife, and recrea-
tion. The risks to public health fi-om failing to deal with drainage and human patho-
gen loading resulting from agriculture, inadequately treated sewage and, in some
cases, stormwater nmoff are significant, documented, and thus deserves equal rank-
ing with the above issues.
It should also be stated in the CWA that the Safe Drinking Water Act emphasizes
source water protection and encourages water purveyors to use supplies from the
highest quality source. The CWA must recognize the human health benefits associ-
ated with procuring such high quality supplies and that such procurement may
result in impacts to wildlife habitat. There must be a mechanism to mitigate those
impacts that is clear, consistent and enforceable, and allows for the rational protec-
tion of drinking water supplies.
Issue: Act title and goals do not encompass critical problem areas.
Problems and Risks: The perspective and orientation of those administering the
Clean Water Act is established in large measure by the Act's title and goals. At
present, the Act doesn't encompass ph5rsical alteration of habitat and other signifi-
cant ecological issues.
Solutions: Retitle the Act along the lines of "Aquatic Resources Protection Act"
or "Clean and Habitable Water resources Act" or "Watersheds, Oceans, and Wet-
lands" Act.
Establishment of an Advisory Committee, perhaps under the EPA Science Adviso-
ry Board, would provide a mechanism to introduce state-of-the-art concepts and
technologies that can guide future amendments to the CWA. The group could con-
sist of twenty scientists, engineers, economists, lawyers, and sociologists, all of
whom have contributions to the maintenance and improvement of water quality.
An annual report on the state of water quality should be prepared and pubUshed
for the public. If introduced to the public initially through the communications
media, such a report could initiate and maintain an awareness of concerns about
the most important commodity regulated by EPA.
Issue: Scientific review of toxic pollutants and hazardous substances.
Problems and Risks: presently a list of Toxic ("priority") PoUuteints (Section 307)
forms the basis for setting effluent limitations and levels of Best Available Treat-
ment Technology Economically Achievable (BAC)TEA). Originally developed by the
House Committee on Public Works and Transportation (Committee Print No. 95-30),
the list has never been subject to scientific peer review and has remained imperfect
and unprioritized. similarly, the list of Hazardous Substances (Section 311) that des-
ignates discharge limitations has never received adequate review. The background
data that were used to justify listing have been criticized for inconsistencies but
have not been revised. Neither list has been substantially refined since their cre-
ation. This causes a misapplication of the Nation's resources for monitoring and
treatment inasmuch as resources that could be applied to high-risk problems are
now applied to many problems that pose negligible risk. Also, no provision exists for
adding new, scientific identified pollutants that are judged to have a reasonable
chance of causing problems.
54
Solutions: Reauthorization of the Clean Water Act offers an opportunity to rectify
the shortcomings of ambiguous and scientifically unjustified listings. Although the
EPA Administrator has always had authority to revise the Toxic Pollutant list upon
reviewing toxicity, persistence, degradability, and effect, revisions have only rarely
been made. Some present listings are either environmentally insignificant, analyti-
cally ambiguous, or have never been commercially produced or quantitatively de-
Sections 307 and 311 listings should be opened to public review, cornet.and
change; deletions or additions should be based on consensus scientific peer review.
Environmental issues should address multimedia concerns, but avoid indiscriminate
transfers of lists that were developed for other purposes and lack scientific review.
Issue: Adequate Federal Funding
Problems and Risks: Vital water quality protection programs mandated by the
CWA will not be achieved without adequate federal funding to finance resultant in-
creases in state program costs.
The 1987 amendments to the CWA established several new federal mandates for
water quality protection. Examples include (1) identification of waters that are im-
pacted by toxics and establishing clean-up strategies; (2) issuing storm water dis-
charge permits for many different discharges; (3) establishing enforceable numerical
water quality criteria for state waters; and (4) addressing non-point sources of pollu-
tion. EPA has focused increased attention on combined sewer overflows. These
amendments have greatly increased permit requirements to include sludge, storm
water, and toxic controls and have increased the monetary costs of implementation.
These new federal mandates are important initiatives and must be pursued if the
surface waters in the U.S. are to be protected. Federal funding to assist states in
this effort, however, is decreasing. For example, the 1987 amendments terminated
the construction grants program and replaced it with the State Revolving Fund
(SRF) program that provides low-interest loans to municipalities. But, the federal
support for the loan program is short term, and starting in 1992, it will decline to
zero federal involvement after 1994.
Federal program support has also decreased. For example, a 4% set-aside of the
$100 million/year construction grant allotment was previously authorized for state
water program support. These funds are no longer available.
Although federal support for state programs under Section 106 increased slightly
in 1991, it is still seriously inadequate to address increasing program demands.
Solutions: The federal government must increase its participation in funding the
new water quality protection programs that are mandated by federal law.
1. The new Act should maintain the federal participation in the SRF at the 1991
level (authorized at $2.4 billion nationwide).
2. The state program grants under Section 106 of the Act must be enhanced to
provide necessary federal support for major new federal programs such as the
storm water permitting, sludge management programs, and modernized waste
water discharge criteria to the marine environment.
3. Non-point sources of pollution remain as a persistent problem that impacts sur-
face waters. Section 319 of the Act provides federal funding for non-point source
demonstration projects ($70 million for FY 88, $100 million per year for both FY
89 and FY 90, and $130 million for FY 91). Federal appropriations, however,
were not made during the first two years of this authorization. Continued fund-
ing for a true four-year period, as envisioned in the 1987 amendments, is needed
to adequately demonstrate available and effective non-point source manage-
ment practices.
4. Ck)nsideration should be given to creation of a Federal Aquafund srnnlar to Su-
perfund. The Aquafund would provide federal funds targeted for cleanup of crit-
ical, high-risk areas of contamination in the nation's surface waters systems. It
is appropriate for corporations that produce the materials that create these in-
place pollutant problems to bear the cost of long-term remediation and scientif-
ic research.
Issue: Long-term Research Investment
Problems and Risks: As our ability to detect toxic, persistent chemicals at very
low levels continues to improve, we are beginning to find chemicals almost every-
where in the aquatic environment. Understandably, this heightens public concern
and can lead to the perception that all trace contaminants pose serious health
threats. However, any such threats must be evaluated scientifically, not emotional-
ly. The mere presence of toxic chemicals, or even evidence of their uptake by orga-
nisms, does not automatically signify that biological impact is occurring. Conversely,
neither does the absence of obvious problems constitute proof that the chemicals are
harmless. They could be exerting small, cumulative effects which may take a long
55
time to become manifest yet are profound. Confounding this problem is the large
discrepancy between our technical ability to analyze chemicals, which is quite io-
phjsticated, and our scientific understanding of their impacts, which is rather naive
bat IS needed is the ability to Imk the presence of contaminants in the environment
and their bioaccumulation in organisms (or their conversion products) to the result-
ing biolopcal effects, state-of-the-art research, which is now addressmg this critical-
ly important area must be encouraged and used by decision makers if sound iudc-
ments are to be made on the relative dangers of different complex mixtures of
chemicals in our environment.
Cases of pollution caused biological effects have only been documented in highly
contaminated areas. Highly contaminated sites are relatively rare, and represent
worst-case situations that are largely beyond repair. Of equal concern should be the
greater number of sites that exhibit low-to-moderate levels of contamination where
remedi^ion or restoration would be feasible. Such conditions might be causing ad-
verse effects that are too subtle to detect and yet they represent the majority of
sites. Such subtle effects, which have so far been overlooked, may lead to devastat-
ing consequences.
Finally, the present version of the CWA is based, in part, on outdated science and
includes madequately reviewed information. For examplel the Act's list of Toxic
"priority 1, Pollutants (Section 307) was neither subjected to scientific peer review
initially, nor has it been substantially refined since then. Yet, in the intervening
years, published research studies have indicated changes in the status of many
chemicals of concern (e.g., concern has increased for organometals and coplanar
PCBs, while concern has diminished for ODT). similarly, even though important
new findings or techniques have been developed over the last few years, they have
often not been adopted by those enforcing the CWA. Biochemical studies, for exam-
ple, have revealed that it is not useful to measure certain contaminants (e.g., aro-
matic hydrocarbons) in certain tissues of some species because they have been bio-
converted into other compounds. Rather than continuing to expend resources look-
ing for something that won't be found, emphasis should be placed on developing
ways of measuring the conversion products (metabolites). In other cases, a new
methodology may be available, such as a rapid way to screen fish bile for exposure
to aromatic hydrocarbons, yet those enforcing the law are resistant to change and
persist in using more time-consuming, costly, and outdated techniques.
Solutions: Prior to taking remediation or restoration steps, we need to develop a
scientifically sound information base that relates the extent and duration of chemi-
cal exposure in various key species to significant biological effects. A suite of indices
needs to be developed for assessing small alterations in biological processes, such as
reproduction or growth. Actions taken without adequate information will lead only
to stop-gap measures and can result in multi million dollar mistakes.
A significant portion of federal funds in the reauthorization act should be target-
ed for development of a better understanding of chemically-induced alterations in
vital biological processes in aquatic species, particularly development of indices to
measure contaminant exposure and eifects.
The reauthorized CWA should establish a strong, long-term commitment in devel-
opment of the necessary scientific information base.
Present regulatory and monitoring efforts do not allow flexibility for adoption of
newly developed indices. A concerted effort must be directed toward scientific eval-
uation of newly developed tests and implementation, where appropriate, into exist-
ing programs.
The CWA should be amended to include the impacts of contaminant and nutrient
loadings on habitat. Regulations must be added to try to prevent such toxic inputs.
Issue: Ecosystem Quality of the North American Great Lakes (Section 118, Great
Lakes)
Problems and Risks: Nutrient inputs to the Great Lakes from non-point sources
cause increased primary productivity and eutrophication. Toxic chemical input to
the Great Lakes, primarily from non-point sources (atmospheric deposition, in-place
pollutants) degrades water quality, impacts the food web, affects the biological func-
tioning of higher organisms, presents increased risk to consumers of chemical-laden
fish (e.g. birds; humans) and adversely impacts the commercial and recreational
economy. In place contaminants in sediments can degrade the benthic food web and
remain as sources of contaminants to the water column for decades and even cen-
turies. Short range and long range atmospheric transport and deposition of toxic
chemicals remains a significant hazard to the water quadity.
The Great Lakes are a valuable national resource that need to be protected for
future generations. With the availability of high quality water decreasing and with
6Q-fi77 n - QA - -^
56
pressures from climate change, ozone depletion, urbanization, and wetland alter-
ation increasing, proper stewardship of the ecosystem is demanded.
Solutions: The US should actively pursue the goals and objectives of the Great
Lakes Water Quality Agreement of 1978 as amended in 1987. The EPA, through its
Great Lakes National Program Office (GLNPO), should vigorously lead the monitor-
ing, surveillance, research, and development of solutions to the problems of in-place
pollutants, release of exotic organisms (e.g., sea lamprey; Zebra mussel; alewife), eu-
trophication, and toxic chemicals. This must be done in collaboration with relevant
Canadian agencies, and all the relevant states. The EPA and the GLNPO must be
held to increased accountability for mandated programs through the 1990 Clean Air
Act, the 1987 Clean Water Act, and the Great Lakes Water Quality Agreement and
Amendments of 1987. Although monitoring and surveillance of toxic substances is
mandated, little has been accomplished. Research in support of the Clean Water Act
and Clean Air Act goals has been minuscule. The GLNPO/EPA should work in con-
cert with the Great Lakes Environmental Research Laboratory of NOAA and with
sponsored research programs to university researchers to answer important ques-
Issue: Determination of the impact of man-induced environmental changes on
living resources (Section 117, Chesapeake Bay)
Problems and Risks: The coastal zone receives hazardous chemicals from numer-
ous point and non-point sources. Many of these substances sorb to sediments and
are either transported or stored where sediments accumulate. Since materials from
many sources may settle at the same location, sediments are usually contaminated
with a wide variety of chemicals. Flora and fauna that reside near to the "contami-
nated sinks" may be exposed to a complex mixture of hazardous materials.
Existing regulations controlling aquatic chemical pollution usually focus on single
chemicals, e.g. water quality criteria or sediment quality, and do not consider the
biological response to combined chemical insult. Moreover, biological surveys usual-
ly employ methods that are insensitive to subtle changes and fail to detect injury
until major changes in abundance or species composition have occurred. Therefore,
the impact of anthropogenic chemicals on the Nation's marine and estuarine biota
is not being adequately addressed. , ,.
Solution:A directed research program should be initiated to determme and utilize
new and novel monitoring techniques and endpoints in order to assess the impacts
of chemical pollution on the biota of the coastal ocean. These should include, but
not be limited to, biomarkers (biochemical, physiological or histological markers of
stress), sediment bioassays and detailed analytical chemistry designed to quantify
and track as many anthropogenic substances as technic£illy feasible.
Issue: Lack of coordination between monitoring and modeling (Section 320, Na-
tional Estuarine Program). ... .
Problems and Risks: Monitoring is an inherently expensive activity m terms ot
time, personnel and equipment. The uses of monitoring data are frequently not well
defined and much of it is simply filed away and disappears.
When modelers try to parametrize or validate models using monitoring data, fre-
quently such data cannot, for various reasons, be adjusted to the requirements of
the model. There is often a fundamental mismatch between how modelers view a
system (conceptionally, analytically, integratively, etc.) and how the designers of
monitoring programs perceive it (standard variables, off-the-shelf methods, inad-
equate spatial and temporal sampling design, inattention to issues of scale and reso-
lution). J
Solutions: Appropriations should be identified to support mteractive modeling and
monitoring programs. Monitoring and modeling efforts should be designed in con-
cert. Modeling should precede monitoring and then the monitoring defined relative
to the models. The modeling-monitoring feedback linkages should be forged interacti-
vely. The models can then be used to aid assessments that monitoring programs
were established to perform. As the programs proceed, both models and monitoring
should be adjusted to optimize responsiveness to the 'requirements of the problem.
Issue: Insufficient technical support and regulatory mandate for water quality
standards adoption (Section 320, National Estuarine Program).
Problems and Risks: Although the CWA emphasized the use of water quality cri-
teria, issues of inconsistency between states and an overall deficiency of criteria pre-
vails. Chemical-specific regulation of toxics, nutrients and other conventional pollut-
ants is entirely dependent on water quality standards. Without these numerical
limits being specified in discharge permits, many substances that can impact the
aquatic environment continue to be released.
Solutions: Through the CWA, specific resources should be authorized to support
EPA ORD activities designed to develop or obtain from the academic community the
57
toxicity data n«:essary for water quality criteria development. EPA should be re-
quired to expand water quality criteria development for compounds beyond those on
the present priority pollutant list. "^
Issue: Definition of "real" risks of toxic chemicals
Problems and ^^-J^our ability to detect toxic, persistent chemicals at very
low levels (PPB, PPT, PPQ, etc.) mcreases, chemicals are being detected almost e^
erywhere in the aquatic environment. This heightens the public's anxiety about en-
vironmental protection. However, at the present we are able to measure only a few
soK^alled eleventh hour effects that seem to occur only in highly contaminated
areas. This results in controversy about the potential impact of contaminant loading
^ ^•u-,?.^"^*^^ environment. The unfortunate outcomes are confusion and loss of
credibility At present, therefore, most regulatory, remedial and environmental res-
toration efforts are initiated primarUy because of public pressure and are not based
on appropriate scientific information; consequently they are often open to criticism
and controversy. In short, the mere presence of toxic chemicals or even documented
uptake of organics does not signify that biological impact is occurring. Currently in-
formation is urgently needed to relate the extent and duration of exposure to signif-
icant biological effects.
Solutions: Prior to any implementation of remedial action program, a series of in-
dices need to be developed that measure alteration in normal biological processes
necessary for proper functioning of important components (critical individual orga-
nisms) of the ecosystem. These indices (bioindicators or biomarkers) should be
chosen so their alterations can be clearly linked to contaminant exposure or body
burdens in key organisms and to vital biological processes (reproduction, disease re-
sistance, health). A suite of such bioindicators (exposure, sublethal responses, ef-
fects) must be developed to provide better management decisions. Such methods' are
being developed in many laboratories; however, the efforts are often fragmentary,
because of limited funding and long-term direction. Certain federal funds in the re^
authorization act should be devoted to a concerted and holistic effort to develop
such an information base. Actions taken without a proper information base will
lead only to stop-gap measures and often result in multimillion dollar errors.
The language of the CWA should be modified to provide a strong and long-term
commitment in support of research on how and at what level complex mixtures of
contaminants produce sublethal effects that may be harbingers of long-term delete-
rious impact. This effort will probably take several decades to complete.
Issue: Insufficient funding for research related to integrated ecosystem assess-
ment.
Problems and Risks: A jurisdictional gap exists in the support for basic research
related to environmentally relevant problems. Most state agencies and the EPA
fund only work that is directly related to specific (usually monitoring) questions.
Government institutions (e.g., NSF, NIH, NIEHS), on the other hand, are only able
to fund extremely basic work directly related to human health. This funding gap
has severely hampered acquisition of the information needed for integrated ecosys-
tem risk assessment.
Solutions: Additional (new) sources of funding probably within EPA should be de-
voted to exploratory reseeirch. This work should be conducted by federal research
laboratories (e.g., NOAA, EPA, DOE) as well as the academic research community,
since diversity of scientists brings in different and valuable perspectives to the
issues.
Issue: Development of appropriate data to assess ecosystem health.
Problems and Risks: The 1987 amendments to the CWA and the SAB reports
stress the need for integrated ecosystem risk assessment to protect the health of our
aquatic resources. Although some of the techniques needed for this process are al-
ready available, others need to be developed. Such measures should at a minimum
assess: 1) the fate, persistence and availability of contaminants; 2) contaminant ex-
posure in target organisms; 3) mechanisms of action of toxics; 4) reproduction and
population fitness; and 5) ecosystem structure and functioning.
Solutions: Funding should be devoted to developing new approaches to assessing
ecosystem health and risk, and the ecological risk community should reach consen-
sus regarding the best approach.
Issue: Regulation of metals by the water quality standards program.
Problems and Risks: The EPA develops water quality criteria which, if not exceed-
ed, will be protective of beneficial uses of the aquatic environment. The criteria for
metals are expressed in terms of the dissolved, or "acid soluble", form of the metal.
EPA interprets existing regulations as requiring NPDES permit limits on metals to
be expressed as total or total recoverable metal. The use of the total measurement
for a metal does not recognize that insoluble, complex metals are probably not bio-
58
logically available and, therefore, not capable of exerting a toxic effect in an ex-
posed organism. This limits the utility of conducting site-specific re-calculations of
water quality criteria to account for water quality effects on bioavailability. Signifi-
cant amounts of any particular metal can occur in the non-dissolved form in am
effluent discharge, and regulating by the total form will result in over-conservative
control and the misuse of wastewater treatment resources. Long rsmge availability
through in-situ volubility, however, must also be considered.
Solutions: Clarify existing language in the CWA to direct that regulatory controls
(i.e. effluent limits) be expressed in a form consistent with the underlying water
quality criteria. The EPA must also complete and promulgate analjrtical protocols
for the routine determination of acid-soluble metals, and revise existing regulations
to allow the acid-soluble expression in permit limits.
Issue: Site specific water quedity criteria/standards
Problems and Risks: Water quality criteria and standards must continue to ac-
commodate site-specific conditions which may render a substance less toxic. Exam-
ples include complexion or chelation of trace metals which render that fraction rela-
tively non-biologic£dly available or toxic. A case in point may be "complexed"
copper and cadmium in marine waters being less "toxic" than the free ton activity.
Recommendations: EPA should encourage and support development of protocols to
establish site specific water quality criteria or standards. Regulations for domestic
wastewater effluents should be based on the assimilation capacity of the receiving
waters. Permits should limit mass loadings per unit time and not specify effluent
concentrations or treatment technologies. In the absence of scientifically derived as-
similation capacities, BAT limitations should be used.
MAX BAUCUS. UONTAMA. CHAMMAN
DAMa fAmCK. MOVMHAH. NEW V0« JOHN K CHAFK. IMODE ISLAND
GEOHGE J. MntMai. UAMi ALAN K. SIMPSON. WYOMING
FRANK K LAUTBttOG. NfW JBWCY OAVl OURENBEKO. MINNESOTA
HAHRY Rao. NEVADA JOHN W WAiWER. VUMSINIA
MM GMAHAM. FUMDA noeOT SmTH.
JOSEPH I UEBCTMAN. CONHCCnCUT LAUCH f AJBCLO _
MOWABO M. METZnSAUM. OMO DIRX KEKFTHORHE. rOAHO
HAi— 8 worrom. pomsvlvama
tAMANA BOXat. CAUHMMA
59
Bnitd States Senate
coMMrrrEE on environment and pubuc works
WASHINGTON, OC 20610-6176
vV'
October 12, 1993
Dr. William Cooper
Institute for Environmental Toxicology
Michigan State University
C 231 Holden Hall
East Lansing, Michigan 48824
Dear Dr. Cooper
The Subcommittee appreciates your participation in Ae hearings of flie Subcommittee on
Clean Water, Fisheries and Wildlife in its review of the Clean Water Act In furtherance of our
review, we have a few foUow-up questions for the record. Please provide your answers to Bill
Leaiy at 505 Hart Senate Office Building, Washington, D.C. 20510 by October 29, 1993.
y 1. Can you expand on your comments about the need for peer review? What has been the
affect, if any, of not providing peer review under the Clean Water Act? Could you
describe what, in your opinion, would be an appropriate and adequate peer review process
and the kind of contribution that it would make?
^' 2. A 1988 Agricultural Department study questioned the current ability to identify a direct
link between agricultural "discharge" and the water quality of receiving streams. For
exan^le, it says: "Offsite damage associated with water pollution cannot be measured
directly and links between farming and affected water uses are not well defined. Many
assumptions are made to estimate offsite damage, and bodi methods and data for
estimating damage need to be improved." Bradley M. Crowder, Marc O. Ribaudo, and
Edwin Young, "Agriculture and Water Quality," Washington: USD A, August 1988, p. 2.
For example, I understand that in one research study of phosphorus loading and nonpoint
source pollution in Estonia, the authors concluded that phosphorus stream loadings from
intense agricultural operations are quite low, in spite of the fact that phosphorus loadings
are high in the fields. The field-generated phosphorus combines with the sediment to
prevent stream damage, whereas phosphorus loadings from industrial and municipal
sources are highly interactive. E. Loigu, "Evohition of die In5)act of Non-point Source
Pollution on die Chemical Conqrosition of Water in Small Streams and Measures for die
Enhancement of Water Quality," Advances in Water Pollution Control. H. Laikari, ed.,
1989, pp. 213-217.
,{A
60
Have we made any progress in establishing a direct link between what happens in a
farmer's field and what occurs to Ae water quality of streams and waters?
^3. In looking at pollution prevention as a toll for in^roving water quality, it is conceivable
that in our zeal for pollution prevention, we can and will identify ways to place controls
on die front end widjout necessarily improving water quality, or being able to document
scientifically a relationship between the pollution prevention effort and an in^rovement
in stream quality. What recommendations would you make to this committee about the
construction of a pollution prevention program to assure that pollution prevention does
not become die end itself, but radier that diose pollution prevention efforts undertaken
will have a measurable and protective effect on water quality?
"^4. In your report to EPA, you state that restrictions on agricultural and silvicultuial practices
should be included in any federal program for nonpoint source pollution control. What
V restiictions did your team have in mind?
Sincerely,
Bob Graham
Chairman
Subcommittee on Clean Water,
Fisheries and Wildlife
61
^^^.tfomne^^
^*'' State 0<<^
Research « Education » Outreach
C-231 Holden Hall • East Lansing, Ml • 48824-1206
Phone 517/353-6469 • Fax 517/355-4603
November 2, 1993
Mr. Bill Leary
505 Hart Senate Office Building
Washington, DC 20510
Dear Bill:
I was amazed that someone would use a 1988 phosphorus study from
Estonia to claim there is no measurable linkage between farming and
water quality. I have enclosed three folders of material that I
pulled together in just a few days.* The first contains photographs
and enforcement actions on agricultural activities in Michigan.
These are just a small sample of the more recent enforcement
actions. The pictures speak for themselves.
The second folder addresses question Jaiici in Senator Bob Graham's
letter of October 12, 1993. It contains a collection of articles
on agricultural and forestry impacts on aquatic ecosystems. I can
produce several hundred more if you need them. In particular, the
GAO 1990 (not included) and the NRC 1992 summary reports are very
credible.
The third folder contains materials related to question four.
Senator Graham asked specifically about recommendations for non-
point source pollution control. The specific recommendations are
supported by the remaining articles in the folder.
I will attempt to answer questions one and three. The issue of
peer review involves the scientific credibility of the regulatory
procedures and standards. The water quality standards are often
set during times of crisis (Agent Orange, dioxin) and we are forced
to use whatever data we have at the time. Generally, the
scientific understanding of the toxicant and the mechanism of
action comes at some later time. These standards are supposed to
undergo a peer review every five years. They almost never do. The
"anti-backsliding" provision in the G.L.I, actually prohibits one
from relaxing the standard even when new data indicates that it is
unnecessarily restrictive.
*The folders referred to have been retained in committee files.
r Affirmative Action/Equal Opportunity Institution
I Printed on Recycled Paper
62
Page 2
EPA is currently developing new risk assessment models based on
mechanisms of transport, fate and effects. These models are being
reviewed by the U.S. EPA Science Advisory Board. This process is
currently working and should be included in the new Clean Water
Act.
The pollution prevention program is justifiable in two ways.
Significant pollution is always less expensive to prevent than to
remediate after the fact. Case studies have shown that residuals
(wastes) that are recycled, reprocessed or reused become resources
(inputs) that also save money in the long run.
The characteristics of toxicants (materials) that need to be
proactively prevented from being discharged are those that are
persistent, are mobile in the environment, bioaccumulate in the
ecological food chains, and are chronically toxic in effects.
These include the heavy metals and some industrial and agricultural
organic compounds. Radionuclides will also fall into those
categories. We can demonstrate "bang-for-your-buck" risk reduction
with these types of residuals.
I hope these materials are helpful. If you need anymore
assistance, please give me a call.
Respectfully yours.
William E. Cooper, Ph.D.
Professor
63
STATEMENT OF ROBERT J. HUGGETT, PROFESSOR OF MARINE SCIENCE
COLLEGE OF WILLIAM AND MARY
My name is Robert Huggett and I am a Professor of Marine Science in the School
of Manne Science at The Col ege of William and Mary. I am also Chairman Vf the
Department of Environmental Science of the Colleges' Virginia Institute of Marine
Science I have recently been involved with a committee of The Water Science and
Technology Board of the National Research Council (NRC) that has been studying
ways to more efficiently manage wastewater entering our coastal environment. The
result of that effort, MANAGING WASTEWATER IN COASTAL URBAN AREAS
has just been released. I would like to take this opportunity to present some of the
iindings and recommendations contained in the report.
More than a third of all Americans live along a coast, usually in urban areas
Every day, more than 1,400 wastewater treatment plants in U.S. coastal cities dis-
Sl^^^&f. 1.0 bUhon gallons of treated effluent. Annual treatment costs are between
$1.1 bUhon and $1.8 bUlion. Another 11.3 bUlion gallons of treated industrial
wastewater and spent coolmg water is discharged by approximately 1,300 industrial
facilities.
In addition, non-point sources of pollution, including urban and agricultural
runoff, are a growing problem. Pollution can also come from outside the coastal
region— from towns, farms and factories adjacent to rivers flowing to the coast.
There are other human activities that can effect coastal marine systems. For exam-
ple, increased irrigation by farmers can reduce the amount of freshwater flowing
into estuaries and over fishing can alter the ecological balance in marine waters.
Current wastewater and storm water management policies are rooted in the 1972
amendments to the Federal Water Pollution Control Act, reauthorized in 1977 and
1987 as the Clean Water Act. The 1972 legislation asserted authority over the qual-
ity of navigable waters such as rivers, lakes and coastal waters. It required estab-
lishment of uniform minimum standards for municipal and industrial wastewater
treatment, set strict deadlines for compliance, and provided federal funds to help
pay for newly required projects.
Under the statue, efforts to protect coastal water quality have focused mainly on
regulating city sewer systems and other single-point sources of pollution such as in-
dustrial plants. This approach has produced rapid and effective improvements in
water quality in many areas, particularly lakes and rivers. However, the law's uni-
form requirements have not allowed a process that adequately addresses regional
variations in environmental systems around the country, or that respond well to
changing needs, improved science and more complete information.
To more effectively protect coastal waters from pollution, the nation must begin
moving towards a more flexible integrated management approach that takes into
account the full range of factors that affect coastal pollution and efforts to control
it. The recently released NRC report recommended a more comprehensive approach
to managing coastal waters called, "Integrated Coastal Management" (ICM). Broad-
ly speaking, ICM aims to protect by coastal ecosystems while recognizing the impor-
tance of human activities, the report says, ". . the federal role in integrated coastal
management shifts from that of prescriptive mandates to a partnership with region-
al authorities in developing a management system that meets coastal-quality objec-
tives.
The authors of ICM suggest several modifications to the Clean Water Act and the
Coastal Zone Management Act, including establishing a "National Coastal Quality
Program" as a supplement to the Nationeil Estuaries Program. The coastal program
should include an integrated planning and permitting process, as well as an "Inte-
grative Action Plan" to supplant Comprehensive Conservation and Management
Plans.
The study identifies several key issues that both planner and legislators must con-
sider when thinking about wastewater management. Many of these issues are not
effectively addressed by current clean water strategies and point to the need for an
integration of functions among many agencies including storm and wastewater
agencies, water supply agencies and agricultural agencies.
Treatment Levels. The cost and complexity of treatment are major factors that
can vary greatly from area to area. Regional environmental and health concerns
also vary. Wastewater treatment levels and related management concerns need to
be guided by water quality needs rather than by technology-based regulations.
Excess Nutrient Enrichment. Nitrogen and phosphorus, from both point and non-
point sources can deplete dissolved oxygen, resulting in fish kills, algal blooms, and
other environmental problems. Secondary treatment of wastewater does not remove
significant amounts of nitrogen.
64
Source Control. These efforts can supplement treatment, avoiding problems before
they occur. Source control of pollutants, which is an effective tool for managing both
point and diffuse pollution sources, should be strongly encouraged by incentives and
regulation. In some cases, for example, tactics such as erosion control may be more
effective and cheaper than wastewater treatment of reducing the particulate level of
waters flowing into a coastal r^on.
Stormwater and Combined Sewer Overflows. In many cities, combined collection
systems that carry both stormwater and city sewage my overflow. Building new fa-
cilities, however, is expensive, and conclusive scientific data on the overflow prob-
lem is lacking. Without more research, proposals to l^islate technology-based re-
quirements for systems are likely to fail.
Evaluation arid Feedback. Management plans must be flexible enough to allow for
changes and improvements.
Our ability to manage wastewater in coastal areas has improved greatly over the
past decade because of advances in science and engineering. The authors of Mana-
gina Wastewater in Coastal Urban Areas believe that the concepts set forth in "In-
tegrated Coastal Management" take advantage of our more advanced and creative
technical capabilities and offer a better way to both use and protect our coastal en-
vironment.
WRITTEN TESTIMONY OF RICHARD A. CONWAY, SENIOR CORPORATE
FELLOW, UNION CARBIDE CORPORATION
Mr. Chairman and members of the Subcommittee:
Grood morning. My name is Richard Conway. I am a Senior Corporate Fellow for
Union Carbide Corporation. I am appearing today to discuss some issues I fed are
important in the context of Clean Water Act reauthorization. These views reflect
my technicEil experience both at Union Carbide and in professional service largely
on EPA's Science Advisory Board and on several National Academy of Sciences
committees, boards, and commissions. My role at Union Carbide is one of a skill
center manager and technical consultant. I speak from that perspective, rather than
as a regulatory specialist.
Union Carbide is a worldwide producer and marketer of commodity and specialty
chemicals and plastics, employing twelve thousand people in the U.S. Its principal
domestic manufacturing fadlities are in Louisiana, New Jersey, Texas and West
Virginia. More than 25 percent of Union Carbide's revenues are from product ex-
ports £md licensing of technolt^y in foreign countries.
I. INTRODUCTION
As part of its environmental vision. Union Carbide has publicly committed to re-
ductions in emissions, releases and generation of wastes. Our commitments include
the elimination of releases of known and suspect human carcinogens, and the con-
trol of the discharge of potentially harmful chemicals to surface water so that con-
centrations in the receiving stream are substantially lower than any level known to
cause adverse heedth or environmental effects. These serve as important incentives
to achieve continuous Unprovement in our overall environmental performance.
In pursuit of this vision Union Carbide has made significant progress in reducing
emissions, discharges and releases to all media, including water. Following is a sum-
mary of our accomplishments in reducing water pollution:
SINCE 1987, UNION CARBIDE HAS REDUCED THE RELEASE OF SARA SEC-
TION 313 CHEMICAI5 TO ALL MEDIA BY 41 PERCENT.
This figure includes a 65 percent reduction in discharges to publicly owned treat-
ment works (POTW's). Union Carbide is committed to achieving a 57 percent reduc-
tion in SARA 313 releases to surface waters from 1987 levels by 1996.
From 1987 THROUGH 1991, UNION CARBIDE HAS REDUCED ITS EMISSIONS
AND RELEASES OF KNOWN AND SUSPECT CARCINOGENS TO SURFACE
WATER AND POTW's BY 90 PERCENT.
An active pollution prevention program relies on an Environmental Management
hierarchy of source reduction, recycling, energy recovery, treatment and as a last
resort, land disposal to achieve its waste and risk reduction objectives. Goals are set
by senior management, are made public, and the corporation reports its progress
periodically to the public. Pollution prevention methods employed by Union Carbide
65
often include raw material substitution, recycling, leak detection and repair enerev
recovery, and improved housekeeping. xep<"r, energy
REDUCTION OF WASTEWATER IS AN IMPORTANT ATTRIBUTE OF OTTP tct?v
PROCESS TECHNOLOGIES, PROVIDING SIGNHtSot ADVi^^ f^flR
CUSTOMERS AND THE ENVIRONMENT. ^"^'^"^^ auvajn 1 AGbb TO OUR
Here are a few examples of Union Carbide products and technologies that help us
and others protect water quality: ^
UNIPOL* Polyethylene and Polypropylene: Products such as plastic milk jugs food
wraps, construction materials, landfill and irrigation liners, and wire and cable in-
sulation are made with this proprietary plastics technology. The UNIPOLO® process
uses one-third of the energy of conventional high pressure processes, and produces
virtually no solid or liquid waste. Both attributes, coupled with superior product
performance, are responsible for UNIPOL* technology being licensed around the
world, accountmg for about 25 percent of world polyethylene production capacity.
Compared to conventional high pressure, solvent-based technology UNIPOL* re-
duces the discharges to air and water over 97 percent.
Low Pressure Or.o aPO) Process for Manufacturing Oxo Chemicals (butyraldehyde
propionaldehyde, and valeraldehyde— intermediates for butanol, 2-ethyl hexanol n-
propanol, and valeric acid) '
Union Carbide's (LPO) process greatly reduces discharges to wastewater when com-
pared to high pressure processes— LPO discharges to wastewater have over 90% less
organics and no heavy metals. High pressure processes, which Union Carbide
stopped using in 1983, discharge cobalt as well as organics.
LPO is benefiting the environment world-wide. In part because of its superior envi-
ronmental attributes, LPO technology licensed by Union Carbide is used for ap-
proximately 50% of world-wide oxo chemical production. The latest generation oxo
process facility, being built at our Taft, LA plant, is designed to exceed the environ-
mental performance of is predecessors.
CANSOLV^ FLUE GAS DESULFURIZATION PROCESS: This innovative technolo-
gy recovers sulfur dioxide from power plants and industrial processes and can
produce sulfuric acid, a marketable commodity. This process consumes about one-
third of the energy of a conventional scrubber, and cuts solid waste generation re-
quiring landfilling by over 90 percent. By use of a regenerable solvent in-lieu of a
water/calcium hydroxide solution, there is less use of water and therefore less water
discharge as a result of scrubbing the S02.
INDUSTRY HAS MADE SIGNIFICANT PROGRESS IN REDUCING RELEASES
OF TOXICS TO SURFACE WATERS
Industry has made remarkable progress in reducing releases of toxics to our na-
tion's surface waters. According to data reported under EPA's Toxic Release Inven-
tory, member companies of the Chemical Manufacturers Association reduced direct
releases to surface waters by 77 percent between 1987 and 1991. 'Transfers to public-
ly owned treatment works were reduced by 31 percent.
Further evidence of the progress made by industry in reducing discharges of
toxics is found in EPA's National Water Quality Inventory, which is reported to
Congress every 2 years. In the 1988 inventory, EPA found that less than IS percent
of the remaining water quality problems were attributed to industrial discharges.
Two years later EPA reported that less than 10 percent of the remaining water
quality problems were attributed to industrial discharges.
Progress to date indicates that the Clean Water Act has been very effective in
reducing industrial discharges. The trend revealed by these data suggest that exist-
ing requirements are effecting continuing improvements and that more controls on
industrial discharges are not needed.
Congress should focus its reauthorization efforts on the significant remaining
water quality problems. We believe that additional regulatory controls on industrial
point source discharges at this time would produce little if any significant environ-
mental benefit.
WE ARE COED TO A PROCESS OF CONTINUOUS IMPROVEMENT IN SUR-
FACE WATER AND GROUNDWATER QUALITY.
Union Carbide is committed to a process of continuous improvement in environmen-
tal performance. Living up to Union Carbide's corporate value of safety and envi-
ronmental excellence, and working with the Chemical Manufacturers Asisociation to
66
implement its Responsible Care* initiative, remain top priorities involving costs and
commitments that must be factored into all plans and strategies.
Safety and environmental excellence is one of the company's five core values. A
comprehensive and efficient management sj^stem embodjdng the traditional man-
agement principles of planning, organizing, leading and controlling assures the suc-
cess of this corporate value. Thia management system includes plans or standards
for surface water and ground water which have as a basic requirement "Programs
must exist and provide reasonable assurance that Union Carbide locations do not
have an adverse sect on space waters and ground water."
The management sj^stems control element is an independent environmental audit
fvmction headed by a C!orporate Vice President who reports directly to the Chief Ex-
ecutive Officer. Over the past six years, over 1000 environmental, health, safety and
product responsibility audits have been conducted in more than 500 facilities in 31
countries. Historical performance is quantified zmd monitored, and results are ana-
Ijrzed and reported periocWcally to top management and the Health, Safety and En-
vironmental Affairs Committee of the Board of Directors of the Corporation.
We are committed to a process of continuous improvement of environmental per-
formance including surface water and ground water issues which are systematically
evaluated and monitored. Corrective action plans are prepared for identified defi-
ciencies and the plans are tracked and implementation assured. Subsequent audits
confirm the implementation of the plans and assure the deficiency is corrected.
n. THE STATE OF THE NATION'S WATER
THE EXISTING CLEAN WATER ACT HAS SUCCEEDED IN IMPROVING
WATER QUALITY. RECENT AND IMMINENT REGULATIONS PROMULGATED
UNDER THE EXISTING ACT WILL REQUIRE FURTHER REDUCTIONS IN
POINT SOURCE DISCHARGES. ADDITIONAL CONTROLS ON POINT SOURCE
DISCHARGES ARE NOT WARRANTED.
The Kanawha River in West Virginia was once considered one of the most pollut-
ed rivers in the nation. The lower Kanawha River Basin receives discharges from
municipalities, organic chemittJ, and pesticide manufacturing plants. Union Car-
bide process wastewater is treated and discharged fi-om two outfalls on the Kana-
wha River. ^ , , ^„„, ^
The Clean Water Act instituted the NPDES permit program. In the 1970 s and
early 1980's the industrial permits were written on the basis of best professional
judgment, since comprehensive effluent guidelines were unavailable. Industries and
municipalities have steadily u^raded their treatment systems to meet these
NPDES permit requirements. ,,.or mi.
The NPDES program has greatly benefited the Kanawha River. In 1985, The
West Virginia Department of Natural Resources (DNR) and the United States De-
partment of Agriculture issued a "Comprehensive Survey of the Lower Kanawha
River Basin" which noted" a significant decline in organic pollution in the Kana-
wha River," and cited DNR fishery population studies that showed" both increased
fish species diversity as well as greater total populations". The study concluded that
"the existing toxic waste control system appears to be adequate at this time."
Although the Kanawha is greatly improved, regulations required by the existing
Clean Water Act will require further reductions in discharges. In 1987, effluent
guidelines for the Organic Chemicals, Plastics, and Synthetic Fibers (OCPSF) Point
Source Category were promulgated, and pesticides effluent guidelines will be pro-
mulgated in the near fiiture. The OCPSF and pesticide guidelines will result in fur-
ther reductions of toxic chemicals discharges. No further legislation restricting
point source discharges of toxic pollutants is warranted at present. Until we observe
the effects of implementing this next range of r^ulations. We need to assess our
priorities on a risk/rational basis using a full multimedia/societal assessment.
Union Carbide also dischaiges treated process wastewater to the Mississippi
River. As shown in the Louisiana Chemical Association's 1990-1991 "Chemical In-
dustry Emissions Report," discharges of SARA 313 organic chemicals declined by
over 50% from 1987 to 1991.
m. HOW THE ACT HAS WORKED AND NOT WORKED
EFFLUENT GUIDELINES AND WATER QUALITY STANDARDS HAVE
ACHIEVED SUBSTANTIAL REDUCTIONS
As indicated above, in 1987, EPA promulgated technology-based effluent limita-
tions for the organic chemicals, plastics and synthetic fibers industrial point source
67
category (OCPSF-^0 C.F.R Part 414). These include discharge limits for conven-
tional and non conventional pollutants, Best Available Technology (BAT) limits for
more than 60 mdividual toxic pollutants for direct dischargers, and BAT equivalent
limits tor more than 40 toxic pollutants for indirect dischargers
The impact of these standards on total releases to surface waters has been clearlv
Sf^^'ifT ! . ^y ^^^ reported under EPA's Toxic Release Inventory. According to
the TRI data member compames of the Chemical Manufacturers Association re-
?QQi T 5^^"" direct discharges to surface waters by 77 percent between 1987 and
lyai. Indirect discharges to publicly owned treatment works were reduced by 31 per-
cent durmg this same period.
Additional reductions in surface water discharges are also occurring as a result of
discharge limits based on water quality standards. These standards are established
to protect aquatic life and human health and are incorporated into permit limits
where needed to meet the designated Uses of waters. These water quality-based re-
quirements are typically more stringent than the technology-based requirements
and are playing an mcreasingly important role in driving discharges even further
down.
The development of discharge limits based on both technology-based and water
quality-based requirements is an evolutionary, ongoing process that will continue
without any further action from Congress. Under the Act, EPA must review and
revise as appropriate existing effluent limitations. EPA must also review new indus-
tries to determine the appropriateness of national limitations. In addition to water
quality standards protective of aquatic life and human health, EPA is currently de-
veloping additional criteria for protection of wildlife, ecosystems and sediment qual-
ity. Added to these requirements are tools to protect the aquatic environment from
adverse effect and to address the impacts of complex effluents. These tools include
bioconcentration evaluations, biomonitoring requirements and where necessary nu-
merical toxicity limits in NPDES permits. Furtb«^r, there are a multitude of new
programs authorized by the 1987 amendments to the Act (including new stormwater
permitting requirements, new requirements to address the problems of toxic hot-
spots, new pretreatment requirements and additional enforcement authority) as
well as new requirements from legislation that was enacted after the 1987 amend-
ments. These include the Great Lakes Critical Programs Act of 1990, the Coastal
Zone Management Act Amendments of 1990 and the Oil Pollution Act of 1990. Im-
plementation of some of these programs has just begun; implementation of others is
underway. The full impact of all the programs added in either the 1987 amend-
ments to the Act or in these other statutes, therefore, cannot be fully assessed.
There's no question, however, that they will work to reduce industrial discharges
still further.
THE ACT LACKS SUFFICIENT FLEXIBILITY TO TAKE INTO ACCOUNT
MULTI-MEDIA RISK REDUCTION.
Both the goals of clean water and multi-media risk reduction can be achieved
with more flexibility in the Act, in the associated regulations, and in application of
regulations. Such flexibility may need to be legislatively directed, because variances
such as the those based on Fundamentally Different Factors (FDF) are seldom ob-
tainable and require extraordinary amounts of time and effort.
One example of this need is described in Appendix A for Union Carbide's petro-
chemical plant in Seadrift, Texas. Its large pond-type wastewater treatment system
reduces toxic discharges well below OCPSF effluent guidelines. Concurrently, it re-
moves nitrogen and phosphorous nutrients, produces no sludge, has negligible air
stripping (secondary emissions) of volatile organics, and involves little added energy
or chemicals. The dispersed algae in the effluent have been demonstrated to be ben-
eficigil to the particular receiving water. However, the same algae cause the OCPSF
total suspended solids limit to be exceeded and the pl£int may be forced to construct
a high-rate activated-sludge system to handle the algae.
A high-rate activated sludge system at Seadrift would be less effective in toxics
reduction, would produce sludge to be landfilled, would air strip volatile organics,
and would not remove nitrogen and phosphorous. In addition, such a system would
be subject to upset due to flow and organic surges, and use more energy with its
associated pollutants. Furthermore, tens of millions of dollars in capital and operatr
ing costs are diverted from projects which would make the plant sustainably com-
petitive. Investment in new or retrofitted chemical facilities would result in in-
creased reliance on source reduction and other pollution prevention techniques.
More flexibility in dealing with certain requirements, like effluent suspended solids,
is needed when an alternative is shown to provide a greater degree of risk reduction
and environmental benefit.
68
A second example is at Union Carbide's petrochemical plant in Taft, Louisiana.
As described in Appendix B, this situation illustrates that exercising available, but
rarely used, flexibility could lead to a good at-source waste reduction solution which
benefits both the environment and industry. However, the situation also shows that
if the specific OCPSF Guidelines are inflexibly applied, then a poor end-of-pipe solu-
tion could be necessitated, which would have limited benefit. Contrary to popular
perception, this source reduction option is the more costly approach in terms of up-
front cost, however, it has a 3 to 6 year payback. Again, more flexibility to allow
facilities to achieve greater net risk reduction on a multimedia basis is needed.
PHYSICAL ALTERATION OF AQUATIC HABITAT HIGHER THAN CHEMICAL
ALTERATION AS A REMAINING RISK BUT HAS RECEIVED LITTLE ATTEN-
TION TO DATE.
The above issue is a quote from the consensus Report from the Forum of Scien-
tists: Reauthorization of the Clean Water Act, April 1991; the Forum was convened
by EPA's Office of Water and attended by its Assistant Administrator. This particu-
lar finding confirmed a similar conclusion of an EPA's Science Advisory Board
study resulting in the bench-mark report Reducing Risk: Setting Priorities and
Strategies for Environmental Protection, September 1990.
Physical habitat alterations include reservoirs, dams, channelization, siltation due
to land-use practices, and development adjacent to waterways and waterbodies emd
in wetlands. Water courses cannot be viewed as pipes or tubs, but rather in the con-
text of the adjacent ecossrstem that affects it. These adjacent ecosystems need to be
protected if the water course is to be in its best condition.
The Clean Water Act must address the highest remaining risks. Physical alter-
ation is one of them. "Strong provisions (for addressing physical alteration) should
be included in (any) CWA reauthorization such as the provisions in the original Act
and its amendments that have been successful in controlling chemical alterations
toward a de minimis level" (April 1991 Fonmi). Incidentally, as was noted by EPA's
Science Advisory Boeird, the Great Lakes Initiative also seems to address de minimis
levels of chemicals much more rigorously than the high risk matter of physical al-
teration of habitat.
A very recent National Academy of Sciences study concluded that "Chronic indus-
trial and wastewater point sources of toxic chemicals such as chlorinated dioxins,
poljTiuclear aromatic hydrocarbons (PAHs), smd solvents have been identified and
controlled or £ire readily subject to control with existing technology." {Managing
Wastewater in Urban Areas, National Research Council, April 1993).
I was fortunate to participate in all four studies cited above; each was a consensus
of 10-40 of the best of the Nation's scientists and engineers that the organizers
could muster. My conclusion is that addressing physical alteration of the aquatic
habitat should not be deterred by once again focusing on the lower remaining risk
from point-source industrial discharges. Such a focus was appropriate in earlier
Acts; however, major improvements have been made, considerable progress is on-
going, and the minimal additional risk reduction achieved by further controls on in-
dustrial effluent parameters does not justify the tremendous costs. We need to put
our resources where the real risks are.
The Clean Water Act's technology-based and water quality-based controls are de-
signed to ensure continual improvements to water quaUty. As permit limits become
increeisingly more stringent, however, at some point the question must be asked
whether additional controls on already regulated point sources will significantly
reduce risks to water quality, and thereby to human health and the environment.
Although the goal of the Clean Water Act is zero discharge, requiring all point
source dischargers to achieve zero discharge is technically impossible absent closing
down all manufacturing operations in the United States. While a laudable goal re-
quiring zero discharge also means aiming at a moving target as analytical tech-
niques constantly improve. Pursuit of zero discharge ignores the profound need to
better understand the real risks. It also ignores the principle of diminishing returns,
and the need to weigh the costs of additional regulation of industrial point sources
against the benefits to the environment.
As Congress looks to reauthorize the Clean Water Act, therefore, it should take a
risk-based approach to determining the appropriate focus of CWA reauthorization
issues. Adding more controls on industrial point source discharges will produce little
if any significant benefit to the environment. Congress should focus its reauthoriza-
tion efforts instead on the most significant remaining causes of water quality im-
pairment.
69
THE COMBINED TREATMENT OF DOMESTIC, COMMERCIAL AND INDTJSTRT
AL WASTEWATER IS A TECHNICALLY SOlJNDCO§r^E¥T^^nVEA^PRoI^H
THAT SHOULD NOT BE CURTAILED. , ^kjoi r^rrt^K^iiwa. Al'l'tiUALH
The Domestic Sewage Exclusion (DSE) under RCRA should be preserved and not
elimmated by amendment of the CWA. It makes good technical and economic sense
to combme mdustnal, commercial and domestic wastewater for treatment Advan-
tages of maintammg the DSE include increased treatability, economies of scale and
encouragement of remediation. Existing and imminent regulations under the Clean
Water Act which regulate mdustrial discharges should be allowed to progress StUl
pending are:
—Further Effluent Guidelines for OCPSF (40 CFR 414)
—Effluent Guidelines for the Pesticide Industry (40 CFR 455)
—Effluent Guidelines for Waste Treatment (40 CFR 437)
—Effluent Guidelines for Pulp, Paper & Paperboard (40 CFR 430)
—Effluent Guidelines for Pharmaceuticals (40 CFR 439)
—Effluent Guidelines for Transportation Equipment Cleaning (40 CFR 442)
—Effluent Guidelines for Industrial Laundries (40 CFR 441)
—Sludge Regulations (40 CFR 257)
Biological treatment used by most POTW'S is extremely effective for most indus-
trial waste constituents, including most hazardous organic wastes. This is due to
continued inoculation of microorganisms in the domestic sewage, abundance of nu-
trients, and concentrations below inhibitory levels. Constituents which are non-de-
gradable should be regulated by an appropriate pretreatment limit when justified
by riskbased considerations, and not on the basis of classification under RCRA.
POTW's have a vast array of tools, including EPA's "Fate and Treatability Estima-
tor" (FATE) software to predict the treatability of specific constituents.
There are economies of scale in collection and treatment systems. For example,
South Charleston (WV) POTW plant can treat peak domestic sewage flows because
of large capacity for industrial wastewater. Typical municipal systems are bypassed
during peak flows.
If the DSE were eliminated, one Union Carbide location would need to add addi-
tional, redundant treatment systems at a cost probably in the range of $5-$40 mil-
lion for separate treatment of a wastewater stream that originates from the POTW
sludge. No net reduction of discharges to the environment would occur due to sepa-
rate treatment versus combined treatment, and capital needed for other projects
would be lost.
The elimination of the DSE would also delay remediation of wastes, which contain
hazardous constituents. Groundwater remediation can be significemtly delayed if a
separate wastewater treatment system must be built and permitted rather than
using installed, available POTW capacity to treat contaminated groundwater. Arbi-
trary requirements for new wastewater treatment construction and permitting de-
layed a Union Carbide groundwater remedial action for years at one location. Simi-
larly, elimination of the DSE would add unnecessary costs and delays to new pro-
duction facilities.
Critics of the DSE charge that it allows indiscriminate dumping of hazardous
waste into POTW's. This has certainly not been the case in Union Carbide's experi-
ence. Two large Union Carbide manufacturing locations which discharge to POTW's
are subject to the stringent OCPSF pretreatment standards as well as general pre-
treatment requirements and local ordinances. Our smaller manufacturing and re-
search locations are subject to local limits, which we have found to be as stringent
as the OCPSF pretreatment standards.
The most sensible approach to managing the risks to POTW's from discharges of
Eill wastes — hazardous or non-hazardous — is via the current regulatory program.
This program will be enhanced as new effluent guidelines and sludge regulations
are implemented. The current program is effective, technically justified, and encour-
ages pollution prevention.
Continued implementation of two ongoing Clean Water Act programs — the efflu-
ent guidelines program and the sludge regulations program — will be far more bene-
ficial than an absolute or partial prohibition on hazardous waste treatment in
POTW's. Hazardous waste classification does not reflect risk or treatability. For ex-
ample, a substance, which in its pure form is a U-listed hazardous waste, is often
classified as a nonhazardous waste when it is contained in a process waste. Applying
additional restrictions to ultra-low hazard "mixture rule/derived-ft-om rule" hazard-
ous wastes adds cost but does not reduce risk.
The pretreatment program's concentration-based limits encourage pollution pre-
vention by at-source reduction. On the other hand, elimination of the domestic
70
sewage exclusion would require investment in redundant treatment and disposal
systems. Union Carbide believes the most sound, long term approach is investment
in pollution prevention rather than redundant treatment.
Incidentally, the Clean Air Act is already addressing secondary emissions from in-
dustrial wastes sent to sewer systems. These regulations will result in source reduc-
tion of some volatile organic compounds and in additional pretreatment of some in-
dustrial wastes.
IV. CONCLUSION
In conclusion, we believe that the Cleem Water Act has made clear improvements
in water quality across the United States. Existing CWA programs have succeeded
in making major reductions in pollutemt discharges. These progrgmas promise more
success in the future.
Any new Clean Water Act legislation should focus on remaining significant
causes of water quality impairment. Further, if multi-media pollution prevention is
viewed as the most promising environmental strategy of the future, Congress should
promote it by making existing command and control statutes like the Clean Water
Act more flexible. Without added flexibility, facilities will not always be able to ad-
dress their most significant remaining risks through pollution prevention practices.
Command and control was the basis of the first twenty years of environmental law,
but shouldn't be the basis of the next twenty years. Pollution prevention is not a
one-size-fits all proposition. Therefore flexibility will be the key to its success.
71
APPENDECA
SEADRIFT (TX) PLANT OF UNION CARBIDE CORPORATION
IMPROVED RELATIVE RISK REDUCTION
AS REASON FOR FLEXIBILITY
IN OCPSF EFFLUENT GUIDELINES FOR
TOTAL SUSPENDED SOLIDS
The 400-acre pond system at Union Carbide's Seadrift Plant in
Texas as presently constituted reduces more risk than would
alternatives. The apparent excess effluent total suspended solids
(TSS) should not be deemed an effluent discharge exceedance, as it is
a natural byproduct of this more effective system and enhances local
ecological systems. It is important to note that both scientifically-
based "real" risk reduction and habitat preservation are EPA goals.
Risk Reduction
• Toxics removal by bacteria in this long-retention pond
system exceeds that of activated sludge and levels are
well below OCPSF effluent gviidelines; in addition,
nitrogen and phosphorous nutrients are removed by
the algae.
• The liquid effluent exhibits no acute or chronic toxicity
even at 100% dosage.
• Storm water and organic surges can be accommodated
without system pertiu-bation.
• With a multimedia view, no sludges need to be
landfilled or incinerated and volatile organics are not
air stripped.
• Pollution from production of involved energy,
construction materials, and chemicals is virtually nil as
Uttle are used.
72
Fffluenr Total Suspended Solids
• The bulk (80-85%) of the 100 mg/L TSS are finely
dispersed algae.
• The algae show no buildup in petrochemicals based on
carbon dating.
• The receiving Victoria Barge Canal benefits from the
algae in terms of biodiversity and population of fish
and lower forms.
• The algae are consmned by the food chain and do not
form sediment, exert a net oxygen demand, or form
nuisance surface accumulation.
• The San Antonio Bay into which the Canal flows has
shown no deterioration over the roughly 30 years the
Plant has operated.
• The Texas Water Commission supports the positive
effects of the algal discharge.
Ecology
The large pond system provides habitat for
waterfowl, fish, alligators, snakes, nutria, and micro-
invertebrates.
The biodiversity and productivity of the receiving water
is enhanced by the algae in the pond effiuent.
73
APPENDIX R
REGULATORY FLEXIBILITY AND THE BENEFITS OF
AT-SOURCE WASTE REDUCTION VS. END-OF-PIPE
TREATMENT
UNION CARBIDE'S TAFT, LA PLANT
The following case study will show that exercising available
flexibility can lead to a better solution than that mandated by
current media-specific regulations; that the result is a "win-win"
situation for both the environment and for industry.
DEFINTTTONOFT5;5aTF
Regulatory inflexibility in water-specific regulations may
force Union Carbide to use "end-of-pipe" technology to meet the
OCPSF Effluent Gviidelines at its Taft, La. plant in heu of using at-
source waste reduction technology.
These alternative at-source reduction projects would not only
provide a return on investment over time and reduce overall waste
to all media, but would recover valuable products and reduce the
need for non-renewable raw materials (petroleum feed stocks).
ABOUT THF PT.ANT
The Union Carbide Taft Plant is near Hahnville, Loviisiana,
which is approximately 30 miles up the Mississippi River from New
Orleans. It employs 1200 full time and 200 contract employees with
an annual payroll of $67 million. It is the largest tax payer in St.
Charles Parish (Coimty in La).
The Taft Plant is a large integrated manufactiuing facility
shipping three biUion pounds per year of olefins (ethylene and
propylene) and olefin derivatives (ethylene oxide, ethylene amines,
acrolein/acryUcs, and peracetic/peracetic acids). The basic chemicals
manufactured at the Taft plant are used to produce many common
consumer items such as: polyethylene plastic garbage bags, brake
fluids, acrylic paints, antifreeze, polyester films and fabrics.
74
shampoos, detergents, perfumes, pharmaceuticals, animal feed
supplements, and others.
ISSUE BACKGROUND
The Taft Plant is in the Organic Chemical, Plastics and
Synthetic Fiber (OCPSF) Effluent Guideline Category in the 2869
Standard Industrial Code classification. Taft's NPDES Permit expired
in October, 1992, and is ciurently operating vmder the limitations of
that permit, having submitted an application for renewal six months
prior to expiration. Re-issuance of the permit is anticipated in mid to
late 1993.
The current Wastewater Treatment Facility (WWTF) is an
activated sludge system providing secondary treatment. It is
extremely efficient and exceeds 99% soluble organic removal
efficiency.
This current system not only meets the "toxics" limitations at
current permitted levels, but for future OCPSF Effluent Guideline
levels for toxics as well. However, it does not meet the OCPSF
Effluent Guidelines for Total Suspended Solids (TSS) and the
associated Biochemical Oxygen Demand (BOD) exerted largely by the
TSS.
75
SOLUTION
With an end-of-pipe mind set in order to comply with water
regulations, five years and $2.5 million of Research and Development
(R&D) and piloting work were expended to find a system which wiU
meet Effluent Guidelines. The work concentrated on TSS/BOD
removal and examined and piloted a variety of systems including
filtration, filtration with polymer addition, carbon adsorption, pre-
treatment, system re-configuration, and upgrading of secondary
clarifiers. The solution was foimd to be an additional activated
sludge pohshing system with a preliminary estimated cost of $7.5
million in 1992 dollars. This does not include ongoing operating
costs. Asstuning a 12% discount rate, the project has a Net Present
Value (NPV) of a negative $7.1 miUion doUars, which does include
operating costs. This was "money down the drain". Even if this
money were spent, the net impact on the environment would have
been zero. It would have shifted tiie reductions in discharge of non-
hazardous suspended soUds from water to a corresponding increase
in discharge to land.
After project definition, Union Carbide recognized that more
"end-of-pipe" treatment was not only very costiy, but was clearly not
the most desirable solution.
A team was formed to explore "at-source solutions". The
results showed that there is an "at-source" solution, but with
qualifiers. The solution is depicted in the attached Figure. The
qualifiers are:
a) it is more expensive in terms of initial investment (about
$16.3 miUion).
b) based on bench-scale testing, OCPSF Effluent Guidelines
limitations for biological oxygen demand and total
suspended solids will be approached but may not be
completely met all the time.
c) the solution results in a net gain for the environment.
The cost qualifier is not a major obstacle because this "at-
source" solution has a 3-6 year paypack. This is due primarily to the
recovery of product, but also reflects some reductions in WWTF
operating costs associated with the decreased waste load.
76
The advantages of the at-source solution are many and
include:
POLLUTION
PREVENTION
ADVANTAGES
DESCRIFI'IVE
a) Avoidance of "end-of-
pipe" investment
Once you build it, you must feed it:
Creating additional infrastructure that car
be used over time increases reliance on
this fixed capital investment. These
dollars have also been removed from
consideration for other projects.
b) Reduced secondary
sludge generation and
subsequent land
disposal
A net decrease of -4,000 lb/day with at-
source waste reduction versus "no net
change" with end-of-pipe treatment.
c) Reduced secondary
emissions
Less influent loading means less
secondary emissions from the WWTF.
d) Product recovery
Up to 40 thousand pounds per day of
products, such as ethylene glycol and
acryUc acid.
e) Reduced use of raw
materials used as feed
stocks
Each pound of recovered product results
in an equivalent reduction in need for the
"up-front" raw material feed stock.
f) Influent organic load
reduction
WWTF nms better and uses less energy.
The second qualifier of "not completely meeting Effluent
Guidelines all the time" is the major obstacle. Union Carbide cannot
afford to spend dollars on "at-source" waste reduction projects where
risk exists that the resulting system may be incapable of operating in
full compUance with appUcable regulations. This clearly points to the
need for greater flexibility in the development of legislation and
administration of ensuing regulations.
77
In this case, because the Effluent Guidelines are "brightline"
values that must be met, there is Uttle allowance for Best
Professional Judgment (BPJ) by a permit writer. This effectively
prohibits alternative solutions such as at-source waste reduction.
The obvious extrapolation is to increase the number of
projects in the "at-source" solution. However, there is an optimimi
point in the at-sovirce/end-of-pipe trade-off beyond which solutions
become impossible economically.
In this example there is flexibility available in the form of a
Fundamentally Different Factors (FDF) variance. Approval of a FDF
variance by the EPA can facilitate the use of a Best Practicable
Judgment (BPJ) permit. Union Carbide has appUed for an FDF
variance for the Taft WWTF. However, this flexibiMty has not been
exercised to-date by the EPA. As of December 3 1, 1992 a total of
249 FDF appUcations has been submitted to the EPA. Of that total,
156 were denied or withdrawn. Of the remaining 93, 86 are still
pending. Of the 7 which have been approved only 1 was for an
OCPSF discharger and it was only for partial relief on one OCPSF
parameter while all other OCPSF parameters remained in force.
Some FDF appUcation withdrawals (such as 9 in 1992 dealing with
OCPSF cyanide limits) were due to changes in the regulations made
by EPA which eliminated the need for variances. The overall
situation is that the FDF variance has been practically impossible to
obtain. Such inflexibihty effectively eliminates alternative solutions,
as illustrated by Union Carbide's examples provided in this
testimony, to environmental protection which are better for both
environment and industry."
Exercising this flexibihty will facihtate the implementation of the "at-
source" waste reduction solution at Taft.
Flexibihty should be construed as the latitude to seek an
optimum solution which best meets the requirements of sound
technology, viable economics, and environmental protection.
Technical, economic, and regulatory constraints must aU be
considered simultaneously to arrive at a workable solution. Without
flexibihty, this optimization process cannot occur and poor, or less-
than-optimum, solutions, as illustrated by this example, will result.
78
SUMMARY
Union Carbide strongly urges the greater use of
statutory/regulatory flexibility. The Taft Plant example illustrates
that regulatory inflexibility can be an obstacle to "doing the right
thing". It can lead easily to a less desirable solution. Greater future
flexibility and exercising of existing flexibility can be directed to
accomplish positive results which benefit the environment and
industry at the same time.
79
UNION CARBIDE CHEMICALS AND PLASTICS COMPANY INC.
P O BOX 8361, SOUTH CHARLESTON, WV 25303
October 22, 1993
Senator Bob Graham
Committee on Envirorunent and Public Works
United States Senate
505 Hart Senate Office Building
Washington DC 20510-6175
Dear Senator Graham:
In response to your letter of October 12, 1 have prepared the attached answers
to the four questions you posed as follow-up to my testimony on June 16 concerning
reauthorization of the Clean Water Act.
Thank you for the opportunity to contribute again to this important matter.
Very truly yours,
Richard A. Conway
Senior Corporate Fellow
RAC/sj
Enclosure
cc: Bill Leary, Committee Staff
80
CLEAN WATER ACT REAUTHORIZATION
Comments by Richard A. Conway in
Response to Questions Posed by Senator Bob Graham, 12 October 1993
1. For any additional chemicals to be regulated, the proposed requirements should
be subject to peer review by qualified scientists and be subject to public comment.
I base my peer-review comments on ten years of experience on EPA's
Science Advisory Board, as well as seven years on National Research Council
committees, boards, and commissions.
The persons who develop any scientific document, such as a risk analysis for
a specific chemical or class of chemicals under consideration for regvdatory action,
do so based on the specific data of which they are aware as interpreted according
to their protocol and value system. Several flaws are apparent: 1) they likely are
not aware of all the data in existence, 2) the validity of the protocol selected and
value system used for interpretation usually diminishes as the number of people
involved becomes small, and 3) the developers of the document have a stake in the
outcome so are prone to overlook errors in their zeal to publish. If proper peer
review is not practiced, inevitably less than best starting data bases are used,
interpretation procedures are not fine tuned, and/ or outright errors creep into
scientific documents.
There are numerous instances in current envirorunental statutes where lists
used for regvdatory programs have never been subject to appropriate peer
review. The SARA Section 313 list of chemicals, which continues to be used for
purposes beyond the original intent of public emissions reporting, was derived
from a series of state lists which themselves had not been reviewed. In fact, the
Clean Water Act priority pollutants list has never been peer reviewed.
An adequate peer review procedure has the following elements which were
developed through long experience by the National Academy of Sciences
complex ("Report Review: Guidelines for Committees and Staff," NAS-NAE-
lOM-NRC, July, 1989).
• Selection of a set of reviewers by a body other than the authors, based
on scientific qualifications and coverage of key elements of the subject
material.
• Collection of comments from the reviewers.
81
• A documented response (to the comments) by the writers of the subject
material.
• A documented evaluation (of the resporise) by qualified "non-
stakeholders." (Note: A "stakeholder" is any person who is affected by
the subject material or even cares if it is issued or not. If the reviewers'
comments were not adequately addressed by the original authors, i.e.,
if either all changes were not made or valid technical arguments were
not presented that certain changes were inappropriate, the non-
stakeholders make the final decisions on such vmresolved points.)
The best scientific basis for regulating or not regulating the material thus can
be assured using these peer review procedures. All then will be done to avoid both
over-regulation with associated economic threats and under regulation with
environmental threats. Regulating more chemicals through incorporation of lists
from other sources that have not received adequate peer review is a particular
problem to be avoided in new legislation.
Finally, since there are aspects of regulating given chemicals or chemical
classes that are not based on science, an opportunity for public comment should be
provided. The reauthorization of the CWA should include a provision that
proposed regulation of any chemical undergo scientific peer review and be subject
to public comment.
2. Progress has been made in establishing direct links between agricultural practices
and water quality of streams and waters.
Up to about 1989, the matter of direct links between what happened in the
farmer's field and diminished quality of streams in associated drainage areas was
controversial, much like tobacco smoke and lung cancer were at one time. Much
investigation in this area has taken place over the past four years, in part due to
progressive efforts by the Department of Agriculture. Agriculture took the lead in
the President's Water Quality Irutiative. One example is the establishment of
cormections between ground water and rivers that resulted in pollution of streams
by degraded atrazine; this was determined in a mid-west initiative done
cooperatively by USD A, EPA, and others. An expert on this topic is Dr. Suresh Rao
of the University of Florida (904/392-2302).
As I advised in my testimony, the Senate shovild avoid the trap of viewing
water courses as a conduit subject to only chemical contamination problems. Of at
least equal importance is their ecological condition. Sedimentation is one major
82
' problem directly linked to agricultural practices; stream-bed ecology can be largely
wiped out this way. The Nature Conservancy finds that sedimentation is the major
threat to a nature preserve. Big Darby Creek in Ohio, and is developing programs
to plant high-quality hay along the borders of farmers' fields adjacent to the Creek
to prevent erosion. Banks of streams with their essential ecological niches also can
be rendered barren by livestock and/or agricultural development without
adequate buffer zones. I understand that BUI Cooper, another hearing witness,
plans to address this question in more detail.
3. Pollution prevention programs can be constructed so that they have a measurable
and protective effect on water quality parameters of significant risk.
I strongly agree that p)ollution prevention is not an end in itself. The
principal objective should be risk reduction, and pollution prevention is an
important tool to reducing risk. The value of pollution prevention should be
assessed on the basis of multi-media risk reduction. It is appropriate that multi-
media f)ollution prevention should not compromise our water quality goals. It is
important to note that decreasing releases to air and land improve surface water
quality due to less atmospheric deposition, surface runoff, and groundwater
/surface water interactions. Thus such efforts should not necessarily be viewed
as a net negative for water quality.
Some options that would specifically and measurably relate pollution
prevention efforts with water quality are:
• As documented in my written submittal to the 12 June hearing (excerpt
attached) pollution prevention projects exist that can reduce much more
significant risks via air and land media with insigruficant increases in risk
to surface water. The permit writers should be empowered with sufficient
flexibility to make such evaluations and implement alternative compliance
strategies.
• When alternative measures bring multi-media improvements, but don't
quite meet BAT standards, consideration should be given to still meeting
water quality criteria or standards.
• Where water quality standards are not quite met by the source
implementing multi-media programs, attainment of water quality
standards could be achieved through the watershed management process in
Title in of S. 1114. It may be far more cost-effective to make up the
83
difference from elsewhere in the watershed, recognizing that the facility's
reductions in other media will still be of some benefit to water quality.
• It may be desirable in some cases to allow pollutant reductions achieved by
other dischargers in a watershed to supplement an alternative compliance
strategy of a facility that is pursuing a multi-media p)oUution prevention
project, as long as overall water quality benefits are achieved. More
information on the relative water quality impacts of different pollutants is
needed to eriable watershed mariagement entities to evaluate the overall net
water quality impact of different pollution reduction scenarios and water
quality impacts caused by different substances in a watershed.
• Implementation of BAT could be deferred if a planned pollution-prevention
project to be completed within two to three years would reduce effluent
quality below the predicted BAT level.
In addition, voluntary pollution prevention efforts can often begin earlier in
areas where water quality based permits have not been issued. Early reductions,
though not necessarily equivalent with a water quality standards, can have a
cumulatively beneficial effect. Incidentally, in addition to usually having a
measurable effect on reducing risk to human health and ecological systems,
pollution prevention has several other benefits. Regulatory compliance aside,
reduction of pollution generation prevents release of unregulated material not
now thought to present health/ecological problems but could be later so
identified; pollution prevention also reduces consumption of non-renewable
resources, enhances the aesthetic quality of life by not generating waste that are
nuisances, and increases the envirorunental ethic of workers involved.
The above elements should be considered when a pollution prevention
and non-pollution prevention solution are being weighed and the regulatory
results are close. Considering the safety margins or uncertainty factors of 100 to
1000 percent imbedded in regulatory limits, I would define "dose" as within a
safety factor of no less than 70 percent for conventional pollutants with a larger,
as their embedded safety factor is much larger.
Best management practices need to be developed, implemented, and enforced for
agriculture and silviculture as BAT has been for industry.
Reauthorization of the Clean Water Act should address the remaiiung
higher-risk <ireas like non-point-source pollution. "Teeth" should be put into the
*
84
Act to enforce states to develop, adopt, and implement best management practices
(BMP) for agriculture and silviculture. Funds to do this could be provided to the
states; a default could be that USDA/EPA would do it if states do not. BMP should
be developed in conjunction with that state's appropriate academic institutions and
be reviewed by the affected regulated community for economic feasibility. The
environmental risks being addressed should be ranked high, medium, and low and
a targeted priority established.
85
TESTIMONY OF JAMES R. KARR, DIRECTOR, INSTITUTE FOR
ENVIRONMENTAL STUDIES, UNIVERSITY OF WASHINGTON
Thank you, Mr. Chairman, for inviting me to appear before this committee to com-
ment on the chemical, phs^sical, and biological health of the waters in the United
States and whether and to what extent the Clean Water Act has achieved its goals.
OVERVIEW
Societal perceptions of water resources have evolved rapidly in the past decade
thanks to the widespread recognition that humans depend on fresh water and the
resources associated with fresh water. Abundant evidence indicates that the quality
of water resources is being degraded and the supply of fresh water is being depleted.
DEGRADATION CONTINUES BECAUSE WE HAVE IMPLEMENTED THE CWA
AS IF CRYSTAL CLEAR DISTILLED WATER RUNNING DOWN CONCRETE
CONDUITS WERE THE GOAL OF THE ACT.
The gap between the mandate and accomplishments of the CWA widens despite
accomplishments such as reduction in the volume of chemical contaminants re-
leased to water bodies. The gap widens because a narrow perspective has dominated
implementation of the CWA. We waste money and degrade resources because deci-
sions based on chemical criteria do not protect the condition of the resource; priority
lists of chemicals do not accurately reflect ecological risks; and point-source ap-
proaches do not effectively control the influence of nonpoint sources or the cumula-
tive effects of numerous contaminants. Finally, the chemical contaminant approach
faik to diagnose water resource problems caused by other human influences.
We can be proud of our success in regulating contamination from some point
sources, but we should not allow those accomplishments to permit us to overlook
continuing degradation in resource condition. Rather, we should focus our energies
to protect water resources from all forms of degradation.
Continuing degradation of aquatic systems is obvious, even to the untrained eye,
because government agencies have been weak, inappropriately focused, and there-
fore largely ineffective at reversing resource declines. Underfunding — the chronic
complaint from all bvu-eaucracies and scientists — is not, however, the most impor-
tant problem. The most important problem is that we do not see water resources as
integrated and complex natural resource systems. Failure to adopt such an integra-
tive perspective in reauthorizing the CWA is unacceptable on legal, scientific, eco-
nomic, and ethical grounds.
THE CWA MANDATE
Although the vaandate of the Clean Water Act was to "restore and maintain the
physical, chemical, and biological integrity of the nation's waters," its implementa-
tion has concentrated on two issues: effectiveness of wastewater treatment technolo-
gy to control point sources of pollution and human ceuicer risk. The dominance of
these two issues has prevented program managers, political leaders, and the public
at large from tracking the actual condition of the resources. Growing recognition of
the downward trend is stimulating many to call for change in the vision and man-
date of the CWA. In drafting a solution, we must keep in mind the admonition from
Albert Einstein that goes something like: "YOU CANNOT SOLVE A PROBLEM BY
APPLYING THE CONCEPTUAL FRAMEWORK THAT CREATED IT." We need a
new conceptual framework to protect our water resources.
Volumes can and no doubt will be written to convey the details of change that
should be considered. To shift the conceptual framework, as called for by Einstein,
we need to SfflFT THE SOCIETAL FOCUS FROM WATER QUALITY TO A
BROADER CONCEPT: THE ECOLOGICAL HEALTH OF THE WATER RE-
SOURCE SYSTEM.
Another shift will have to come in our use of the word pollution. We waste large
sums of money, and d^rade water resources, because of our narrow conceptual
focus on chemical contamination and its prevention. In conventional usage and in
the teclmical jargon that permeates the CWA and its implementing regulations, pol-
lution is usually assumed to mean chemical contamination. But human influences
on water resources are broader than chemical contamination. A more appropriate
definition, present in the 1987 CWA but little used, states that pollution is any
"[hujmanmade or [hujman-induced alteration of the physical, chemical, biological,
or radiological int^rity of water." Under this definition, humans may degrade or
pollute by withdrawing water for irrigation, by overharvesting fish populations, or
by introducing exotic species or chemical contaminants. Just as one needs to assess
risks carefully to protect human health, one needs to assess risks carefully in for-
mulating policies to protect the ecological health of water resource systems. Such
86
risk assessment requires a framework broader than control of toxics, or even chemi-
cal contamination — a framework that goes beyond faith in chemical criteria and
technological solutions to address all these influences.
WATER RESOURCE TRENDS
Using chemical criteria, USEPA acknowledges that water resources throughout
the United States are significantly degraded. In 1990, the states reported to USEPA
that 998 water bodies had fish advisories in effect, and 50 water bodies had fishing
bans imposed. More than one-third of river miles assessed do not fully support desig-
nated uses as defined under the CWA. More than half of eissessed lakes, 98% of the
assessed Great Lakes shore miles, and 44% of assessed estuary area did not fully
support designated uses. To make matters worse, EPA UNDERESTIMATES THE
MAGNITUDE OF THE PROBLEM BECAUSE ITS ANALYSES ARE BASED ON
CHEMICAL RATHER THAN BIOLOGICAL CRITERIA.
Under section 305(b) of the CWA, states are required to report the status of water
resources within their boundaries. In one state, the proportion of the state's waters
assessed as degraded doubled as a result of the more comprehensive, sensitive, and
objective assessment provided by using biological criteria. IN OTHER WORDS,
WHEN THOSE STATUS REPORTS INCLUDE BIOLOGICAL EVALUATIONS,
THEY SHOW THAT CONVENTIONAL CHEMICAL CRITERIA FAILED TO
DETECT 50% OF THE IMPAIRMENT OF SURFACE WATERS.
That conclusion is reinforced when one examines the biota of America's fresh
waters. Aquatic organisms are seriously threatened. Only 11 to 14% of North Amer-
ican terrestrial vertebrates (birds, mammals, and reptiles) are classed as rare to ex-
tinct, but from 34 to 73% of major aquatic taxa are classed as rare to extinct. One-
third of the native fishes of the Colorado River are endangered, threatened, or ex-
tinct. Twenty percent of the mussels and their relatives of the Tennessee River have
been lost, and 45% of the remaining species are endangered or seriously depleted.
Sport and commercial fisheries of the United States have also been decimated by
human actions during this century. Since 1910, wild salmon runs on the Columbia
River have declined by more than 96%. The Illinois River (Illinois), second in com-
mercial catch to the Columbia early in this century, declined to a near zero com-
mercial catch over a decade ago. Commercial fish harvests in the Missouri and Dela-
ware rivers have declined by more than 80% this century. How would we respond
as a society if our agricultural productivity declined by more than 80%? How can
we continue to ignore declines of that magnitude in water resources, which are just
as essential to the economic and ecological health of human society?
On top of the loss of species and the massive decline in commercial and sport har-
vest, consumption of what fish remains often threatens the health of humans. Fish
consumption advisories, sport fishing restrictions, or sport fishing closures occur in
more than 40 states each year, and women who consume contaminated fish bear
children with significant mental impairment, which persists at least to age 4. This
intergenerational effect is now emerging as a hidden, and previously unsuspected,
cost of the status quo.
THESE AND OTHER EXAMPLES OF DEGRADATION OF WATER RESOURCE
SYSTEMS DEMONSTRATE THAT OUR DEPENDENCE ON TECHNOLOGY-
BASED STANDARDS AND CHEMICAL CRITERIA TO PROTECT THE QUALITY
OF OUR WATER RESOURCES HAS FAILED.
WHERE DO WE GO FROM HERE?
The technology-based approaches of the past 20 years concentrated on a narrow
range of human actions while equally serious threats were ignored. But humans de-
grade streams and other water bodies in one or more of five major ways (Table 1).
Efforts to protect the quality of water resources are doomed unless they explicitly
incorporate this range of factors into a comprehensive planning and assessment
process.
87
Table 1. — Degradations in Resource Characteristics T5rpical of
Problems in Northwest Watersheds
Factor lypictd d^radation in northwest watersheds
Food (energy) source Altered supply of organic material from ri-
parian corridor.
Reduced or unavailable nutrients from the
carcasses of adult salmon after spawning.
Water quality Increased temperatures.
Oxygen depletion.
Chemical contaminants.
Habitat structure Sedimentation and loss of spawning gravel.
Obstructions that interfere with movement
of adult or juvenile salmonids.
Lack of coarse woody debris.
Destruction of riparian vegetation and over-
hanging banks.
Lack of deep pools.
Altered abundance and distribution of con-
strained and unconstrained channel
reaches.
Flow r^ime Altered flows that limit survival rates during
any phase of the salmon life cycle.
Biotic interactions Increased predation on young by native or
exotic species.
Overharvest by sport or commercial fishers.
Two important advances in the past decade are key to protection of water re-
sources: (1) development of a broader conceptual perspective to protect the health of
the entire resource system from an array of human influences, not only chemical
contamination, and (2) use of biological monitoring and biocriteria to protect the
quality of water resources. Biocriteria provide cost effective and sensitive tracking
of resource condition. Biological monitoring is especially critical because impair-
ment of waters is predominantly caused by nontoxic and nonchemical factors. Addi-
tioned strengths of biological monitoring include the ability to assess and character-
ize resource status; diagnose and identify chemical, physical, and biological impacts
as well as their cumulative effect; serve a broad range of environmental tmd r^ula-
tory programs when integrated with chemical and toxicity assessments; and provide
a cost-effective approach to resource protection. Ambient biological monitoring is
less likely to under protect the water resource than the current chemical approach.
Finally, ample evidence exists to show that chemical approaches can waste econom-
ic £ind environmental resources.
IMPEDIMENTS TO BIOLOGICAL MONITORING HAVE BEEN LARGELY OVER-
COME
Recent studies by state and federal agencies and by vmiversity-based scientists
have shown that the classic arguments against biological monitoring carry little
weight relative to the resource protection benefits that result. Recent studies show
that biological monitoring is cost-effective, broadly based ecologically, flexible for
special needs, sensitive to a broad range of degradation, and easy to explain to the
general public. Moreover, biological monitoring provides direct and meaningful eval-
uations of resource condition because it integrates cumulative effects, such as point
and nonpoint pollution, habitat degradation, and flow alteration.
Technological or engineering approaches tj^jically deny or ignore common signs of
biological impairment, a problem that biological monitoring overcomes. Limited
legal and regulatory programs foster dependence on technology-based controls of
pollution and dominance of a narrow chemical-contaminant definition of pollution.
EJver-expanding human influences on water resources produce a shifting array of
problems. Biological monitoring increases the likelihood that unanticipated prob-
lems will be detected earlier rather than later. Criteria developed for many chemi-
69-677 0-94-4
88
cal contaminants were (now obviously incorrectly) applied uniformly for all water
resources, and the lack of uniformity in biological expectations was considered a
weakness. We now recognize that lack of uniformity reflects the true water resource
situation. In retrospect, the idea that the same criteria should apply to all waters is
ludicrous.
CHANGING THE CLEAN WATER ACT
1 THE PHRASE WATER QUALITY WITH A BROADER CONCEPT, SUCH AS
PROTECTING THE ECOLOGICAL HEALTH OF THE WATER RESOURCE
SYSTEM. Society no longer tolerates dilution as the solution to pollution. That ap-
proach has compromised resource quality on too many miles of rivers and acres of
surface water. Not only should we see water resources in this broader context, we
should see human influences on water in a broader context. Humans degrade water
resources in nimierous wasrs, and we must become more effective at distinguishing
degradation by humans from variation caused by natural events. Efforts to protect
resources, or to halt and even reverse degradation, are unlikely to succeed without
careful analysis of the nature and consequences of diverse local and regional im-
pacts.
2 AMBIENT BIOLOGICAL MONITORING CENTRAL TO ASSESSING THE
QUALITY OF THE NATION'S WATER RESOURCES. Ambient biological monitor-
ing involves examining the biota (fish, invertebrates, plants, and so on) of a water
body. The species composition, relative abundance, and health of individual orga-
nisms measure local biological conditions and, thus, human-induced degradation of
streams, lakes, and estuaries. Biolo^cal monitoring is an essential supplement to
chemical monitoring because it provides a more direct and accurate evaluation of
resource condition. All environmental legislation is grounded in biology — not chem-
istry, physics or mathematics. The objective of ecological health is a biological objec-
tive, and, thus, biological evaluations are critical to all water resource assessments.
3. EVALUATE THE ACTUAL RESULTS OF MANAGEMENT AND PROTECTION
PROGRAMS. We remain blissfully ignorant of the actual benefits and costs of regu-
latory actions ostensibly designed to protect water quality but with unknown influ-
ence on the health of water resources. For decades, we have operated water quality
programs as if the relationships between societal action and resource condition were
known. In fact, our policies are untested hypotheses that continue to permit re-
source degradation. We can — indeed should — use management programs as experi-
ments to test our hypotheses about system responses to hmnan actions. Only then
can we modify management programs to benefit society, both economically and en-
vironmentally.
SUMMARY
Reduction in ecological risk should be a central component of the reauthorization
of the Clean Water Act because healthy ecological systems are the foundation of a
healthy economy and society. To protect ecological health, we should focus decisions
in ways that will protect the inherent potential of natural systems — potential that
includes their capacity for self-repair and requires little management intervention.
SOCIETY WOULD NOT TOLERATE AN APPROACH THAT DEFINED THE
MEDICAL TECHNOLOGY TO BE USED RATHER THAN AN APPROPRIATE
HUMAN HEALTH ENDPOINT. THE TIME IS RIPE FOR USING THE SAME
WISDOM TO EXPUCITLY DEFINE AND PROTECT BIOLOGICAL ENDPOINTS
AND THUS PROTECT THE ECOLOGICAL HEALTH OF WATER RESOURCES.
89
GCOnCf J. HTTCHEU. UAiNC
HIAMK K lAtmmaC. M«W JiRSfY OAVf DUKNBCnGn
HMNV HeO. NEVADA JOHN W WAftNEK. VINGINIA
eoa GMHAM. R.OMDA fKMCRT SMTTH. NtW HAMPSHIRE
JOSEPH I. UEBERMAN. COHHECTtCUT LAUCH FAlBCtCTTH. NORTH CAROUNA
HOWAM) M MnTENOAUH. OHIO OIRK KE»«PTMOW<E. IDAHO
HARRIS WOfFORO. PENNSYLVAMA
aARSARA SOXER. CALIFORNIA
PETER L SC«R STAFF DIRECTOR COMMFTTEE ON ENVIRONMENT AND PUBUC WORKS
Bnitd States Senate
I SHIMBERG. WtNORrTY S
WASHINGTON. DC 205 1 0-« 1 7 S
October 12. 1993
Dr. James Kair
Institute for Environmental Studies
Engineering Annex
FM 12
University of Washington
Seattle, Washington 9819S
Dear Dr. Kair
The Subcommittee appreciates your participation in Ae hearings of Ae Subcommittee on
Cieaa Water, Fisheries and Wildlife in its review of the Qean Water Act In fiuAcrance of our
review, we have a few follow-up questions for the record. Please provide your answers to Bill
Leary at 505 Hart Senate Office Building, Washington, D.C. 20510 by October 29, 1993.
1. Can you expand on your comments about the need for peer review? What has been Ae
affect, if any, of not providing peer review under tiie Clean Water Act? Could you
describe what, in your opinion, would be an appropriate and adequate peer review process
and the kind of contribution that it would make?
2. A 1988 Agricultural Department study questioned the current ability to identify a direct
link between agricultural "discharge" and the water quality of receiving streams. For
exaa:q)le, it says: "Offsite damage associated with water pollution cannot be measured
directiy and links between farming and affected water uses are not well defined. Many
assunqitions are made to estimate offsite damage, and both methods and data for
estimating damage need to be improved." Bradley M. Crowder, Marc O. Ribaudo, and
Edwin Young, "Agriculture and Water Quality," Washington: USD A, August 1988, p. 2.
For exan^le, I understand that in one research study of phosphorus loading and nonpoint
source pollution in Estonia, the authors concluded that phosphorus stream loadings fixHn
intense agricultural operations are quite low, in spite of the feet that phosphorus loadings
are high in the fields. The field-generated phosphorus combines with the sediment to
prevent stream damage, whereas phosphorus loadings fiom industrial and municipal
sources are highly interactive. E. Loigu, "Evolution of the Intact of Non-point Source
Pollution on the Chemical Conqwsition of Water in Small Streams and Measures ftjr the
Enhancement of Water Quality," Advances in Water Pollution Control. H. Laikari, ed.,
1989, pp. 213-217.
90
Have we made any progreu in eitabluhing a direct link between what happens in a
fioma's field and what occurs to Ae water quality of streams and waters?
In looking at pollution prevention as a toll for improving water quality, it is conceivable
that in our zeal for poUuticm prevention, wc can and will identify ways to place controls
on the front end without necessarily iQq>roving water quality, or being able to document
scientifically a relationship between the pollution prevention effort and an inqnovement
in stream quality. What lecommoklations would you make to tfiis committee about die
construction of a poUutioo prevention program to assure that pollution prevention does
not become ttie end itself, but ratfan that dK>se pollution prevention efforts undertaken
will have a measurable and protective effect on water quality?
In your rq>ort to EPA, you state Aat restrictions on agricultural and silvicultural practices
should be included in any federal program for nonpoint source pollution control. What
restrictions did your team have in mind?
Sinceidy,
Bob Graham
Chairman
Subcommittee on Clean Water,
Fisheries and Wildlife
91
UNIVERSITY OF WASHINGTON
SEATTLE, WASHINGTON 98195
Imlilute for Envirotimental Studies
Engimering Anntx, FM—12
November 2, 1993
(206) U3-1812
FAX: (206) U3-2025
S«iator Bob Graham, Chairman
Subcommittee on Clean Water, Fisheries, and Wildlife
Committee on Environment and Public Works
United States Senate
Washington, DC 20510^175
Dear Senator Graham:
Your letter of several weeks ago asks me to provide answers to follow-up questioru for the record on
my testimony June 16, 1993. Many of the questions in that letter seem to be directed to others that
have appeared before your committee. Thus, I will pjiss on those questions; however, it seems
appropriate for me to address several other issues at this time.
I want to raise concerns about the language used to address protection of the biological components of
water resource systems. As you know, a very powerful goal statement was included in the 1972 Clean
Water Act (PL 92-500) and that phrase ("restore and maintain the physical, chemical and biological
integrity of the Nation's waters") has been maintained in subsequent reauthorizations. The time is
ripe to reinforce the message of that phrase throughout the legislation before your committee.
I suggest you adopt language that makes the following issues explicit.
I. Ketain language that explicitly calls for protection of indigenous species.
Exotic and introduced species threaten valued native populations of fish, shellfish, and other
aquatic organisms. If the CWA fails to specify maintenance of indigenous species, we risk the
loss of native species. Who would prefer a shift from populations of salmon to carp, for
example, a shift that might be defended without explicit language addressing protection of
indigenous species as a CWA goal? Why not protect against management allowing intentional
or accidental introduction of exotic species such as the zebra mussel, sea lamprey, or purple
loosestrife (an invasive weed of wetlands). In many cases, we can demonstrate that the
introduction of these exotics has more ominous and long-lasting ii\fluences than chemical
contaminants on water resources of importance to human society. Finally, virtually all of the
leading scientific methods proposed to evaluate biological integrity explicitly recognize exotic
species as indicators of water resource degradation.
Even if we could achieve zero discharge of chemical pollution, the quality of our water
resources will continue to decline if we ignore other causes of resource degradation. Chemical
pollution and toxicants are not the only threat to aquatic resources. Chaiuiel modification, flow
alteration, and introduction of non-native species all represent important threats to the
physical, chemical, and biological integrity of our water resources.
92
Senator Bob Graham -2- November 3, 1993
2. Adopt language that goes beyond the protection offish, shellfish, and wildlife to protect the entire biota of
the nation's ivaters.
Although certain laxa have obvious importance to humans because of their value as
commodities, those species do not exist in isolation. Often we caiwot predict w^hich other
orgeinisms are critical to the persistence of coitunercially valuable (fish or shellfish) or
charismatic (wildlife) species. Exclusion of irisects, zooplankton, phytoplankton, higher plants,
bacteria, and fungi from protection under the act ignores the important contribution of tf>ese
taxa to the structure and function of an ecologically healthy biotic commuiuty, a community
that is essential to maintenance of valuable aquatic resources. No matter how important a
particular species is to human society, it cannot persist outside the biological context that
supports and maintains it
Reauthorization of the act provides an opportuiuty to reinforce the importance of these
concepts by extending the language to include all major taxa (species). The relative
importance of all those groups may shift under different circumstances and in different
locations. Finally, we should not presume that we know today which species are important, a
fact that is clearly demonstrated by recent recogrution of the unexpected value to society of the
pacific yew. Because it is prudent to cast our net widely to protect the interests of future
generations, reauthorization language should go beyond "fish, shellfish, and wildlife."
3. Broaden the language to protect biological integrity in its broadest sense, including not only populations
but the structural and functional organization of that biota.
Water resources are not simply water; their quality and value as resources depend on
underlying biological processes. USEPA recogt\izes that an assessment of species richness,
species composition, populations, and trophic composition of the resident biota is "the most
direct measure possible of support of a Clean Water Act goal, because maintaining biological
integrity is one of the legislative mandates" (USEPA, Feasibility Report on Environmental
Indicators). Biological integrity as defined by the EPA does not emphasize certain taxa to the
exclusion of others as current language in the CWA does. Biological integrity is defined by
the EPA as "the condition of the aquatic community inhabiting unimpaired waterbodies of a
specified habitat as measured by community structure and function" (USEPA. 1990.
Biological Criteria: National Program Guidance for Surface Waters. EPA-440/5-90-004.) An
aquatic community, as defined in the Biological Criteria document just cited, is "an association
of interacting populations of aquatic organisms in a given waterbody or habitat". The
emphasis is on the interaction and association of species and the structure and function of
resident aquatic communities (see pages viii, 5, 13 of that document).
In short, references to the maintenance of populations or abundances should be broadened to
refer to structure arvl function in the biotic community. Many states already assess water
resource condition in this broader context, and USEPA eiKourages this view (see EPA-440/5-
90-004 again). Population abundance is a notoriously difficult attribute to measure because of
its iixherent variability, a fact that was recognized as early as 1919 by the pioneering biologist
S. A. Forbes in his papers on degradation in the Illinois River. Thus, the broader view is
scientifically defensible. Its explicit inclusion in the CWA reauthorization will ensure adoption
of that leading edge approach to resource protection throughout the nation.
93
Senator Bob Graham -3- November 3, 1993
Finally, structural and functional aspects of the biotic community-such as trophic composition,
species richness, and species composition-measure higher-order, community-level processes
and therefore provide a more meaningful characterization of aquatic resource condition.
Making these three changes explicit will strengthen the Clean Water Act as it improves and clarifies its
mandate These suggestions are based in published EPA documents or in advances in science over the
past decade. 1 hope these hurried comments will prove useful in your deliberations. Please feel free
to call on me if I can be of further assistance.
Sincerely,
t.f^'-
Jafnes R. Kan-
rector
94
103d congress
1st Session
S.1114
To amend and reauthorize the Federal Water Pollution Control Act, and
for other purposes.
IN THE SENATE OF THE UNITED STATES
Juke 15, 1993
Mr. Baucus (for himself and Mr. Chafee) introduced the foUowng bill;
which was read twee and referred to the Committee on Environment and
Public Works
A BILL
To amend and reauthorize the Federal Water Pollution
Control Act, and for other purposes.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS; REF-
4 ERENCES.
5 (a) Short Title. — This Act may be cited as the
6 "Water Pollution Prevention and Control Act of 1993".
7 (b) Table of Contents. — The table of contents of
8 this Act is as follows:
Sec. 1. Short title; table of contents; references.
Sec. 2. Findings and purpose.
TITLE I— WATER PROGRAM FUNDING
95
Sec. 101. State revolving loan funds.
Sec. 102. State program grants.
Sec. 103. General program authorizations.
TITLE II— TOXIC POLLUTION PREVENTION AND CONTROL
Sec. 201. Point source technology based controls.
Sec. 202. Water quality criteria and standards.
Sec. 203. Toxic pollutant phase-out.
Sec. 204. Pretreatment program.
Sec. 205. Pollution prevention planning.
TITLE m— WATERSHED PLANNING AND NONPOINT POLLUTION
CONTROL
Sec. 301. Water quality monitoring.
Sec. 302. Comprehensive watershed management.
Sec. 303. Impaired waters identification.
Sec. 304. Nonpoint pollution control.
TITLE IV— MUNICIPAL POLLUTION CONTROL
Sec. 401. Combined sewer overflows.
Sec. 402. Stormwater management.
Sec. 403. Water conservation.
TITLE V— PERMIT PROGRAM AND ENFORCEMENT
Sec. 501. Permit fees.
Sec. 502. Permit program modifications.
Sec. 503. Enforcement.
TITLE VI— PROGRAM MANAGEMENT
Sec. 601. Technology development.
Sec. 602. State certification.
Sec. 603. Reports to Congress.
Sec. 604. Definitions.
Sec. 605. Indian programs.
Sec. 606. Clean water education.
Sec. 607. National estuary program.
1 (c) References to the Federal Water Pollu-
2 TION Control Act. — ^Whenever in this Act an amend-
3 ment or repeal is expressed in terms of an amendment
4 to, or repeal of, a section or other provision, the reference
5 shall be considered to be made to a section or other provi-
6 sion of the Federal Water Pollution Control Act (33
•S 1114 IS
96
3
1 U.S.C. 1251 et seq.), except to the extent otherwise spe-
2 cifically provided.
3 SEC. 2. FINDINGS AND PURPOSE.
4 (a) Findings. — Congress finds the following:
5 (1) Over the past 20 years, the Federal Water
6 Pollution Control Act has resulted in great progress
7 towards achieving the goal Congress established
8 when Congress enacted such Act in 1972: "to re-
9 store and maintain the chemical, physical, and bio-
10 logical integrity of the Nation's waters".
11 (2) Despite this progress, significant water pol-
12 lution problems remain. Thirty percent of the waters
13 of the United States suffer varying degrees of water
14 quality impairments, toxic pollutants remain a sig-
15 nificant threat to aquatic systems and to human
16 health, and pollution from nonpoint sources accounts
17 for significant impairments.
18 (3) There is a substantial need for water qual-
19 ity projects throughout the country. The cost of sew-
20 age treatment projects is estimated to be
21 $80,000,000,000.
22 (4) In order to achieve further progress, addi-
23 tional resources must be made available to State and
24 municipal governments, including increased financial
•8 1114 IS
97
4
1 assistance for water quality projects and increased
2 program support through permit fees.
3 (5) Substantial opportunities exist to improve
4 water pollution control by using new water pollution
5 control strategies, such as pollution prevention plan-
6 ning, water conservation, the development of innova-
7 tive pollution control technology, comprehensive wa-
8 tershed planning, and programs that protect the
9 physical and biological properties of aquatic systems.
10 (6) Substantial opportunities exist to improve
1 1 water pollution control by improving the operation of
12 existing programs that apply to toxic pollutants, in-
13 eluding pollutant criteria and standards, effluent
14 guidelines, pretreatment standards, and the author-
15 ity to phase out certain toxic pollutants.
16 (7) Substantial opportunities exist to improve
17 water pollution control by addressing pollution from
18 nonpoint sources, such as construction, forestry, and
19 agriculture, particularly through the use of water-
20 shed planning, targeted control measures, and finan-
21 cial assistance.
22 (8) Pollution from overflows from combined
23 storm and sanitary sewers and from stormwater dis-
24 charges continues to cause significant water quality
25 impairments. A long-range strategy for control of
•S 1114 IS
98
5
1 these discharges, which recognizes financial con-
2 straints, is necessary,
3 (9) All dischargers to the waters of the United
4 States, including Federal agencies, have an obliga-
5 tion to comply with water quality laws. More can be
6 done to ensure that enforcement by Federal and
7 State governments and citizen groups is prompt and
8 effective.
9 (b) Purpose. — The purpose of this Act is to reau-
10 thorize the Federal Water Pollution Control Act in order
11 to provide e:q)anded assistance to State governments, ad-
12 dress remaining water pollution control problems, employ
13 new pollution control strategies, and improve overall water
14 program implementation.
15 TITLE I— WATER PROGRAM
16 FUNDING
17 SEC. 101. STATE REVOLVING LOAN FUNDS.
18 (a) Grants to States for Establishment of
19 Revolving Funds. —
20 (1) In general. — Subsection (a) of section
21 601 (33 U.S.C. 1381(a)) is amended to read as fol-
22 lows:
23 "(a) General Authority. — Subject to this title,
24 the Administrator shall make capitalization grants to each
•S 1114 IS
99
6
1 State for the purpose of establishing a water pollution con-
2 trol revolving fund.".
3 (2) Projects eligible for assistance. —
4 Subsection (e) of section 603 (33 U.S.C. 1383(c)) is
5 amended to read as follows:
6 "(c) Projects Eligible for Assistance. —
7 "(1) In general. — The funds available to each
8 State water pollution control revolving fund (re-
9 ferred to in this section as the 'fund') may be used
10 only for providing assistance, for projects with re-
11 spect to which the principal purpose is protecting
12 and improving water quality, to a municipahty,
13 intermunicipal agency, interstate agency, State agen-
14 cy, or individual, to carry out 1 or more of the fol-
15 lowing activities:
16 "(A) The construction of a publicly owned
17 treatment works, as defined in section 212.
18 "(B) Implementing an approved manage-
19 ment program under section 319.
20 "(C) Implementing an approved conserva-
21 tion and management plan under section 320.
22 "(b) Implementing a combined stormwater
23 and sanitary sewer overflow eUmination pro-
24 gram. i ;
•8 1114 IS
100
7
1 "(E) Providing assistance to a subsurface
2 sewage disposal management organization ap-
3 proved by the Administrator pursuant to sec-
4 tion 319.
5 "(F) Carrying out projects identified in a
6 watershed plan prepared pursuant to section
7 321.
8 "(6) Implementing a Lakewide Manage-
9 ment Plan or Remedial Action Plan developed
10 ■ pursuant to section 118.
11 "(H) Implementing a lake protection
12 project developed pursuant to section 314.
13 "(I) Constructing an animal waste man-
14 agement facility approved pursuant to section
15 319.
16 "(2) Limitation of assistance. —
17 "(A) Discharge activities. — ^Assistance
18 provided under this subsection to an individual
19 for an activity related to a discharge shall be
20 limited to an activity not otherwise required by
21 this or other Federal law.
22 "(B) Other activities. — ^Assistance pro-
23 vided under this subsection for projects eligible
24 pursuant to subparagraphs (F) through (I) of
25 paragraph (1) shall be Umited to projects that
•8 1114 18
101
8
1 are consistent with a watershed plan prepared
2 under section 321.
3 "(3) Revolving fund. — The fand shall be es-
4 tabUshed, maintained, and credited with repayments,
5 and the fund shall be available in perpetuity for as-
6 sisting ehgible projects.
7 "(4) Assistance for constructing pub-
8 LiCLY owned treatment WORKS. — ^Assistance pro-
9 vided pursuant to subparagraphs (A) and (D) of
10 paragraph (1) may include the cost of obtaining any
11 necessary land, easement, or right-of-way with re-
12 spect to which the recipient of assistance is not the
13 owner (at the time of receipt of assistance) that is
14 directly related to the treatment plant or outfall of
15 a publicly owned treatment works, except that the
16 amount provided as assistance may not exceed the
17 assessed value of the land, easement, or right-of-
18 way.".
19 (b) Capitalization Grants. —
20 (1) Specific requirements for capitaliza-
21 tion grant agreements. —
22 (A) Capitalization grant agree-
23 MENTS.— Section 602(b)(6) (33 U.S.C.
24 1382(b)(6)) is amended—
•S 1114 IS
102
9
1 (i) by striking "1995" and inserting
2 "2001";
• 3 (11) by striking "201(g)(1),
4 201(g)(2),"; and
5 (ill) by striking "201(g)(6)".
6 (B) Grants for construction of
7 TREATMENT woRics. — Section 201 (33 U.S.C.
8 1281) is amended—
9 (i) in subsection (g)(5), by adding at
10 the end the following new sentence: "Not-
11 withstanding any other provision of this
12 paragraph, the Administrator may deem
13 that the requirements of this paragraph
14 have been met by a treatment works that
15 serves 10,000 or fewer individuals if the
16 treatment works has considered a group of
17 alternatives described by the Administrator
18 In guidance documents."; and
19 (li) in subsection (o), in the matter
20 preceding paragraph (1), by inserting after
21 "assist applicants for grant assistance
22 under this title" the following: "(except for
23 any applicant for grant assistance for a
24 publicly owned treatment works that serves
25 10,000 or fewer individuals)".
•8 1114 IS
103
10
1 (C) State share. — The first sentence of
2 section 204(b)(1)(A) (33 U.S.C. 1284(b)(1)(A))
3 is amended by striking "proportionate".
4 (2) Dedicated source. — Section
5 603(d)(1)(C) (33 U.S.C. 1383(d)(1)(C)) is amended
6 by inserting "for a project eligible under subpara-
7 graph (A), (D), or (E) of subsection (c)(1)" after "a
8 loan".
9 (3) Consistency with planning require-
10 MENTS.— Section 603(f) (33 U.S.C. 1383(f)) is
1 1 amended —
12 ^ (A) by striking "is consistent with" and in-
13 serting "is not inconsistent with"; and
14 (B) by striking "and 320" and inserting
15 "320, and 321".
16 (c) Technical Assistance for Small Systems. —
17 Section 602 (33 U.S.C. 1382) is amended—
18 (1) in subsection (b) —
19 (A) in paragraph (2), by inserting "except
20 as provided in subsection (c)," before "the
21 State will deposit"; and
22 (B) in paragraph (3), by inserting "except
23 as provided in subsection (c)," before "the
24 State will enter"; and
•5 1114 IS
104
11
1 (2) by adding at the end the following new sub-
2 section:
3 "(c) Technical Assistance for Small Sys-
4 TEMS. —
5 "(1) Definitions. — As used in this subsection:
6 "(A) Small system. — The term 'small
7 system' means a pubUcly owned treatment
8 works or a subsurface sewage disposal system
9 that serves 10,000 or fewer individuals.
10 "(B) Technical assistance. — The term
11 'technical assistance' includes technical and fi-
12 nancial management assistance provided by a
13 State to a small system. The term includes as-
14 sistance provided by a State for the planning
15 and design of a small ^^tem (referred to in
16 this subsection as 'facility planning and de-
17 sign').
18 "(2) Value of planning and design assist-
19 ance. — The value of planning and design assistance
20 provided to a small system shall be repaid as part
21 of any loan provided to the small system pursuant
22 to this title.
23 "(3) Technical assistance. —
24 "(A) In GENERAL. —
•8 1114 IS
105
12
1 "(i) Offset. — Subject to subpara-
2 graphs (B) and (C), each State may re-
3 duce the amount that would otherwise be
4 required to be deposited by the State as
5 State matching funds under subsection
6 (b)(2) by the amount equal to the value of
7 technical assistance provided by the State,
8 fix)m funds made available by the State.
9 "(ii) Treatment of offset with
10 respect to binding commitments. —
11 Each State may reduce the amount of as-
12 sistance provided in accordance with bind-
13 ing commitments that would otherwise be
14 required under subsection (b)(3) by an
15 amount equal to the value of the offset of
16 State matching funds made pursuant to
17 this paragraph.
18 "(B) Maximum offset. — For each State,
19 the total amount of the offset of State matching
20 funds made pursuant to this paragraph for a
2 1 fiscal year may not exceed the greater of —
22 "(i) an amount equal to 2 percent of
23 the amount of the capitalization grant re-
24 ceived by the State pursuant to this sec-
25 tion; or
•S 1114 IS
106
13
1 "(ii) $100,000.
2 "(C) Assistance for planning and de-
3 SIGN. — To provide assistance for a small system
4 that does not receive a loan under this title, the
5 State may use a portion of the amount referred
6 to in subparagraph (B) to provide a grant for
7 facility planning and design. The amount of the
8 grant award may not exceed 50 percent of the
9 cost of the facility planning and design.".
10 (d) Assistance for Disadvantaged Commu-
11 nities.— Subsection (h) of section 603 (33 U.S.C.
12 1383(h)) is amended to read as follows:
13 "(h) Assistance for Disadvantaged Commu-
14 nities. —
15 "(1) Disadvantaged community defined.
16 As used in this subsection, the term 'disadvantaged
17 community' means the service area of a publicly
18 owned treatment works \vith respect to which the av-
19 erage annual residential sewage treatment charges
20 for a user of the treatment works (referred to in this
21 subsection as 'average annual residential user
22 charges') is an amount greater than 1.5 percent of
23 the median household income for the sendee area.
24 "(2) Loan forgiveness. — In any case in
25 which the State makes a loan pursuant to subsection
•S 1114 IS
107
14
1 (d)(1) to a disadvantaged community or to a com-
2 munity that the State expects to become a disadvan-
3 taged community, the State may forgive an amount
4 of the principal of the loan not to exceed the amount
5 of forgiveness required to ensure that the average
6 annual residential user charges for the service area
7 of the publicly owned treatment works that is the
8 subject of the loan does not exceed 1.5 percent of
9 the median household income for the service area.
10 "(3) Grant or loan amount. — The total
11 amount of loan forgiveness made by a State pursu-
12 ant to paragraph (2) to a disadvantaged commimity
13 or to a community that the State expects to become
14 a disadvantaged community may not exceed
15 $20,000,000.
16 "(4) Total amount op loan forgiveness. —
17 For each fiscal year, the total amount of loan for-
18 giveness made by a State pursuant to paragraph (2)
19 may not exceed 20 percent of the amount of the cap-
20 italization grant received by the State for the year.".
21 (e) Water Pollution Control Revolving Loan
22 Funds. —
23 (1) Grants to certain states. — Section 603
24 (42 U.S.C. 1383) is amended by adding at the end
25 the following new subsection:
•S 1114 IS
108
15
1 "(i) Assistance to Certain States. —
2 "(1) In general. — The sums authorized to be
3- appropriated for capitalization grants under this
4 title to American Samoa, Guam, the Commonwealth
5 of the Northern Mariana Islands, the Republic of
6 Palau (pending ratification of the Compact of Free
7 Association), the United States Virgin Islands, and
8 the District of Columbia may be used for construc-
9 tion grants under title II at the request of the chief
10 executive of the entity.
11 "(2) Requirements for publicly owned
12 treatment works. —
13 "(A) In general. — Except as provided in
14 subparagraph (B), each publicly owned treat-
15 ment works that receives assistance under this
16 subsection shall be required to meet the re-
17 quirements of this Act in the same manner as
18 is required for each publicly owned treatment
19 works that receives assistance under title II.
20 "(B) Exception. — In the case of a pub-
21 licly owned treatment works in the District of
22 Columbia, the matching percentage required
23 under title 11 shall be 20 percent.".
24 (2) Administrative costs. — Section
25 603(d)(7) (33 U.S.C. 1383(d)(7)) is amended by in-
•S 1114 IS
109
16
1 serting before the period at the end the following: ",
2 or, at the request of the State and with the approval
3 of the Administrator, V2 percent of the sum of the
4 total amount of the capitalization grants made to
5 the State under this title and funds deposited by the
6 State from sums made available by the State by ap-
7 propriations".
8 (3) Reservation of funds. — The first sen-
9 tence of section 205(g)(1) (33 U.S.C. 1285(g)(1)) is
10 amended by striking "ending before October 1,
11 1994" and inserting "ending before October 1,
12 1997".
13 (f) Allotment of Funds. —
14 (1) In general. — Subsection (a) of section
15 604 (33 U.S.C. 1384(a)) is amended to read as fol-
16 lows:
17 "(a) Allotment. —
18 "(1) Amount allotted in accordance with
19 section 205(C). —
20 "(A) In general. — The applicable per-
21 centage of the amounts made available by ap-
22 propriation to carry out this section for each of
23 fiscal years 1995 through 2000 shall be allotted
24 by the Administrator in accordance with section
25 205(c).
•S 1114 IS
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17
1 "(B) Applicable percentage. — The ap-
2 plicable percentage referred to in subparagraph
3 (A) shall be—
4 "(i) 60 percent for fiscal year 1995;
5 "(ii) 40 percent for fiscal year 1996;
6 "(iii) 20 percent for fiscal year 1997;
7 and
8 "(iv) 0 percent for each of fiscal years
9 1998 through 2000.
10 "(2) Amount allotted in accordance with
1 1 NEW formulas. —
12 "(A) General allotment. —
13 "(i) In general. — The applicable
14 percentage of the amounts made available
15 by appropriation to carry out this section
16 for each of fiscal years 1995 through 2000
17 shall be allotted by the Administrator in
18 accordance with a formula that the Admin-
19 istrator shall establish pursuant to this
20 subparagraph.
21 "(ii) Applicable percentage. — The
22 applicable percentage referred to in clause
23 (i) shall be—
24 "(I) 40 percent for fiscal year
25 1995;
S 1114 ISR - 2
Ill
18
1
"(11) 55 percent for fiscal year
2
1996;
3
"(HI) 70 percent for fiscal year
4
1997;
5
"(IV) 85 percent for fiscal year
6
1998;
7
"(V) 80 percent for fiscal year
8
1999; and
9
"(VI) 75 percent for fiscal year
10
2000.
11
"(iii) Formula. —
12
"(I) In general. — Not later
13
than October 1, 1994, and every 2
14
years thereafter through October 1,
15
2000, the Administrator shall, by reg-
16
ulation, establish a formula for allot-
17
ting the amounts referred to in clause
18
(i).
19
"(n) Cmterla. for formula. —
20
Each formula referred to in clause (i)
21
shall provide for —
22
"(aa) the allotment to each
23
State of an amount that bears
24
the same ratio to the amounts
25
made available for allotment
•S lil4 IS
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19
1 under this subparagraph as the
2 total amount of costs of projects
3 eUgible for assistance under sec-
4 tion 603(c)(1) for the State bears
5 to the total amount of costs of
6 projects eligible for assistance
7 under section 603(c)(1) for all
8 States; and
9 "(bb) the adjustment of the
10 amounts allotted pursuant to
11 item (aa) to meet the require-
12 ments of paragraph (3).
13 "(B) Allotment for watershed man-
14 AGEMENT AND PLANNING. —
15 "(i) In GENERAL. — The applicable
16 percentage of the amounts made available
17 by appropriation to carry out this section
18 for each of fiscal years 1995 through 2000
19 shall be allotted by the Administrator for
20 watershed planning and management
21 under section 321 in accordance with a
22 formula that the Administrator shall estab-
23 lish pursuant to this subparagraph.
•S 1114 IS
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20
1 "(ii) Applicable percentage. — The
2 applicable percentage referred to in clause
3 (i) shall be—
4 "(I) 5 percent for fiscal year
5 1996;
6 "(II) 10 percent for fiscal year
7 1997;
8 "(HI) 15 percent for fiscal year
9 1998;
10 "(IV) 20 percent for fiscal year
11 1999; and
12 "(V) 25 percent for fiscal year
13 2000.
14 "(iii) Formula.^
15 "(I) In general. — Not later
16 than October 1, 1994, and every 2
17 years thereafter through October 1,
18 2000, the Administrator shall, by reg-
19 ulation, establish a formula for allot-
20 ting the amounts referred to in clause
21 (i).
22 "(II) Criteria for formula. —
23 Each formula referred to in clause (i)
24 shall provide for —
•8 1114 IS
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21
1 "(aa) the allotment to each
2 State of an amount that bears
3 the same ratio to the amoimts
4 made available for allotment
5 under this subparagraph as the
6 total amount of costs of projects
7 eligible for assistance under sec-
8 tion 603(c)(1)(F) for the State
9 bears to the total amount of
10 costs of projects eligible for as-
11 sistance under section
12 603(c)(1)(F) for all States; and
13 "(bb) the adjustment of the
14 amounts allotted pursuant to
15 item (aa) to meet the require-
16 ments of paragraph (3).
17 "(3) Minimum allotment. —
18 "(A) In general. — Except as provided in
19 subpareigraph (B), the minimum percentage
20 amount of the amounts made available by ap-
21 propriation to cany out this section for each of
22 fiscal years 1995 through 2000 allotted to each
23 of the 50 States shall be V2 percent.
24 "(B) Certain territories. —
•S 1114 IS
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22
1 "(i) In general. — ^A total amount
2 equal to the amount specified in clause (ii)
3 shall be allotted among the following:
4 "(I) American Samoa.
5 "(U) Guam.
6 "(HI) The Commonwealth of the
7 Northern Mariana Islands.
8 "(IV) The Republic of Palau
9 (pending ratification of the Compact
10 of Free Association).
11 "(V) The United States Virgin
12 Islands.
13 "(ii) Amount specified. — The total
14 amount allotted pursuant to clause (i) shall
15 be not less than Va percent of the amounts
16 made available by appropriation to carry
17 out this section for each of fiscal years
18 1995 through 2000.".
19 (2) Planning funds. — Subsection (b) of sec-
20 tion 604 (33 U.S.C. 1384(b)) is amended to read as
21 follows:
22 "(b) Reservation of Funds for Planning. — To
23 carry out planning under sections 205(j)(2), 303(e), and
24 321, each State shall reserve for each fiscal year the
25 greater of —
•8 1114 IS
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23
1 "(1) an amount not to exceed 3 percent of the
2 fiinds allotted to the State under this section for the
3 fiscal year; or
4 "(2) $250,000.".
5 (3) Use of unobligated funds. — Section
6 604(c) (33 U.S.C. 1384(c)) is amended by strikmg
7 paragraph (2) and inserting the following new para-
8 graph:
9 "(2) Use of unobligated funds. —
10 "(A) In general. — ^Any unobhgated
11 amount of any allotment to a State on the last
12 day of the 2-year period of availability estab-
13 lished under paragraph (1), shall be deposited
14 in an unobligated funds account in the Treas-
15 uiy of the United States.
16 "(B) Grants. — ^Amounts in the account
17 referred to in subparagraph (A) shall be avail-
18 able to the Administrator to award grants to
19 fund 100 percent of the cost of a modification
20 or replacement of any innovative process or
21 technology funded under title 11.
22 "(C) Criteria for grant awards. — The
23 Administrator may award a grant under this
24 paragraph on the basis of a finding that the
25 process or technology has not met design per-
•S 1114 IS
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24
1 formance specifications and has significantly in-
2 creased capitalization or operation maintenance
3 costs, unless the failure of the process or tech-
4 nology to meet the specifications is attributable
5 to negligence on the part of a person.".
6 (g) Alternative Use of Funds. — Section
7 602(b)(3) (33 U.S.C. 1382(b)(3)) is amended by striking
8 "120" and inserting "200".
9 (h) Authorization of Appropriations. — Section
10 607 (33 U.S.C. 1387) is amended—
11 (1) by striking "There is authorized" and in-
12 serting "(a) In General. — Except as provided in
13 subsection (b), there are authorized";
14 (2) in subsection (a) (as so designated)—
15 (A) in paragraph (4), by striking "and" at
16 the end;
17 (B) in paragraph (5), by striking the pe-
18 riod at the end and inserting "; and"; and
19 (C) by adding at the end the following new
20 paragraph:
21 "(6) $2,500,000,000 for each of fiscal years
22 1995 through 2000."; and
23 (3) by adding at the end the following new sub-
24 section:
25 "(b) Deficit Reduction. —
•8 1114 IS
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25
1 "(1) Fiscal years i996 through i998. — If,
2 with respect to any of fiscal years 1996 through
3 1998, the estimate of the on-budget deficit contained
4 in the most recent mid-session review of the budget
5 prepared pursuant to section 1106 of title 31, Unit-
6 ed States Code, does not exceed the on-budget defi-
7 eit specified for the fiscal year in section 2 of the
8 conference report to accompany House Concurrent
9 Resolution 64, setting forth the congressional budget
10 of the United States Government for fiscal years
11 1994 through 1998, as passed by the Senate on
12 April 1, 1993, the amount authorized to be appro-
13 priated under subsection (a) for the fiscal year shall
14 be increased by —
15 "(A) for fiscal year 1996, $500,000,000;
16 "(B) for fiscal year 1997, $1,000,000,000;
17 and
18 "(C) for fiscal year 1998, $1,500,000,000.
19 "(2) Fiscal years 1999 and 2000. — If, with re-
20 spect to fiscal year 1999 or 2000, the estimate of
21 the on-budget deficit contained in the most recent
22 mid-session review of the budget prepared pursuant
23 to section 1106 of title 31, United States Code, does
24 not exceed the estimate for the preceding fiscal year,
25 the amount authorized to be appropriated under
•S 1114 IS
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26
1 subsection (a) for the fiscal year shall be increased
2 by—
3 "(A) for fiscal year 1999, $2,000,000,000;
4 and
5 "(B) for fiscal year 2000,
6 $2,500,000,000.".
7 (i) Construction Grants. —
8 (1) Amendments to title u. — Title II (33
9 U.S.C. 1281 et seq.) is amended—
10 (A) in section 205(c)(3) (33 U.S.C.
11 1285(c)(3))—
12 (i) in the paragraph heading, by strik-
13 ing "1987-1990" and inserting " 1987-2000";
14 and
15 (ii) by striking "1987, 1988, 1989,
16 and 1990" and inserting "1987 through
17 2000"; and
18 (B) in section 218(c) (33 U.S.C. 1298(c)),
19 by striking "$10,000,000" and inserting
20 "$20,000,000".
21 (2) Construction grants. — The matter
22 under the heading "CONSTRUCTION GRANTS" under
23 the heading "Environmental Protection Agen-
24 cy" in title III of the Departments of Veterans Af-
25 fairs and Housing and Urban Development, and
•S 1114 IS
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120
27
1 Independent Agencies Appropriations Act, 1990
2 (Public Law 101-144; 103 Stat. 858) is amended by
3 striking all after "Ware Shoals, South Carolina" and
4 inserting a period.
5 SEC. 102. STATE PROGRAM GRANTS.
6 (a) Authorization op Appropriations. — Section
7 106(a) (33 U.S.C. 1256(a)) is amended—
8 (1) by inserting after "(a)" the following new
9 subsection heading: "Authorization of Appro-
10 PRIATIONS. — ";
11 (2) in paragraph (1), by striking "and" at the
12 end;
13 (3) in paragraph (2) —
14 (A) by inserting "and" after "1990;"; and
15 (B) by striking "for grants to States" and
16 all that follows through the end of the para-
17 graph; and
18 (4) by adding at the end the following new
19 paragraphs:
20 "(3) such sums as may be necessary for each
21 of fiscal years 1991 through 1994; and
22 "(4) $150,000,000 for each of fiscal years 1995
23 through 2000.".
24 (b) State Program. — Subsection (b) of section 106
25 (33 U.S.C. 1256(b)) is amended to read as follows:
•8 IIU 18
121
28
1 "(b) State Program. — From the sums made avail-
2 able pursuant to subsection (a), the Administrator shall
3 make grants to the States and to interstate agencies to
4 support the administration of comprehensive State water
5 pollution control programs for the prevention, reduction,
6 and elimination of water pollution, including enforcement
7 directly or through appropriate State law enforcement of-
8 ficers or agencies.".
9 (c) Allotments.— Subsection (c) of section 106 (33
10 U.S.C. 1256(c)) is amended to read as follows:
11 "(c) Allotments. —
12 "(1) In general. — Sums made available by
13 appropriation pursuant to subsection (a) for any fis-
14 cal year, other than sums reserved pursuant to para-
15 graph (2), shall be allotted to States and interstate
16 agencies on the basis of the extent of water pollution
17 problems in the respective States and the other re-
18 quirements of this section.
19 "(2) Innovative programs. — Of the sums
20 made available by appropriation pursuant to sub-
21 section (a) for any fiscal year, an amount equal to
22 25 percent of the amount in excess of $80,000,000
23 shall be available to the Administrator for making
24 grants to States for the support of innovative pro-
25 grams for the control and prevention of water pollu-
•S 1114 IS
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29
1 tion that have potential application to other
2 States.".
3 (d) State Share. — Subsection (d) of section 106
4 (33 U.S.C. 1256(d)) is amended to read as follows:
5 "(d) State Share. —
6 "(1) Grant condition. — ^A grant made to a
7 State or interstate agency pursuant to this section
8 shall be made on the condition that the State or
9 interstate agency provide from non-Federal funds an
10 amount determined by multipljnng the amount allot-
11 ted to the State or interstate agency pursuant to
12 subsection (c) by the applicable percentage specified
13 in paragraph (2).
14 "(2) Applicable percentage. — The applica-
15 ble percenteige referred to in paragraph (1) shall
16 be—
17 "(A) 30 percent for fiscal year 1995;
18 "(B) 40 percent for fiscal year 1996; and
19 "(C) 50 percent for each fiscal year there-
20 after.".
21 (e) Emergency Powers. — Section 106(e) (33
22 U.S.C. 1256(e)) is amended—
23 (1) by inserting after "(e)" the following new
24 subsection heading: "Emergency Powers. — "; and
•S 1114 18
123
30
1 (2) by striking "program — " and all that fol-
2 lows through "(2)" and inserting "program".
3 (f) Other Agencies.— Section 106 (33 U.S.C.
4 1256) is amended by adding at the end the following new
5 subsection:
6 "(h) Other Agencies. — ^A State that receives a
7 grant under this section may reserve an amount equal to
8 not more than 20 percent of the amount of the grant to
9 support the participation by substate regional comprehen-
10 sive planning agencies in water quality planning activities,
1 1 including participation by the agencies in the development
12 and periodic revision of a continuing water quality plan-
13 ning process pursuant to section 303(e).".
14 (g) Conforming Amendment. — The section head-
15 ing of section 106 (33 U.S.C. 1256) is amended to read
16 as follows:
17 "SEC. 106. GRANTS FOR POLLUTION CONTROL PROGRAM.".
1 8 SEC. 103. GENERAL PROGRAM AUTHORIZATIONS.
19 Section 517 (33 U.S.C. 1376) is amended—
20 (1) by striking "and" before "$135,000,000";
21 and
22 (2) by inserting before the period at the end the
23 following: ", such sums as may be necessary for each
24 of fiscal years 1991 through 1993, $185,000,000 for
25 each of fiscal years 1994 and 1995, $190,000,000
•S 1114 IS
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31
1 for each of fiscal years 1996 and 1997,
2 $195,000,000 for each of fiscal years 1998 and
3 1999, and $200,000,000 for fiscal year 2000.".
4 TITLE II— TOXIC POLLUTION
5 PREVENTION AND CONTROL
6 SEC. 201. POINT SOURCE TECHNOLOGY BASED CONTROLS.
7 (a) Effluent Guidelines. — Subsection (b) of sec-
8 tion 304 (33 U.S.C. 1314(b)) is amended to read as fol-
9 lows:
10 "(b) Effluent Guidelines. —
11 "(1) Requirements for effluent guide-
12 lines. — The Administrator shall, after notice and
13 opportunity for public comment, promulgate regula-
14 tions that establish effluent guidelines applicable to
15 point sources (other than publicly owned treatment
16 works) that discharge conventional, nonconventional,
17 toxic, or other pollutants to navigable waters. In
18 terms of the quantities of constituents and the
19 chemical, physical, and biological characteristics of
20 pollutants, the regulations shall —
21 "(A) reflect the application of the best
22 available technology economically achievable for
23 each category or class of sources to which the
24 effluent guideline applies;
•S 1114 IS
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32
1 "(B) for a determination of the best avail-
2 able technology economically achievable under
3 subparagraph (A), rely on, and require, to the
4 maximum extent practicable, source reduction
5 measures and practices, including changes in
6 production processes, products, or raw mate-
7 rials that reduce, avoid, or eliminate the gen-
8 eration of toxic or hazardous byproducts, taking
9 into account any adverse effects on human
10 health (including the health of workers) and the
1 1 environment;
12 "(C) require the elimination of the dis-
13 charge of pollutants to navigable waters in any
14 case in which the Administrator finds that the
15 elimination is technologically and economically
16 achievable for the category or class of sources
17 to which the effluent guideline applies;
18 "(D) prohibit or limit the release of poUut-
19 ants to other environmental media (including
20 ground water) to the extent that the prohibition
21 or limitation is technologically and economically
22 achievable for the category or class of sources
23 to which the effluent guideline applies; and
24 "(E) prohibit specific control measures or
25 practices that the Administrator determines are
•S 1114 IS
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33
1 likely to have a significant adverse impact on
2 any environmental medium.
3 "(2) Factors that the administrator may
4 CONSIDER. — In determining whether any prohibition,
5 limitation, or requirement is technologically or eco-
6 nomically achievable for a category or class of
7 sources, the Administrator may consider, with re-
8 spect to the category or class —
9 "(A) the age of the equipment and facili-
10 ties involved;
11 "(B) the process employed;
12 "(C) the engineering aspects of the appli-
13 cation of various types of control techniques
14 and process changes (including in-plant source
15 reduction measures, in addition to end-of-pipe
16 controls);
17 "(D) the cost of achieving the limitation,
18 prohibition, or requirement; and
19 "(E) other factors that the Administrator
20 determines appropriate.".
21 (b) New Source Performance Standards. —
22 (1) In general. — Paragraph (1) of section
23 306(a) (33 U.S.C. 1316(a)(1)) is amended to read
24 as follows:
S 1114 ISR - 3
127
34
1 "(1)(A) The term 'standard of performance' means
2 a standard for the control of the discharge of pollutants
3 that reflects the greatest degree of effluent reduction that
4 the Administrator determines to be achievable through ap-
5 plication of the best available demonstrated control tech-
6 nology, processes, operating methods, or other alter-
7 natives.
8 "(B) In determining the best available demonstrated
9 control technology, the Administrator shall —
10 "(i) rely upon and require, to the maximum ex-
11 tent practicable, source reduction measures and
12 practices, including changes in production processes,
13 products, or raw materials, that reduce, avoid, or
14 eliminate the generation of toxic or hazardous by-
15 products, taking into account any adverse effects on
16 human health (including the health of workers) and
17 the environment;
18 "(ii) eliminate the discharge of pollutants to
19 navigable waters in any case in which the Adminis-
20 trator determines that the elimination is techno-
21 logically and economically achievable for the cat-
22 egoiy or class of sources to which the standard
23 apphes;
24 "(iii) prohibit or limit the release of pollutants
25 to other environmental media (including ground
•S 1114 IS
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35
1 water) to the extent that the prohibition or limita-
2 tion is technologically and economically achievable
3 for the category or class of sources to which the
4 standard applies; and
5 "(iv) prohibit specific control measures or prac-
6 tices that the Administrator determines are likely to
7 have a significant adverse impact on any environ-
8 mental medium,".
9 (2) Standards.— Section 306 (33 U.S.C.
10 1316) is amended —
11 (A) in subsection (b)(1)(B), by striking the
12 last 3 sentences; and
13 (B) by adding at the end the following new
14 subsection:
15 "(f) Each standard of performance established pursu-
16 ant to this section (including any revised standard estab-
17 Ushed pursuant to this section) shall become effective on
18 the date of proposal of the standard and shall apply to
19 all sources for which construction begins after the date
20 of proposal.".
21 (c) Pretreatment Standards. —
22 (1) In general. — Subsection (b) of section
23 307 (33 U.S.C. 1317(b)) is amended to read as fol-
24 lows:
25 "(b) Pretreatment Standards. —
•8 1114 IS
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36
1 "(1) In general. — The Administrator shall,
2 after notice and opportunity for public comment,
3 promulgate regulations estabUshing pretreatment
4 standards for the introduction of toxic and
5 nonconventional pollutants into any treatment works
6 (as defined in section 212) that is pubUcly owned.
7 The regulations promulgated under this section
8 shall—
9 "(A) address each pollutant subject to an
10 effluent guideline under section 301 or 304 for
1 1 sources in the same class or category; and
12 "(B) be established to prevent the dis-
13 charge of any pollutant through the treatment
14 works, including pollutants that interfere with,
15 pass through, or prevent the beneficial reuse of,
16 or cause or contribute to the contamination of,
17 sewage sludge, or are otherwise incompatible
18 with, the treatment works.
19 "(2) Requirements for pretreatment
20 STANDARDS. — Each pretreatment standard shall —
21 "(A) reflect the application of the best
22 available technology economically achievable for
23 the category or class of sources to which the
24 standard applies;
•S 1114 18
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37
1 "(B) in determining the best available
2 technology economically achievable under sub-
3 paragraph (A), rely upon and require, to the
4 maximum extent practicable, source reduction
5 measures and practices, including changes in
6 production processes, products, or raw mate-
7 rials that reduce, avoid, or eliminate the gen-
8 eration of toxic or hazardous byproducts, taking
9 into account any adverse effects on human
10 health (including the health of workers) and the
1 1 environment;
12 "(C) provide for the elimination of the in-
13 troduction of pollutants into any treatment
14 works in any case in which the Administrator
15 determines that the elimination is techno-
16 logically and economically achievable for the
17 category or class of sources to which the stand-
18 ard appUes;
19 "(D) (i) prohibit or limit the release of pol-
20 lutants to other environmental media (including
21 ground water) to the extent that the prohibition
22 or limitation is technologically or economically
23 achievable for the category or class of sources
24 to which the standard applies; and
•8 1114 IS
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38
1 "(ii) prohibit specific control measures or
2 practices that the Administrator determines are
3 likely to have a significant adverse impact on
4 any environmental medium; and
5 "(E) be no less stringent than any effluent
6 guideline for the pollutants (other than any
7 conventional pollutant) and the category or
8 class of sources promulgated under section
9 304(b).
10 "(3) Designation of categories. — ^When
11 proposing or promulgating any pretreatment stand-
12 ard under this section, the Administrator shall des-
13 ignate the category or class of sources to which the
14 standard shall apply.
15 "(4) Statutory construction. — Nothing in
16 this subsection is intended to affect any
17 pretreatment requirement established by the law (in-
18 eluding any regulation) of a State or a political sub-
19 division of a State, or a policy of a State or a politi-
20 cal subdivision of a State, that is more stringent
21 than any pretreatment standard for a pollutant,
22 other than a conventional pollutant, established
23 under this subsection.
24 "(5) Compliance date. — Each pretreatment
25 standard promulgated under this section shall speci-
es 1114 IS
132
39
1 fy a date for compliance as expeditiously as prac-
2 ticable, but not later than 3 years after the date on
3 which the standard is promulgated.".
4 (2) Simultaneous promulgation. — Section
5 307(c) (33 U.S.C. 1317(c)) is amended—
6 (A) by inserting "Standards Re-
7 QUIRED.—" after "(c)";
8 (B) by striking "In order to ensure" and
9 inserting the following:
10 "(1) New sources. — In order to ensure"; and
11 (C) by striking the last sentence of the
12 subsection and inserting the following new
13 paragraph:
14 "(2) Requirements for pretreatment
15 STANDARDS. — ^A pretreatment standard referred to
16 in paragraph (1) shall —
17 "(A) comply with the requirements of sub-
18 section (b)(1), and may be more stringent than
19 a standard promulgated under such subsection
20 for existing sources; and
21 "(B) be no less stringent than any stand-
22 ard of performance promulgated under section
23 306 for the pollutants (other than conventional
24 pollutants) and category or class of sources to
25 which the pretreatment standard applies.".
•8 1114 IS
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40
1 (d) Conforming Amendments. — Section 301(b)
2 (33 U.S.C. 1311(b)) is amended—
3 (1) in paragraph (1) —
4 (A) in subparagraph (C), by striking "not
5 later than July 1, 1977" and inserting "as ex-
6 peditiously as practicable, but not later than 3
7 years after the date the limitation is issued";
8 and
9 (B) by adding after subparagraph (C) the
10 following new sentence:
11 "A permit issued under section 402 may not contain
12 a compliance schedule for a limitation referred to in
13 subparagraph (C) if the compliance schedule is pre-
14 eluded by any State law (including any regulation)
15 or if the permit has previously included a limitation
16 applicable to the pollutant.";
17 (2) in paragraph (2) —
18 (A) in subparagraph (A), by striking "sec-
19 tion 304(b)(2) of this Act" both places it ap-
20 pears and inserting "section 304(b)";
21 (B) in subparagraphs (C) through (F), by
22 striking ", and in no case later than March 31,
23 1989" each place it appears; and
•S 1114 IS
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41
1 (C) in subparagraph (E), by striking "sec-
2 tion 304(b)(4) of this Act" and inserting "sec-
3 tion 304(b)"; and
4 (3) in paragraph (3)(A), by striking ", and in
5 no case later than March 31, 1989".
6 (e) Schedule for Gxjidelines and Standards. —
7 (1) In general. — Subsection (d) of section
8 301 (33 U.S.C. 1311(d)) is amended to read as fol-
9 lows:
10 "(d) Revision of Effluent Guidelines. —
11 "(1) In general. — ^Any effluent guideline (and
12 each related requirement, including any limitation)
13 required pursuant to subsection (b)(2) or promul-
14 gated under section 304(b) shall be reviewed in ac-
15 ^ cordance with the schedule established under section
16 304(m).
17 "(2) Revision of guideline. — If, in the judg-
18 ment of the Administrator, there have been signifi-
19 cant changes in factors pertaining to the guidelines,
20 including advances in pollution control technology or
21 source reduction practices, that are likely to achieve
22 a sigiiifieuit reduction in the toxicity of pollutants
23 dischai^ed to navigable waters by sources in the cat-
24 egoiy or class of sources to which an effluent guide-
's IIM IS
135
42
1 line applies, the Administrator shall revise the guide-
2 line.
3 "(3) Simultaneous review and revision. —
4 At the same time as the Administrator reviews or re-
5 vises an effluent guideline (or related requirement)
6 pursuant to this subsection, the Administrator shall
7 review or revise new source performance standards
8 promulgated pursuant to section 306 and
9 pretreatment standards for existing sources and new
10 sources promulgated pursuant to section 307 for
11 sources in the class or category of sources.".
12 (2) Plan for review. — Section 304(m) (33
13 U.S.C. 1314(m)) is amended—
14 (A) in paragraph (1) —
15 (i) by striking "(1)" and all that fol-
16 lows through "biennially" and inserting the
17 following:
18 "(1) Publication. — Not later than January 1,
19 1998, and every 5 years";
20 (ii) in subparagraph (A) —
21 (I) by striking "annual"; and
22 (II) by inserting before the semi-
23 colon the following: ", new source per-
24 formance standards promulgated in
2^ accordance with section 306, and
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1 pretreatment standards for existing
2 sources and new sources promulgated
3 pursuant to section 307";
4 (iii) in subparagraph (B) —
5 (I) by striking "discharging toxic
6 or nonconventional pollutants";
7 (II) by striking "(b)(2)" and in-
8 serting "(b)"; and
9 (III) by striking "section 306"
10 and inserting "sections 306 and 307";
11 and
12 (iv) in subparagraph (C), by striking
13 "3 years after the pubhcation of the plan"
14 and inserting "5 years after the pubUca-
15 tion of the plan"; and
16 (B) by adding at the end the following new
17 paragraphs:
18 "(3) Revtew op indirect discharge stand-
19 ARDS. —
20 "(A) In general. — Except as provided in
21 subparagraph (B), notwithstanding section
22 301(d) and any other requirement of this sub-
23 section, the Administrator shall, as part of the
24 plan required to be developed by the Adminis-
25 trator pursuant to this subsection by Januaiy
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1 1, 1998, assess standards for existing sources
2 and new sources developed pursuant to section
3 307 and identify, with respect to each standard
4 applicable to pollutants that do not biodegrade,
5 any requirements of the standard that are less
6 stringent than the requirements under this sec-
7 tion and sections 301 and 306.
8 "(B) Exception. — Subparagraph (A) may
9 not apply with respect to a category or sub-
10 category of industrial sources with respect to
11 which no facility would be affected by a stand-
12 ard promulgated pursuant to section 307.
13 "(4) Simultaneous publication. —
14 "(A) In general. — Except as provided in
15 subparagraph (B), notwithstanding any other
16 provision of this Act, at the same time as the
17 Administrator promulgates and publishes efflu-
18 ent guidelines pursuant to section 301 and this
19 section, the Administrator shall, for each indus-
20 try that is covered by guidelines promulgated
21 pursuant to such sections, promulgate and
22 publish —
23 "(i) standards for new sources pursu-
24 ant to section 306; and
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1 "(ii) pretreatment standards for exist-
2 ing sources and new sources pursuant to
3 section 307.
4 "(B) Exception. — If, with respect to the
5 pretreatment standards for existing sources re-
6 ferred to in subparagraph (A)(ii), no facihty
7 would be affected by the standards, the require-
8 ments of such subparagraph may not apply
9 with respect to the existing sources.".
10 (3) Conformance with consent decree. —
1 1 Nothing in this Act or the amendments made by this
12 Act is intended to reUeve the Administrator of any
13 requirements or obhgations of the Administrator
14 under the settlement decree in Natural Resources
15 Defense Council v. ReiUy, Civ. No. 89-2980 (D.D.C.
16 filed January 25, 1991).".
17 (f) Fees.— Section 308 (33 U.S.C. 1318) is amended
18 by adding at the end the following new subsection:
19 "(e) Fees for Issuance of Guidelines and
20 Standards. —
21 "(1) In general. — The Administrator shall,
22 not later than the date of the promulgation or revi-
23 sion of any —
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1 "(A) efQuent limitation or guideline pro-
2 mulgated under section 301(b) and section
3 304(b);
4 "(B) new source performance standard
5 promulgated under section 306; or
6 "(C) pretreatment standard promulgated
7 under subsections (b) and (c) of section 307,
8 identify the cost incurred by the Administrator in
9 developing the guideline or standard.
10 "(2) Fees. — The Administrator shall assess the
11 owner or operator of any facility with a permit is-
12 sued pursuant to section 402, or an individual con-
13 trol mechanism issued under section 307(b), and
14 regulated by a guideline or standard referred to in
15 paragraph (1) a fee in an amount equal to a propor-
16 tional share of the estimated cost referred to in
17 paragraph (1). The total amount of fees assessed
18 with respect to a guideline or standard shall be suffi-
19 cient to offset the full cost of developing and pub-
20 lishing the guideline or standard.
21 "(3) Modification or waiver. — The Admin-
22 istrator may modify or waive an assessment de-
23 scribed in paragraph (2) on the basis of a finding
24 that—
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1 "(A) a source is a small business, as de-
2 fined in section 3(a) of the Small Business Act
3 (15 U.S.C. 632); or
4 "(B) the assessment would pose an unrea-
5 sonable financial hardship for the source.
6 "(4) Other conditions for modification. —
7 The Administrator may modify an assessment de-
8 scribed in paragraph (2) if the Administrator deter-
9 mines that the source will demonstrate new or inno-
10 vative technology.
11 "(5) Special fund. — ^An amount equal to the
12 amount of assessments collected pursuant to this
13 subsection shall be placed in a special fund of the
14 United States Treasury and shall be available with-
15 out appropriation only to carry out the activities of
16 the Administrator relating to the development and
17 promulgation of effluent guidelines, new source per-
18 formance standards, and pretreatment standards
19 under this Act.
20 "(6) Liability for assessment. —
21 "(A) In general. — ^Any discharger that —
22 "(i) applies for a permit to operate
23 pursuant to an effluent guidehne for which
24 the Administrator made assessments under
25 this subsection; and
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1 "(ii) should have paid an assessment
2 referred to in clause (i),
3 shall be liable for the assessment at the time
4 the permit application is filed and shall be sub-
5 jeet to a penalty in an amount equal to not less
6 than 50 percent of the assessment, plus interest
7 computed in the same manner as under section
8 6621(a)(2) of the Internal Revenue Code of
9 1986 (relating to computation of interest on
10 underpayment of Federal taxes).
11 "(B) Deposit in fund. — An amount
12 equal to the amount of any assessments, pen-
13 alties, and interest collected pursuant to this
14 paragraph shall be placed in the fund estab-
15 lished under paragraph (5).".
16 SEC. 202. WATER QUALITY CRITERIA AND STANDARDS.
17 (a) Criteria Documents. — Section 304(a) (33
18 U.S.C. 1314(a)) is amended—
19 (1) in paragraph (1)(A), by striking the semi-
20 colon at the end and inserting "and the sediment as-
21 sociated with the bodies of water; and";
22 (2) in paragraph (2) —
23 (A) by striking "and" at the end of sub-
24 paragraphs (B) and (C); and
•S 1114 IS
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1 (B) by striking the period at the end of the
2 paragraph and inserting "; and (E) for toxic
3 pollutants, on numerical pollutant concentration
4 criteria that are sufficient to ensure the attain-
5 ment of designated uses established by a
6 State.";
7 (3) in paragraph (4) —
8 (A) by inserting "(A)" after "(4)";
9 (B) in the first sentence, by striking "fecal
10 coliform, and pH" and inserting "pathogens or
11 indicators of pathogens (or both), pH, oil, and
12 grease"; and
13 (C) by adding at the end the following new
14 subparagraph:
15 "(B) Not later than 3 years after the date of enact-
16 ment of this subparagraph, the Administrator shall pub-
17 lish criteria pursuant to paragraph (1) —
18 "(i) for those pollutants or factors that the Ad-
19 ministrator determines pose the greatest risk to the
20 physical, chemical, or biological integrity of waters
21 fix)m all nonpoint sources; and
22 "(ii) that, on the basis of the potential for im-
23 proving water quality and enhancing the protection
24 of aquatic life and wildlife, programmatic needs, or
25 effectiveness, would provide the greatest benefit in
S 1114 ISR - 4
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50
1 the restoration and protection of the physical, chemi-
2 cal, and biological integrity of waters, including, at
3 a minimum, nutrients, suspended sohds, and dis-
4 solved oxygen.";
5 (4) by striking paragraph (5) and inserting the
6 following new paragraph:
7 "(5) (A) Not later than 2 years after the date of en-
8 aetment of the Water Pollution Prevention and Control
9 Act of 1993, and every 5 years thereafter, the Adminis-
10 trator shall prepare and publish in the Federal Register
11 a plan for the development of criteria and information pur-
12 suant to this subsection during the 5-year period begin-
13 ning on the date of publication of the plan, and, after pro-
14 viding opportunity for public review and comment, submit
15 the plan to Congress.
16 "(B) Each plan prepared pursuant to this paragraph
17 shall identify the relative need for new or revised —
18 "(i) human health criteria;
19 "(ii) aquatic hfe criteria for fresh waters and
20 waters of the estuarine zone, the territorial sea, the
21 contiguous zone, and the ocean;
22 "(iii) sediment quality criteria;
23 "(iv) criteria for pollutants associated with
24 nonpoint sources of pollution;
•8 1114 IS
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51
1 "(v) criteria for pollutants associated with
2 lakes;
3 "(vi) ground water criteria;
4 "(vii) biological, physical, and habitat criteria;
5 and
6 "(viii) ambient toxicity criteria.
7 "(C) Each plan prepared pursuant to this paragraph
8 shall estabUsh a schedule for the publication of final cri-
9 teria that the Administrator determines would result in
10 the greatest benefit to human health and the environment.
1 1 "(D) The initial plan pubUshed pursuant to this para-
12 graph shall provide for the pubUcation, not later than 4
13 years after the date of enactment of this subparagraph,
14 of not fewer than 8 sediment quaUty criteria (including
15 criteria for polychlorinated biphenyls and dioxins) that the
16 Administrator determines would result in the greatest ben-
17 efit to human health or the environment.";
18 (5) in paragraph (6), by striking "and annually
19 thereafter, for purposes of section 301(h) of this
20 Act" and inserting "and every 5 years thereafter";
21 and
22 (6) by adding at the end the following new
23 paragraphs:
24 "(9) Beginning on the date that is 1 year after the
25 date of enactment of this paragraph, the Administrator
•8 1114 18
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52
1 shall, not later than the date of registration or reregistra-
2 tion of a pesticide pursuant to the Federal Insecticide,
3 Fungicide, and Rodenticide Act (7 U.S.C. 136 et seq.),
4 require the registrant to provide information sufficient to
5 publish criteria pursuant to paragraph (1) for the pes-
6 ticide, unless the Administrator determines, on the basis
7 of the proposed use of the pesticide, that it is unlikely that
8 the pesticide or any metabolite of the pesticide will enter
9 surface water. This paragraph may not apply with respect
10 to any data submitted for a registration or reregistration
1 1 that the Administrator determines was complete on or be-
12 fore June 1, 1993.
13 "(10) Not later than 1 year after the date of enact-
14 ment of this paragraph, the Administrator shall estabUsh
15 a policy to ensure that information necessary to publish
16 criteria pursuant to this subsection for chemical sub-
17 stances that are the subject of a premanufacture notice
18 pursuant to section 5 of the Toxic Substances Control Act
19 (15 U.S.C. 2604) shall be submitted to the Administrator,
20 unless the Administrator finds that the chemical
21 substance —
22 "(A) wiU not be discharged to navigable waters
23 or to a publicly owned treatment works; or
24 "(B) will be disehai^ed fix)m a negligible quan-
25 tity of facilities.".
•8 1114 18
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1 (b) Water Quality Standards.— Section 303 (33
2 U.S.C. 1313) is amended—
3 (1) by striking subsections (a) and (b);
4 (2) by redesignating subsection (c) as sub-
5 section (a);
6 (3) by redesignating subsections (d) through (h)
7 as subsections (c) through (g); and
8 (4) in subsection (a) (as redesignated by para-
9 graph (2))—
10 (A) in second sentence of paragraph (1),
11 by inserting after "Results of such review" the
12 following: "(including the designated uses for
13 the navigable waters involved, the water quality
14 criteria for the waters based on the uses, and
15 the antidegradation poUcy of the State)";
16 (B) in paragraph (2) —
17 (i) in subparagraph (A) —
18 (I) in the second sentence, by in-
19 serting "and antidegradation policy"
20 after "designated uses";
21 (U) in the third sentence, by in-
22 serting "and sediment" after "en-
23 hance the quality of water"; and
24 (HI) in the fourth sentence, by
25 striking "their use and value" and in-
•8 1114 IB
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54
1 serting "the criteria developed under
2 section 304(a), the use of the water
3 and sediment, and the value"; and
4 (ii) by adding at the end the following
5 new subparagraph:
6 "(C) Not later than 3 years after the date of enact-
7 ment of this subparagraph, each State shall adopt, as part
8 of the water quahty standards of the State, a methodology
9 that allows the State to translate a narrative water quality
10 standard into a specific numeric limit for those pollutants
1 1 for which criteria guidance have not been published or for
12 which the State has not adopted numeric criteria pursuant
13 to section 304(a). In carrying out the preceding sentence,
14 the State shall use the provision or methodology for the
15 pollutants that cause water quahty impairments.";
16 (C) by striking paragraphs (3) and (4);
17 and
18 (D) by adding at the end the following new
19 paragraphs:
20 "(3)(A) Each use designation made under this para-
21 graph shall apply to the designated water and to the
22 aquatic sediments of the water.
23 "(B) Not later than 3 years after the date of enact-
24 ment of paragraph (5), and as part of any subsequent tri-
25 ennial review of State water quahty standards, each State
•8 1114 IS
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55
1 shall report to the Administrator the designated uses of
2 waters within the State.
3 "(C) On the date that is 5 years after the date of
4 enactment of paragraph (5), all waters of the United
5 States for which a use has not been designated shall be
6 deemed to be designated as fishable and swimmable, un-
7 less a State estabUshes an alternative use for the waters.
8 "(4) Any chemical-specific numeric criterion pub-
9 Ushed pursuant to section 304(a) for a toxic pollutant
10 after the date of enactment of paragraph (5) (together
11 with the appropriate designated use) shall be deemed to
12 be the applicable standard under this section for all waters
13 unless a State objects to the apphcation of the criterion
14 with respect to the waters of the State not later than 120
15 days after the date of publication of the criterion. If a
16 State objects to the apphcation of the criterion by the date
17 specified in the preceding sentence, and the State adopts
18 a criterion by not later than 3 years after publication of
19 the criterion, the criterion may not apply with respect to
20 the State.
21 "(5)(A) For all waters of the State, after the date
22 of enactment of this paragraph, as expeditiously as prac-
23 ticable, but not later than 3 years after the date of publi-
24 cation of the criteria, each State shall adopt pollutant spe-
25 cific standards for any pollutant for which criteria are
•8 1114 IS
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56
1 published pursuant to section 304(a)(1) the discharge or
2 presence of \^ch in the affected waters could reasonably
3 be expected to interfere with those designated uses adopt-
4 ed by the State, as necessary to support the designated
5 uses.
6 "(B) A State may waive the obUgation to adopt a
7 standard pursuant to this paragraph for criteria that
8 apply as standards pursuant to paragraph (4).".
9 (c) Anttoegradation. — Section 303 (33 U.S.C.
10 1313), as amended by subsection (b), is further amended
11 by inserting after subsection (a) the following new sub-
12 section:
13 "(b) Anttoegradation Policy. —
14 "(1) In general. — ^Each State shall develop
15 and implement a statewide antidegradation poUcy
16 and implementation procedures for the poUcy. The
17 Administrator i^iall review and approve or dis-
18 approve the policy and any revisions to the poUcy
19 adopted by each State. Not later than 3 years after
20 the date of enactment of this paragraph, the Admin-
21 istrator shall promulgate and implement an
22 antidegradation policy for each State that does not
23 have a pohcy that has been approved by the Admin-
24 istrator by the date.
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57
1 "(2) ANTroEGRADATION POLICY IMPLEMENTA-
2 TION METHODS. — The methods for the implementa-
3 tion of an antidegradation policy under paragraph
4 (1) shall, at a minimum, be consistent with the fol-
5 lowing:
6 "(A) Existing instream water uses, includ-
7 ing any uses occurring on or after November
8 28, 1975, and the water and sediment quality
9 necessary to protect the existing uses, shall be
10 maintained and protected.
11 "(B)(i) Except as provided in clause (ii), if
12 the quaUty of waters and sediments exceeds lev-
13 els necessary to support the protection and
14 propagation of a balanced population of fish,
15 shellfish, and wildlife, and recreation in and on
16 the water, the quaUty shall be maintained and
17 protected.
18 "(ii) If the State finds, after public notice,
19 opportunity for public hearing, and full satisfac-
20 tion of the intergovernmental coordination pro-
21 visions of the continuing planning process of
22 the State, that allowing a reduction in the de-
23 gree of water quality or sediment quality is nec-
24 essary to accommodate important economic or
25 social development in the area in which the wa-
•8 1114 18
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58
1 ters are located, clause (i) may not apply. In al-
2 lowing a reduction in the degree of water qual-
3 ity or sediment quality, the State shall ensure
4 a degree of water and sediment quahty ade-
5 quate to protect existing uses (as described in
6 subparagraph (A)), and the State shall
7 ensure —
8 "(I) that all point sources discharging
9 to the waters, and each industrial user dis-
10 charging to a pubUcly owned treatment
11 works discharging to the waters for which
12 the level of water or sediment quality is to
13 be reduced, are subject to all applicable re-
14 quirements of this Act, including any
15 source reduction requirements established
16 pursuant to section 301, 304, 306, 307, or
17 401; and
18 "(11) that all nonpoint sources within
19 the State that affect or may affect the
20 water or sediment quahty referred to in
21 subclause (I) are subject to enforceable
22 best management practices pursuant to
23 section 319 that are economically and tech-
24 nologically achievable for the sources.
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59
1 "(3) OUTSTANDINO NATIONAL RESOURCE WA-
2 TERS. —
3 "(A) In GENERAL. — If a high quality
4 water constitutes an outstanding national re-
5 source (as described in subparagraph (B)), the
6 water shall be maintained and protected by the
7 State.
8 "(B) State designation of outstand-
9 ing national resource waters. —
10 "(i) In general. — Not later than 2
11 years after the date of enactment of this
12 clause, each State shall designate and im-
13 plement a program to protect all outstand-
14 ing national resource waters within the
15 State.
16 "(ii) Outstanding national re-
17 SOURCE WATERS. — ^Except as provided in
18 clause (iii), the outstanding national re-
19 source waters shall include all waters with-
20 in a national park, wildUfe refuge, wild and
21 scenic river system, national forest, wilder-
22 ness area, national seashore or lakeshore,
23 or national monument. The State shall also
24 des^nate as outstanding national resource
25 waters those waters of exceptional rec-
•8 1114 m
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60
1 reational, cultural, or ecological signifi-
2 cance, including any water that supports a
3 population of threatened or endangered
4 species, as identified in the guidance of the
5 Administrator pubhshed pursuant to sub-
6 paragraph (C).
7 "(iii) Decision to decline to make
8 A DESIGNATION. — ^A State may propose
9 not to designate a specific water as an out-
10 standing national resource water, and the
11 Administrator may, after notice and oppor-
12 tunity for comment, approve the proposal,
13 if—
14 "(I) the State demonstrates to
15 the satisfaction of the Administrator
16 that the continued designation would
17 result in important social and eco-
18 nomic harms; and
19 "(n) with respect to waters with-
20 in Federal lands (if any), the Federal
21 manager of the lands concurs with the
22 State proposal.
23 "(C) Guidance. — Not later than 1 year
24 after the date of enactment of this subpara-
25 graph, the Administrator shall pubUsh guidance
•8 1114 IS
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61
1 for States to assist in the designation and pro-
2 tection of outstanding national resource waters
3 of ecological, cultural, or recreational signifi-
4 cance.
5 "(D) Consequences of failure to
6 DESIGNATE. — ^If the State fails to make the
7 designations required under this paragraph by
8 the date that is 3 years after the date of enact-
9 ment of this subparagraph, the Administrator
10 shall make the designations on such date.
11 "(E) State antidegradation policy. —
12 Each State antidegradation policy developed
13 under this subsection shall ensure that each
14 water of ecological significance designated pur-
15 suant to the guidance of the Administrator (in-
16 eluding any water of ecological significance that
17 may have been designated as an outstanding
18 national resource water under this paragraph)
19 meets water and sediment quality standards
20 that ensure the protection and propagation of a
21 balanced population of fish, shellfish, and wild-
22 life, and recreation in and on the water.
23 "(F) Citizen petition.— The State shall
24 include in the antidegradation policy of the
25 State provisions allowing any citizen of the
•8 1114 IB
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62
1 State to petition the State for the designation
2 of a particular water as an outstanding national
3 resource water.
4 "(4) ANTroEGRADATiON REVIEW. — In order to
5 ensure that the antidegradation policy required by
6 this subsection is not violated, a permitting author-
7 ity shall conduct an antidegradation review for a
8 water prior to issuing any permit to a point source
9 authorizing any new, expanded, or increased dis-
10 charge of a pollutant to the receiving water,".
11 (d) Mixing Zones.— Section 303 (33 U.S.C. 1313),
12 as amended by subsection (b), is further amended by add-
13 ing at the end the following new subsection:
14 "(h) Mixing Zones. —
15 "(1) National policy. — The Administrator
16 shaU, not later than 2 years after the date of enact-
17 ment of this paragraph, establish a national policy
18 concerning the use of mixing zones.
19 "(2) Requirements for policy. — The policy
20 established under paragraph (1) shall, at a mini-
21 mum, require that —
22 "(A) no acute toxicity will result fi^m the
23 allowed dilution;
•8 1114 18
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63
1 "(B) any area of allowed dilution shall be
2 as small as possible and be in a shape that fa-
3 cilitates monitoring;
4 "(C) the area of allowed dilution is eal-
5 culated on the assumption of water volume at
6 minimum stream flow for the receiving water;
7 and
8 "(D) no mixing zone is allowed in waters
9 designated as outstanding national resource wa-
10 ters pursuant to subsection (g)(3).
11 "(3) State policies. — Not later than 3 years
12 after the date of enactment of this paragraph, each
13 State shall incorporate in the water quality stand-
14 ards issued by the State a mixing zone pohcy that
15 is not less stringent than the national poUcy estab-
16 lished under this subsection.".
17 (e) Conforming Amendment. — Section 24 of the
18 Municipal Wastewater Treatment Construction Grant
19 Amendments of 1981 (33 U.S.C. 1313a) is amended by
20 striking "303(c)" both places it appears and inserting
21 "303(a)".
22 SEC. 203. TOXIC POLLUTANT PHASE-OUT.
23 (a) Effluent PROHiBiTiON. — Section 307(a) (33
24 U.S.C. 1317(a)) is amended—
•8 1114 18
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64
1 (1) in paragraph (2), by striking the second
2 sentence and all that follows through the end of the
3 paragraph; and
4 (2) by striking paragraphs (3) through (7) and
5 inserting the following new paragraphs:
6 "(3) (A) Not later than 1 year after the pubhcation
7 of a list pursuant to paragraph (4), the Administrator
8 shall, by regulation, prohibit the discharge of any toxic
9 pollutant listed pursuant to paragraph (4). The regulation
10 shall apply to any discharges regulated pursuant to section
1 1 402 or an industrial user regulated pursuant to subsection
12 (b).
13 "(B) Each regulation issued pursuant to this para-
14 graph shall specify acceptable analytical methods and a
15 comphance level.
16 "(C) The regulation shall provide a process for the
17 Administrator to ac^ust a prohibition pursuant to this
18 paragraph to provide an offset for the amount of a prohib-
19 ited pollutant in the water supply of the source in a man-
20 ner consistent with section 129 of title 40, Code of Federal
21 Regulations (as in effect on October 1, 1993).
22 "(D) The Administrator may exempt a category of
23 sources fix)m the requirements of this paragraph if the Ad-
24 ministrator determines that comphance by the category
•8 1114 18
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65
1 with the requirements of such paragraph is not techno-
2 logically feasiUe.
3 "(4) Not later than 2 years after the date of enact-
4 ment of the Water Pollution Prevention and Control Act
5 of 1993, and every 5 years thereafter, the Administrator
6 shall pubUsh proposed regulations listing those pollutants
7 that the Administrator determines to—
8 "(A) be hi^y toxic or toxic and highly
9 bioaccumulative; and
10 "(B) occur in surface water predominately as a
11 result of discharges.
12 "(5)(A) On receiving a petition from any person, the
13 Administrator may add a pollutant to the Ust estabUshed
14 pursuant to paragraph (4). Each person who petitions for
15 the listing of an additional pollutant pursuant to this para-
16 graph shall submit to the Administrator sufficient infor-
17 mation to make a determination under paragraph (4) not
18 later than 1 year before the date specified in paragraph
19 (4) for the publication of a list. The Administrator shall
20 include in a notice in the Federal Register concerning the
21 establishment of the list the basis for the decision of the
22 Administrator to list or decline to Ust a pollutant ad-
23 dressed in a petition submitted to the Administrator pur-
24 suant to this paragraph.
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66
1 "(B) If, on receipt of a petition referred to in sub-
2 paragraph (A), the Administrator determines that the ad-
3 dition of a poDutant to the hst is warranted, but that —
4 "(i) the immediate proposal and timely promul-
5 gation of a final regulation listing the pollutant in
6 accordance with this subsection is precluded by other
7 actions under this subsection concerning the listing
8 of a pollutant; and
9 "(ii) expeditious progress is being made to list
10 pollutants pursuant to this subsection, with respect
11 to which the hsting requirements of this subsection
12 are no longer appropriate,
13 the Administrator shall promptly publish the determina-
14 tion in the Federal Register, together with a description
15 and evaluation of the reasons and the data on which the
16 determination is based.
17 "(6) (A) Each toxic pollutant prohibition established
18 pursuant to this subsection shall take effect as expedi-
19 tiously as practicable but not later than 5 years after the
20 date of promulgation of the regulation establishing a pro-
21 hibition under this subsection.
22 "(B) If, at the end of the maximum comphance pe-
23 riod under subparagraph (A), the Administrator deter-
24 mines for a source or category of sources that —
•S 1114 18
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67
1 "(i) a prohibited pollutant cannot be eliminated
2 through the use of alternative substances or proc-
3 esses; and
4 "(ii) the source is making the maximum use of
5 available technology,
6 the Administrator may extend the compUance period for
7 the source or category of sources for a period of 5 years,
8 and may on the termination of the period, on the basis
9 of the criteria referred to in clauses (i) and (ii), extend
10 the compliance period for the period specified in this sub-
1 1 paragraph.".
12 (b) Listing Process.— Section 307(a)(1) (33
13 U.S.C. 1317(a)(1)) is amended—
14 (1) by striking the second sentence and insert-
15 ing the following new sentence: "The Administrator
16 is authorized to add or remove from the list any pol-
17 lutant and shall, not later than 1 year after the date
18 of enactment of the Water Pollution Prevention and
19 Control Act of 1993, and not less often than every
20 5 years thereafter, review and revise the list."; and
21 (2) in the third sentence, by inserting "poten-
22 tial for bioaccumulation," after "degradability,".
23 (c) Report on Developmental Effects. — Not
24 later than 3 years after the date of enactment of this Act,
25 the Administrator shall submit to Congress a report pro-
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1 viding a comprehensive review and assessment of the ef-
2 fects of pollutants found in navigable waters on the devel-
3 opment of aquatic species, wildlife, and humans, including
4 impairments to reproduction, endocrine, and inmiune sys-
5 tems caused by the pollutants.
6 SEC. 204. PRETREATMENT PROGRAM.
7 (a) Permit AuTHORrry. — Section 402(b)(9) (33
8 U.S.C. 1342(b)(9)) is amended by adding at the end the
9 following new sentences: "The Administrator (or a State
10 with authority to approve a pretreatment program under
11 this Act) may impose requirements on industrial users
12 that introduce pollutants into pubUcly owned treatment
13 works and that are not subject to the requirements of a
14 pretreatment program that has been approved by the ap-
15 propriate authority (referred to in this paragraph as an
16 'approved pretreatment program'). The requirements shall
17 include requirements that are equivalent to the require-
18 ments that a pubUcly owned treatment works with an ap-
19 proved pretreatment program is required to impose pufsu-
20 ant to the regulations issued under this Act, shall include
21 pretreatment standards, and may reflect best professional
22 judgment.".
23 (b) Removal Credits.— Section 307(b) (33 U.S.C.
24 1317(b)), as amended by section 201(c)(1), is further
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1 amended by adding at the end the following new para-
2 graph:
3 . "(6) If in the case of any toxic pollutant listed pursu-
4 ant to subsection (a) introduced by a source into a publicly
5 owned treatment works —
6 "(A) the treatment by the treatment works re-
7 suits in the biodegradation of the toxic pollutant, as
8 determined by the Administrator;
9 "(B) the dischai^ from the treatment works
10 does not violate the effluent limitation or standard
11 that would be applicable to the toxic pollutant if the
12 pollutant were discharged by the source other than
13 through a publicly owned treatment works; and
14 "(C) the toxic pollutant does not prevent sludge
15 use or disposal by the treatment works in accord-
16 ance with section 405,
17 the pretreatment requirements for the sources actually
18 discharging the toxic pollutant into the publicly owned
19 treatment works may be revised by the owner or operator
20 of the works to reflect the biodegradation of the toxic pol-
2 1 lutant by the works.".
22 (c) Domestic Sewage Exclusion. — Section 307
23 (33 U.S.C. 1317) is amended by adding at the end the
24 following new subsection:
25 "(f) Domestic Sewage Exclusion. —
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1 "(1) In general. — ^Beginning on the date that
2 is 3 years after the date of enactment of this sub-
3 section, the term 'but does not include solid or dis-
4 solved material in domestic sewage' may not, for the
5 purpose of paragraph (27) of section 1004 of the
6 SoUd Waste Disposal Act (42 U.S.C. 6903(27)), be
7 interpreted, construed, or appUed to exclude from
8 the definition of sohd waste under such paragraph
9 any pollutant introduced by a source into a treat-
10 ment works (as defined in section 212), unless —
11 "(A) the pollutant and source are subject
12 to a pretreatment standard promulgated by the
13 Administrator under this section and the source
14 is in compUance with the standard;
15 "(B)(i) the Administrator has promulgated
16 a schedule for estabUshing a pretreatment
17 standard pursuant to section 304(m) that
18 would be apphcable to the pollutant and source
19 not later than 5 years after the date of enact-
20 ment of this subsection and the standard is pro-
21 mulgated on or before the date estabUshed in
22 the schedule; or
23 "(ii) the pollutant and source are subject
24 to a local limit and the local limit for the pollut-
25 . ant and source is equivalent to the best dem-
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1 onstrated available treatment technology as de-
2 ■ termined by the Administrator under section
3 3004(m) of the SoUd Waste Disposal Act (42
4 U.S.C. 6924(m)) or a pretreatment standard
5 equivalent to a standard under subsection (b)
6 or section 402(b)(9).
7 "(2) Prohibition on introduction op haz-
8 ARDOUS WASTE. — ^It shall be unlawful to introduce
9 into a publicly owned treatment works any pollutant
10 that is a hazardous waste. Notwithstanding the pro-
1 1 visions of this Act, a publicly owned treatment works
12 (as defined in section 212) receiving or treatii^ any
13 hazardous waste shall not be deemed to be generat-
14 ing, treating, storing, disposing of, or otherwise
15 managing a hazardous waste for the purposes of this
16 Act, solely on the basis that any other person has
17 introduced a hazardous waste into the collection sys-
18 tem for such pubhcly owned treatment works.".
19 SEC. aOS. POIXUnON PREVENTION PLANNING.
20 Section 308 (33 U.S.C. 1318), as amended by section
21 201(e), is further amended by adding at the end the fol-
22 lowing new subsection:
23 "(f) Pollution Prevention Planning. —
24 "(1) In general. —
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1 "(A) Regulations.— Not later than 2
2 years after the date of enactment of this sub-
3 section, the Administrator shall promulgate reg-
4 ulations that require a person described in
5 paragraph (2) who apphes for the issuance or
6 reissuance of a permit pursuant to section 402,
7 or for a local limit for a significant industrial
8 user determined under section 307, to submit a
9 pollution prevention plan to the permitting au-
10 thority (in the case of a direct discharger), or
1 1 the permitting authority of the State for the ap-
12 propriate publicly owned treatment works (in
13 the case of a local Umit) as a condition of the
14 issuance or reissuance of the permit or local
15 limit.
16 "(B) Requirements for regula-
17 TIONS. — The regulations referred to in subpara-
18 graph (A) shall identify not fewer than 20 pol-
19 lutants with respect to which the Administrator
20 determines that discharge reductions are likely
21 to result in a benefit to human health or the
22 environment,
23 "(C) Potential for pollutant reduc-
24 TION. — The regulations shall indicate the poten-
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1 tial for pollutant reduction within categories or
2 subcategories of dischai^rs.
3 "(2) Pollution prevention planning re-
4 QUIREMENT. — The Administrator shall identify the
5 persons who are required to comply with paragraph
6 (1). In identifying the persons, the Administrator
7 shall provide that, not later than 7 years after the
8 date of enactment of this subsection, not less than
9 80 percent of the volume of each pollutant listed
10 pursuant to paragraph (1)(B) released into waters
11 at the time of the identification is subject to plans
12 prepared pursuant to this subsection.
13 "(3) Requirements for pollution preven-
14 tion plans. —
15 "(A) In general. — ^Each pollution pre-
16 vention plan prepared pursuant to this sub-
17 section shall —
18 "(i) address pollutants listed pursuant
19 to section 307(a) with respect to which the
20 discharger is required to report under sec-
21 tion 313 of the Emergency Planning and
22 Community Right-to-IQiow Act of 1986
23 (42 U.S.C. 11023); and
24 "(ii) with respect to a direct dis-
25 charger, be submitted as part of the appli-
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1 cation for the issuance or the reissuance of
2 a permit under section 402, and with re-
3 spect to a person subject to a pretreatment
4 requirement, be submitted to the permit-
5 ting authority.
6 "(B) Minimum requirements for
7 PLAN. — Each pollution prevention plan referred
8 to in subparagraph (A) shall, at a minimum —
9 "(i) estabUsh goals for pollution pre-
10 vention (including the reduction in the use
11 of pollutants, byproduct generation, and
12 in-process recycling) over the term of a
13 permit referred to in paragraph (1), or the
14 period during which a local limit referred
15 to in paragraph (1) applies;
16 "(ii) address water use efficiency;
17 "(iii) include onsite plans for the at-
18 tainment of the goals established under
19 clause (i); and
20 "(iv) provide for annual reports to the
21 agency that issues a permit concerning
22 progress toward attainment of the goals
23 established under clause (i).
24 "(C) Guidance. — Not later than 4 years
25 after the date of enactment of this subsection,
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1 the Administrator shall issue guidance that in-
2 dicates the range of the potential and dem-
3- onstrated reduction in pollution under pollution
4 prevention plans submitted pursuant to this
5 subsection.
6 "(D) Availability of plans. —
7 "(i) In general. — The pollution pre-
8 vention plan for each faciUty shall be re-
9 tained at the facihty, and, for purposes of
10 administering this Act, shall be available to
11 the Administrator, the State in which the
12 faciUty is located, and any. local govem-
13 ment agency given authority by the State
14 to inspect the plans. Any documents and
15 other records obtained or reviewed may not
16 be deemed to be pubhc records or docu-
17 ments.
18 "(ii) Availability to the public. —
19 The pollution prevention plan summaries
20 for each faciUty shall be made available to
21 the pubhc at the facihty during normal
22 business hours.
23 "(4) Report to congress. — Not later than 5
24 years after the date of enactment of this subsection,
25 the Administrator shall submit a report to Congress
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1 that describes the pollutant reductions accomplished
2 pursuant to plans prepared pursuant to this sub-
3 section/*.
4 TITLE in— WATERSHED PLAN-
5 NING AND NONPOINT POLLU-
6 TION CONTROL
7 SEC. 301. WATER QUALITY MONITORING.
8 (a) State Water Quality Monitoring Pro-
9 grams.— Subsection (b) of section 305 (33 U.S.C.
10 1315(b)) is amended to read as follows:
11 "(b)(1) Each State shall conduct a comprehensive
12 program to monitor the quality of navigable waters and
13 aquatic sediment within the State.
14 "(2) Each State monitoring program conducted pur-
15 suant to this subsection shall, at a minimum —
16 "(A) assess whether the waters of the State (in-
17 eluding the rivers, lakes, and coastal waters of the
18 State)—
19 "(i) provide for the protection and propa-
20 gation of a balanced population of shellfish,
21 fish, and wildlife; and
22 "(ii) allow for recreation in and on the wa-
23 ters;
24 "(B) identify waters that do not meet a water
25 quality standard (including a des^nated use);
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1 "(C) assess the contribution of point and
2 nonpoint sources to the water pollution problems of
3 the State referred to in subparagraphs (A) and (B);
4 and
5 "(D) provide that monitoring activities in the
6 State be scheduled, to the extent practicable, to pro-
7 vide for continuous collection of information over
8 each period that is the subject of a report submitted
9 pursuant to paragraph (5).
10 "(3) Not later than 2 years after the date of enact-
1 1 ment of this paragraph, the Administrator shall promul-
12 gate regulations that specify minimum requirements for
13 each State monitoring program conducted pursuant to this
14 subsection.
15 "(4) Each State monitoring program conducted pur-
16 suant to this subsection —
17 "(A) shall coordinate the assessment of water
18 and sediment quality within the State;
19 "(B) in coordinating the assessment referred to
20 in subparagraph (A), may draw on data from —
21 "(i) the monitoring programs of Federal
22 agencies;
23 "(ii) the monitoring of dischargers pursu-
24 ant to section 308; and
25 "(iii) volunteer monitoring programs;
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1 "(C) may collect and assess original data that
2 is necessaiy to supplement the data sources referred
3 to in subparagraph (B); and
4 "(D) shall be conducted in coordination and co-
5 operation with the Water Quality Monitoring Coun-
6 cil established under subsection (c).
7 "(5) (A) Each State shall prepare for aU waters within
8 the State and submit to the Administrator not later than
9 August 1, 1995, information on the attainment and main-
10 tenance of water quality. The information required under
1 1 this paragraph shall be updated with information supplied
12 by the States not less fi-equently than every 5 years.
13 "(B) The State shall pubUsh a report on the monitor-
14 ing program, including a compilation of the data, not later
15 than 5 years after the date of enactment of this para-
16 graph, and every 5 years thereafter.
17 "(C) Each State shall include in each report referred
18 to in subparagraph (A) data collected from hydrologic
19 study units and fixed monitoring stations operated by
20 Federal agencies.
21 "(6) The Administrator shall ensure that —
22 "(A) the data provided in the reports submitted
23 pursuant to paragraph (5) are maintained in a re-
24 positoiy on a continuous basis by the Environmental
25 Protection Agency; and
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1 "(B) the repository is updated in a timely fash-
2 ion.".
3 (b) Water Quality Monitoring Council. — Sec-
4 tion 305 (33 U.S.C. 1315) is amended by adding at the
5 end the following new subsection:
6 " (c) ( 1 ) There is estabhshed a Water Quality Monitor-
7 ing Council (referred to in this subsection as the 'Coun-
8 cil'). The Council shall give advice with respect to the co-
9 ordination of Federal and State water quality monitoring
10 programs.
11 "(2) The Coimcil shall be composed of —
12 "(A) a representative of the Administrator, who
13 shall be a cochairperson of the Council;
14 "(B) a representative of the Director of the
15 United States (Geological Survey, who shall be a co-
16 chairperson of the Council;
17 "(C) 3 representatives of appropriate Federal
18 agencies appointed by the President (after receiving
19 recommendations fix)m the Administrator);
20 "(D) 3 representatives of State environmental
21 protection agencies, appointed by the Administrator;
22 "(E) 3 representatives of the academic commu-
23 nity, appointed by the Administrator; and
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1 "(F) 3 representatives of volunteer water qual-
2 ity monitoring oi^anizations, appointed by the Ad-
3 ministrator.
4 "(3) The Council shall, at a minimum —
5 "(A) review and make recommendations regard-
6 ing the implementation of Federal water and sedi-
7 ment quality monitoring programs;
8 "(B) review and make recommendations regard-
9 ing the implementation of State water monitoring
10 programs pursuant to subsection (b);
11 "(C) recommend consistent quality ' assurance
12 standards for monitoring programs implemented
13 pursuant to this section;
14 "(D) recommend procedures and methods for
15 statistical analysis of monitoring data; and
16 "(E) assist in the effective coordination of data
17 management systems.
18 "(4) Members of the Council may not be compensated
19 for any travel expenses incurred, and may not receive any
20 compensation, by reason of service on the Coimcil.
21 "(5)(A) Not later than 2 years after the date of en-
22 actment of this subsection, the President, after consider-
23 ing the recommendations of the Council, shall submit to
24 Congress a strategy for the coordinated implementation
25 of water quality monitoring programs.
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1 "(B) The strategy referred to in subparagraph (A)
2 shaU—
3 "(i) review and assess the location and function
4 of fixed monitoring stations and hydrologic study
5 units; and
6 "(ii) describe —
7 "(I) the roles and responsibilities of Ped-
8 eral agencies;
9 "(n) methods of coordination among agen-
10 cies, including procedures to ensure the imple-
11 mentation of the strategy;
12 "(HI) the anticipated level of resources to
13 he devoted to monitoring programs by each
14 agency; and
15 "(IV) measures to ensure that Federal
16 monitoring programs are responsive to the mon-
17 itoring needs of States to the fullest extent
18 practicable.
19 "(6)(A) The Administrator, in cooperation with the
20 Council, shall prepare and submit to Clongress, on January
21 1, 1996, and every 5 years thereafter, a report that —
22 "(i) describes the findings of monitoring pro-
23 grams conducted pursuant to this section; and
S 1114 ISR - 6
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1 "(ii) pro\ides a comprehensive assessment of
2 conditions and trends in the quality of na\igable wa-
3 ters throughout the United States.
4 "(B) The report referred to in subparagraph (A)
5 shall also identify needed changes to Federal and St^ate
6 monitoring programs, including the adequacy of finiding
7 for the accomplish merit of the programs pio\ided for in
8 this section.".
9 SEC. 302. COMPREHEF^SIVE WATERSHED MAMAGEMENT.
10 Title m (33 U.S.C. 131 1 et seq ) is amended by add-
1 1 ing at the end the following I'.ew sef.tion-
12 '^EC. 321. COMPREHENSnne WATERSHED MANAGEMENT.
13 "(a) Findings and Purpose. —
14 "(1) Findings. — Congress finds that com-
15 prehensive watei'shed management will further the
16 goals and objectives of this Act by —
17 "(A) identifying more f\illy water quality
18 impairments and the pollutants, sources, and
19 activities causing itnpaiiTnents;
20 "(B) integrating water protection quality
21 efforts under this Act with other natural re-
22 source pix)te!Ction efforts, including Federal ef-
23 forts to define and protect ecological systems
24 (including the waters and thf- living resources
25 supported by the wat«i's);
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1 "(C) defining long-term social, economic
2 and natural resource objectives and the water
3 quality necessary to attain or maintain the ob-
4 jectives;
5 "(D) increasing, through citizen participa-
6 tion in the watershed management process,
7 public support for improved water quality;
8 "(B) identifying priority water quality
9 problems that need immediate attention; and
10 "(F) identifying the most cost-effective
11 measures to achieve the objectives of this Act.
12 "(2) Purpose. — The purpose of this section is
13 to encourage comprehensive watershed management
14 in maintaining and enhancing water quahty, in re-
15 storing and protecting living resources supported by
16 tlie waters, and in ensuring waters of a quality suffi-
17 cient to meet human needs, including water supply
18 and recreation.
19 "(b) Designation op Watersheds. —
20 "(1) In general. — The Governor of a State
21 may at any time designate waters (including ground
22 waters) and associated land areas within the State
23 as a watershed management unit. To the extent
24 practicable, the boundaries of each watershed man-
25 agement unit shall be consistent with the
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1 hydrological units identified by the United States
2 Geological Survey of the Department of the Interior
3 as the most appropriate units for planning purposes.
4 "(2) Requirements for designation. — Each
5 designation under paragraph (1) shall include an
6 identification of the waters within the watershed
7 management unit that are not meeting water or
8 sediment quaUty standards (including designated
9 uses) at the time of the designation. Each designa-
10 tion under paragraph (1) shall also identify any out-
11 standing national resource water and sensitive
12 aquatic or wildlife habitat area within the watershed
13 management unit that is the subject of the designa-
14 tion.
15 "(3) Watershed management unit. —
16 "(A) In general. — Each watershed man-
17 agement unit referred to in paragraph (1) shall,
18 to the extent practicable, include the land area
19 occupied by all sources of pollution that are
20 causing, or contributing to, an impairment
21 identified pursuant to paragraph (2).
22 "(B) Multistate units. — Each water-
23 shed management unit estabhshed under this
24 subsection may include waters and associated
25 land areas in more than 1 State, if the Grov-
es IIU 18
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85
1 emors of the States affected jointly designate
2 the watershed management unit.
3 "(4) Designation. — Bach designation of a wa-
4 tershed management unit made pursuant to this
5 subsection, and each corresponding management en-
6 tity designated under paragraph (1) or (2) of sub-
7 section (c), shall be submitted to the Administrator
8 for approval. The Administrator shall approve the
9 designation not later than 180 days after the date
10 of submittal, if the designation meets the require-
11 ments of this section. If the Administrator dis-
12 approves the designation, the Administrator shall
13 notify the State in writing of the reasons for dis-
14 approval. The State may resubmit the designation
15 amended to meet the objections of the Adminis-
16 trator.
17 "(c) Management Entity. —
18 "(1) In general. — The Governor of a State
19 shall determine the entity responsible for developing
20 and implementing a plan for each watershed man-
21 agement unit designated under this section. The
22 management entity may be an agency of State gov-
23 emment, a local government agency, a substate re-
24 gional planning organization, a conservation district
25 or other natural resource management district, or
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86
1 any other public or nonprofit entity with the capac-
2 ity to carry out the responsibilities authorized by
3 this section, as set forth by the Administrator in the
4 guidance required under subsection (i).
5 "(2) MULTISTATE MANAGEMENT ENTITY. — ^If a
6 watershed management unit is designated to include
7 land area in more than 1 State, the Grovemors of the
8 States affected shall jointly determine the appro-
9 priate management entity.
10 "(3) ELIOroiUTY FOR ASSISTANCE. — If the Ad-
11 ministrator determines that the management entity
12 identified by the Governor has adequate powers to
13 carry out the responsibilities authorized by this sec-
14 tion, the entity shall be eligible for assistance under
15 subsection (f).
16 "(d) Watershed Management and Planning Ac-
17 TIVITIES. — ^Watershed management and planning activi-
18 ties eligible to receive assistance from the Administrator
19 under this Act include, with respect to a watershed —
20 "(1) characterizing the waters and land uses of
21 the watershed management unit (including the exist-
22 ing, designated, and potential uses of the waters, the
23 living resources supported by the waters, sensitive
24 habitats within the watershed, and other natural, so-
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87
1 cial and ecoiioTni(! values that may be affected by
2 water quality within the watershed);
3 "(2) identifying problems related to water qual-
4 ity within the waten^hed (including impairments and
5 threats to the existing, designated, and potential
6 uses, pollutants of concerns, and sources of pollut-
7 ants causing threats or impairments);
8 "(3) selecting short-term and long-term goals
9 for watershed management (including the mainte-
10 nance or restoration of water quality, sediment qual-
1 1 ity, aquatic and \\ildlife habitat, and living resources
12 supported by the waters of the watershed);
13 "(4) selecting measures and practices to meet
14 identified goals (including tlie allocation of pollutant
15 load reductions among sources of pollution Avithin
16 the watei-shed and the design of remedial actions
17 necessarj' to restore uses);
18 "(5) identifying and coordinating specific
19 projects and activities necessary to reduce pollutant
20 loadings or Ix) restore water quality or aquatic habi-
21 tat within the watershed (including identifying Fed-
22 eral. State, local, and other financial resources need-
23 ed to support the projects and activities); and
24 "(6) identifying the appropriate institutional ar-
25 rangements to carry out a plan approved pursuant
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88
1 to subsection (g) and ensuring compliance with
2 schedules and limits established by the management
3 process.
4 "(e) Public Participation. — To the maxunum ex-
5 tent practicable, each State shall estabUsh procedures, in-
6 eluding the establishment of technical and citizens' advi-
7 sory committees, to encourage the pubUc to participate in
8 developing the comprehensive watershed management pro-
9 gram under this section.
10 "(f) Support for Watershed Management and
11 Planning. —
12 "(1) Interagency committee. — ^There is es-
13 tablished an interagency committee to support com-
14 prehensive watershed management and planning.
15 The President shall appoint the members of the
16 committee. The members shall include a representa-
17 tive from each Federal agency that carries out pro-
18 grams and activities that may have a significant im-
19 pact on water quality or other natural resource val-
20 ues that may be appropriately addressed through
21 comprehensive watershed management. In appoint-
22 ing members to the committee, the President may
23 include such representatives from a State or local
24 government and individuals frt>m any affected indus-
25 tiy, public or private educational institution, and the
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1 general public as the Administrator determines ap-
2 propriate.
3 (2) Compensation. — Members of the Council
4 may not be compensated for any travel expenses in-
5 curred, and may not receive any compensation, by
6 reason of service on the Council.
7 "(3) Use op other funds under Tms
8 ACT. — The planning and management activities car-
9 ried out by a management entity pursuant to this
10 section may be carried out with funds made avail-
11 able pursuant to section 106(h), 205(j), 319(e), or
12 604(b) (or any combination thereof).
13 "(g) Approved Plans. —
14 "(1) In general. — The (jovemor of a State
15 may submit to the Administrator for approval a
16 comprehensive watershed management plan devel-
17 oped pursuant to this section. The Administrator
18 shall, after notice and opportunity for pubhc com-
19 ment, approve or disapprove a comprehensive water-
20 shed management plan submitted by a Grovemor
21 pursuant to this subsection. The Administrator shall
22 approve the plan if the plan satisfies each of the fol-
23 lowing conditions:
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90
1 "(A) The plan has been developed for a
2 watershed management unit designated and ap-
3 proved pursuant to subsection (b).
4 "(B) The entity with responsibility to cany
5 out the plan has the legal authority and finan-
6 cial resources to caiTy out the plan.
7 "(C) Except as provided in subparagraph
8 (D), if the watershed includes waters that are
9 not meeting water or sediment quality stand-
10 ards at the time of submission —
11 "(i) the plan—
12 "(I) identifies the pollutants and
13 sources causing the impairment; and
14 "(II) demonstrates that the
15 standards will be attained as expedi-
16 tiously as practicable, but not later
17 than 10 years after the date of sub-
18 mittal of the plan; and
19 "(HI) includes periodic deter-
20 minations to ensure reasonable fur-
21 ther progress within the economic ca-
22 pability of the sources within the wa-
23 tershed is made toward attaining the
24 standards; and
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91
1 "(ii) the plan includes a list of
2 projects and activities necessary to achieve
3 allocated load reductions consistent with
4 the requirements of section 303(b), and —
5 "(I) identifies those projects of
6 highest priority; and
7 "(II) includes milestones for the
8 implementation of the projects and ac-
9 tivities.
10 "(D) In the case of a watershed with re-
11 spect to which pollutant loads are attributable
12 only to point sources the plan demonstrates
13 that the standards wiU be attained not later
14 than 5 years after the date of enactment of this
15 section and that periodic determinations will be
16 made to determine that reasonable farther
17 progress within the economic capability of the
18 sources within the watershed during the period
19 specified is made.
20 "(E) For those waters in the watershed at-
21 taining water quahty standards at the time of
22 submission, the plan identifies those projects
23 and activities necessaiy to maintain water qual-
24 ity standards in the future.
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1 "(F) Any other condition the Adminis-
2 trator may establish by guidance or regulation.
3 "(2) Planning and implementation sched-
4 ULE. — ^Each plan submitted and approved under this
5 subsection shall include a planning and implementa-
6 tion schedule for a period of at least 5 years. The
7 approval of the Administrator of a plan shall apply
8 for a period not to exceed 5 years. A revised and up-
9 dated plan may be submitted prior to the eviration
10 of the period specified in the preceding sentence for
11 approval pursuant to the same conditions and re-
12 quirements that apply to any initial plan for a wa-
13 tershed that is approved pursuant to this subsection.
14 "(3) Delegation op authority. —
15 "(A) In general. — The Administrator
16 may delegate to a State the authority to ap-
17 prove watershed plans under this subsection,
18 if—
19 "(i) the State submits a program to
20 the Administrator that is no less stringent
21 than the guidance issued under subsection
22 (i); and
23 "(ii) the Administrator approves the
24 State program and the Administrator peri-
25 odically reviews State decisions to approve
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93
1 specific watershed plans to determine
2 \diether the plans comply with the require-
3 ments of this subsection and the guidance
4 issued by the Administrator.
5 "(B) Revocation.— If at any tune after
6 delegating authority to a State pursuant to sub-
7 paragraph (A), the Administrator determines
8 that a State is not meeting a requirement re-
9 ferred to in such subparagraph, the Adminis-
10 trator may revoke the delegation.
11 "(h) Incentives for Watershed Planning. —
12 "(1) Projects and activities. — Projects and
13 activities identified in an approved plan as necessary
14 for attainment and maintenance of water and sedi-
15 ment quality standards apphcable to the waters
16 within the watershed management unit, and not oth-
17 erwise required by this or other Federal law, shall —
18 "(A) be eligible for funding under section
19 603(c)(1)(F);
20 "(B) be included in any needs assessment
21 , conducted pursuant to section 516; and
22 "(C) be eUgible for funding under section
23 604(a)(2)(C).
24 "(2) AcnvrriES op federal agencies. —
•8 1114 18
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1 "(A) In general.— Each activity of a
2 Federal agency that affects land use, water
3 quaUty, or the natural resources within a water-
4 shed planning unit for which a plan has been
5 approved pursuant to subsection (g) shall be
6 carried out in a manner that is consistent with
7 the poUcies estabUshed m the plan.
8 "(B) Exemption.— Notwithstanding sub-
9 paragraph (A), the President may exempt a
10 Federal agency activity from the requirements
^^ o^ a plan approved under subsection (g) if the
12 President determines that it is in the para-
13 mount interest of the United States to exempt
14 the Federal agency.
15 "(3) Limitation. —
^^ "(A) In general.— Notwithstanding sec-
17 tion 301(b)(1)(C), and subject to the require-
18 ments of section 402(o), the Administrator or a
19 State may issue a permit to a pomt source that
20 mdudes a Ihnitation for a pollutant to be dis-
21 charged by the source to a specific portion of a
22 navigable water that does not ensure attain-
23 ment and maintenance of water quahty stand-
24 ards (alone, or in combination with, limitations
•8 1114 U
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1 issued for other point sources discharging to
2 the water), if —
3 "(i) the water is part of a watershed
4 management unit for which a plan has
5 been approved under subsection (g); and
6 "(ii) the plan includes enforceable re-
7 quirements that have been imposed under
8 State or local law for nonpoint source pol-
9 lution load reductions that, in combination
10 with the limitations estabUshed for point
11 sources, provide for the attainment and
12 maintenance of water quaUty standards for
13 the waters prior to e3q)iration of the plan.
14 "(B) Extension of term.— Notwith-
15 standing section 402(b)(1)(B), the Adminis-
16 trator or a State is authorized to grant an ex-
17 tension of the term of any permit issued pursu-
18 ant to section 402 for a period not to exceed 4
19 years after the date of enactment of this section
20 for any source —
21 "(i) that is located in an area that is
22 designated as a watershed planning unit;
23 and
24 "(ii) for which the Grovemor of the
25 State indicates to the Administrator in
•8 1114 18
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1 writing, prior to the e3q)iration date of the
2 permit (as in effect on the date of enaet-
3 ment of this section), an intention to pre-
4 pare and submit a watershed management
5 plan for approval under subsection (g).
6 "(4) Extension for approved plan. — Not-
7 withstanding section 402(b)(1)(B), the term of a
8 permit issued to a point source under section 402
9 may be extended to be a term of 10 years for any
10 point source located in a watershed management
1 1 unit for which a plan has been approved under sub-
12 section (g), if the plan provides for the attainment
13 and maintenance of water quahty standards (includ-
14 ing designated uses) in waters affected by the dis-
15 charge from the point source that is the subject of
16 the permit for the entire term of the permit subject
17 to the extension. Notwithstanding the preceding sen-
18 tence, any permit issued pursuant to this section
19 shall be renewed and revised as necessary to attain
20 and maintain water quality standards if at any time
21 during the term of the permit the waters affected by
22 the dischai^ do not meet water quality standards.
23 "(i) Guidance. — Not later than 18 months after the
24 date of enactment of this section, the Administrator shall
25 issue guidance for the comprehensive watershed manage-
rs 1114 18
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97
1 ment and planning under this section that specifies mini-
2 mum requirements for watershed designation, legal au-
3 thorities and financial resources for management entities,
4 public participation, and elements necessary for approval
5 of a watershed management plan pursuant to subsection
6 (g).
7 "(j) State Water Law. — Nothing in this section is
8 intended to amend, supersede, or abrogate any right to
9 a quantity of water that has been estabUshed by any inter-
10 state water compact, Supreme Court decree. State water
1 1 law, or any requirement imposed, or right provided under,
12 any Federal or State environmental or pubhc health law.".
13 SEC. 303. DfPAIRED WATERS IDENTIFICATION.
14 Subsection (a) of section 319 (33 U.S.C. 1329(a)) is
15 amended to read as follows:
16 "(a) Impaired Waters. —
17 "(1) Impaired waters. —
18 "(A) In general. — Not later than 2 years
19 after the date of enactment of clause (i), each
20 State shall submit to the Administrator a list of
21 waters within the State that cannot, without
22 additional action to control nonpoint sources of
23 pollution, reasonably be anticipated to attain or
24 maintain —
S 1114 ISR - 7
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98
1 "(i) water quality standards for the
2 waters; or
3 "(ii) a water quality that will ensure
4 the protection of public health and pubUc
5 water supplies, and the protection and
6 propagation of a balanced population of
7 shellfish, fish, and wildlife and allow for
8 recreational activities in and on the water.
9 "(B) Contents of list. — ^A Ust submit-
10 ted pursuant to this paragraph shall include, at
11 a minimum, waters Usted pursuant to sections
12 304(0(1)(A) and 319(a)(1)(A) for which indi-
13 vidual control strategies have been promulgated,
14 unless the State demonstrates that the waters
15 do not meet the listing criteria referred to in
16 subparagraph (A).
17 "(C) Additions to list. —
18 "(i) Action by a state. — ^A State
19 may add to the hst submitted to the Ad-
20 ministrator pursuant to subparagraph (A)
21 any waters within the State that the State
22 determines to be —
23 "(I) threatened with impairment;
24 or
•8 1114 18
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99
1 "(n) an outstanding national re-
2 source water, as designated pursuant
3 to section 303(g).
4 "(ii) Action by the adminis-
5 TRATOR. — The Administrator may add a
6 water to a list submitted by a State, or ex-
7 pand an area identified pursuant to sub-
8 paragraph (E) if the water meets the list-
9 ing criteria referred to in subparagraph
10 (A).
1 1 "(D) Failure by state. — In any case in
12 which a State fails to submit a Ust pursuant to
13 this paragraph by the date specified in subpara-
14 graph (A), the Administrator shall cany out
15 the requirements of this paragraph not later
16 than 1 year after the date specified.
17 "(E) Delineation of watershed. — The
18 list prepared pursuant to this paragraph shall
19 include a delineation of the land area within the
20 State of the watershed of a Usted water. The
21 delineated area shall include all sources of pol-
22 lution within the State that cause, or contribute
23 to, the impairment of the water quality of the
24 water. In any case in which the watershed areas
25 of individual impaired waters overlap, a State
•8 1114 n
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1 may combine waters to form a single watershed
2 area for the purposes of the inclusion of the wa-
3 tershed area on the list prepared pursuant to
4 subparagraph (A).
5 "(F) Public review and comment. —
6 Each State shall provide an opportunity for
7 public review and comment on the list prepared
8 pursuant to this paragraph and shall, at a mini-
9 mum, hold at least 1 pubhc hearing concerning
10 the Ust not later than 60 days prior to submit-
11 tal of the list to the Administrator.
12 "(G) Petition. — ^Any person may submit
13 to the State in which the person resides a peti-
14 tion for the Usting of a water pursuant to this
15 paragraph. In any case in which a petition es-
16 tablishes that a water meets the hsting criteria
17 referred to in subparagraph (A), or in the case
18 of a petition for hsting pursuant to paragraph
19 (4) if the waters meet the requirements of para-
20 graph (4), the State shaU add the waters to the
21 hst prepared pursuant to subparagraph (A).
22 "(H) Approval by administrator. —
23 The Administrator shaU review each list re-
24 quired to be prepared pursuant to this para-
25 graph not later than 90 days after receipt of
•fl 1114 B
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1 the list. If the Administrator finds that the list
2 is consistent with the requirements of this sub-
3 section, the Administrator shall, after notice
4 and opportunity for public comment, approve
5 the list. The approval or disapproval by the Ad-
6 ministrator of a list shall constitute final agency
7 action for the purposes of section 509. The
8 court shall not set aside or reward a decision to
9 list a water unless the court decides, on the
10 basis of the rulemaking record, that the deci-
11 sion was arbitrary and capricious, or otherwise
12 in violation of law.
13 "(2) Reassessment of impaired waters. —
14 Not later than 7 years after the date of enactment
15 of subparagraph (A), and every 5 years thereafter,
16 each State shall submit to the Administrator a list
17 of waters and a description of watershed areas of
18 the waters in a manner consistent with the proce-
19 dures for listing a watershed under paragraph (1).
20 The list shall also include waters that fail to meet —
21 "(A) biological monitoring regulations es-
22 tablished pursuant to the information published
23 pursuant to section 304(a)(8); or
•8 1114 IS
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102
"(B) standards for pollutants adopted pur-
2 suant to section 303 associated with nonpoint
3 sources.".
4 SEC. 304. NONPOINT POLLUTION CONTROL.
5 (a) Management Program Revision.— Section
6 319 (33 U.S.C. 1329) is amended—
7 (1) in subsection (b) —
8 (A) in paragraph (1) —
9 (i) by inserting before "The (Jovemor
^^ of each State" the following new sentence:
11 "Not later than 30 months after the date
12 of enactment of the Water Pollution Pre-
1^ vention and Control Act of 1993, the Gfov-
1^ emor of each State shall prepare and sub-
1^ mit to the Administrator a revised man-
1^ agement program."; and
^^ (") by adding at the end of the para-
18 graph the following new sentence: "Each
^^ management program prepared under this
2^ subsection shall be consistent with the
21 guidance developed under subsection (c).";
22 (B) in paragraph (2) —
2^ (i) in subparagraph (A), by striking
2^ "paragraph (1)(B)," and all that foUows
2^ through the end of the subparagraph and
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1 inserting the following: "subsection
2 (c)(2)(A), except that the State may ex-
3 empt a category of sources on the basis of
4 a demonstration to the Administrator that
5 the category of sources does not cause im-
6 pairment to the waters within the State.";
7 (ii) in subparagraph (B), by adding at
8 the end the following new sentence: "Ex-
9 cept for categories, subcategories, or
10 sources addressed pursuant to subsection
11 (f), the programs and management prac-
12 tices shall be consistent with guidance pub-
13 lished pursuant to subsection (c).";
14 (iii) by striking subparagraph (C) and
15 inserting the following new subparagraph:
16 "(C) A schedule containing annual mile-
17 stones for the implementation of management
18 measures as expeditiously as practicable but not
19 later than 3 years after the date of approval of
20 the program for new sources";
21 (iv) by redesignating subparagraphs
22 (E) and (P) as subparagraphs (F) and
23 (G), respectively; and
24 (v) by inserting after subparagraph
25 (D) the following new subparagraph:
•S 1114 IS
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1 "(E) For any source in a categoiy or class
2 of sources listed in guidance developed under
3 subsection (c) that is also in the watershed de-
4 hneated under section 3 1 9 (a) ( 1 ) —
5 "(i) the implementation of manage-
6 ment measures as expeditiously as prae-
7 ticable, but not later than 3 years after the
8 date of approval of the program; or
9 "(ii) the development of site-specific
1^ water quality plans pursuant to subsection
^^ (f) as expeditiously as practicable, but not
12 later than 3 years after the date of ap-
1^ proval of the program, including appro-
1^ priate agreements with the Secretaiy of
1^ Agriculture or appropriate State agencies
16 for the development of each plan.";
1^ (C) by striking paragraph (3) and msert-
18 ing the following new paragraph:
19 "(3) Revision of plans.—
20 "(A) In general.— Not later than 7 years
21 after the date of enactment of the Water Pollu-
22 tion Prevention and Control Act of 1993, each
23 State shall review and revise the plan developed
24 pursuant to paragraph (2) in a manner consist-
25 ent with the requirements of this section.
•S 1114 IS
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105
1 "(B) Site-specific water quality
2 PLANS. — Each plan submitted pursuant to this
3 paragraph may provide for the implementation
4 of site-specific water quality plans pursuant to
5 paragraph (2)(E)(ii) only if the plan is for a
6 source within the watershed area of an im-
7 paired water with respect to which the Adminis-
8 trator has approved a watershed plan pursuant
9 to section 321.
10 "(C) Enforcement. — Each plan devel-
11 oped pursuant to this paragraph shall provide
12 for the necessary legal authority to ensure the
13 implementation of management measures for
14 existing sources and new sources and measures
15 required under plans developed under a pro-
16 gram referred to in subsection (b). The legal
17 authority shall include, at a minimum, the au-
18 thority to seek injunctive relief for the failure to
19 implement a measure referred to in the preced-
20 ing sentence.
21 "(D) Failure to submit plan. — If a
22 State fails to submit a plan pursuant to this
23 paragraph, or the Administrator does not ap-
24 prove the plan, not later than 1 year after the
25 deadline for the submittal of the plan to the
•8 1114 IS
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106
1 Administrator, or 1 year after the Adminis-
2 trator disapproves the plan, the Administrator
3 shall publish a regulation providing for the im-
4 plementation of enforceable minimum control
5 measures for categories of sources in the State
6 that is consistent with this subsection. The Ad*
7 ministrator may use the sums allocated to the
8 State under subsection (h) to implement the
9 regulation (including making grants to substate
10 agencies approved by the Administrator pursu-
11 ant to subsection (e)).";
12 (D) by striking paragraph (4) and insert-
13 ing the following new paragraph:
14 "(4) Public and agency involvement. — In
15 developing and implementing a management pro-
16 gram under this subsection, a State shall provide for
17 public review and comment and shall cooperate with
18 local. State, and interstate entities."; and
19 (E) by adding at the end the following new
20 paragraphs:
21 "(5) Economic capability. — ^A State may,
22 with the approval of the Administrator, adopt alter-
23 native requirements with respect to a specific
24 nonpoint source of pollution based on a showing by
•S 11 U iH
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1 the owner or operator of the source that the modi-
2 fied requirements will —
3 "(A) represent the maximum use of man-
4 agement measures and practices within the eco-
5 nomic capability of the owner or operator; and
6 "(B) result in reasonable further progress
7 toward elimination of pollution.
8 "(6) Definitions. — As used in this section:
9 "(A) Existing source. — The term 'exist-
10 ing source' means any nonpoint source, cat-
11 egoiy, or subcategory of sources that is not a
12 new source.
13 "(B) New source. — The term 'new
14 source* means any source, categoiy, or sub-
15 categoiy of sources that is described in one of
16 the following clauses:
17 "(i) The development or significant
18 redevelopment of a commercial or residen-
19 tial site of 5 or more acres that is not sub-
20 ject to a stormwater permit issued under
21 section 402(p).
22 "(ii). The construction or significant
23 reconstruction of a road, hi^way, or
24 bridge that is not subject to a stormwater
25 permit issued under section 402 (p).
•S 1114 IS
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108
1 "(iii) The harvesting of timber or the
2 construction of a forest road.
3 "(iv) The construction or significant
4 expansion of an animal feeding operation
5 that is not subject to a permit issued
6 under section 402.
7 "(v) A category or subcategory of new
8 sources established by the Administrator
9 under subsection (c).
10 "(vi) A source, category, or sub-
11 category of sources designated as a new
12 source by a State.";
13 (2) by striking subsection (c) and inserting the
14 following new subsection:
15 "(c) National Program GuroANCE. —
16 "(1) In general. — The Administrator, in con-
17 sultation with the heads of other Federal agencies,
18 shall publish guidance that specifies elements of
19 nonpoint pollution management programs.
20 "(2) Guidance contents. — The guidance
21 published under this subsection shall include, at a
22 minimum —
23 "(A) a description of categories and
24 subcategories of sources of nonpoint pollution;
•S IIM IS
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109
1 "(B) management measures appropriate to
2 each category or subcategory of source identi-
3 fied in subparagraph (A), including a descrip-
4 tion of each method or practice, structural or
5 nonstructural control, and operation and main-
6 tenance procedure, that constitutes each meas-
7 ure;
8 "(C) program implementation criteria ap-
9 propriate to ensure the implementation of man-
10 agement measures;
11 "(D) methods to estimate reductions in
12 nonpoint pollution loads necessary to attain and
13 maintain water quality and sediment quahty
14 standards and achieve the goals and require-
15 ments of this Act; and
16 "(E) any necessary monitoring to assess
17 over time the success of management measures
18 in reducing nonpoint pollution loads and im-
19 proving water quality.
20 "(3) Publication of guidance. — Not later
21 than 90 days after the date of enactment of this
22 paragraph, the Administrator shall publish proposed
23 guidance pursuant to this subsection, and the Ad-
24 ministrator shall pubUsh final guidance not later
25 than 180 days after such date of enactment.
•8 1114 IS
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110
1 "(4) Review. — The Administrator shall provide
2 the heads of interested Federal agencies, States, and
3 other interested persons with an opportunity to pro-
4 vide written comments on proposed guidance under
5 this subsection.
6 "(5) Regional variation. — The Adminis-
7 trator may, on the recommendation of an adminis-
8 trator of a regional office of the Environmental Pro-
9 tection Agency, modify management measures pur-
10 suant to paragraph (2)(B) to reflect special condi-
1 1 tions in the region under the jurisdiction of the ad-
12 ministrator of the regional office. The modification
13 shall apply to each State in the region.
14 "(6) Definitions. — ^As used in this subsection:
15 "(A) Management measures. — The term
16 'management measures* means economically
17 achievable measures for the control of the addi-
18 tion of pollutants fix)m existing sources and new
19 sources (as defined in subsection (b)(6)) that
20 reflect the greatest degree of pollutant reduc-
21 tion achievable through the application of the
22 best available nonpoint pollution control prac-
23 tices, technologies, processes, siting criteria, op-
24 crating methods, or other alternatives.
•8 1114 IS
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1 "(B) Program implementation cri-
2 TERIA. — The term 'program implementation
3 criteria' means specified characteristics of a
4 program that will result in the effective and re-
5 liable implementation of management measures
6 and the maintenance of the maneigement meas-
7 ures over the long-term. In establishing the cri-
8 teria, the Administrator shall consider any pro-
9 grams in effect that have been demonstrated by
10 1 or more States to be effective and reliable
11 means of ensuring the implementation and
12 maintenance of a management measure. The
13 term shall include appropriate State statutes,
14 county or municipal ordinances, financial assist-
15 ance programs, and related enforceable authori-
16 ties.";
17 (3) in subsection (d) —
18 (A) in paragraph (1) —
19 (i) in the first sentence, by striking
20 "report or" both places it appears; and
^1 (ii) in the third sentence, by striking
22 "report, management program," both
23 places it appears, and inserting "manage-
24 ment program";
25 (B) in paragraph (2) —
•8 1114 18
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112
1 (i) in subparagraph (A), by striking
2 "(b)(2)" and inserting "(b)";
3 (ii) in subparagraph (C), by striking
4 "sufficiently expeditious" and inserting
5 "consistent with the guidance referred to
6 in subsection (c)"; and
7 (iii) in subparagraph (D), by inserting
8 before "adequate to reduce the level of pol-
9 lution in navigable waters" the following
10 "consistent with the guidance referred to
11 in subsection (c), or otherwise not"; and
12 (C) by striking paragraph (3) and insert-
13 ing the following new paragraph:
14 "(3) Grant adjustment and reallocation
15 OP FUNDS. —
16 "(A) Grant adjustment — Beginning
17 with fiscal year 1998, and for each fiscal year
18 thereafter, no grant funds available to a State
19 under this section shall be awarded to a State
20 without a management program that has been
21 approved by the Administrator pursuant to sub-
22 section (b).
23 "(B) Reallocation op punds. — Begin-
24 ning with fiscal year 1998, and for each fiscal
25 year thereafter, in the case of a State that does
•S IIU IS
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113
1 not have a management program that has been
2 approved by the Administrator under subsection
3 (b), the Administrator shall reserve a propor-
4 tionate share for the State of the amount of the
5 grant awarded pursuant to subsection (h) for
6 the preceding fiscal year. The Administrator
7 shall first allocate an amount of the amount re-
8 served among local management programs with-
9 in the State that have been approved pursuant
10 to subsection (e) in such amounts as the Ad-
11 ministrator determines to be appropriate. Any
12 funds that the Administrator does not allocate
13 in accordance with the preceding sentence to
14 support programs approved pursuant to sub-
15 section (e), shall be made available to States
16 that have a program approved by the Adminis-
17 trator under subsection (b)."; and
18 (4) in the first sentence of subsection (e), by
19 striking ", with the approval of such State,".
20 (b) Grant Assistance.— Section 319 (33 U.S.C.
21 1329) is amended—
22 (1) in subsection (h) —
23 (A) by striking paragraph (5) and insert-
24 ing the following new paragraph:
25 "(5) Allotment of grant funds. —
S 1114 ISR - 8
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114
1 "(A) In general. — ^From the sums appro-
2 priated in any fiscal year, the Administrator
3 shall allocate funds in accordance with such fac-
4 tors as the Administrator considers appropriate.
5 "(B) Reservation of funds. — For fiscal
6 3^ars 1996 and 1997, prior to the allotment of
7 funds pursuant to subparagraph (A), the Ad-
8 ministrator shall reserve an amount equal to 50
9 percent of the funds available for aUotment for
10 the fiscal year for allotment to States on the
1 1 basis of the ratio of the number of acres of wa-
12 tershed areas of waters Usted pursuant to sub-
13 section (a) in the State to the total number of
14 acres of watershed areas of waters Usted pursu-
15 ant to such section.
16 "(C) Allotment. — Beginning with fiscal
17 year 1998, and for each fiscal year thereafter,
18 prior to allotting funds pursuant to subpara-
19 graph (A), the Administrator shall reserve an
20 amount equal to 50 percent of the funds avail-
21 able for allotment to States on the basis of the
22 estimate of the cost of implementing site-spe-
23 cific water quaUty plans prepared pursuant to
24 subsection (f) within the watershed area of a
25 water with respect to which the Administrator
•8 1114 IS
115
1 has approved a watershed plan pursuant to sec-
2 tion 321.";
3 (B) in paragraph (6), in the first sentence,
4 by inserting before the period at the end the
5 following: ", and shall remain available for the
6 following fiscal year;";
7 (C) by striking paragraph (7) and insert-
8 ing the following new paragraph:
9 "(7) Limitation on use op funds. —
10 "(A) In general. — Each State may use
11 fands fi*om a grant made pursuant to this sec-
12 tion to provide financial assistance to a person
13 only to the extent that the assistance is related
14 to the—
15 "(i) cost of a demonstration project;
16 "(ii) incentive grant; or
17 "(iii) land acquisition or conservation
18 easement.
19 "(B) Limitation on incentive
20 grants. — An incentive grant may be made only
21 if—
22 "(i) no other source of Federal assist-
23 ance is available to implement the meas-
24 ure;
•S 1114 IS
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116
1 "(ii) the amount of funding for a
2 project provided pursuant to this sub-
3 section does not exceed 50 percent of the
4 cost of the project, and the difference be-
5 tween the amount of the funding provided
6 pursuant to this subsection and the cost of
7 the project is paid fix)m non-Federal
8 sources;
9 "(iii) the amount of the grant does
10 not exceed $5,000 per year;
1 1 "(iv) the Administrator determines be-
12 fore awarding the grant that the measure
13 assisted by the grant has a design life in
14 excess of 5 years;
15 "(v) in making the grants available,
16 the State will give hi^est priority to areas
17 identified by the State under subsection
18 (a);
19 "(vi) in making the grants available,
20 the State wiU give highest priority to per-
21 sons with the greatest financial need; and
22 "(vii) not more than 50 percent of all
23 funds made available to a State under this
24 section shall be available for incentive
25 grants.
•S 1114 IS
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117
1 "(C) Limitation on land acquisition
2 AND incentive GRANTS. — ^A land acquisition
3 or conservation easement may be funded under
4 this paragraph only if —
5 "(i) in the case of conservation ease-
6 ment, the conservation easement is consist-
7 ent with a site-specific control plan; and
8 "(ii) the amount of funds used for the
9 purposes specified in this subparagraph
10 does not exceed an amoimt equal to 30
11 percent of the total amount of funds made
12 available as grants to a State under this
13 subsection.
14 "(D) Incentive grant defined. — ^As
15 used in this paragraph, the term 'incentive
16 grant' means a grant to an individual to imple-
17 ment a site-specific water quality plan devel-
18 oped pursuant to subsection (f).";
19 (D) in paragraph (12), by inserting "and
20 incentive grants" after "demonstration
21 projects"; and
22 (E) by adding at the end the following new
23 paragraph:
24 "(13) Failure to implement. — If the Admin-
25 istrator determines that a State has substantially
•S 1114 09
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1 failed to implement a plan, or develop site-specific
2 water quality plans, the Administrator shall withhold
3 not less than 25 percent, and not more than 50 per-
4 cent, of the funds that would otherwise have been
5 available to the State pursuant to this subsection.
6 The amount of funds withheld pursuant to this
7 paragraph shall be allocated to States with a pro-
8 gram approved by the Administrator pursuant to
9 subsection (b) and local management programs with-
10 in the States that have been approved pursuant to
11 subsection (e)."; and
12 (2) in subsection (j), by inserting after the first
13 sentence the following new sentence: "There are au-
14 thorized to be appropriated to cany out subsection
15 (h) an amount not to exceed $300,000,000 for fiscal
16 year 1995, $500,000,000 for each of fiscal years
17 1996 through 1998, and $600,000,000 for each of
18 fiscal years 1999 and 2000.".
19 (c) Site-Specific Water Quality Plans. — Sub-
20 section (f) of section 319 (33 U.S.C. 1329(f)) is amended
21 to read as follows:
22 "(f) Site-Specific Water Quality Plans. —
23 "(1) In general. —
24 "(A) Site-specific water quality
25 plans. — ^Each source, including an agricultural
•8 1114 18
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119
1 source, that is located in the watershed area of
2 a water Usted pursuant to subsection (a)(1)
3 may implement a site-specific water quality
4 plan in lieu of implementing management meas-
5 ures, as described in subsection (c).
6 ''(6) Each plan developed pursuant to this
7 subsection shall be approved by the appropriate
8 official of a Federal agency or State agency, as
9 specified in the plan developed under subsection
10 (b). With respect to agricultural sources that
11 implement a plan referred to in the preceding
12 sentence, the Secretary of Agriculture shaU as-
13 sist the States in the development and imple-
14 mentation of the plans to the fullest extent
15 practicable.
16 "(2) Requirements for plan. —
17 "(A) In general. — ^Each plan developed
18 pursuant to this subsection shall —
19 "(i) provide for the implementation of
20 management measures that are appro-
21 priate to the site, economically achievable
22 by the owner or operator of the source,
23 and will reduce water pollution;
•s 1114 n
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1 "(ii) recognize and incorporate appro-
2 priate management measures in place at
3 the site at the time the plan is developed;
4 "(iii) estabhsh schedules for the im-
5 plementation of management measures as
6 e^)editiously as practicable, but not later
7 than 3 years after the date of initiation of
8 the plan;
9 "(iv) provide for a periodic assessment
10 of the implementation of the plan and the
11 effect of management measures; and
12 "(v) terminate on the date that is 5
13 years after the date of initiation of the
14 plan.
15 "(B) Maintenance. — ^After an initial plan
16 has been prepared pursuant to this subsection,
17 each subsequent plan prepared pursuant to this
18 subsection shall provide for the maintenance of
19 appropriate measures that have been incor-
20 porated in a preceding plan, unless the appro-
21 priate official determines that a measure is no
22 longer necessary to maintain water quality
23 standards.
24 "(3) Handbook. — Not later than 18 months
25 after the date of enactment of this paragraph, and
•S 1114 IS
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1 as appropriate thereafter, the Administrator, in eon-
2 sultation with the Secretary of Agriculture and the
3 heads of other appropriate Federal agencies and the
4 States, shall publish a handbook to assist the devel-
5 opment of plans for agricultural sources pursuant to
6 this subsection.
7 "(4) Effect of conservation compliance
8 PLAN. —
9 "(A) In GENERAL.^Any agricultural
10 source required to have a plan prepared pursu-
11 ant to this subsection that has satisfied a con-
12 servation compliance plan developed pursuant
13 to subtitle B of title 12 of the Food Security
14 Act of 1985 (16 U.S.C. 3830 et seq.) shall be
15 deemed to satisfy the requirement of paragraph
16 (1) until the date specified in subsection (a)(3).
17 "(B) Subsequent period.— After the
18 date specified in subsection (a)(3), a conserva-
19 tion compliance plan that meets the appUcable
20 requirements of a comprehensive watershed
21 management plan developed under section 321
22 shall be deemed to satisfy the requirements of
23 paragraph (1).".
24 (d) Federal Program Coordination. —
25 (1) Agricultural cost-share programs. —
•8 1114 IS
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122
1 (A) Amendments to the soil con-
2 SERVATION AND DOMESTIC ALLOTMENT ACT. —
3 (i) Prevention of soil erosion. —
4 The first sentence of section 7(a) of the
5 Soil Conservation and Domestic Allotment
6 Act (16 U.S.C. 590g(a)) is amended by in-
7 serting ", giving priority consideration to
8 watersheds of waters identified pursuant to
9 section 319(a) of the Federal Water PoUu-
10 tion Control Act (33 U.S.C. 1329(a)" be-
1 1 fore the period.
12 (ii) Priority for certain water-
13 SHEDS. — The fourth undesignated para-
14 graph of section 8(b) of the Soil Conserva-
15 tion and Domestic Allotment Act (16
16 U.S.C. 590h(b)) is amended by inserting
17 before the comma at the end of subpara-
18 graph (D) the following: ", giving priority
19 consideration to watersheds of waters iden-
20 tified pursuant to section 319(a) of the
21 Federal Water PoUution Control Act (33
22 U.S.C. 1329(a))".
23 (B) Agricultural water quality pro-
24 tection program. — Section 1238C(a) of the
•S 1114 IS
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216
123
1 Food Security Act of 1985 (16 U.S.C.
2 3838c(a)) is amended —
3 . (i) in paragraph (7), by striking "or"
4 at the end;
5 (ii) in paragraph (8), by striking the
6 period at the end and inserting "; or"; and
7 (iii) by adding at the end the foUow-
8 ing new paragraph:
9 "(9) the watershed of a water identified pursu-
10 ant to section 319(a) of the Federal Water Pollution
11 Control Act (33 U.S.C. 1329(a)).".
12 (C) Environmental easement pro-
13 GRAM.— Section 1239(b)(1) of the Food Secu-
14 rity Act of 1985 (16 U.S.C. 3839(b)(1)) is
15 amended —
16 (i) in subparagraph (B), by striking
17 "or" at the end;
18 (ii) in subparagraph (C), by striking
19 the period at the end and inserting "; or";
20 and
21 (iii) by adding at the end the foUow-
22 ing new subparagraph:
23 "(D) is located within the watershed of a
24 water identified pursuant to section 319(a) of
•S 1114 IS
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124
1 the Federal Water Pollution Control Act (33
2 U.S.C. 1329(a)).".
3 (D) Conservation priority areas. —
4 Section 1231(f)(1) of the Food Security Act of
5 1985 (16 U.S.C. 3831(f)(1)) is amended by
6 adding at the end the following new sentence:
7 "The Secretary shall designate watershed areas
8 of waters identified pursuant to section 319(a)
9 of the Federal Water Pollution Control Act (33
10 U.S.C. 1329(a)) as conservation priority
11 areas.".
12 (2) Conservation reserve program. — Sec-
13 tion 319(k) (33 U.S.C. 1329(k)) is amended—
14 (A) by striking "The Administrator shall
15 transmit" and inserting the following:
16 "(1) In general.— The Administrator shall
17 transmit"; and
18 (B) by adding at the end the following new
19 paragraphs:
20 "(2) Agricultural program coordina-
21 tion. —
22 "(A) In general.— The Administrator
23 shall provide technical assistance to the Sec-
24 retary of Agriculture with respect to utilizing
25 the authorities of the Secretaiy to reduce agri-
•S 1114 IS
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125
1 cultural and related sources of nonpoint source
2 pollution in a manner consistent with subtitle D
3 of title Xn of the Food Security Act of 1985
4 (16 U.S.C. 3830 et seq.).
5 "(B) Identification op lands. — Not
6 later than 1 year after the date of enactment of
7 this paragraph, and annually thereafter, the
8 Administrator shall identify, on the basis of the
9 assessment reports submitted by the States and
10 approved by the Administrator under subsection
11 (a) (or developed by the Administrator for the
12 States pursuant to subsections (a), (d), and (e))
13 and such other information as is available to
14 the Administrator, those lands that, if enrolled
15 in the conservation reserve program of the De-
16 partment of Agriculture, would contribute to
17 the protection of the environment by reducing
18 nonpoint source pollution. If appropriate, the
19 lands identified may include lands that are not
20 erodible but that pose an off-farm environ-
21 mental threat, as determined pursuant to sec-
22 tion 1231(c)(2) of the Food Security Act of
23 1985 (16 U.S.C. 3831(c)(2)).
24 "(C) Provision of list to secretary
25 OP agriculture. — The Administrator shall
•8 1114 18
219
126
1 furnish the hst of the lands identified pursuant
2 to subparagraph (B) to the Secretary of Agri-
3 culture to assist the Secretary in estabUshing
4 priorities for expenditures under the eonserva-
5 tion reserve program and shall make the list
6 available to the States and to the public.
7 "(D) Response to list. — Not later than
8 180 days after receiving the list referred to in
9 subparagraph (C), the Secretary shall provide
10 the Administrator with a report that describes
1 1 the actions the Secretary will take to respond to
12 the list. The Secretary shall provide a detailed
13 explanation of any recommendation of the Ad-
14 ministrator that the Secretary will not imple-
15 ment.".
16 (3) Federal lands and moHWAYS. — Sub-
17 section (1) of section 319 (33 U.S.C. 1329(0) is
18 amended to read as follows:
19 "(Z) Federal Lands and Highways. —
20 "(1) Federal lands. —
21 "(A) In general. — The President shall
22 direct the heads of appropriate Federal agencies
23 that own or manage land to implement regula-
24 tions that shall take effect not later than the
25 date of enactment of this paragraph, to ensure
•8 1114 IS
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127
1 the implementation of appropriate measures to
2 control nonpoint sources of water pollution, in-
3 eluding, at a minimum —
4 "(i) management measures identified
5 pursuant to subsection (c) for new sources;
6 and
7 "(ii) for a watershed area of a water
8 identified pursuant to subsection (a), the
9 implementation of management measures
10 identified pursuant to subsection (c) or the
11 implementation of a site-specific water
12 quality plan pursuant to subsection (f).
13 "(B) SCHEDULES; EFFECTIVE DATE. —
14 "(i) Schedules. — Each schedule for
15 the development of management measures
16 and site-specific water quality plans, and
17 each schedule for the implementation of
18 the measures or plans, shall be consistent
19 with any schedule established by a State
20 under a program established by the State
21 pursuant to subsection (b).
22 "(ii) Effective date. — The require-
23 ments of this paragraph shall take effect
24 on a date specified by the President, but
•S 1114 IS
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128
1 not later than 3 years after the date of en-
2 actment of this paragraph.
3 "(C) Authorities. — ^Any Ucense, permit,
4 contract, special use permit, lease, agreement,
5 claim, or related operational authority between
6 a Federal agency and any person authorizing
7 activities on Federal lands in effect on the day
8 before the date specified in subparagraph
9 (B)(ii) may remain in effect for the term of the
10 authority or a period of 5 years (beginning on
11 the date specified in subparagraph (B)(ii)),
12 whichever is less.
13 "(D) Statutory construction. — Noth-
14 ing in this paragraph is intended to limit or
15 constrain the authority of a State or the Ad-
16 ministrator to require the implementation of
17 such additional controls over nonpoint sources
18 of pollution on Federal lands as may be nec-
19 essary to attain and maintain standards adopt-
20 ed pursuant to section 303 or other require-
21 ments of this Act.
22 "(2) Highway construction. —
23 "(A) In general. — The Administrator, in
24 cooperation with the Secretary of Transpor-
25 tation, shall develop measures and practices to
•S 1114 IS
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129
1 prevent water pollution resulting from highway
2 construction and promote the implementation of
3 the measures and practices.
4 "(B) Certain projects. — The guideUnes
5 developed by the Secretary of Transportation
6 pursuant to section 1057 of the Intermodal
7 Surface Transportation Efficiency Act of 1991
8 (Public Law 102-240; 105 Stat. 2002) shall, at
9 a minimum, require the implementation of man-
10 agement measures specified under subsection
1 1 (c) in the case of any construction project fund-
12 ed in whole or in part under title I of such Act.
13 The Secretary shall withhold funds for any
14 project referred to in the preceding sentence
15 unless the Secretary determines that the project
16 will comply with the guideUnes.".
17 (e) Animal Waste Management Facilities. —
18 Section 319 (33 U.S.C. 1329) is amended by adding at
19 the end the following new subsection:
20 "(o) Animal Waste Management Facilities. —
21 "(1) In general. — Not later than 2 years
22 after the date of enactment of this paragraph, the
23 Administrator, in consultation with the Secretary of
24 Agriculture, shall publish guidelines for the design of
223
130
1 animal waste management facilities. The guidelines
2 shall include —
3 "(A) general standards concerning the
4 proper design of facilities;
5 "(B) minimum elements of plans for con-
6 struction of facilities at a specific site;
7 "(C) specifications concerning minimum
8 construction standards; and
9 "(D) such other requirements and informa-
10 tion as, in the judgment of the Administrator,
1 1 are necessary and appropriate.
12 "(2) Plan. — ^Any person may submit to the
13 Administrator (or in the case of a State with a plan
14 approved by the Administrator under subsection (d),
15 the State) a plan for the construction of an animal
16 waste management facility. Each plan shall —
17 "(A) be consistent with the guidelines de-
18 veloped pursuant to paragraph (1) and sub-
19 section (c); and
20 "(B) include an estimate of the total cost
21 for the construction of the facility.
22 "(3) Plan approval. — The Administrator,
23 with the concurrence of the Secretary of Agriculture,
24 shall review and approve or disapprove any plan for
25 the construction of an animal waste management fa-
•8 IIU 18
224
131
1 cility submitted pursuant to this subsection. Upon
2 approval of a plan, the facility shall be ehgible for
3 assistance under title VI.
4 "(4) Technical assistance. — The Secretary
5 of Agriculture may provide technical assistance to
6 persons concerning the design of animal waste man-
7 agement facilities. The assistance may include the
8 design of facilities to account for site-specific condi-
9 tions and the integration of the faciUties into related
10 agricultural activities.
11 "(5) Definition. — As used in this subsection,
12 the term 'animal waste management facility* means
13 a facility for the storage, treatment, or disposal of
14 animal waste.".
15 (f) Subsurface Sewage Disposal. — Section 319
16 (33 U.S.C. 1329), as amended by subsection (e), is further
17 amended by adding at the end the following new sub-
18 section:
19 "(p) Subsurface Sewage Disposal. —
20 "(1) In general. — Not later than 2 years
21 after the date of enactment of this subsection, the
22 Administrator shall pubUsh guideUnes for the design,
23 operation, and management of pubUely owned sub-
24 surface sewage organizations.
•8 1114 IS
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132
1 "(2) Operation and management stand-
2 ARDS. — The guidelines published pursuant to this
3 subsection shall provide such standards of operation
4 and management as the Administrator determines to
5 be necessary to ensure that subsurface sewage dis-
6 posal units operated by an organization referred to
7 in paragraph (1) will provide treatment adequate to
8 protect water quality .
9 "(3) Contents op guidelines. — ^At a mini-
10 mum, the guidelines published pursuant to this sub-
11 section shall —
12 "(A) specify standards for the design and
13 location of new subsurface sewage disposal sys-
14 tems;
15 "(B) specify maintenance requirements
16 and schedules for existing systems (existing at
17 the time of publication of the guidelines);
18 "(C) establish financial management and
19 control practices, including a requirement for a
20 user charge sufficient to ensure the effective op-
21 eration of each system;
22 "(D) require appropriate provision for
23 management or disposal of waste material for
24 systems; and
•S 1114 IS
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133
1 "(E) address such other matters as the
2 Administrator determines to be appropriate.
3 "(4) Plan. — Beginning on the date that is 2
,4 years after the date of enactment of this subsection,
5 any person may submit to the Administrator (or in
6 the case of a State with a plan approved under sub-
7 section (d), the State) a plan for the establishment
8 of a subsurface sewage disposal organization pursu-
9 ant to this subsection.
10 "(5) Approval op plan. — The Administrator,
1 1 with the concurrence of the State, shall approve the
12 plan if the Administrator determines that the plan
13 meets the requirements of this subsection. Upon ap-
14 proval of the plan, the organization shall be eligible
15 for assistance pursuant to title VI.".
16 (g) State Water Law.— Section 319 (33 U.S.C.
17 1329), as amended by subsection (f), is further amended
18 by adding at the end the following new subsection:
19 "(q) State Water Law, — Nothing in this section
20 is intended to supersede, abrogate, or otherwise impair the
21 right of any State to allocate quantity of water within the
22 State.".
•S 1114 IS
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134
1 TITLE IV— MUNICIPAL
2 POLLUTION CONTROL
3 SEC. 401. COMBINED SEWER OVERFLOWS.
4 Section 402 (33 U.S.C. 1342), as amended by section
5 205(b), is further amended by adding at the end the fol-
6 lowing new subsection:
7 "(r) Combined Sewer Overflows. —
8 "(1) Requirement for permits. — Each per-
9 mit issued pursuant to this section for a discharge
10 from a combined storm and sanitary sewer shall con-
1 1 form with the combined sewer overflow control policy
12 published by the Administrator at 58 Fed. Reg.
13 4994 (January 19, 1993).
14 "(2) Term of permit. — Notwithstanding any
15 comphance schedule under section 301(b), or any
16 permit limitation under section 402(b)(1)(B), the
17 Administrator may issue a permit pursuant to this
18 section for a discharge from a combined storm and
19 sanitary sewer, that includes a schedule for compli-
20 ance with a long-term control plan under the control
21 policy referred to in paragraph (1) for a term not
22 to exceed 15 years. Notwithstanding the comphance
23 deadline specified in the preceding sentence, the Ad-
24 ministrator may, on request of an owner or operator
25 of a combined storm and sanitary sewer, extend the
•S 1114 IS
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135
1 period of compliance beyond the date specified if the
2 Administrator determines that compliance by the
3 date is not within the economic capabihty of the
4 owner or operator, or if the Administrator deter-
5 mines that an extension is otherwise appropriate.
6 "(3) Bacteria. — ^A permitting authority may
7 not issue a permit under paragraph (2) unless, after
8 the date of enactment of this subsection —
9 "(A) the Administrator has reviewed and
10 approved the water quality standards for bac-
11 teria adopted by the State in which the dis-
12 charger is located; or
13 "(B) the criteria are published in the water
14 quality criteria for bacteria pubhshed by the
15 Administrator as described in 51 Fed. Reg.
16 8012 (March 7, 1986).".
17 SEC. 402. STORMWATER MANAGEMENT.
18 Section 402(p) (33 U.S.C. 1342(p)) is amended—
19 (1) by striking paragraph (1);
20 (2) by redesignating paragraph (2) as para-
21 graph (1);
22 (3) in paragraph (1) (as so redesignated) —
23 (A) by striking the matter preceding sub-
24 paragraph (A) and inserting the following:
•8 1114 IS
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136
1 "(1) In general. — ^A permit issued under this
2 section shall be required for each of the following
3 discharges composed entirely of stormwater:"; and
4 (B) by adding at the end the following new
5 subparagraph:
6 "(F) A discharge from a municipal sepa-
7 rate storm sewer system serving a population of
8 fewer than 100,000 individuals covered by a
9 permit issued under subparagraph (C) or (D)
10 that is located in an urbanized area (as des-
1 1 ignated by the Bureau of the Census of the De-
12 partment of Commerce), except that the re-
13 quirements of this subparagraph shall apply be-
14 ginning on the date of the first reissuance of a
15 permit for a discharge under subparagraph (C)
16 or (D) for the same urbanized area that occurs
17 after the date that is 3 years after the date of
18 enactment of this subparagraph.";
19 (4) by inserting after paragraph (1) (as so re-
20 designated) the following new paragraph:
21 "(2) Other stormwater discharges. — Ex-
22 cept as provided in paragraph (1)(E), the Adminis-
23 trator (or the State, in the case of a State vnth the
24 authority to issue permits under this section) may
•S 1114 IS
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137
1 not require a permit under this section for a dis-
2 ehai^ composed entirely of stormwater if —
3 "(A) the discharge is from a municipal
4 separate storm sewer system serving a popu-
5 lation of fewer than 100,000 individuals that is
6 not located in an urbanized area (as designated
7 by the Bureau of the Census of the Department
8 of Commerce) covered by a permit issued under
9 subparagraph (C) or (D) of paragraph (1);
10 "(B) the discharge is from a construction
11 activity that disturbs an area of less than 5
12 acres, except that a discharge from a construc-
13 tion activity that disturbs an area of greater
14 than 1 acre and less than 5 acres in an urban-
15 ized area (as designated by the Bureau of the
16 Census of the Department of Commerce) sub-
17 ject to permit requirements under subparagraph
18 (C), (D), or (F) of paragraph (1) shall be re-
19 quired to have a permit if a State or local
20 stormwater management program does not im-
21 pose controls on the discharge; or
22 "(C) the discharge is from a gasoline sta-
23 tion, except that a discharge from a gasoUne
24 station in an urbanized area (as designated by
25 the Bureau of the Census of the Department of
•8 1114 IS
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138
1 Commerce) subject to permit requirements
2 under subparagraph (C), (D), or (F) of para-
3 graph (1) shall be required to have a permit if
4 a State or local stormwater management pro-
5 gram does not impose controls on the dis-
6 charge.";
7 (5) in paragraph (3), by adding at the end the
8 following new subparagraph:
9 "(C) IVlAXIMUM EXTENT PRACTICABLE DE-
10 FINED. —
11 "(i) In general. — For the purposes
12 of subparagraph (B)(iii) and permits is-
13 sued not later than 2 years after the date
14 of enactment of this subparagraph, the
15 term 'maximum extent practicable' means
16 applying management measures, as defined
17 in section 6217(g)(5) of the Coastal Zone
18 Act Reauthorization Amendments of 1990
19 (16 U.S.C. 1455b(g)(5)), in the manner
20 prescribed in guidance issued pursuant to
21 such section.
22 "(ii) Expanded definition. — For
23 the purposes specified in clause (i), after
24 the date that is 2 years after the date of
25 enactment of this subparagraph, the term
•S 1114 IS
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139
1 'maximum extent practicable' has the
2 meaning provided in clause (i), except that
3 the term also includes applying other ap-
4 propriate management measures in a man-
5 ner prescribed by the Administrator in
6 guidance. The Administrator shall issue
7 the guidance not later than 2 years after
8 the date of enactment of this subpara-
9 graph.";
10 (6) in paragraph (4), by striking "(2)" each
11 place it appears and inserting "(1)"; and
12 (7) by striking paragraphs (5) and (6) and in-
13 serting the following new paragraphs:
14 "(5) Monitoring and reporting require-
15 MENTS. — Each municipality subject to the require-
16 ments of this subsection shall be subject to —
17 "(A) monitoring requirements for the qual-
18 ity of receiving waters; and
19 "(B) reporting requirements for the imple-
20 mentation of management measures.
21 "(6) Revised municipal permits. —
22 "(A) In general. — Not later than 5 years
23 after the initial date of issuance of a permit
24 under paragraph (4), the Administrator (or the
25 State, in the case of a State with the authority
•S 1114 IS
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140
1 to issue permits under this section) shall review
2 each permit issued under such paragraph and
3 include in each reissued permit management
4 measures that ensure the attainment and main-
5 tenance of water quality standards and the re-
6 quirements of the guidance referred to in para-
7 graph (3)(C).
8 "(B) Waiver. — ^With respect to a permit
9 issued under this paragraph, during the term of
10 the permit, the Administrator may not require
1 1 compliance with a numeric effluent limitation or
12 a water quality standard.
13 "(7) Delayed compliance. — During the 10-
14 year period beginning on the date of enactment of
15 this paragraph, the Administrator (or the State, in
16 the case of a State with the authority to issue per-
17 mits under this section) may not require, in a permit
18 issued under this subsection, compliance with a
19 numeric effluent limitation or a water quality stand-
20 ard directly, except as reflected in manjigement
21 measures required under paragraph (6) (A).
22 "(8) National source controls. —
23 "(A) In general. — The Administrator
24 shall—
•S 1114 IS
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141
1 "(i) identify and assess the relative
2 degree of contribution of pollutants to
3 stormwater from various sources (including
4 household products, motor vehicles, and
5 other sources); and
6 "(ii) assess the availability and cost of
7 alternatives and substitutes for the poUut-
8 ants identified pursuant to clause (i).
9 "(B) Substitutions or reductions. —
10 In any case in which the Administrator deter-
1 1 mines that —
12 "(i) a pollutant found in stormwater
13 causes or contributes to a significant im-
14 pairment in water quality or a significant
15 violation of water quality standards as a
16 result of a discharge of the pollutant in
17 stormwater; and
18 **(ii) a reasonably available and eco-
19 nomically achievable alternative or sub-
20 stitute to the pollutant, or the source asso-
21 ciated with the pollutant, is available,
22 the Administrator may, by regulation, require
23 each manufacturer of the pollutant or source of
24 the pollutant to implement a phased substi-
25 tution or reduction in the manufacture of the
•S 1114 IS
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142
1 pollutant or source in accordance with a sched-
2 ule that takes into account the cost of the sub-
3 stitution or reduction.
4 "(C) Report. — Not later than 2 years
5 after the date of enactment of this paragraph,
6 and biennially thereafter, the Administrator
7 shall submit a report to Congress that describes
8 the implementation of this paragraph.".
9 SEC. 403. WATER CONSERVATION.
10 Section 113 (33 U.S.C. 1263) is amended to read as
1 1 follows:
12 "SEC. 113. WATER CONSERVATION.
13 "(a) Intergovernmental Coordination. —
14 "(1) In GENERAL. — The Environmental Protec-
15 tion Agency shall be the primary coordinator for all
16 policies of the Federal Government related to munic-
17 ipal, commercial, residential, and industrial water
18 conservation.
19 "(2) Consultation with agency heads. —
20 To cany out this section, the Secretary of the Army,
21 acting through the Chief of Engineers of the Army
22 Corps of Engineers, shall, to the greatest extent
23 practicable, consult with the heads of other Federal
24 agencies that participate in water resource planning,
25 development, and management.
•S 1114 IS
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143
1 "(3) Consultation with other offi-
2 CIALS. — To carry out this section, the Secretary of
3 the Army, acting through the Chief of Engineers of
4 the Army Corps of Engineers, shall, to the greatest
5 extent practicable, consult with appropriate officials
6 of State and local governments, educational institu-
7 tions, trade associations, scientific organizations,
8 businesses, and other organizations with expertise
9 and experience with respect to water conservation.
10 "(b) Technical Assistance to States and Mu-
ll NICIPALITIES. —
12 "(1) In general. — The Secretary of the Army,
13 acting through the Chief of Engineers of the Army
14 Corps of Engineers, acting alone or through a con-
15 tracting party, is authorized to provide technical as-
16 sistance to States, public and private water utilities,
17 local governmental entities, and other appropriate
18 public agencies and authorities with respect to —
19 "(A) conducting a promotional and edu-
20 cational campaign to encourage consumers to
21 use water more efficiently;
22 "(B) implementing financial or other in-
23 eentives for users of water to conserve water,
24 including universal metering of water users and
•S 1114 IS
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144
1 the reform of water rates to promote conserva-
2 tion;
3 "(C) detecting and correcting leaks in
4 water distribution and collection systems;
5 "(D) promoting, distributing, and install-
6 ing water-saving technologies, fixtures, or
7 equipment for users of water;
8 "(E) incorporating water-saving tech-
9 nologies into building codes and standards;
10 "(F) establishing coordinated regional
1 1 management of water and sewer systems;
12 "(G) auditing water use;
13 "(H) reclaiming, recycling, and reusing
14 wastewater;
15 "(I) promoting water-efficient vegetative
16 cover and landscaping; and
17 "(J) otherwise achieving beneficial reduc-
18 tions in water use or water loss.
19 "(2) Duties op the secretary of the
20 ARMY. —
21 "(A) In general. — The Secretary of the
22 Army, acting through the Chief of Engineers of
23 the Army Corps of Engineers, shall, on a regu-
24 lar basis, make available information to poten-
25 tial recipients of the assistance referred to in
•S 1114 IS
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145
1 paragraph (1) concerning the programs, offer-
2 ings, and activities of Federal agencies with re-
3 spect to water conservation.
4 "(B) Consultation. — In order to better
5 target hmited resources to potential recipients,
6 the Secretary of the Army, acting through the
7 , Chief of Engineers of the Army Corps of Engi-
8 neers, shall consult, on a regular basis, with the
9 heads of other Federal water resources develop-
10 ment agencies to determine which States, areas,
1 1 water utilities, and municipalities are experienc-
12 ing water capacity shortfalls or will likely expe-
13 rience the shortfalls.
14 "(3) Model water conservation pro-
15 grams. — The Secretary of the Army, acting through
16 the Chief of Engineers of the Army Corps of Engi-
17 neers, shall develop, update, maintain, and dissemi-
18 nate a series of model water conservation programs
19 for States, water utilities, and municipalities.
20 "(4) Requests for study. —
21 "(A) In general. — ^Any water utility or
22 municipality may request the Secretary of the
23 Army, acting through the Chief of Engineers of
24 the Army Corps of Engineers, to —
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1
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"(i) undertake a study of the feasM-
2 ity, impacts, costs, and benefits of then
3 current and potential water conservation
4 activities; and
5 "(ii) recommend actions for beneficial
6 reductions in water use or loss.
7 "(B) Priorities.— The Secretaiy of the
8 Army, acting through the Chief of Engineers of
9 the Army Corps of Engineers, shall give priority
10 to the water conservation studies referred to in
11 subparagraph (A) on the basis of the potential
12 for—
1^ "(i) protection of the environment;
14 and
15 "(ii) reducing costs to Federal, State,
16 and local governments for water supply
17 and wastewater treatment facilities.
18 "(C) Amount of assistance. — The
19 amount of Federal funds for a water conserva-
20 tion study under this subsection of any State,
21 water utility, or municipality serving more than
22 5,000 individuals shall be not less than 50 per-
23 cent of the cost of the study. The Secretaiy of
24 the Army, acting through the Chief of Bngi-
25 neers of the Army Corps of Engineers, may
•S 1114 IS
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1 waive the 50 percent matching requirement for
2 a water utility or munieipaUty that serves a
3 population of fewer than 5,000 individuals.
4 "(5) Reviews. —
5 "(A) In general. — The Secretary of the
6 Army, acting through the Chief of Engineers of
7 the Army Corps of Engineers, shall collect in-
8 formation concerning water conservation
9 projects, including projects assisted under para-
10 graph (4), and make the information widely
1 1 available to the public in a timely manner.
12 "(B) Requirements for reviews. — The
13 reviews shall —
14 "(i) evaluate the effectiveness of var-
15 ious water conservation measures; and
16 "(ii) provide information to assist the
17 Secretary in providing technical assistance.
18 "(c) Technical Assistance to Businesses and
19 Institutions. — The Secretary of the Army, acting
20 through the Chief of Engineers of the Army Corps of En-
21 gineers, may provide assistance that is comparable to the
22 assistance provided under subsection (b) to businesses and
23 other persons. The Federal cost of the assistance shall be
24 fully reimbursed by the recipient of the assistance.
•S 1114 IS
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1 "(d) National Clearinghouse on Water Con-
2 servation. —
3 "(1) In general. — The Administrator shall es-
4 tabUsh a national clearinghouse on water conserva-
5 tion (referred to in this subsection as the 'clearing-
6 house') to —
7 "(A) collect, analyze, and disseminate in-
8 formation on water conservation technologies
9 and practices; and
10 "(B) promote the widespread adoption of
11 the technologies and practices referred to in
12 subparagraph (A) by public and private water
13 utilities, and commercial, industrial, and resi-
14 dential consumers.
15 "(2) Requirements for information. — The
16 information referred to in paragraph (1) shall in-
17 elude information referred to in, and information ob-
18 tained under, subsections (b) and (c).
19 "(3) Collection of information. — The
20 clearinghouse shall collect reliable water conservation
21 information. On request, the Administrator shall
22 provide the information to Federal agencies. States,
23 local governments, other appropriate public agencies
24 and authorities,, nonprofit institutions and organiza-
25 tions, businesses and industries, researchers, private
•S 1114 IS
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1 individuals, and other persons and entities in a posi-
2 tion to derive or increase the pubhc benefits offered
3 by the technologies, methods, and practices related
4 to water conservation described in this subsection.
5 "(e) Authorization of Appropriations. — There
6 are authorized to be appropriated to carry out this section
7 an amount not to exceed $10,000,000 for each of fiscal
8 years 1994 through 2000, of which not less than $500,000
9 for each fiscal year are authorized to be appropriated to
10 the Environmental Protection Agency to carry out sub-
11 section (d).".
12 TITLE V— PERMIT PROGRAM
13 AND ENFORCEMENT
14 SEC. 601. PERMIT FEES.
15 (a) In General.— Section 402 (33 U.S.C. 1342), as
16 amended by section 401, is further amended by adding
17 at the end the following new subsection:
18 "(s) Permit Fees. —
19 "(1) In general. —
20 "(A) Modification. —
21 "(i) In general. — Not later than 2
22 years after the date of enactment of this
23 subsection, or the applicable date specified
24 in clause (ii), the Governor of each State
25 that administers a permit program under
•S 1114 IS
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1 subsection (b) shall submit to the Adminis-
2 trator, for approval, a modification of the
3 permit program of the State that includes
4 a requirement under State law that —
5 "(I) the owner or operator of cer-
6 tain point sources (as determined by
7 the State) subject to the requirement
8 to obtain a permit under this section
9 or a permit for the disposal of sewage
10 sludge under section 405; and
11 "(11) an industrial user of a pub-
12 licly owned treatment works subject to
13 a Federal or State permit, or equiva-
1^ lent individual control mechanism,
15 concerning the pretreatment of toxic
16 or nonconventional pollutants for in-
17 troduction into the treatment works,
18 pay an annual fee (or the equivalent, over
19 another specified period of time).
20 "(ii) Extension.— If a State has a
21 legislature that is not scheduled to meet in
22 a legislative session in which legislation to
23 carry out this subparagraph may be en-
24 acted by the date specified in clause (i),
25 the State shall carry out the requirements
•S IIM IS
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1 of clause (i) not later than the date of ad-
2 joumment of the first regular legislative
3 session of a State in which legislation to
4 cany out this subsection may be consid-
5 ered.
6 "(B) Accumulated amount of fees. —
7 The total amount collected as fees for any year
8 in a State shall be a sufficient amount to cover
9 not less than 60 percent of the costs of develop-
10 ing and administering point source elements of
1 1 the water quality program, and the costs of de-
12 veloping and administering sewage sludge dis-
13 posal and pretreatment programs, of the State,
14 including the costs of —
15 "(i) reviewing and acting upon appli-
16 cations for permits;
17 "(ii) implementing and enforcing the
18 terms and conditions of permits or equiva-
19 lent individual control mechanisms (exclud-
20 ing any court costs);
21 "(iii) effluent and ambient water qual-
22 ity monitoring;
23 "(iv) preparing generally appUcable
24 regulations or guidance, including water
25 quality standards;
•8 1114 IS
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1 "(v) modeling, planning, analyses, and
2 demonstrations;
3 "(vi) preparing and maintaining pub-
4 lie information litems concerning effluent
5 limitations, discharges, compliance, and
6 water quality; and
7 "(vii) evaluating the performance of
8 laboratories that analyze monitoring sam-
9 pies (including laboratory inspections, lab-
10 oratory audits, and quaUty assurance).
1 1 "(2) Use of fees. —
12 "(A) In general. — Each fee required to
13 be collected by a State under this subsection
14 shall be used only to support the water quaUty
15 programs of the State.
16 "(B) Restriction on use. — Except as
17 provided in subparagraph (C), the fees collected
18 pursuant to this subsection may not be used to
19 provide State matching funds for Federal funds
20 made available to the State pursuant to section
21 106.
22 "(C) Use for matching funds. — ^A
23 State may use any amount collected by the
24 State as fees pursuant to this subsection in ex-
25 cess of the minimum amount specified in para-
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1 graph (1)(B) to provide matching funds for
2 Federal funds made available to the State pur-
3 suant to section 106.
4 "(3) Federal fee program. —
5 "(A) Federal program of fee assess-
6 MENT. — Not later than 3 years after the date
7 of enactment of this subsection, the Adminis-
8 trator shall establish a Federal program for the
9 collection of fees under this subsection.
10 "(B) Conditions that require imple-
11 MENTATION OF FEDERAL PROGRAM. — If the
12 Administrator, upon review of the permit modi-
13 fications submitted by a State pursuant to
14 paragraph (1), or upon conducting a subse-
15 quent review pursuant to subparagraph (C), de-
16 termines that —
17 "(i) the fee provisions under the modi-
18 fied permit program submitted by a State
19 to the Administrator for approval pursuant
20 to paragraph (1) do not meet the require-
21 ments of this subsection;
22 "(ii) a State is not adequately admin-
23 istering or enforcing a fee system referred
24 to in paragraph (1) that has been approved
25 by the Administrator; or
•8 1114 18
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1 "(iii) a State does not have the au-
2 thority to administer a permit program
3 pursuant to subsection (b),
4 the Administrator shall, not later than 3 years
5 after the date of enactment of this subsection,
6 or with respect to a finding described in clause
7 (ii) not later than 180 days after making the
8 finding, assess and collect fees fix>m sources re-
9 ferred to in paragraph (1) pursuant to the pro-
10 gram referred to in subparagraph (A).
11 "(C) Review by administrator. — The
12 Administrator may, at any time after approving
13 the modifications of the permit program of a
14 State under paragraph (1), review the fees as-
15 sessed by the State pursuant to the modifica-
16 tions. The Administrator shall review the fees
17 assessed by the State not later than 5 years
18 after the date of approval of the modifications,
19 and not less frequently than every 5 years
20 thereafter.
21 "(D) Subsequent establishment op
22 STATE PROGRAM.^At any time after the Ad-
23 ministrator implements a program to assess
24 fees pursuant to subparagraph (A), if the Ad-
25 ministrator determines that a State program to
•S iiU IS
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1 assess fees meets the requirements of this sub-
2 section and the State has adequate authority to
3 assess the fees, the Administrator may approve
4 the State program and terminate the applica-
5 tion of the Federal program to the State.
6 "(E) Federal water pollution con-
7 TROL PERMIT FUND. —
8 "(i) Establishment. — There is es-
9 tabhshed in the United States Treasuiy a
10 Federal Water Pollution Control Permit
11 Fund (referred to in this subparagraph as
12 the 'Fund').
13 "(ii) Source and use. — ^All fees col-
14 lected by the Administrator (plus any
15 amount of interest and penalty collected by
16 the Administrator pursuant to section
17 309(g)) and any interest earned from the
18 investment of the Fund shall be deposited
19 in the Fund, and shall be available, with-
20 out fiscal limitation, to carry out the ac-
21 tivities for which the fees are collected (as
22 described in paragraph (1)(B)).
23 "(iii) Investment of fund. — ^It
24 shall be the duty of the Secretary of the
25 Treasuiy to invest such portion of the
•8 1114 IS
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1 Fund as the Secretaiy determines is not
2 required to meet the then current with-
3 drawals of the Fund. The investment may
4 be made only in interest-beariiig obliga-
5 tions of the United States or in obhgations
6 guaranteed as to both principal and inter-
7 est by the United States. For the purpose
8 referred to in the preceding sentence, the
9 obhgations may be acquired —
10 "(I) on original issue at the issue
1 1 price; or
12 "(U) by purchase of outstanding
13 obhgations at the market price.
14 "(iv) Payments from fund. — The
15 Secretary of the Treasury is authorized
16 and directed to pay out of any funds avail-
17 able in the Fund any expenses incurred by
18 the Federal Grovemment in carrying out
19 the activities specified in clause (ii). None
20 of the funds deposited into the Fund shall
21 be available for any purpose other than
22 making payments authorized under the
23 preceding sentence.".
•S 1114 IS
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1 (b) Penalties.— Section 309(g) (33 U.S.C.
2 1319(g)) is amended by adding at the end the following
3 new paragraph:
4 "(12) Other penalties. — Any point source
5 that fails to pay a fee lawfuUy imposed by the Ad-
6 ministrator under section 402 (s) shall be liable to
7 the United States for payment of an amount equal
8 to the sum of —
9 "(A) the amount of the fee;
10 "(B) a penalty in an amount equal to 50
11 percent of the amount of the fee; and
12 "(C) interest on the amount of the fee
13 computed in accordance with section 6621(a)(2)
14 of the Internal Revenue Code of 1986.".
15 sec. 602. PERMIT PROGRAM MODIFICATIONS.
16 (a) Permit Management. —
17 (1) In GENERAL.— Section 402(b) (33 U.S.C.
18 1342(b)) is amended by adding at the end the fol-
19 lowing new paragraphs:
20 "(10) To ensure that, beginning on the date that is
21 1 year after the date of enactment of this paragraph, in
22 the case of a new dischai^ into navigable waters resulting
23 from the construction of a new facility, the applicant ap-
24 plies for a permit under this section prior to the com-
25 mencement of construction of the facility.
•8 1114 18
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158
1 "(11) To ensure that each person issued a permit
2 under this section who has received assistance under sec-
3 tion 201(g)(1) or section 603(c)(1) is in comphance with
4 the requirements of section 204(b)/'.
5 (2) System of charges. — The first sentence
6 of section 204(b)(1) (33 U.S.C. 1284(b)(1)) is
7 amended by striking "the Administrator shall not
8 approve any grant for any treatment works under
9 section 201(g)(1) after March 1, 1973, unless he
10 shall first have determined that the applicant (A)
11 has adopted or will adopt" and inserting "the Ad-
12 ministrator may not approve a grant for any recipi-
13 ent of assistance under section 201(g)(1) or
14 603(c)(1)(A) unless the apphcant (A) has adopted or
15 will adopt".
16 (b) Permit Revision and Renewal. — Section
17 402(b)(1)(C) (33 U.S.C. 1342(b)(1)(C)) is amended—
18 (1) in clause (iii), by adding "and" at the end;
19 and
20 (2) by adding at the end the following new
21 clause:
22 "(iv) the promulgation, after the date of is-
23 suance of the permit, of any new or revised ef-
24 fluent guideline or standard pursuant to section
25 303, or any applicable regulation;".
_!8 1114 IS
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159
1 (c) Federal Program 0\'ersight. — Section
2 402(d) (33 U.S.C. 1342(d)) is amended—
3 (1) in paragraph (4) —
4 (A) by striking "on request of the State,"
5 and all that follows through "If" and inserting
6 "and if';
7 (B) by striking "within 30 days" and all
8 that follows through "of such objection" and in-
9 serting "within 180 days after such objection";
10 and
1 1 (C) by adding at the end the following new
12 sentence: "In any case in which the Adminis-
13 trator exercises waiver authority, the Adminis-
14 trator shall make reasonable efforts to periodi-
15 cally review the waiver."; and
16 (2) by adding at the end the following new
17 paragraphs:
18 "(5) In any case in which the appropriate official of
19 a State permit program approved by the Administrator
20 pursuant to subsection (b) fails, during the 180-day period
21 beginning on the date of expiration of a permit for a dis-
22 charge, to propose to reissue a permit for the discharge,
23 the Administrator may issue a permit for the discharge.
24 "(6) The Administrator may, by regulation require
25 that each permit issued be reviewed and re\'ised to include
•8 1114 n
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1 an effluent limitation based on a new or revised effluent
2 guideline or standard, or any other applicable regulation.".
3 (d) Judicial Review. —
4 (1) In general.— Section 402(b)(3) (33
5 U.S.C. 1342(b)(3)) is amended by striking the semi-
6 colon at the end and inserting "and an opportunity
7 for judicial review of a final permit action under this
8 section in a State court by the applicant, any person
9 who participated in the public comment process, and
10 any other person who could obtain judicial review of
1 1 the action under any appUcable law;".
12 (2) Sanction. — Section 402(d), as amended by
13 subsection (c)(2), is further amended by adding at
14 the end the following new paragraph:
15 "(7) If a State with a program approved under sub-
16 section (b) fails to modify a State program pursuant to
17 the requirements of subsection (b)(3) by the date that is
18 3 years after the date of enactment of this paragraph, the
19 Administrator shall withhold an amount equal to 10 per-
20 cent of the amount that would otherwise be allotted to the
21 State under section 106 for the fiscal year that begins
22 after the decision of the Administrator to withhold the
23 amount.".
24 (e) Biological Assessment. —
•8 1114 U
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1 (1) In general. — Subsection (e) of section
2 402 (33 U.S.C. 1342(e)) is amended to read as fol-
3 lows:
4 "(e)(1)(A) The Administrator may, in cooperation
5 with the Governor of a State and in cooperation with the
6 heads of the United States Fish and Wildlife Service of
7 the Department of the Interior and the National Marine
8 Fisheries Service of the Department of Commerce, iden-
9 tify sensitive aquatic systems in the State that support
10 valuable biological resources, including threatened or en-
1 1 dangered species.
12 "(B) The Administrator shall publish a description
13 of the areas identified pursuant to subparagraph (A) in
14 the Federal Register.
15 "(2) Beginning on the date that is 1 year after the
16 date of enactment of this paragraph, before a final permit
17 under this section may be issued for a discharge to waters
18 identified pursuant to paragraph (1), the head of —
19 "(A) the United States Fish and Wildlife Serv-
20 ice of the Department of the Interior; or
21 "(B) the National Marine Fisheries Service of
22 the Department of Commerce,
23 whichever is appropriate, shall be required to review and
24 comment on a draft permit prepared pursuant to this sub-
25 section not later than 30 days after receipt of the draft
255
162
1 permit. The Administrator shall promulgate such regula-
2 tions as are necessary to carry out this paragraph.".
3 (2) Biological discharge criteria. — Sec-
4 tion 403 (33 U.S.C. 1343) is amended—
5 (A) by striking the section heading and in-
6 serting the following new heading:
7 "biological discharge criteria";
8 (B) by striking subsection (a) and insert-
9 ing the following new subsection:
10 "(a) No permit shall be issued under section 402 for
11 a dischai^ into the territorial sea, the waters of the con-
12 tiguous zone, the oceans, or any waters identified pursu-
13 ant to section 402(e)(1)(A) if, on the basis of an assess-
14 ment of the criteria referred to in subsection (c), the dis-
15 charge can reasonably be expected to prevent the protec-
16 tion and propagation of a balanced population of shellfish,
17 fish, and wildUfe."; and
18 (C) in subsection (c)(1) —
19 (i) in the matter preceding subpara-
20 graph (A)—
21 (I) by striking "Act (and from
22 time to time promulgate)" and insert-
23 ing the following: "the Water Pollu-
24 tion Prevention and Control Act of
25 1993, and biennially thereafter, pub-
26 Ush";and
•8 1114 18
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1 (n) by striking "and the
2 oceans," and inserting the following:
3 "the oceans, or any waters identified
4 pursuant to section 402(e)(1)(A),";
5 (ii) in subparagraph (B), by striking
6 "marine" and inserting "aquatic"; and
7 (iii) in subparagraph (G), by inserting
8 "or other waters" after "oceans".
9 (f) Permit Application Requirements. — Section
10 402(a) (33 U.S.C. 1342(a)) is amended by adding at the
1 1 end the followii^ new paragraph:
12 "(6) Not later than 2 years after the date of
13 enactment of this paragraph, the Administrator shall
14 promulgate regulations to update the application for
15 a permit under this section for municipal and indus-
16 trial dischai^rs to require the applicant to more
17 fully characterize the nature of the discharge of ef-
18 fluent and the contributions of the effluent to receiv-
19 ing waters.".
20 (g) Waterbody and Effluent Assessment. —
21 (1) Biological monitoring methods. — Sec-
22 tion 304(a)(8) (33 U.S.C. 1314(a)(8)) is amended
23 by adding at the end the following new sentence:
24 "Not later than 3 years after the date of enactment
25 of the Water Pollution Prevention and Control Act
•8 1114 18
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164
1 of 1993, the Administrator shall publish regulations
2 that establish biological monitoring methods, prae-
3 tices, and protocols, including measurements suitable
4 for estabUshing the biological condition of
5 waterbodies.".
6 (2) Whole effluent toxicity. — Section
7 402(a)(2) (33 U.S.C. 1342(a)(2)) is amended—
8 (A) by insertmg "(A)" before "The Admin-
9 istrator"; and
10 (B) by adding at the end the following new
1 1 subparagraph:
12 "(B) Not later than 2 years after the date of enact-
13 ment of this subparagraph, the Administrator shall pub-
14 Ush regulations that provide for —
15 "(i) the estabUshment of a quantitative basis
16 for determining acute and chronic whole effluent
17 toxicity; and
18 "(ii) the inclusion of numerical effluent limita-
19 tions for whole effluent toxicity in a permit for any
20 dischai^ that the Administrator determines is likely
21 to exhibit toxicity.".
22 (h) Innovative Production Processes and
23 Technology.— Subsection (k) of section 301 (33 U.S.C.
24 1311(k)) is amended to read as follows:
•8 1114 IS
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1 "(k) Innovative Production Processes and
2 Technology. —
3 "(1) In general.— The Administrator (or the
4 State, in the case of a State with the authority to
5 issue permits under section 402) may, with the con-
6 sent of the State in which a source is located and
7 after notice and opportunity for comment, tempo-
8 rarily waive any permit Umitation appUcable to a
9 point source that is in a permit issued under section
10 402 and that has been established pursuant to sub-
11 paragraph (A) or (E) of subsection (b)(2) for the
12 purpose of encouraging the development and testing
13 of an innovative production process or pollution con-
14 trol technology that will —
15 "(A) result in an effluent reduction signifi-
16 cantly greater than that required by the limita-
17 tion otherwise applicable;
18 "(B) promote the national goal of eliminat-
19 ing the discharge of all pollutants; or
20 "(C) result in significantly lower costs than
21 processes and techn(^ogies that the Adminis-
22 trator has determined to be the best economi-
23 cally achievable for the source.
•8 1114 IS
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1 "(2) Waiver. — A waiver referred to in para-
2 graph (1) shall include alternative limitations appli-
3 cable during the temporary waiver period that —
4 "(A) ensure that water quaUty standards
5 apphcable to the waters receiving any discharge
6 from the source are not exceeded; and
7 "(B) provide for the protection of human
8 health and the environment.
9 "(3) Requirements for waiver. — The Ad-
10 ministrator may only grant a waiver under this sub-
1 1 section if the Administrator finds that —
12 "(A) the innovative process or technology
13 that is the subject of the waiver has not been
14 adequately demonstrated;
15 "(B) the innovative process or technology
16 has not previously failed to operate effectively
17 or to meet any limitation otherwise applicable;
18 and
19 "(C) the owner of the source will conduct
20 such tests and monitoring during the period of
21 the waiver as are necessary to ensure that the
22 alternative limitations established pursuant to
23 paragraph (2) are not exceeded.
24 "(4) Period of waiver. —
•8 1114 n
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167
1 "(A) In general. — The period of the
2 waiver shall not exceed the period necessary to
3 determine whether the innovative process or
4 technology would, in commercial operation,
5 meet the limitations referred to in paragraph
6 (1) that would otherwise apply to the source
7 that is the subject of the waiver. The period
8 may not exceed 90 days, unless the Adminis-
9 trator extends the period for an additional 90-
10 day period.
11 "(B) Termination. — The Administrator
12 or the State in which the source is located may
13 at any time terminate the waiver granted under
14 this subsection, if the Administrator or the
15 State determines that the innovative process or
16 technology —
17 "(i) has failed to achieve an effluent
18 reduction at least equivalent to the reduc-
19 tion required by a limitation referred to in
20 paragraph (1) that would otherwise apply;
21 or
22 "(ii) has exceeded any limitation in
23 the waiver estabUshed pursuant to para-
24 graph (2).
•8 1114 18
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168
1 "(5) Number of waivers. — The number of
2 waivers granted under this subsection for a specific
3 production process or pollution control technology
4 may not exceed the number necessary to dem-
5 onstrate the effectiveness of the process or tech-
6 nology in meeting the objectives specified in para-
7 graph (1). No waiver granted under this section
8 shall apply to any limitation in a permit that is not
9 directly related to the operation and testing of the
10 innovative process or technology.".
11 SEC. S03. ENFORCEMENT.
12 (a) Citizen Enforcement. — Section 505 (33
13 U.S.C. 1365) is amended—
14 (1) in subsection (a)(1), by inserting "to have
15 violated (if there is evidence that the alleged viola-
16 tion has been repeated) or" before "to be in viola-
17 tion";
18 (2) in subsection (b)(1)(A), by inserting "or has
19 occurred," after "occurs,";
20 (3) in subsection (f)(6), by inserting ", or has
21 been in effect," after "in effect"; and
22 (4) in subsection (g), by striking "is" and in-
23 serting "has been, is,".
24 (b) Penalties and Compensation. —
25 (1) Beneficial use. —
•S 1114 IS
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169
1 (A) Civil penalties. — Section 309(d)
2 (33 U.S.C. 1319(d)) is amended—
3 (i) by striking "(d) Any person" and
4 inserting the following:
5 "(d) Civil Penalties. —
6 "(1) In general. — Any person"; and
7 (ii) by adding at the end the following
8 new paragraph:
9 "(2) Beneficial use. — Notwithstanding any
10 other provision of law (including subchapter III of
11 chapter 7 of title 31, United States Code, and chap-
12 ter 128 of title 28, United States Code), each dis-
13 trict court may order that all or a portion of a civil
14 penalty referred to in paragraph (1) be used for a
15 beneficial project to enhance public health or the en-
16 vironment by restoring or otherwise improving, in a
17 manner consistent with this Act, the water quaUty,
18 wildlife, or habitat of the waterbody in which the
19 violation occurred.".
20 (B) Citizens suits. — Section 505(a) (33
21 U.S.C. 1365(a)) is amended by adding at the
22 end the following new sentences: "Notwith-
23 standing any other provision of law (including
24 subchapter m of chapter 7 of title 31, United
25 States Code, and chapter 123 of title 28, Unit-
es 1114 IS
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170
1 ed States Code), each district court may order
2 that, in any action under this subsection to
3 appty a civil penalty, all or a portion of the civil
4 penalty be used for a beneficial project to en-
5 hance public health or the environment by re-
6 storing or otherwise improving, in a manner
7 consistent with this Act, the water quality, wild-
8 life, or habitat of the waterbody in which the
9 violation occurred.".
10 (C) Criminal fines.— Section 309(c) (33
11 U.S.C. 1319(c)) is amended by adding at the
12 end the following new paragraph:
13 "(8) Beneficial use. — Notwithstanding any
14 other provision of law (including subchapter HI of
15 chapter 7 of title 31, United States Code, and chap-
16 ter 123 of title 28, United States Code) each court
17 that imposes a fine pursuant to this subsection may
18 order that all or a portion of the fine be used for
19 a beneficial project to enhance public health or th>b
20 environment by restoring or otherwise improving, in
21 a manner consistent with this Act, the water quality,
22 wildlife, or the habitat of the waterbody in which the
23 violation occurred.".
24 (2) Restoration of damaged natural re-
25 sources. —
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1 (A) In general.— Section 309(b) (33
2 U.S.C. 1319(b)) is amended—
3 (i) in the second sentence, by insert-
4 ing, ", to order the defendant to take such
5 other action as may be necessary, including
6 the restoration of natural resources dam-
7 aged or destroyed as a result of the viola-
8 tion," after "such violation"; and
9 (ii) by inserting after the second sen-
10 tence the following new sentence: "The
1 1 maximum cost of any restoration under the
12 preceding sentence that a responsible per-
13 son may be obhgated to pay to carry out
14 the order may not exceed the maximimi
15 amount of a civil penalty that may be as-
16 sessed against the responsible person in a
17 civil action commenced pursuant to this
18 subsection.".
19 (B) Citizens suits. — Section 505(a) (33
20 U.S.C. 1365(a)), as amended by paragraph
21 (1)(B), is further amended —
22 (i) in the second sentence, by insert-
23 ing "or to order any responsible person to
24 take such other action as may be nec-
25 essaiy, including the restoration of natural
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1 resources damaged or destroyed as a result
2 of the violation," after "as the ease may
3 be,"; and
4 (ii) by inserting after the second sen-
5 tence the following new sentence: "The
6 maximum cost of any restoration under the
7 preceding sentence that a responsible pcsr-
8 son may be obligated to pay to cany out
9 the order may not exceed the maximum
10 amount of a civil penalty that may be as-
11 sessed against the responsible person in a
12 civil action commenced pursuant to this
13 subsection.".
14 (3) Pretreatment requirements. —
15 (A) In general.— Section 505(f)(4) (33
16 U.S.C. 1365(f)(4)) is amended by inserting ",
17 pretreatment requirement," after "effluent
18 standard".
19 (B) State enforcement. — Section
20 309(a)(1) (33 U.S.C. 1319(a)(1)) is amended
21 by inserting "any requirement imposed under a
22 pretreatment program approved imder sub-
23 section (a)(3) or (b)(8) of section 402, or any
24 local limit imposed under section 402(b)(9),"
25 after "under section 402 or 404 of this Act,".
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1 (C) Enforcement by the adminis-
2 TRATOR.— Section 309(a)(3) (33 U.S.C.
3 1319(a)(3)) is amended by inserting "or any re-
4 quirement imposed under a pretreatment pro-
5 gram approved under subsection (a)(3) or
6 (b)(8) of section 402 or any local limit imposed
7 under section 402(b)(9)," after "section 404 of
8 this Act by a State,".
9 (D) Administrative penalties. — Sec-
10 tion 309(g)(1)(A) (33 U.S.C. 1319(g)(1)(A)) is
11 amended by inserting "or any requirement im-
12 posed under a pretreatment program approved
13 under subsection (a)(3) or (b)(8) of section 402
14 or any local limit imposed under section
15 402(b)(9)," after "section 404 by a State,".
16 (E) Notice to publicly owned treat-
17 ment works of notification. — The first
18 sentence of section 309(a)(4) (33 U.S.C.
19 1319(a)(4)) is amended by striking "and other
20 affected States" and inserting ", other affected
21 States, and any publicly owned treatment works
22 receiving wastewater from the violation".
23 (4) Field citation program. — Section
24- 309(g), as amended by section 501(b), (33 U.S.C.
25 1319(g)) is further amended—
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1 (A) by redesignating paragraphs (7)
2 through (12) as paragraphs (8) through (13),
3 respectively; and
4 (B) by inserting after paragraph (6) the
5 following new paragraph:
6 "(7) Field cttation program. —
7 "(A) Authority to implement pro-
8 gram. — The Administrator may estabUsh, by
9 regulation, a field citation program under which
10 field citations for minor violations may be is-
11 sued by officers or employees designated by the
12 Administrator. The field citations issued pursu-
13 ant to this authority shall not be subject to the
14 public notice requirements of paragraph (4), or
15 any other requirement for advance pubUc notifi-
16 cation.
17 "(B) Amount op penalty. — ^A civil pen-
18 alty assessed under this paragraph may not ex-
19 ceed $5,000 per day for each violation, and a
20 total of $25,000 for the violation.
21 "(C) Election. — ^Any person to whom a
22 field citation is assessed may, within a reason-
23 able time as prescribed by the Administrator
24 through regulation, elect to pay the penalty as-
25 sessment or to request a hearing on the field cj-
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1 tation. If a request for a hearing is not made
2 within the time specified in the regulation, the
3 penalty assessment in the field citation shall be
4 final.
5 "(D) Hearing. — ^A hearing under this
6 paragraph may not be subject to section 554 or
7 556 of title 5, but shall provide a reasonable op-
8 portunity to be heard and to present evidence.
9 "(E) Effect on future enforce-
IQ MENT. — Payment of a civil penalty required by
11 a field citation may not be a defense to further
12 enforcement by the United States or a State.".
13 (5) Offsetting penalties. —
14 (A) Civil penalties. — The second sen-
15 tence of paragraph (1) of section 309(d) (33
16 U.S.C. 1319(d)), as designated by paragraph
17 (l)(A)(i), is amended by inserting "any penalty
18 previously imposed by a court or administrative
19 agency for the same violation," after "the viola-
20 tor,".
21 (B) Exemption from certain limita-
22 tions.— Section 309(g)(6)(B) (33 U.S.C.
23 1319(g)(6)(B)) is amended—
24 (i) in clause (i), by inserting "or an
25 action under a State law comparable to
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1 this subsection" after "an action under
2 this subsection"; and
3 (ii) in clause (ii), by inserting "or an
4 action under a State law comparable to
5 this subsection," after "an action under
6 this subsection".
7 (6) Economic benefit. — Section 309(g) (33
8 U.S.C. 1319(g)), as amended by section 501(b) and
9 paragraph (4)(A), is further amended —
10 (A) by redesignating paragraph (13) as
11 paragraph (14); and
12 (B) by inserting after paragraph (12) the
13 following new paragraph:
14 "(13) State consideration op economic
15 benefit. —
16 "(A) Establishment and application
17 OF policy.— Each State that has in effect a
18 State law that has any comparable civil enforce-
19 ment authority (whether administrative or judi-
20 cial) to those authorities under this section
21 shall develop and apply an economic benefit pol-
22 icy to be used in determining the amount of any
23 penalty assessed against a violator. The policy
24 shall ensure consideration of the amount of eco-
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1 nomic benefit resulting from the violation that
2 is the subject of the penalty.
3 "(B) Authority of administrator. — In
4 addition to other circumstances giving rise to
5 enforcement proceedings under this Act, the
6 Administrator may commence enforcement pro-
7 ceedings under this section against a violator
8 that is the subject of an action under State law
9 that has comparable requirements to this sub-
10 section if the State does not establish and apply
11 an economic benefit poUcy to be used in deter-
12 mining the amount of any penalty assessed
13 against a violator under the comparable provi-
14 sion of State law.".
15 (7) State administrative enforcement. —
16 (A) In general.— Section 402 (33 U.S.C.
17 1342), as amended by section 501(a), is further
18 amended by adding at the end the following
19 new subsection:
20 "(t) Withholding Water Pollution Control
21 Assistance. —
22 "(1) In general. — Begmning on the date that
23 is 3 years after the date of enactment of this sub-
24 section, the Administrator is authorized to withhold
25 ftx)m a State with an approved program imder sub-
271
178
1 section (b), an amount not to exceed 25 percent of
2 the amount of funds allocated for any fiscal year to
3 the State under section 106, if the Administrator de-
4 termines that the State does not have adequate au-
5 thority to abate violations of —
6 "(A) permits issued under section 402; and
7 "(B) pretreatment requirements applicable
8 to industrial users of pubUcly owned treatment
9 works.
10 "(2) Adequate authority. — For purposes of
11 paragraph (1), in order to demonstrate adequate au-
12 thority, a State shall, at a minimum, demonstrate
13 the authority to recover an administrative civil pen-
14 alty in a maximum amount of not less than $10,000
15 per day for each violation referred to in paragraph
16 (1).
17 "(3) Amounts withheld. — The Administrator
18 shall make available any amounts withheld under
19 paragraph (1) to States with an approved program
20 under subsection (b).".
21 (B) Abatement.— Section 402(b) (33
22 U.S.C. 1342(b)) is amended by striking para-
23 graph (7) and inserting the following new para-
24 graph: ,
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1 "(7) To abate violations of the permit or the permit
2 program by-^
3 "(A) the imposition of administrative penalties
4 (in a manner comparable to section 309(g));
5 "(B) the imposition of criminal penalties; or
6 "(C) other means of enforcement that the State
7 is able to demonstrate to be as effective as the
8 means described in this paragraph.".
9 (8) Federal procurement. — Subsection (a)
10 of section 508 (33 U.S.C. 1368(a)) is amended to
11 read as follows:
12 "(a)(1)(A) No Federal agency may enter into any
13 contract, grant, or loan that is to be performed, in whole
14 or in part, using any facihty owned, leased, operated, or
15 supervised, at the time of the violation, by any person who
16 has been convicted of an offense under section 309(c),
17 407, or 411 or under section 10 of the Act entitled 'An
18 Act making appropriations for the construction, repair,
19 and preservation of certain public works on rivers and har-
20 bors, and for other purposes', approved March 3, 1899
21 (33 U.S.C. 403) (commonly known as the 'River and Har-
22 bor Act of 1899').
23 "(B) With respect to a person described in subpara-
24 graph (A), a prohibition under such subparagraph shall —
•8 1114 IB
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1 "(i) continue for a period of not less than 1
2 year followii^ the date of conviction as determined
3 by the Administrator;
4 "(ii) affect each facility owned or operated by
5 the person that the Administrator determines has
6 given rise to the conviction; and
7 "(iii) continue until the Administrator, in the
8 sole discretion of the Administrator, certifies that
9 the conditions giving rise to the conviction have been
10 corrected.
11 "(C) Each applicant who seeks to participate in a
12 Federal contract, grant, or loan shall disclose any convic-
13 tion described in subparagraph (A) to each appropriate
14 Federal agency.
15 "(2) (A) No Federal agency may enter into any con-
16 tract for the procurement of a good, material, or service
17 with any person who has been found liable for civil pen-
18 alties, or who has entered into any consent order or decree
19 under section 309(d) admitting to violations that may be
20 subject to the assessment of a civil penalty under section
21 309(d), as a result of 3 or more separate enforcement ac-
22 tions instituted under section 309(d) within a period of
23 less than 5 consecutive years, if the Administrator deter-
24 mines that the contract is to be performed at a facihty —
•8 1114 IS
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1 "(i) at which the violations that resulted in the
2 determination of liability or admission of hability in
3 any enforcement action under section 309(d) oc-
4 curred; and
5 "(ii) that is owned, leased, or supervised by the
6 person who was found to be responsible or admitted
7 Uabihty for any violation that was the subject of an
8 enforcement action under section 309(d).
9 "(B) With respect to a person described in subpara-
10 graph (A), a prohibition under such subparagraph shall —
11 "(i) continue for a period of not less than 1
12 year from the date determined by the Administrator
13 to be the final and effective date of the third en-
14 forcement action occurring within the 5-year period
15 referred to in subparagraph (A);
16 "(ii) affect each facility that the Administrator
17 determines has given rise to the enforcement actions
18 under section 309(d); and
19 "(iii) continue until the Administrator, in the
20 sole discretion of the Administrator, certifies that
21 the conditions giving rise to the violations for which
22 hability under section 309(d) has been imposed or
23 admitted in the enforcement actions under subpara-
24 graph (A) have been corrected.".
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1 (9) Administrative penalties. — Section
2 309(g)(2)(B) (33 U.S.C. 1319(g)(2)(B)) is amended
3 by striking "$125,000" and inserting "$200,000".
4 (c) Federal PACiLrnES. —
5 (1) In general.— Section 313(a) (33 U.S.C.
6 1323(a)) is amended—
7 (A) in the first sentence —
8 (i) by striking "(1)" and inserting
9 "(A)"; and
1^ (ii) by striking "(2)" and inserting
11 "(B)";
^^ (B) by designating the first and second
13 sentences as paragraphs (1) and (2), respec-
14 tively;
15 (C) by striking the third sentence;
^^ (D) by designating the fourth sentence as
17 paragraph (7);
^8 (E) by striking the fifth sentence;
^^ (F) by designating the sixth through elev-
20 enth sentences as paragraph (8);
21 (6) by insertmg after paragraph (2) (as
22 designated by subparagraph (B)) the followmg
23 new paragraphs:
24 "(3) The Federal, State, interstate, and local sub-
25 stantive and procedural requirements, administrative au-
•8 1114 IS
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1 thority, and process and sanctions referred to in this sec-
2 tion shall include —
3 "(A) any administrative order; and
4 "(B) any civil or administrative penalty or fine
5 (without regard to whether the penalty or fine is pu-
6 nitive or coercive in nature or is imposed for one or
7 more isolated, intermittent, or continuing violations).
8 "(4) The United States hereby expressly waives any
9 immunity otherwise applicable to the United States with
10 respect to the substantive and procedural requirements,
11 administrative authority, and process and sanctions re-
12 ferred to in paragraph (2) (including any mjunctive rehef,
13 administrative order, civil or administrative penalty re-
14 ferred to in paragraph (3)(B), or reasonable service
15 charge).
16 "(5) A reasonable service charge referred to in para-
17 graph (4) includes any fee or charge assessed in connec-
18 tion with —
19 "(A) the processing and issuance of a permit;
20 "(B) the renewal of a permit;
21 "(C) an amendment to a permit;
22 "(D) the review of a plan, study, or other docu-
23 ment;
24 "(E) the inspection and monitoring of a facility:
25 and
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1 "(F) any other nondiscriminatory charge,
2 that is assessed in connection with a Federal, State, inter-
3 state, or local water pollution program.
4 "(6) (A) No agent, employee, or officer of the United
5 States shall be personally Uable for any civil penalty under
6 any Federal, State, interstate, or local water pollution law
7 with respect to any act or omission within the official du-
8 ties of the agent, employee, or officer.
9 "(B) An agent, employee, or officer of the United
10 States shall be subject to a criminal sanction (including
11 a fine or imprisonment) under a Federal or State water
12 pollution law, except that no department, agency, or in-
13 strumentality of the executive, legislative, or judicial
14 branch of the Federal Glovemment shall be subject to a
15 criminal sanction referred to in this subparagraph."; and
16 (H) in paragraph (7) (as designated by
17 subparagraph (D)), by striking "28 U.S.C.
18 1441 et seq." and inserting "chapter 89 of title
19 28, United States Code".
20 (2) Definition op person. — Section 502(5)
21 (33 U.S.C. 1362(5)) is amended by strikmg "or any
22 interstate body** and inserting "any interstate body,
23 or any department, agency, or instrumentality of the
24 United States".
1114
278
185
1 (3) Civil penalty.— Section 311(a)(7) (33
2 U.S.C. 1321(a)(7)) is amended by striking "and a
3 partnership" and inserting "partnership, or any de-
4 partment, agency or instrumentahty of the United
5 States".
6 (4) Compliance orders. — Section 309 (33
7 U.S.C. 1319) is amended by adding at the end the
8 following new subsection:
9 "(h) Compliance Orders for Federal Facility
10 Enforcement. —
11 "(1) In general. —
12 "(A) Authorization. — If on the basis of
13 any information available —
14 "(i) to the Administrator, the Admin-
15 istrator determines that any department,
16 agency, or instrumentahty of the United
17 States has violated or is in violation of sec-
18 tion 301, 302, 306, 307, 308, 311, 318, or
19 405, or has violated or is in violation of
20 any permit condition or limitation imple-
21 menting any of such sections in a permit
22 issued under section 402 by the Adminis-
23 trator or by a State, or in a permit issued
24 under section 404 by a State, or any re-
25 quirement imposed under a pretreatment
•B 1114 IB
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1 program approved under subsection (a)(3)
2 or (b)(8) of section 402;
3 "(ii) to the Secretary of the Army, the
4 Secretary of the Army determines that any
5 department, agency, or instrumentality of
6 the United States has violated or is in vio-
7 lation of any condition or limitation in a
8 permit issued under section 404; or
9 "(iii) to the Secretary of the Depart-
10 ment in which the Coast Guard is operat-
11 ing, the Secretary determines that any de-
12 partment, agency, or instrumentality of the
13 United States has violated section 311 or
14 any regulation implementing such section,
15 the Administrator or Secretary, as appUcable,
16 may issue an order to assess a civil or adminis-
17 trative penalty for any past or current violation,
18 requiring compliance immediately or within a
19 specified time period, or both.
20 "(B) Contents of order. —
21 "(i) In general. — ^Any order issued
22 pursuant to this subsection —
23 "(I) by the Administrator, may
24 include a suspension or revocation of
25 any permit issued by the Adminis-
•S 1114 IS
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1 trator or a State under section 402 or
2 404;
3 "(H) by the Secretaiy of the
4 Army, may mclude a suspension or
5 revocation of any permit issued by the
6 Secretaiy of the Army or a State
7 under section 404; and
8 "(HI) shall state with reasonable
9 specificity the nature of the violation.
10 "(ii) Maximum penalty amount. —
11 Any penalty assessed in an order issued
12 pursuant to this subsection may not exceed
13 $25,000 per day for each violation.
14 "(2) Public hearing. —
15 "(A) In general. — ^Any order issued pur-
16 suant to this subsection shall become final un-
17 less, not later than 30 days after the order is
18 served, the Federal department, agency, or in-
19 strumentality of the United States named in
20 the order requests a public hearing. If the re-
21 quest is made, the Administrator or Secretary,
22 as appUcable, shall promptly conduct a pubUc
23 hearing.
24 "(B) Subpoenas and discovery. — In
25 connection with any proceeding under this sub-
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1 section, the Administrator or the Secretary
2 may —
3 "(i) issue a subpoena for the attend-
4 ance and testimony of a witness or the
5 production of a relevant paper, book, or
6 document; and
7 "(ii) promulgate rules for discoveiy
8 procedures.
9 "(3) Violation of orders. — ^If a violator fails
10 to take corrective action within the period specified
11 in an order issued under this subsection —
12 "(A) the Administrator or Secretary, as
13 applicable, may assess a civil penalty of not
14 more than $25,000 for each day of continued
15 noncompliance with the order; and
16 "(B)(i) the Administrator may suspend or
17 revoke the permit issued pursuant to section
18 402 or 404 that is the subject of the order,
19 without regard to whether the permit is issued
20 by the Administrator or a State; and
21 "(ii) the Secretary of the Army may sus-
22 pend or revoke the permit issued pursuant to
23 section 404, without regard to whether the per-
24 mit is issued by the Secretary of the Army or
25 a State.
•S 1114 IS
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1 "(4) Determdong amount op penalty. — In
2 determining the amount of any penalty assessed
3 under this subsection, the Administrator or Sec-
4 retaiy, as applicable, shall consider —
5 "(A) the seriousness of each violation;
6 "(B) the economic benefit or savings (if
7 any) to the violator resulting fix)m each viola-
8 tion;
9 "(C) any history of the violations;
10 "(D) any good-faith efforts to avoid non-
1 1 compliance or to comply with applicable require-
12 ments;
13 "(E) failure, prior to the violation, to es-
14 tablish and implement a program or other orga-
15 nized effort to achieve and maintain compliance
16 with environmental laws (including regulations);
17 and
18 "(P) such other matters in mitigation and
19 aggravation as justice may require.".
20 (d) Emergency Powers. — Section 504 (33 U.S.C.
21 1364) is amended —
22 (1) in subsection (a) —
23 (A) by inserting after "(a)" the following
24 . new subsection heading: "In General. — ";
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1 (B) by striking "is presenting" and insert-
2 ing "may present";
3 (C) by inserting ", whether actual or
4 threatened," after "substantial endangerment";
5 and
6 (D) by striking "may bring suit" and in-
7 serting the following: "or to the environment,
8 the Administrator may —
9 "(1) issue such orders, or take such action, as
10 may be necessary to protect pubUc health or welfare
11 or the environment; and
12 "(2) bring suit on behalf of the United States
13 in a district court of the United States of appro-
14 priat« jurisdiction against any person who causes or
15 contributes to the alleged pollution or threat of pol-
16 lution to —
17 "(A) immediately restrain the person from
18 discharging or threatening to discharge each
19 pollutant causing or contributing to the pollu-
20 tion;
21 "(B) order the person to take such other
22 action as may be necessary; or
23 "(C) take action under both subparagraphs
24 (A) and (B)."; and
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191
1 (2) by adding at the end the following new sub-
2 section:
3 "(b) Additional Action. — The Administrator may
4 take additional action under this section, including issuing
5 such orders as may be necessary to protect pubhc health
6 or welfare or the environment.".
7 (e) Administrative Amendments. —
8 (1) Requirement for consultation on ad-
9 ministrative orders. — Section 309(g) (33 U.S.C.
10 1319(g)), as amended by section 501(b) and sub-
11 sections (b)(4)(A) and (b)(6)(A), is further
12 amended —
13 (A) by redesignating paragraph (14) as
14 paragraph (15); and
15 (B) by inserting after paragraph (13) the
16 following new paragraph:
17 "(14) (Consultation. — The failure of the Ad-
18 ministrator to consult with a State concerning a vio-
19 lation of an order pursuant to paragraph (1) may
20 not constitute a defense in any action to assess a
21 civil penalty under this subsection and may not in-
22 vahdate the assessment -of any penalty under this
23 subsection.".
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1 (2) Effect of state enforcement ac-
2 TIONS.— Section 309(g)(6)(A) (33 U.S.C.
3 1319(g)(6)(A)) is amended—
4 (A) in clause (i), by adding "or" at the
5 end;
6 (B) by striking clause (ii);
7 (C) by redesignating clause (iii) as clause
8 (ii); and
9 (D) in clause (ii) (as so redesignated) —
10 (i) by striking ", the Secretary, or the
11 State" and inserting "or the Secretaiy";
12 and
13 (ii) by striking "or such comparable
14 State law, as the case may be,".
15 (3) Single operational upsets. —
16 (A) Criminal penalties. — Section
17 309(c) (33 U.S.C. 1319(c)), as amended by
18 subsection (b)(1)(C), is further amended —
19 (i) by striking paragraph (5); and
20 (ii) by redesignating paragraphs (6),
21 (7), and (8) as paragraphs (5), (6), and
22 (7), respectively.
23 (B) Civil penalties. — Paragraph (1) of
24 section 309(d) (33 U.S.C. 1319(d)), as des-
25 ignated by subsection (b)(l)(A)(i), is amended
•S 1114 IS
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1 by strikmg "For purposes of this subsection, a
2 sin^e operational upset which leads to simulta-
3 neous violations of more than one pollutant pa-
4 rameter shall be treated as a single violation.".
5 (C) Administrative penalties. — Section
6 309(g)(3) (33 U.S.C. 1319(g)(3)) is amended
7 by striking "For purposes of this subsection, a
8 single operational upset which leads to simulta-
9 neous violations of more than one pollutant pa-
10 rameter shall be treated as a single violation.".
11 (4) Obtaining INFORMATION. —
12 (A) In GENERAL. — Subsection (a) of sec-
13 tion 308 (33 U.S.C. 1318(a)) is amended to
14 read as follows:
15 "(a) In General. —
16 "(1) Duties of the administrator. — When-
17 ever the Administrator is required to carry out the
18 objective of this Act (as described in section 101(a)),
19 including —
20 "(A) developing or assisting in the develop-
21 ment of an effluent limitation, or other limita-
22 tion, prohibition, or effluent standard,
23 pretreatment standard, or standard of perform-
24 ance under this Act;
S 1114 ISR - 13
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194
1 "(B) determining whether any person is in
2 violation of an effluent hmitation, or other Umi-
3 tation, prohibition, effluent standard,
4 pretreatment standard, or standard of perform-
5 ance, or is causing or contributing to the
6 exceedance of a water quahty standard, under
7 this Act;
8 "(C) a requirement estabhshed under this
9 section; or
10 "(D) carrying out sections 305, 311, 402,
11 404 (relating to State permit programs), 405,
12 and 504,
13 the Administrator may require a person subject to a
14 requirement of this Act to meet the requirements of
15 paragraph (2) relating to the provision of informa-
16 tion to the Administrator if the Administrator deter-
17 mines that the information is relevant to the imple-
18 mentation of this Act.
19 "(2) Requirements. — ^In each case described
20 in paragraph (1), the Administrator may require a
21 person subject to a requirement of this Act to —
22 "(A) establish and maintain such records;
23 "(B) make such reports;
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1 "(C) install, use, and maintain such mon-
2 itoring equipment or methods (including, if ap-
3 propriate, biological monitoring methods);
4 "(D) sample such effluents and affected
5 receiving waters (in accordance with such meth-
6 ods, at such locations, at such intervals, and in
7 such manner as the Administrator shall pre-
8 scribe;
9 "(E) provide data necessary to support the
10 development of water quality criteria for a pol-
1 1 lutant present in the dischai^ of the owner or
12 operator; and
13 "(F) provide such other information,
14 as the Administrator may reasonably require.
15 "(3) Inspection. — The Administrator or an
16 authorized representative of the Administrator (in-
17 eluding an authorized contractor acting as a rep-
18 resentative of the Administrator) on presentation of
19 the credentials of the Administrator or
20 representative —
21 "(A) shall have a ri^t of entry to, upon,
22 or through any premises in which an effluent
23 source is located or in which any records re-
24 quired to be maintained under paragraph (2)
25 are located; and
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1 "(B) may at reasonable times have access
2 to and copy any records, inspect any monitoring
3 equipment or method required under paragraph
4 (2), and sample any effluents that the owner or
5 operator of the source is required to sample
6 under such paragraph.".
7 (B) Technical amendments. — Section
8 308 (33 U.S.C. 1318) is amended—
9 (i) in subsection (b), by inserting
10 "RECORDS; REPORTS; INFORMATION. — "
11 after "(b)"; and
12 (ii) in subsection (c), by inserting
13 "PROCEDURES.—" after "(c)".
14 (5) Subpoenas. — The first sentence of section
15 509(a)(1) (33 U.S.C. 1369(a)(1)) is amended by in-
16 serting "or any enforcement activity under this Act"
17 after "section 507(e) of this Act".
18 (f) Technical Amendment. — Section 309(g)(2)
19 (33 U.S.C. 1319(g)(2)) is amended—
20 (1) in subparagraph (A), by inserting "day for
21 each" after "exceed $10,000 per"; and
22 (2) in the first sentence of subparagraph (B),
23 by striking "for each day during which the violation
24 continues" and inserting "for each violation".
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1 TITLE VI— PROGRAM
2 MANAGEMENT
3 SEC. «01. TECHNOLOGY DEVELOPMENT.
4 Section 105 (33 U.S.C. 1255) is amended to read as
5 follows:
6 "SEC. 105. TECHNOLOGY DEVELOPMENT.
7 "(a) In General. — ^The Administrator shall estab-
8 lish a program to develop and demonstrate practices,
9 methods, technologies, or processes that may be effective
10 in the prevention and control of sources or potential
1 1 sources of water pollution.
12 "(b) Grant Assistance. —
13 "(1) In GENERAL. — The Administrator may
14 provide grants to pubhc agencies and authorities and
15 nonprofit oi^nizations and institutions, and enter
16 into cooperative agreements or contracts with other
17 persons, to develop or demonstrate water pollution
18 prevention and control practices, methods, tech-
19 nologies, or processes.
20 "(2) REQUIREMENTS FOR DEMONSTRATION
21 PROJECTS. — ^The Administrator may provide assist-
22 ance for a demonstration project imder this sub-
23 section only if —
24 "(A) the demonstration project will serve
25 to demonstrate a new or significantly improved
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1 practice, method, technology, or process, or the
2 feasibility and cost effectiveness of a practice,
3 method, technology, or process that exists at
4 the time of the demonstration, but is unproven;
5 "(B) the demonstration project will not du-
6 phcate any other Federal, State, local, or com-
7 mercial effort to demonstrate the practice,
8 method, technology, or process;
9 "(C) the demonstration project meets the
10 requirements of this section and serves the pur-
1 1 poses of this Act;
12 "(D) the demonstration of the practice,
13 technology, or process will comply with all other
14 laws (including regulations) for the protection
15 of human health and welfare and the environ-
16 ment; and
17 "(E)(i) in the case of a contract or cooper-
18 ative agreement, the practice, method, tech-
19 nology, or process would not be adequately
20 demonstrated by State, local, or private per-
21 sons; or
22 "(ii) in the case of an apphcation for fi-
23 nancial assistance by a grant, the practice,
24 method, technology, or process is not likely to
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1 receive adequate financial assistance from other
2 sources.
3 "(3) Requirements for demonstration
4 PROGRAM. — The demonstration program established
5 under this subsection shall include —
6 "(A) solicitations for demonstration
7 projects by the Administrator;
8 "(B) the selection of suitable demonstra-
9 tion projects fix)m among proposed demonstra-
10 tion projects;
11 "(C) the supervision of the demonstration
12 projects;
13 "(D) the evaluation of the results of the
14 demonstration projects; and
15 "(E) the dissemination of information con-
16 ceming the effectiveness and feasibiUty of the
17 practices, methods, technologies, and processes
18 that are proven to be effective under the dem-
19 onstration projects.
20 "(4) Solicitations. —
21 "(A) In general. — Not later than 1 year
22 after the date of enactment of this paragraph,
23 and not less fi^quently than annually there-
24 after, the Administrator shall publish a solicita-
25 tion notice for proposals to demonstrate, by
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1 prototype or at full-scale^ practices, methods,
2 technologies, and processes that are (or may be)
3 effective in controlling sources or potential
4 sources of water pollution.
5 "(B) Contents of solicitation no-
6 TICE. — The soUcitation notice shall prescribe
7 the information to be included in the proposal,
8 including technical and economic information
9 derived from the research and development ef-
10 forts of the apphcant, and other information
11 sufficient to allow the Administrator to assess
12 the potential effectiveness and feasibiUty of the
13 practice, method, technology, or process that is
14 the subject of the demonstration project.
15 "(5) Application. — ^Any person may submit
16 an application to the Administrator in response to a
17 solicitation under paragraph (4). The application
18 shall contain a proposed demonstration plan setting
19 forth how and when the project is to be carried out
20 and such other information as the Administrator
21 may require.
22 "(6) Selection of demonstration
23 PROJECTS. — In selecting practices, methods, tech-
24 nologies, and processes to be demonstrated, the Ad-
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1 ministrator shall evaluate each project according to
2 the following criteria:
3 "(A) The potential for the proposed prac-
4 tice, method, technology, or process to effec-
5 tively control sources or potential sources of
6 pollutants that present risks to human health.
7 "(B) The potential for the practice, meth-
8 od, technology, or process to contribute to the
9 advancement of pollution control with respect to
10 an industiy for which an effluent guideline is
11 pubhshed pursuant to section 304.
12 "(C) The potential for the practice, meth-
13 od, technology, or process to effectively prevent
14 the discharge of pollutants that present risks to
15 human health and the environment.
16 "(D) The potential for the practice, meth-
17 od, technology, or process to contribute to the
18 advancement of the treatment of sewage or the
19 management of sewage sludge.
20 "(E) The potential for the practice, meth-
21 od, technology, or process to contribute to re-
22 ductions of pollution associated with nonpoint
23 sources of pollution.
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1 "(F) The capability of the appUeant to
2 suceessfiilly complete the demonstration project
3 as described in the application.
4 "(G) The likelihood that the demonstrated
5 practice, method, technology, or process could
6 be applied in other locations and under other
7 circumstances to control sources or potential
8 sources of pollutants (taking into consideration
9 the cost, effectiveness, and technological fea-
10 sibility of the practice).
11 "(H) The extent of financial support fix)m
12 the appUcant to accomplish the demonstration
13 as described in the application.
14 "(I) The capability of the applicant to dis-
15 seminate the results of the demonstration or
16 otherwise make the benefits of the practice,
17 method, technology, or process widely available
18 to the public in a timely manner.
19 "(7) Approval of applications. — The Ad-
20 ministrator shall approve or disapprove an appUca-
21 tion for a project under this subsection in an expedi-
22 tious manner. In the case of a disapproval of an ap-
23 phcation for a project, the Administrator shall notify
24 the applicant of the reasons for the disapproval.
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1 "(8) Agreement. — Each applicant selected to
2 conduct a demonstration project under this sub-
3 section shall be required, as a condition of receiving
4 funds made available pursuant to this subsection, to
5 enter into an agreement with the Administrator to
6 provide for monitoring, testing procedures, quality
7 control, and such other measurements necessary to
8 evaluate the results of demonstration projects or fa-
9 ciUties intended to control sources or potential
10 sources of contaminants.
11 "(9) Federal share. —
12 "(A) In general. — ^Except as provided in
13 subparagraph (B), the Federal share for a dem-
14 onstration project under this section shall not
15 exceed 75 percent of the total cost of the
16 project.
17 "(B) Certain basic research. — In any
18 case in which the Administrator determines
19 that a research project under this subsection is
20 basic research that would not otherwise be un-
21 dertaken, the Administrator may award a grant
22 for the research project under this subsection
23 with respect to which the Federal share may
24 equal 100 percent of the total cost of the
25 project.
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1 "(c) Authorization op Appropriations. — There
2 are authorized to be appropriated to the Environmental
3 Protection Agency to cany out this section $20,000,000
4 for each of fiscal years 1994 through 2000.".
5 SEC. 602. STATE CERTIFICATION.
6 The first sentence of section 401(a)(1) (33 U.S.C.
7 1341(a)(1)) is amended by inserting before the period the
8 following: "and that any such activity will comply with
9 water quahty standards adopted under section 303 and
10 allow for the protection, attainment, and maintenance of
1 1 designated uses included in the standards".
12 SEC. 603. REPORTS TO CONGRESS.
13 (a) Clean Water Report. — Subsections (a)
14 through (c) of section 516 (33 U.S.C. 1375 (a) through
15 (c), respectively) are amended to read as follows:
16 "(a) Clean Water Report. —
17 "(1) In general. — On January 1 of the year
18 following the date of enactment of subparagraph
19 (A), and every 2 years thereafter, the Administrator
20 shall submit to Congress a report on measures taken
21 toward the implementation of the goals and objec-
22 tives of this Act, including —
23 "(A) a summary of the results achieved in
24 the field of water pollution control research,
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1 demonstrations, experiments, studies, and relat-
2 ed matters;
3 "(B) a summary of the status of tech-
4 nology-based water pollution controls;
5 "(C) a summary of the development of pol-
6 lutant criteria documents and the adoption of
7 water quality and sediment quality standards;
8 "(D) an assessment of progress in the de-
9 velopment of effluent limitations pursuant to
10 sections 301, 304, 306, and 307;
11 "(E) a description of State nonpoint
12 source pollution control programs;
13 "(F) an assessment of the progress in the
14 identification of and development of programs
15 for water quality problem areas, including —
16 "(i) the national estuary program es-
17 tablished under section 320;
18 "(ii) the Great Lakes program estab-
19 lished under section 118;
20 "(iii) the Chesapeake Bay program es-
21 tablished under section 117;
22 "(iv) other programs that the Admin-
23 istrator considers appropriate; and
S 1114 ISR - 14
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1 "(v) other estuaries and rivers for
2 which management conferences are being
3 conducted;
4 "(G) a description of alternative require-
5 ments for effluent discharges established under
6 section 301 or 307 (including any alternative
7 requirement established under section 301(b)(2)
8 or 307(b) on the basis of fundamentally dif-
9 ferent factors (as described in section 301(d));
10 "(H) a description of activities relating to
11 wastewater treatment operator training and
12 certification;
13 "(I)(i) an identification and assessment of
14 noncompliance ^vith the enforceable require-
15 ments of this Act (including an assessment of
16 noncompliance by Federal facilities); and
17 "(ii) a description of all enforcement ac-
18 tions pending or completed under this Act dur-
19 ing the 2-year period immediately preceding the
20 date of the report; and
21 "(J) recommendations concerning improve-
22 ments to the water quality programs authorized
23 by this Act.
24 "(2) Consultation by administrator. — The
25 Administrator shall consult with the heads of State
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1 agencies in the development of the report required
2 under this subsection.
3 "(b) Water Quality Infrastructure Needs As-
4 sessment. —
5 "(1) In general. — The Administrator shall
6 conduct a comprehensive assessment of the cost of
7 construction of public facilities needed to accompUsh
8 the water quaUty goals of this Act.
9 "(2) Contents op assessment. — The assess-
10 ment under this subsection shall, at a minimum,
1 1 describe —
12 "(A) on a national basis, and for each
13 State, the cost of construction for the rehabili-
14 tation, replacement, and upgrading of publicly
15 owned treatment works in existence during the
16 calendar year that is 2 years before the date of
17 the report, including an estimate of the portion
18 of the costs associated with meeting the en-
19 forceable requirements of this Act;
20 "(B) on a national basis, and for each
21 State the cost of construction of expanded or
22 new pubhcly owned treatment works, including
23 an estimate of the portion of the costs associ-
24 ated with meeting the requirements of this Act;
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1 "(C) the cost of implementing plans for
2 the ehmination of combined stormwater and
3 sanitary sewer overflows developed pursuant to
4 section 406, including any additional treatment
5 needed to ensure compliance with water quality
6 standards;
7 "(D) the portion of the costs described in
8 subparagraphs (A), (B), and (C) associated
9 with treatment works serving fewer than 2,500
10 individuals;
11 "(E) the cost to Federal, State, and local
12 governments and agricultural producers of the
13 construction of measures to control nonpoint
14 sources of pollution implemented in accordance
15 with programs developed pursuant to section
16 319;
17 "(F) the cost of construction of measures
18 and facilities required to comply with permits
19 for the control of municipal discharges of
20 stormwater;
21 "(G) the cost of implementation of con-
22 servation and management plans approved pur-
23 suant to section 320(f);
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1 "(H) the cost of implementation of
2 Lakewide Management Plans and Remedial Ac-
3 tion Plans developed pursuant to section 118;
4 "(I) the cost of implementation of clean
5 lakes projects pursuant to section 314; and
6 "(J) the cost of implementation of water-
7 shed management plans approved by the Ad-
8 ministrator pursuant to section 321.
9 "(3) Submission of assessment. — Not later
10 than 4 years after the date of enactment of this
11 paragraph, and every 4 years thereafter, the Admin-
12 istrator shall submit the assessment required under
13 this subsection to Congress.
14 "(c) RESERVED.".
15 (b) Elimination of Other Reports. —
16 (1) Devices for flow reduction. — Section
17 104(a)(5) (33 U.S.C. 1254(a)(5)) is amended by
18 striking ", and shall report on such quality in the
19 report required under subsection (a) of section 516".
20 (2) Chesapeake bay. — Section 117 (33
21 U.S.C. 1267) is amended—
22 (A) by striking subsection (c); and
23 (B) by redesignating subsection (d) as sub-
24 section (c).
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1 (3) Great lakes.— Section 118(c) (33 U.S.C.
2 1268(c)) is amended—
3 (A) by striking paragraph (10); and
4 (B) by redesignating pareigraph (11) as
5 paragraph (10).
6 (4) Operation of publicly owned treat-
7 MENT WORKS.— Title U (33 U.S.C. 1281 et seq.) is
8 amended by striking section 210 and inserting "Sec-
9 tion 210. RESERVED.".
10 (5) Alternative discharge require-
11 MENTS.— Section 301(n) (33 U.S.C. 1311(n)) is
12 amended by striking paragraph (8).
13 (6) Condition of lakes. — Section 314 (33
14 U.S.C. 1324) is amended—
15 (A) in subsection (a) —
16 (i) by striking paragraph (3); and
17 (ii) by redesignating paragraph (4) as
18 paragraph (3); and
19 (B) in subsection (b) —
20 (i) by striking paragraph (3); and
21 (ii) by redesignating paragraph (4) as
22 paragraph (3).
23 (7) Status of nonpoint programs. — Section
24 319(m) (33 U.S.C. 1329(m)) is amended by striking
25 / "(m) Reports of Administrator. — " and all that
/
/ 'S 1114 IS
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1 follows through "(2) Final report. — Not later
2 than" and inserting the following:
3 "(m) Final Report of the Administrator. — Not
4 later than".
5 (8) Estuarine research and monitoring. —
6 Section 320(j) (33 U.S.C. 1330(j)) is amended—
7 (A) by striking paragraph (2);
8 (B) by striking "(j) Research. — " and all
9 * that follows through "In order to" and insert-
10 ing the following:
11 "(j) Research. — In order to";
12 (C) by striking "(A) a long-term program"
13 and inserting the following:
14 "(1) a long-term program";
15 (D) by striking subparagraph (B) and in-
16 serting the following new paragraph:
17 "(2) a program of ecosystem assessment assist-
18 ing in the development of —
19 "(A) baseline studies that determine the
20 state of estuarine zones and the effects of natu-
21 ral and anthropogenic changes; and
22 "(B) predictive models capable of translat-
23 ing information on specific discharges or gen-
24 eral pollutant loadings within estuarine zones
25 into a set of probable effects on the zones;";
•S 1114 IS
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1 (E) by striking "(C) a comprehensive" and
2 inserting the following:
3 "(3) a comprehensive"; and
4 (F) by striking "(D) a program" and in-
5 serting the following:
6 "(4) a program".
7 (9) Federal procurement. — Section 508 (33
8 U.S.C. 1368) is amended by striking subsection (e).
9 SEC. 604. DEFINrnONS. *
10 (a) Definition op Point Source. — Section
11 502(14) (33 U.S.C. 1362(14)) is amended by adding at
12 the end the following new sentence: "The term shall in-
13 elude a landfill leachate collection system.".
14 (b) Conforming Amendment. — Section 507 of the
15 Water Quality Act of 1987 (33 U.S.C. 1362 note) is re-
16 pealed.
17 SEC. 606. INDIAN PROGRAMS.
18 (a) Sewage Treatment. — Section 518(c) (33
19 U.S.C. 1377(c)) is amended—
20 (1) by striking "one-half of one percent of the
21 sums appropriated under section 207" and inserting
22 "1 percent of the sums appropriated under section
23 607"; and
24 (2) by adding at the end the following new sen-
25 tence: "The Administrator shall provide the funds
•8 1114 IS
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1 reserved under this subsection directly to Indian
2 tribes and may make a grant in an amount not to
3 exceed 100 percent of the cost of a project that is
4 the subject of the grant. In making a grant under
5 this subsection, the Administrator shall give priority
6 to projects that address the most significant public
7 health and environmental pollution problems, as de-
8 termined by a needs assessment conducted under
9 paragraph (2).".
10 (b) NoNPOiNT Pollution Control. — Section
11 518(f) (33 U.S.C. 1377(f)) is amended—
12 (1) in the second sentence, by striking "one-
13 third" and inserting "one-half;
14 (2) in the third sentence, by striking "(d)" and
15 inserting "(e)"; and
16 (3) by adding at the end the following new sen-
17 tence: "Notwithstanding section 319(h)(3), the Ad-
18 ministrator may make a grant under this subsection
19 in an amount not to exceed 100 percent of the cost
20 of the project that is the subject of the grant.".
21 (c) Revolving Loan Funds. — Section 603(c)(1)
22 (33 U.S.C. 1383(c)(1)), as amended by section 101(a)(2),
23 is further amended by inserting "Indian tribe," after
24 "State agency".
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1 SEC. 606. CLEAN WATER EDUCATION.
2 (a) In General.— Title V (33 U.S.C. 1361 et seq.)
3 is amended —
4 (1) by redesignating section 519 as section 520;
5 and
6 (2) by inserting after section 518 the following
7 new section:
8 '^EC. 519. CLEAN WATER EDUCATION.
9 "(a) Authority. —
10 "(1) In general. — The Administrator shall es-
11 tablish a national program of education and infor-
12 mation to increase public awareness concerning
13 water quality.
14 "(2) Employees to implement program. —
15 The Administrator shall ensure that for each fiscal
16 year, not fewer than —
17 "(A) 5 full-time equivalent employees are
18 assigned on a full-time basis to cany out this
19 section; and
20 "(B) 1 full-time equivalent employee is as-
21 signed on a full-time basis to carry out this sec-
22 tion in each regional office.
23 "(b) Volunteer Programs. —
24 "(1) In general. — The Administrator, in co-
25 operation with the States, shall foster and provide
26 guidance for volunteer citizen programs for the as-
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1 sessment, oversight, and protection of individual
2 waterbodies.
3 "(2) Handbook. — Not later than 2 years after
4 date of enactment of this subsection, the Adminis-
5 trator shall publish a handbook and other related in-
6 formational materials with respect to the organiza-
7 tion, management, functions, and activities of volun-
8 teer citizen programs under this subsection.
9 "(3) Volunteer citizen programs. — Not
10 later than 3 years after the date of enactment of
11 this subsection, and biennially thereafter, each State
12 shall provide to the Administrator a list of volunteer
13 citizen programs and the waterbody served by each
14 program included in the list. Not later than 180
15 days after receiving the State lists required to be
16 submitted pursuant to this paragraph, the Adminis-
17 trator shall publish a national list of volunteer citi-
18 zen programs that includes the information in the
19 State hsts.
20 "(4) Federal enforcement. — In the case of
21 any action taken pursuant to subsection (c) or (d)
22 of section 309, an appropriate Federal official shall
23 advise the court of any volunteer citizen program
24 listed pursuant to paragraph (3) for the waterbody
25 associated with the violation.
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216
1 "(c) Awards. —
2 "(1) In general. — The Administrator shall
3 implement a program to provide official recognition
4 of the Federal Government to industrial organiza-
5 tions, poUtical subdivisions of States, and volunteer
6 citizen programs that have demonstrated an out-
7 standing commitment to the prevention and control
8 of water pollution.
9 "(2) Selection by regional administra-
10 TORS. — Each regional administrator of the Environ-
1 1 mental Protection Agency shall select not more than
12 3 industrial organizations, 3 political subdivisions,
13 and 3 volunteer citizen programs within the region
14 under the jurisdiction of the regional administrator
15 for an award under this subsection for each fiscal
16 year.
17 "(3) Selection by administrator. — The Ad-
18 ministrator shall select from the organizations, polit-
19 ical subdivisions, and volunteer programs that re-
20 ceive awards pursuant to paragraph (2) not more
21 than 3 industrial organizations, 3 political subdivi-
22 sions, and 3 volunteer programs to receive national
23 awards.
24 "(4) Form of award. — The Administrator
25 shall award a certificate or plaque of suitable design
•S 1114 IS
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217
1 to each industrial organization, political subdivision,
2 or volunteer program that receives an award under
3 this subsection.
4 "(5) Notice and publication. — The Presi-
5 dent, the Governor of the appropriate State, the
6 Speaker of the House of Representatives, and the
7 President pro tempore of the Senate shall be notified
8 of each award under this subsection by the Adminis-
9 trator, and the awarding of the recognition shall be
10 published in the Federal Register.".
11 (b) Technical Corrections. —
12 (1) Section 104(e) (33 U.S.C. 1254(c)) is
13 amended by striking "Health, Education, and Wel-
14 fare" and inserting "Health and Human Services".
15 (2) Section 501 (33 U.S.C. 1361) is amended—
16 (A) by striking subsection (e); and
17 (B) by redesignating subsection (f) as sub-
18 section (e).
19 SEC. 607. NATIONAL ESTUARY PROGRAM.
20 Section 320 (33 U.S.C. 1130) is amended—
21 (1) in subsection (g)(2), by inserting "and im-
22 plementation" after "development"; and
23 (2) in subsection (i), by striking "1987, 1988,
24 1989, 1990, and 1991" and inserting "1987
25 through 2000".
o
•S 1114 IS
REAUTHORIZATION OF THE CLEAN WATER ACT
WEDNESDAY, JUNE 23, 1993
U.S. Senate,
Committee on Environment and Public Works,
Subcommittee on Clean Water, Fisheries, and Wildlife,
Washington, DC.
FUNDING; STORMWATER AND COMBINED SEWER OVERFLOWS
The subcommittee met, pursuant to notice, at 10:07 a.m. in room
SD-406, Dirksen Senate Office Building, Hon. Max Baucus [chair-
man of the full committee] presiding.
Present: Senators Baucus, Faircloth, Lautenberg, Chafee,
Kempthorne, Durenberger and Wofford.
Senator Baucus. The hearing will come to order.
Good morning, everyone.
The chairman of the subcommittee. Senator Graham, is unable
to be here at this time. He's at the White House. He will join us
when he is able. He has a statement that will be included in the
record. In his absence, I will chair this hearing. There may be a
time when I will leave and Senator Chafee will then chair the
meeting until Senator Graham arrives.
Today's hearing is about two related problems under the Clean
Water Act. Before I get into those, I'd like to put in the record an
editorial from today's Washington Post entitled, "The First Big En-
vironmental Bill." It states approvingly of the efforts of Senator
Chafee and myself in reauthorizing the Clean Water Act.
[Senator Graham's statement and the editorial referred to
follow:]
STATEMENT OF HON. BOB GRAHAM, U.S. SENATOR FROM THE STATE OF
FLORIDA
This is the second in a series of hearings to be held by this subcommittee on the
reauthorization of the Clean Water Act. Last week, we begein the series by looking
at some broad policy questions and announced some of the problems that remain
unsolved by the Act.
While broad questions remain, today we begin to get into some of the detaUs.
Today, we wUl focus for the most part upon our cities and upon funding issues.
There are several important funding questions. The first of these is whether to
continue federal funding and, if so, how much and for how long? Since 1972, the
federal government has provided about $60 billion in construction grants assistance
to help communities comply with the Act. Over the years, the level and manner of
assistance has changed. In 1981, the level droped from $5 bUlion to $2.4 billion and
the types of projects eligible for funding was restricted. In 1987, the grants program
was replaced with one that established State Revolving Funds. The new program
had a simple premise: states would lend federal and state dollars to communities,
who would pay them back, thus creating a continuous source of funding that sus-
(311)
312
tfdned itself and "revolved." This feature allowed federal support to be phased out
over several years and to expire after 1994.
The bill before us not only extends federal funding to SRFs through the year
2000, but gradually increases the level from $2.5 billion in 1995 to $5 billion in the
year 2000, so long as deficit reduction goals are met along the way. The justification
for this change in policy seems to be grounded in the continued need for federal
support.
We are told that EPA has reported more than $80 billion in un-met needs in our
cities nationwide just for major wastewater treatment facility construction and
repair and that the cities have identified $30 billion more on top of that But, stag-
gering as these figures are, they don't cover stormwater or combined sewer over-
flows. They don't cover non-point source pollution and they don't cover drinking
water. I believe we will hear a great deal today about the needs of our cities.
The second question is how should the SRFs be used to maximize the federal
funds we do provide to try to meet some of these needs. When I was Governor, we
had a state program simOeu- to the SRF that provided funding just for the construc-
tion phase because that was when cities had the most difficult time securing financ-
ing. After construction, cities used the revenues they collected to secure their per-
manent financing. I want to explore how we can make the SRF revolve more quick-
ly. We also need to look at the issue of leveraging as we try to utilize federal funds
in a manner that will generate the most effective use of funds from other sources.
Third, we must look at the way these funds are allocated to the states. E>very two
years, EPA completes a survey with the states to determine their funding needs
under the SRF. Incredibly, we have ignored the last seven of these surveys and con-
tinue to allocate federal dollars to the states based on the needs survey completed in
1978. This distortion of reality results in some states getting far more than they
need, while others get a fraction of their needs met.
We will also address other critical funding issues, including how to help our small
and disadvantaged communities and whether to again expand the projects eligible
for SRF funding. Since it is clear that we have failed to address all the needs in the
country that are currently covered, we must discuss the wisdom of trying to firnd
new categories of need.
I also want us to address how we can make the approaches to wastewater treat-
ment and stormwater more environmentally appropriate, but also more cost-effec-
tive. On Monday, I worked at a sewer plant in West Palm Beach, Florida, which is
considering methods of recycling water. Today that water is injected into very ex-
pensive deep wells. This recycling not only has the potential of saving a valuable
resource, but also of enhancing the economic viability of wastewater treatment.
We also need to look at how federal government can encourage practices that
would prevent pollution, such as land use practices that would mitigate stormwater
runoff and facilitate the most efficient governmental structures, such as regional co-
operation among local govenmients to construct the most cost-efficient disposal sys-
tems. How well have these efforts worked in the past and how should they be con-
sidered as part of the reauthorization of the Clean Water Act?
Finally, we will address two other issues of great importance to our communities:
the regulation of stormwater and combined sewer overflows.
These are distinct problems. Our cities tell us that they simply cannot afford
stormwater regulation under the Clean Water Act, especially when faced with other
burdens, including solid waste management and wastewater treatment. They tell us
that it will be prohibitively expensive to comply with effluent guidelines and per-
mits for each of the 8 million stormwater outfalls.
"The bill before us provides these communities with some relief. Small cities, those
whose population is 100,000 or less, would be not have to obtain separate storm-
water permits. The large and mid-sized cities would be subject to EPA guidelines,
but would not be required to comply with effluent guidelines or water quality stand-
ards for 10 years, the cities desperately seek this relief, while those in the environ-
mental community fear that this represents yet another delay in a series of delays
to require cities to address serious pollution problems.
We need to discuss today whether the bill provides the best approach to solving
these economic issues, while still providing adequate environmental protection.
Combined sewer overflows occur in systems that combine wastewater and storm-
water, thus creating the risk that during severe storms, the volume of water will
overload the wastewater treatment facilities, spilling imtreated waste into the wa-
terways. This is a problem primarily affecting some of older cities in the Northeast,
Mid-West and Far West and the potential cost is also in the billions. The bill adopts
a consensus policy adopted by EPA with the assistance of environmental groups and
the cities. We will discuss the adequacy of that approach in addressing this problem.
313
As can be seen, some of these issues can become quite complex. We will try to get
the best advise from our witnesses as we go along. As I indicated last week, we will
ask our witnesses to utilize the provisions of S. 1114, filed last week by Senators
Baucus and Chafee, in giving detailed analysis and recommendations for Subcom-
mittee action. In this fashion, I hope to focus the Subcommittee's attention upon
real problems, the best solution for them, and the legislative language that would
incorporate that best answer.
314
A16 Wednesday. Ji.NE 23, 1993
3|e toia6l|liiit0ji
AN INDEPENDENT NEWSPAPER
First Big Environmental Bill
THE FIRST MAJOR piece of environmental
legislation in this Congress seems likely to
be a strengthening of the Clean Water Act.
House and Senate committees have both begun work
en such a bill. The administration is also working out a
position, though five months into the president's term
the key official— assistant administrator for water at
the Environmental Protection Agency— has yet to be
appointed. Last week EPA Administrator Carol
Browner testified in mostly general terms on a
thoughtful draft bill by Sens. Max Baucus and John
Chafee of the relevant Senate subcommittee. At this
point the senators are well ahead of the administration;
theirs is the most authoritative draft around.
For most of its 21 years, the Clean Water Act was
mainly aimed at building new municipal sewage treat-
ment plants and reducing industrial water pollution.
The success has been such that most pollution now is
the trickier general agricultural and other runoff that
comes from so-called non-point sources. In a given
watershed there may be thousands of mostly small
contnbutors to such pollution, from dairy farmers to
municipal storm sewer systems. Basically this is
pollution resulting firom land use, traditiraiaDy a state
and local rather than federal regulatory preserve, and
a bewildering array of often private management
practices. How to change them, and how to pay the
cost' ^ r J
All sides agree that for fle.Nibility's sake the federal
government should operate mainly throu^ the states.
But who defines clean and how best to achieve iL'
What standards does the federal government set what
aid does it offer the states to achieve them and what
sanctions does it apply if they fai' The Baucus-Chafee
bill would use more carrot than stick; that seems to be
the administration's inclination as well, but this is a
question whose answer vM lie in the fine print
"VoluntaiY, targeted approaches should remain the
primary focus," the EPA administrator testified the
other day, "but backup enforcement requirements . . .
are needed when voluntary approaches fai" Where
would the administration draw the line.'
Resort to the carrot also depends on funding. Most
dean water ftmding over the years has been for
sewage treatment plants. The Reagan administration
moved in 1987 to phase that out in favor of state
revolving funds to which the federal government
would make the initial contributions. The Clinton
administration now hopes in the name of investment to
keep up the contributions, thereby e.xpanding the
funds. Baucus-Chafee would do much the same — and
both would expand the uses of the funds to combat the
broader runoff problem, for which the senators would
authorize a special appropriation as weL The trouble
is that all these are authorizations only, subject to the
tight appropriations caps to which the administration
has agreed for the ne.xt five years. Ms. Browner also
warned that the sewage treatment problem isn't over;
dties will continue to bid for available funds. The
administrator said that the new legislation needs to be
"realistic in light of the resources we can reasonably
e.xpect to be available." But "realistic" is also a matter
of policy: how much money the president sets aside
and fights for in his budget. At some point in the
legislative process the administration will need to
speak in more detail .
315
OPENING STATEMENT OF HON. MAX BAUCUS, U.S. SENATOR
FROM THE STATE OF MONTANA
Senator Baucus. The first of the two problems that we address
this morning is municipal water pollution. I think we've made
great progress since 1972 dealing with municipal water pollution,
but municipalities across the country are still responsible for sig-
nificant water pollution problems. They are still responsible for in-
adequately treated sewage, for overflows of raw sewage from com-
bined sewer overflows, and dirty stormwater.
The second problem is the high cost of measures to reduce mu-
nicipal water pollution. The EPA estimates that there is a $60 bil-
lion backlog of unfunded sewage treatment projects. This doesn't
even account for the new projects needed to accommodate popula-
tion growth and it doesn't account for combined sewer overflows
and stormwater. So there's tension. On the one hand, we have to
further reduce municipal water pollution, and on the other hand,
we have to face up to the cost. This hearing is about resolving that
tension.
Let me suggest five key principles. First and foremost, restora-
tion of a full partnership between the Federal Government and
State and local governments. Communities have an obligation to
solve their pollution problems. The Federal Government has an ob-
ligation to help. I believe that the existing State loan funds are the
best vehicle for providing this help. I also believe that the Federal
contribution should be doubled by the year 2000.
Second, it is not enough to simply spend more money. We also
must assure that scarce Federal money is spent more efficiently.
For example, some States leverage the revolving loan funds to
more than double the number of projects than the funds support. A
new Clean Water Act can encourage such innovative financing so
we get more environmental bang for our Federal buck.
Third, we must also support innovative pollution control meth-
ods. For example, for many years, we have assumed that the only
solution to the problem of overflows of raw sewage from combined
sewers was to build separate storm sewers and sanitary systems.
Today, however, there is a growing recognition that separation is
expensive and sometimes unnecessary. Instead, through better
management of stormwater, better planning for new development,
and better use of existing facilities, we may be able to achieve the
same result more cheaply. We must encourage these and other in-
novative methods.
Fourth, we must acknowledge that effective control of some mu-
nicipal pollution problems takes time. In some cases, communities
may need relief from existing requirements. Combined sewer over-
flows do demand our attention but the current provisions of the
Clean Water Act simply don't fit. We need to revise the Act to
allow for development of control plants over a more realistic time
frame of up to 15 years.
In addition, we need to reexamine the existing requirements of
permits for discharges of stormwater from small communities, es-
pecially where receiving waters are not impaired.
Finally, we must respond to small communities that face exces-
sive costs for new water pollution control projects. I've heard from
316
communities all across my State about this, I daresay that every
Senator has heard the same complaints. I know that because I hear
them mention them. The existing loan program does not allow
States to provide sufficient financial support to these communities
and we must revise the Clean Water Act to address this problem,
including providing new authority to forgive an appropriate
amount of loan repayment.
With these principles in mind, I look forward to hearing from
our witnesses.
I'd now like to turn to the ranking member of the committee,
Senator Chafee for any comments he might have.
OPENING STATEMENT OF HON. JOHN H. CHAFEE, U.S. SENATOR
FROM THE STATE OF RHODE ISLAND
Senator Chafee. Thank you, Mr. Chairman.
I congratulate you on that editorial in the Washington Post.
Senator Baucus. I congratulate you. It takes two to get this bill
together.
Senator Chafee. Well, thank you, and it's nice to have a kind
word from the Washington Post.
[Laughter.]
Senator Chafee. As for Senator Graham being detained at the
White House, you indicated I would be here to Chair. Yes, that's
quite true. I will not be called to the White House regrettably, so
I'll be available to cover.
[Laughter.]
Senator Chafee. Mr. Chsdrman, I have statement 1 11 put in the
record, but I'd like to summarize it briefly if I might.
In 1972, we started to fund the secondary treatment of sewage
discharges and since then, we've spent some $60 billion of Federal
grants. Almost all cities are now in compliance with secondary
treatment and tremendous improvements in the water quality
have resulted.
Now, there are other problems which the Mayor and others are
going to introduce — combined sewer overflows, stormwater dis-
charges, nonpoint source pollution and habitat loss — all of which
contributes to impairing our waters.
So in 1987 as we looked toward the phaseout of this program, we
started the Revolving Loan Program in the States and that's been
a big success. In my State, for example, our biggest problem is com-
bined sewer overflows and we recently adopted a plan to spend, if
you think of it in our little State, $467 million, amongst other
items, to build a 10-mile tunnel that will capture and store storm-
water for treatment before it's discharged into one of the jewels of
our State, namely Narragansett Bay.
In addition to that, we've got problems which the Mayor and
others will perhaps address. Along the shores of our bay, we have
individual septic tanks which have failed, in large numbers I might
say, all contributing to pollution in the bay.
So the bill that Senator Baucus and I have introduced would
make it possible for Rhode Island and other States to solve prob-
lems by using their SRFs to finance needed projects. There's one
item in the bill, Mr. Chairman, that does give me some trouble and
317
I'd be interested in what the witnesses have to say. That's the fact
that many small communities have not been able to take advan-
tage of the SRF Program because they cannot afford to repay a
loan. So what we've done in here is to allow States to use up to 20
percent of their Federal grant to reduce the amount of loan princi-
ple that has to be repaid by disadvantaged communities.
That's a lot of words but what it basically says is 20 percent can
go to the small communities to reduce the principal that they have
to pay under the revolving fund.
I understand the problem of the small communities — ^you've got
them in your State and I've got them in mine — ^but I do think
we've got to be careful of returning to the old Construction Grants
Program where money is just going out in grants. So I'll be inter-
ested to hear any comments from the witnesses in connection with
that testimony.
Mr. Chairman, I'll put in my entire statement in the record and
look forward to hearing from the witnesses.
[Senator Chafee's statement follows:]
STATEMENT OF HON. JOHN H. CHAFEE, U.S. SENATOR FROM THE STATE
OF RHODE ISLAND
Mr. Chairman, today the Subcommittee will consider Clesin Water reauthorization
issues that are of special interest to local governments. Stormwater, combined sewer
overflows and the future of the revolving loan fund program are at the top of their
list.
As everybody knows, the federal role in financing sewage treatment projects is
scheduled to end next year. The authorization for federal grants to create and
expand State Revolving Funds expires in 1994. Based on the 1981 and 1987 amend-
ments, most people have assumed that the program would not be extended.
Back in 1981, when we first contemplated an end to federal grants for sewage
treatment, we were focused on the mandate in the Clean Water Act that requires
secondary treatment sewage discharges. That is a federal mandate dating back to
1972. We were determined to fund that mandate and we have. Sixty billion dollars
in federal grants have been made since 1972. Almost all cities are now in compli-
ance with the secondary treatment requirement. Tremendous improvements in
water quality have resulted.
But there are other water quality problems — combined sewer overflows, storm-
water discharges, nonpoint source pollution, and habitat loss — that continue to
impair our waters. The federal interest in solving these problems may be oven
greater than our original interest in construction of sewage treatment plants.
The State Revolving Fund program we created in 1987 has been a very great suc-
cess. The states have done a splendid job managing these funds. The SRFs have
been so successful that we now hope to use this mechanism to address additional
water quality problems.
For instance, in Rhode Island our biggest problem is combined sewer overflows.
Recently, Rhode Island adopted a plan to spend $467 million to build a 10-mile
tunnel that will capture and store stormwater for treatment before it is discharged
into Narragansett Bay. In addition, we have many areas along the shores of the Bay
where individual septic tanks have failed in large numbers and are now a major
source of pollution. The bill that Senator Baucus and I have introduced would maJte
it possible for Rhode Island and other states to solve problems like these by suing
their SRFs to finance needed projects.
There is one item in the bill, the proposed assistance to small commimities that
we included for discussion purposes, that gives me particular concern. Many small
communities have not been able to take advantage of the SRF program because
they cannot afford to repay a loan. The proposal in S. 1114 would allow states to use
up to 20% of their federal capitalization grant to reduce the amount of loan princi-
pal that has to be repaid by disadvantaged communities. I am not opposed to special
help for these communities, but I do worry that this proposal puts us on the verge of
returning to the old construction grants program.
My suggestion is this. Instead of using federal dollars for grants, we should en-
courage states to provide assistance to disadvantaged communities out of funds ap-
318
propriated by state legislatures. If a state sets up a grant program, we could count
their efforts toward the matching requirement for the federal grant. The matching
requirement is 20% so small communities would get the same amount of assistance.
I fear that if we offer federal fimds to meet the needs of small communities directly,
we won't be able to hold the line at 20%. We may be putting the very concept of
revolving funds at risk by suggesting that federal funds can once again be used for
Mr. Chairman, I have reviewed the testimony of the witnesses and I am pleased
to say that it is quite supportive of our bill. One hears constantly about the prob-
lems that cities are having with federal mandates and environmental regulations. I
hope that we have started to turn the comer on that problem with the stormwater
and CSO provisions included in this bill.
Senator Baucus. Thank you very much, Senator.
Senator Faircloth?
OPENING STATEMENT OF HON. LAUCH FAIRCLOTH, U.S.
SENATOR FROM THE STATE OF NORTH CAROLINA
Senator Faircloth. Thank you, Mr. Chairman.
I want to thank Chairman Graham in his absence for his leader-
ship in this year's reauthorization of the Clean Water Act.
I might have to leave a few minutes early before I get to my
questions. If I do, I want to submit them for the record. I'll be
going to the Banking Committee, not to the White House.
[Laughter.]
Senator Faircloth. The Clean Water Act is one of our most suc-
cessful environmental laws. The Nation's waters are cleaner today
than anytime in the recent past. I want, as a member of this com-
mittee, to build on their success with responsible legislation target-
ed to correct the most vital remaining water quality problems in a
cost effective manner.
As far as today's subject, I am pleased with parts of the bill and
less pleased with all of it. I would like to have some more flexibil-
ity built into S. 1114 for encouraging public-private partnership for
the construction and ownership of municipal water plants. I think
the taxpayers will ultimately benefit if we encourage private sector
ownership and operation of traditional government services.
I am pleased to see the effluent provisions for stormwater from
last year's bill was lifted and replaced with more reasonable guide-
lines based on management practices. I am concerned with expand-
ing the eligibility for State revolving funds for combined sewer
overflows if that means a new formula that will short change
States with modern sewer systems.
North Carolina has virtually no combined sewage overflows. Sen-
ator Chafee, because our systems are newer and more modern and
therefore we have no overflow. I don't think we should be penal-
ized in future formulas because that is not one of our problems.
More importantly, I would like the assurance of the administra-
tion that the expanded funding for State revolving funds is abso-
lutely justified in light of the ballooning Federal deficit.
I think we should only be spending money for a national emer-
gency and I'm not sure that the expansion is justified on the basis
of a national emergency. Perhaps the sewer problem does consti-
tute an emergency, but I have my doubts.
I'll look forward to the committee coming through this year with
a common sense Clean Water bill, one in wL'A taxpayers, munici-
319
palities, and industry and the environmental groups can all find
some common ground.
Thank you, Mr. Chairman.
Senator Baucus. Thank you very much, Senator.
I'd now like to introduce the first panel. They include: Donald
Fraser, Mayor of Minneapolis — very good to see you, Don; Mr. Greg
Smith, Chairman, Municipal Assistance Task Force from the Ohio
Environmental Protection Agency, Columbus Ohio; Mr. Edward
Wagner, Deputy Commissioner, New York City Department of En-
vironmental Protection; Mr. Bob Adler, representing the Natural
Resources Defense Council; and Ms. Martha Prothro, Acting Assist-
ant Administrator for Water, U.S. Environmental Protection
Agency.
Before I have you speak, I'd like now to introduce some visitors
from Russia at the request of Mayor Fraser. I'd like you all to
stand, please, when I mention your name.
First, we have Konstantin Nikulin, who is General Secretary of
the Union of Russian Cities; Valery Kirpitchnikov, President, URC,
a Member of Parliament; and Vladimir Varnavsky, Omsk Council
Chairman, URC Board. Welcome to the United States.
Apparently they are visiting and Mayor Fraser can explain in
more detail precisely the nature of the program. Why don't you do
that. Mayor, before you begin your testimony?
Mayor Eraser. Thank you very much, Mr. Chairman.
Thank you for introducing our guests. They are the leaders of
the Union of Russian Cities, an organization which is a counterpart
to the National League of Cities in the United States. This is our
first formal meeting. They were organized about two years ago and
we're looking forward to exchanges, to provide technical assistance,
and to learn from one another.
Senator Baucus. That's very good.
I'd like to tell each of the witnesses that your full statements
will be included in the record. You'll have 5 minutes to summarize
your testimony.
Why don't you begin, Don?
Senator Chafee. Mr. Chairman, I'd just like to join in the wel-
come to the friends from Russia and say we're glad they are here.
I'd also like to say, Mr. Chairman, that I believe I'm correct that
one of Mr. Donald Eraser's predecessors as Mayor of Minneapolis
was Hubert Humphrey.
Senator Baucus. That's right.
Senator Chafee. So what lies ahead for you?
[Laughter.]
Mayor Eraser. My first political job was as an office boy in his
campaign for the United States Senate in 1948.
Senator Baucus. Thank you very much. Why don't you proceed,
Don?
STATEMENT OF HON. DONALD FRASER, MAYOR, MINNEAPOLIS,
MINNESOTA, REPRESENTING THE NATIONAL LEAGUE OF CITIES
Mayor Eraser. Thank you, Mr. Chairman and members of the
committee.
320
I am Don Fraser, Mayor of Minneapolis and President of the Na-
tional League of Cities. I'm here to testify on behalf of the National
League of Cities and the 16,000 cities and towns across the country
that we represent on Senate 1114, the Water Pollution Prevention
Control Act of 1993.
My remarks will be quite brief and I've tried to summarize the
high points in my longer statement.
We re very pleased that both Senators Baucus and Chafee have
taken the critical first step toward restoring our governmental
partnership that the Chairman referred to. We think that is essen-
tial if we are to accomplish our mutual national environmental ob-
iectives.
The priority Clean Water Act issues for our cities in the country
are substantially addressed in your proposal — clarification of con-
gressional intention, revisions of the Stormwater Management Pro-
gram, revision of the requirements for addressing pollution from
combined sewer overflows and a continuing Federal financial com-
mitment to municipalities to assist in implementation of the Clean
Water Act requirements.
The other issue in which we have a vital interest is how you re-
solve the current conundrum on wetlands and we look forward to
reviewing that proposal when it is completed.
The Stormwater Program has been a major issue for the Nation-
al League of Cities for over 10 years. We've been to the Congress
three times on this issue over the past several years, seeking and
obtaining delays in implementation of the program for the Nation's
smaller cities and towns. The bill pending before you at long last
begins to address the real issues facing municipalities in imple-
menting the Stormwater Program.
What we believe has been poorly understood is that no one, not
EPA, not the Congress, nor the environmental community, has
ever made a credible case to municipal officials that urban storm-
water runoff is a priority problem deserving the investment of mil-
lions if not billions of scarce local dollars. We've not been con-
vinced that pollution from urban runoff is an issue that can be ad-
dressed effectively regardless of the resources invested; nor do we
believe that municipal stormwater is the major contributor of
what, in effect, is a nonpoint problem of ongoing pollution in our
rivers and streams.
For NLC, the bottom line on the stormwater amendment is no
end-of-pipe requirements and Senate 1114, at least for the foreseea-
ble future, provides municipalities with that absolutely essential
relief. ,^ , .
The provision in your bill that imposes a 10-year moratorium on
numerical effluent limits and water quality standards cannot be
amended or deleted. You've taken an important step in the right
direction and from our perspective, it is not negotiable.
It is also important for you to understand that while the provi-
sions in 1114 are a vast improvement over where we are now, the
alternative is not without significant cost. The recent estimates in-
dicate that even the least costly strategies to control pollutants and
urban runoff will cost municipalities over $1.1 billion a year. That
represents an average cost of half a million dollars a year for the
cities that will be required to implement a stormwater manage-
321
ment program. The CCMA guidance goes far beyond these least
costly strategies.
We would like to recommend several revisions to your proposal.
First, we would like to see an amendment to the current regula-
tions which require municipal industrial facilities, such as munici-
pal garages, sewage treatment plants and airports, to obtain indi-
vidual permits. These facilities should be incorporated within the
system or jurisdiction wide permit.
Second, we propose that you dedicate some Federal resources to
finding the techniques that will accomplish the objectives of a
stormwater management program. We would propose you consider
a set aside from the SRF appropriations for a research program to
help develop effective stormwater management strategies and pro-
grams.
Third, we recommend that you incorporate a legislative role for
local officials in the rewrite of the CCMA guidance as it applies to
municipal stormwater programs.
The Baucus-Chafee measure is, again, a significant step in the
right direction and while we are disappointed that no Federal
funds are made available for grants to municipalities, the bill does,
in our opinion, demonstrate a renewed Federal commitment to
meeting Clean Water Act needs by reauthorizing funds for the
SRF, by providing for grants to distressed communities regardless
of size and by expanding the pollution control activities eligible for
financial assistance.
Mr. Chairman, that is essentially a summary of my longer state-
ment which I understand will be a part of the record.
Senator Baucus. Thank you very much. Mayor.
Next, Mr. Smith?
STATEMENT OF GREG SMITH, CHAIRMAN, MUNICIPAL ASSIST-
ANCE TASK FORCE, OHIO ENVIRONMENTAL PROTECTION
AGENCY, REPRESENTING THE ASSOCIATION OF STATE AND
INTERSTATE WATER CONTROL ADMINISTRATORS
Mr. Smith. Good morning, Mr. Chairman, Senator Chafee, and
members of the committee.
I'm very pleased to be here this morning to address you. You
have a written statement, I believe, which incorporates our com-
ments. I'm not going to attempt to summarize all of those but there
are a few major points I would like to emphasize this morning.
At the outset, I'd like to say that the comments I'm going to
make may raise more questions than provide answers for you but
it's our intent to let you know some of our concerns so that we can
begin a dialog over the next few months and work toward the best
win-win situation on the bill that we can.
I'm here representing the Association of State and Interstate
Water Pollution Control Administrators. Our association believes
that we need to build upon Clean Water Act successes of the past,
but also while we make improvements to the Act, we need to
ensure that we don't jeopardize the benefits that we've already
achieved.
Many of the programs that have already been developed have
been very successful such as the State Revolving Loan Fund and
322
we want to ensure that those continue in the same manner of effec-
tiveness and efficiency that they have. The newer programs, such
as the Stormwater Program and the Combined Sewer Overflow
Program are going to require a good deal of dialog to work out the
details.
With regard to the State Revolving Loan Fund, we believe that
the States have been very successful in broadly fulfilling their part
of the 1987 covenant which established the SRFs. As you remem-
ber, that was a move from the Grants Program into the State Re-
volving Loan Program.
We believe it is worthwhile to remember two basic tenets of that
1987 covenant. One was that adequate funding would be available
to replace the Construction Grants Program and allow the SRFs to
broaden the role of a Federal-State partnership in financial assist-
ance. The second is that the States are to be afforded maximimi
flexibility in developing their State programs and the assistance
mechanisms to meet the unique Clean Water Act needs of their in-
dividual circumstances. We would like to respectfully remind the
Congress that both of us need to keep in mind our various responsi-
bilities in that covenant.
In the area of appropriations, we believe that the record is clear,
the appropriations from the original 1987 authorized amounts for
the SRF loan are $1.7 billion short to date and currently, the
States stand in the shadow of a reduced appropriation for fiscal
year 1994.
At the same time, the Clean Water's eligibilities have been dra-
matically expanded since the 1987 covenant, but the funding com-
mitment to date has not. We believe it is key to the successful ad-
ministration of the SRFs that the States must have confidence,
that adequate and predictable levels of funding will be available to
address the traditional and the new Clean Water Act needs. The
current proposal expands eligibility without concomitant increases
in appropriations. Another concern is that grants to individual
cities and set-a-sides continue to divert funds that could be appro-
priated to the SRF. Since 1987, we have been left with the impres-
sion that the SRF receives what remains after the special grant
projects have been funded from the appropriation.
We believe that the Congress needs to reaffirm its commitment
to a proven program, such as the State Revolving Loan Fund, and
authorize appropriate and adequate levels of funding. This funding
commitment would allow States to be less conservative in planning
their cash flows and, in all likelihood, may well increase the will-
ingness of some States to leverage their funds to provide even more
assistance at any given point in time.
The other area of principal concern to us is the ability of the
States to have flexibility to manage their SRFs. One of the most
desirable characteristics of the SRF is the ability of State pollution
control agencies and the State financing authorities to be innova-
tive in developing mechanisms to assist in achieving the Act's ob-
jectives. There is much emphasis placed on innovative technologies
and what's been happening in the intervening years since 1987 is
that the States and State financing authorities have been hard at
work to develop innovative financing mechanisms to go along to
complement technological advances.
323
We believe that some of the refinements that are proposed in the
current bill, while they are grounded in desirable policy objectives,
we are concerned that they may impair the States' ability to con-
tinue the creative work that we are now pursuing in carrying out
the Act.
Without going into detail, some of the provisions that we are con-
cerned about are the 200 percent binding commitment require-
ment, the expansion and contraction of eligibilities and permitted
types of assistance. In particular, we're very unclear about the
intent of the proposed section 603(c)(2)(A). We are concerned about
the recreation of a grants program which would operate outside of
the SRF. We are concerned about the loan forgiveness provisions
that are proposed for disadvantaged communities. We are con-
cerned about the limited number of changes to facilitate the small,
hardship and rural community funding.
Senator Baucus. I'm going to have to ask you to summarize, Mr.
Smith.
Mr. Smith. With regard to combined sewer overflows, we ap-
plaud the direction the committee is moving in that area toward
implementing the national policy. The specifics on our comments
on that proposal are contained in my written testimony.
As far as the Stormwater Program is concerned, we are very
worried about an excessive or large number of permits coming into
being all at the same time and overwhelming a State's capability to
monitor and ensure water quality improvements as opposed to issu-
ing permits exclusively.
In closing, we are very interested in working collaboratively with
the committee and the staff over the next few months.
Senator Baucus. Thank you very much.
Mr. Wagner?
STATEMENT OF EDWARD WAGNER, DEPUTY COMMISSIONER,
NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTEC-
TION, REPRESENTING THE ASSOCIATION OF METROPOLITAN
SEWERAGE AGENCIES
Mr. Wagner. Good morning.
I'm pleased to be here today to provide AMSA's perspective on
the reauthorization of the Clean Water Act and the recently intro-
duced Water Pollution Prevention and Control Act of 1993, Senate
1114. We appreciate this opportunity to share our thoughts and
recommendations as environmental practitioners dedicated to pro-
tecting and improving the quality of the Nation's waters.
AMSA supports the reauthorization of the Clean Water Act and
its goal of fishable and swimmable waters. Let me outline AMSA's
vision for this reauthorization.
We believe the reauthorization must provide an integrated and
comprehensive strategy that allows setting appropriate priorities
for achieving water quality goeds. It must recognize the wide range
of conditions present in our Nation's watersheds and provide flexi-
bility to decisionmakers so that they can address site specific
needs. It must target all impediments to ecosystem health. It must
develop mechanisms for control that properly balance environmen-
324
tal gains and their cost effectiveness. It must provide the funding
to implement its clean water mandates.
While this is AMSA's vision for the reauthorized Clean Water
Act, we also acknowledge in our initial review of Senate 1114 that
the Senate legislation goes a long way toward the realization of
these principles and we commend Senator Baucus and Senator
Chafee for introducing this legislation that clearly moves the Clean
Water Program forward.
AMSA has recently initiated a detailed review of this bill and
will be reporting on specific comments and recommendations to the
subcommittee in the coming weeks.
It is important to put reauthorization of the Clean Water Act
into an historical perspective. The Nation, its States, cities and
towns have made enormous progress in the 20 years since the pas-
sage of the 1972 Act. Back then, national standards that targeted
point sources made sense because we had huge problems, much of
which were traceable to easily controlled sources. Congress provid-
ed funding, deadlines and enforcement tools. Coupled with great
public support and motivation, this set the stage to successfully ad-
dress many of our clean water challenges.
Today, the problems are different and so must be the solutions.
While public support for environmental progress and improvement
continues, the remaining clean water issues we must address are
much more complex and costly.
The control of combined sewer overflows and the management of
stormwater and nonpoint sources of pollution exemplify the dilem-
ma of how to fund major priorities in the face of unprecedented
fiscal shortfalls at every level of government.
Today, we must find a way to reconcile the constraints of the
1990s with our continued high expectations and the need to make
continuing progress. Reconciling constraints with expectations
within the context of a reauthorized Clean Water Act will involve
several things.
The first is an increased and ongoing Federal financial commit-
ment to funding clean water mandates. Attached to my testimonv
is a report AMSA has published called, "The Cost of Clean.'
Among the key findings of the report are the following. Funds to-
taling over $23 billion will be required for AMSA member agencies
alone to meet currently mandated clean water needs to the year
1995. We can expect operation and maintenance costs which are
paid totally by local government to double every 8 years. Historical
data allows us to project that annual household user fees will
double every 6 years and that currently, local governments pay 80
to 90 percent of the "Cost of Clean".
I believe that we, my colleagues on this panel, and the members
of the distinguished committee should work together to ensure Fed-
eral resources are forthcoming. We must not lose sight of the fact
that the Clean Water Act sets forth a national program with an
integral relationship to our Nation's long-term environmental
health and economic growth.
We are all impatient to aggressively restore our Nation s water
environment. AMSA's long-term funding position calls for a $6 bil-
lion a year Federal commitment based upon what we believe is an
accurate reflection of the funding needs to effectively meet existing
325
requirements. Plainly stated, Federal support is essential if we are
to meet the clean water challenges we face as a Nation.
In my testimony, I talk about the support that we have for the
provisions regarding combined sewer overflows. In this national
policy, that was developed through collaborative means, national
direction is coupled with sufficient flexibility to consider site specif-
ic variables and it is welcomed as a solution to a complex problem.
Some of my colleagues on this panel will have much more to say
than I concerning the approach to the issue of stormwater manage-
ment, but AMSA would like to speak in support of the draft bill's
recognition of the effectiveness of best management practices and
endorses the legislation's movement away from the requirement of
numeric water quality limits in stormwater permits.
Last, let me comment that praise and support are deserved for
the attention paid in Senate 1114 to many longstanding programs,
as well as the important areas of pollution prevention, water con-
servation and what we are convinced must be the future direction
of our Nation's clean water program, comprehensive watershed
management. We will be submitting additional testimony at a
future hearing on that subject.
In conclusion, let me suggest the following. We need to consist-
ently search for better ways of doing things and to AMSA that
means more flexibility and more attention to site-specific variables;
a better public awareness of what the problems are, the importance
of solving them, and the best solutions.
Local consensus building must become an essential step in the
framework for reaching the environmental milestones we've set.
We must strive toward implementation of the most effective, prag-
matic means through which we can accomplish our national clean
water goals. There has to be a measurable and meaningful return
for our investment.
Senator Baucus. I have to ask you to summarize, please.
Mr. Wagner. We all recognize that we have a long way to go.
However, by working together, I know we can succeed. We look for-
ward to working closely with the subcommittee and I'd be pleased
to answer any questions you might have.
Senator Baucus. Thank you very much.
Mr. Adler?
STATEMENT OF ROBERT ADLER, SENIOR ATTORNEY, NATURAL
RESOURCES DEFENSE COUNCIL
Mr. Abler. Thank you, Mr. Chairman.
I'm a senior attorney and Director of the Clean Water Program
at NRDC. I also chair the Steering Committee of the National
Clean Water Network which has more than 420 groups around the
country working together to strengthen the Clean Water Act.
Behind me today is Diane Cameron, an environmental engineer at
NRDC to answer any technical questions about stormwater.
We agree that significant progress has been made in the past 20
years in reducing pollution from municipal sources, yet municipal
pollution does remain among the most daunting challenges facing
Federal, State and local water quality officials at a time when
fiscal resources are increasingly scarce.
326
I'd like to begin by supporting increased Clean Water Act fund-
ing both for SRF and for State, Federal and Tribal water quality
operating programs. I believe the public will support this spending.
According to a 1992 Roper Poll, water pollution topped the list of
the most serious environmental problems experienced by the
American public, with 77 percent of respondents agreeing that
water pollution is a severe problem and 79 believing that our cur-
rent water pollution programs do not go far enough to solve these
problems. If more Federal dollars are spent on water pollution con-
trol, the public must be assured that it s getting more environmen-
tal protection, not less, for its money.
Included in our testimony are two ways that we can make sure
that our Federal dollars are spent more wisely and more efficient-
ly. The first is least cost water planning. Simply put, water conser-
vation is dollar conservation. Many of the capital emd operating
costs of wastewater collection and treatment are closely related to
the amount of water flowing through the system. If it's cheaper to
save water than to supply it at the front end or to save it at the
back end, that's a wiser Federal investment than building new
treatment capacity and new supply capacity. That ought to be con-
sidered in the mix.
Second is targeting funding to the National Estuary Program
and similar watershed management-based programs around the
country. Our written testimony addresses some of the problems
with NEP. Senate Bill 815, introduced by Senators Lieberman,
Dodd, Moynihan and D'Amato, would increase NEP funding con-
tingent on the resolution of many of these problems, but the basic
approach is to try to target more money to projects that are identi-
fied in sound watershed management plans so long as there is as-
surance that those programs are implemented.
For similar reasons, it is critical for us to seek solutions to storm-
water and CSO problems that are cost effective but without turn-
ing our backs on the severe human health and environmental prob-
lems caused by those releases.
For those reasons, NRDC and other environmental groups
worked closely with AMSA, ASWIPCA, and the National League of
Cities last year to negotiate a rational framework for resolving
CSO problems in a cost-effective way, and were extremely pleased
to see that framework is included by reference in Senate Bill 1114.
With due respect, however, we were disappointed to read that
the approach to stormwater control in Senate Bill 1114 undercuts
rather than supports ongoing efforts to negotiate a rational, cost ef-
fective solution to stormwater pollution around the country.
We have quite a detailed recitation of stormwater problems
around the country in our written testimony. I'd like to summarize
the four most salient points.
I think the largest point of disagreement we would have with the
National League of Cities is that stormwater pollution problems
have been well-documented around the country over the years. I
think members of this committee, including Senator Chafee, recog-
nized in 1987 that stormwater is a severe problem.
Studies conducted by NRDC in cities around the country found
that total pollutant loadings from urban stormwater rivals and in
many cases exceeds loadings from factories and sewage treatment
327
plants. According to EPA's 1992 "Study of Urban Stormwater Dis-
charges", while urban population areas make up only 2.5 percent
of our land area, they contributed to 18 percent of the impaired
river miles, 34 percent of the impaired lake acres and 62 percent of
the impaired estuariane miles identified under section 319(a) of the
Clean Water Act. Clearly, urban stormwater runoff is a major
source of pollution for U.S. waters.
The distinguished Mayor talked about delays in the program
over the past 3 years. I would refer you to page 22 of our testimony
which documents the continuous delays in the Stormwater Pro-
gram since 1972. The delays have been requested again, and again,
and again, and the time has come for a rational, cost effective solu-
tion to stormwater problems that doesn't turn our backs on urban
water quality around the country.
We do not believe that Senate 1114 addresses those problems. It
would exempt most cities under 100,000 from the Stormwater Pro-
gram. I'd like to emphasize that I'm not talking only about small,
rural communities. We are talking about the largest growing sub-
urban areas — the suburbs of New York, Philadelphia, Cleveland,
Detroit, Cincinnati, Los Angeles. These are the largest growth
areas in the country. They are the areas where we have the most
bang for the buck in terms of investing in stormwater control pro-
grams.
EPA's data show that it is far cheaper to address stormwater pol-
lution at the front end than to wait until after development has
occurred and then face the serious costs and the serious flood and
water quality problems that occur due to stormwater.
We would ask you to reconsider Section 402 of Senate 1114. Give
us the opportunity to work with the cities on stormwater as we
have on combined sewer overflows and to try to work out a reason-
able approach, a cost-effective approach that does not send the mes-
sage that we are willing to write off water quality in urban areas
around the country.
Thank you.
Senator Baucus. Thank you very much, Mr. Adler.
Ms. Prothro?
STATEMENT OF MARTHA PROTHRO, ACTING ASSISTANT ADMIN-
ISTRATOR, OFFICE OF WATER, ENVIRONMENTAL PROTECTION
AGENCY, ACCOMPANIED BY MICHAEL COOK, DIRECTOR,
OFFICE OF WASTEWATER ENFORCEMENT AND COMPLIANCE
Ms. Prothro. Good morning, Mr. Chairman, members of the sub-
committee.
I'm Martha Prothro, Acting Assistant Administrator for the
Office of Water at EPA. With me today is Michael Cook, Director
of our Office of Wastewater Enforcement and Compliance. He is an
expert on municipal wastewater issues.
Since last week when Administrator Browner testified before the
subcommittee, we've had a chance to look at Senate BUI S. 1114
more carefully and we wish to express our general support for the
direction of the bill and many of the detailed provisions. While we
have a few difi'erences with the bill, we're very optimistic that this
can be the vehicle for reauthorization that the administration can
328
support. I'm just going to summarize briefly some of the specific po-
sitions that we are able to relay to you today.
First, with regard to the SRF, the administration supports a
strong Federal commitment to capitalization of the SRFs. However,
the President's long-term vision is for $2 billion per year from 1995
through 1998 and this is $5 billion less than the bill authorizes over
the four-year period.
We do support lifting the restriction on sewer project funding so
that CSOs and stormwater projects can be more readily funded. We
also are considering the merits of allowing SRF funding for water
use efficiency, water conservation and pollution prevention. We
think these are good ideas.
We support the principal purpose test to restrict eligibility to
those projects intended for water quality improvement. We're very
interested in the idea of expanding State priority lists to include
nontraditional projects such as nonpoint source and stormwater
management so it is more likely these projects would be funded.
We're very concerned about the plight of disadvantaged commu-
nities that have had disproportionately high per capita wastewater
treatment costs. As you know, we've proposed in the short term a
$100 million program in fiscal year 1994 for cities with high needs
and user fees. Boston would qualify on this basis.
The President has also requested for fiscal years 1994 through
1997 more than $2.4 billion in grants and $3.9 billion in loans for
rural communities as part of the Rural Development Administra-
tion's program for wastewater treatment. We're examining wheth-
er further Federal assistance would be appropriate.
EPA is concerned, however, about the total amount of set-asides
allowed in S. 1114 and the long-term effect of these set-asides on
the revolving nature of the SRF.
Finally, with regard to the SRF, we agree that the allotment for-
mula does need to be updated. We believe it should be done in a
legislative context.
With regard to permit fees, we support the establishment ot a
permit fee program, perhaps modeled on the Clean Air Act to help
both the States and the EPA defray the costs of permit issuance,
enforcement, monitoring and related program activities.
With regard to combined sewer overflows (CSO), we expect to
publish our final CSO policy in October of this year, culminating
many months of negotiation and public comment. The proposed
CSO policy received widespread public support and we believe leg-
islation on this subject will be unnecessary once the policy is final.
In fact, we plan to move quickly now to implement the policy with-
out awaiting legislative direction on CSOs.
With regard to stormwater, we would likewise like to proceed
with implementing Phase I of the Stormwater Program without a
loss in momentum. However, we do recognize the difficulty cities
face in implementing their local programs and we believe a delay
in applying the numeric water quality standards would be reasona-
ble. We would also support authorization for cities to issue NPDES
permits to dischargers to their storm sewers where they are willing
and able to do so.
We believe the Phase II stormwater sources generally should be
handled under a strengthened nonpoint source program, except
329
perhaps in urbanized areas. We'd like to work with you further on
that.
That concludes my abbreviated summary statement.
Senator Baucus. Thank you very much, Ms. Prothro,
I'd like to focus a little bit on stormwater if I could and Mr.
Adler, first with respect to communities under 100,000, does the en-
vironmental community think there should be some relaxation for
the requirement for permits for stormwater discharge for commu-
nities under 100,000 or not?
Mr. Adler. We think the program needs to be revised so that it
works better. That doesn't necessarily mean that you exempt cities
under 100,000 from permits. We would like to talk about things
like general permits for cities under 100,000. I went to the National
Flood and Stormwater Management Agency Conference in Sacra-
mento in December and the problems that I heard were with the
permit application process where they were spending a large
amount of money to go to consulting firms simply to fill out the
paperwork.
Now that we have experience with the Stormwater Program
from the larger cities, let's talk about a general permit for smaller
cities so that they can spend their limited dollars on the ground
controls rather than paperwork.
Senator Baucus. What about that, Mr. Fraser? Is it more paper-
work, but no relaxation in permit process as long as it's a general
permit?
Mayor Fraser. My understanding is the paperwork problem has
been formidable. I understood that the proposed legislation does
apply to smaller communities if they are part of an urban area. I
didn't see that there was a wholesale exemption of the communi-
ties under 100,000 but I may be reading the Act inappropriately.
Senator Baucus. Is there some agreement on the degree to which
permits are required for communities under 100,000? That is what
I'm trying to determine, or is that just an irresolvable issue at this
point?
Mr. Adler. Perhaps we should talk about density rather than
population size. The National Urban Runoff Program found that
all areas with a density of approximately 640 persons per square
mile, which is roughly one person per acre, were similar in their
stormwater impacts. Small cities with a low density perhaps could
get a break from the Stormwater Program, but what disturbed us
about EPA's implementation of Phase I and S. 1114 as we read it is
that geographically contiguous, densely populated areas, which
form the rapidly growing suburbs of the major cities in the country
will continue to be exempt from the Stormwater Program. These
are precisely the areas that are in most need of stormwater con-
trol.
Senator Baucus. Let's move to those communities above 100,000.
The bill essentially relaxes the water quality standards and dis-
charge for five year periods but in their place requires best man-
agement practices. Is that a provision that you and the conserva-
tion community can agree with?
Mr. Adler. We don't agree with the bill in three principal re-
spects. One is the exemption of cities below 100,000, especially the
contiguous communities. Two is relaxation of the substantive re-
330
quirements for stormwater that rely on the CZMA guidelines
which are good in principle but lacking in substance, lacking in
firm, enforceable, accountable requirements to ensure that Phila-
delphia does approximately the same thing as New York city does
for their stormwater.
We agree that there ought to be flexibility in stormwater pro-
grams. Each city is different, but there ought to be some substan-
tive accountability so that the public has the assurance that if they
are spending money on stormwater control, they are getting their
money's worth. That's the second major area.
Senator Baucus. Mr. Fraser, you say the cities need a little help,
what's your answer to Mr. Adler?
Mayor Fraser. Our main interest has been to get rid of the nu-
merical requirements. I think that's the most important issue from
our perspective.
Exemption for the smaller communities we thought made sense,
but I'd have to confess to you that my reading of the bill is prob-
ably not —
Senator Baucus. What about the water quality standards at dis-
charge during the two five-year permit periods and substituting
best management practices in the interim? Is that needed from the
cities point of view?
Mayor Eraser. I'm a little hesitant to speak for the smaller
cities.
Senator Baucus. I'm talking about the larger cities now, those
over 100,000.
Mayor Eraser. Those over 100,000, as long as we get rid of the
numerical discharge requirements, those are postponed I think for
10 years, we're okay.
Mr. Adler. We're willing to talk about the numeric, end-of-pipe
effluent limits if they are replaced with something meaningful.
Right now, the CZMA guidelines do not provide us with anything
meaningful that assures us that sound programs are in place.
Senator Baucus. One final round of question although my time
has expired and I'll be leaving.
Ms. Prothro, your statement was a bit vague on support to small
communities. Does EPA support forgiveness of some amount of
loans for needy communities or grant assistance or what?
Ms. Prothro. The Administration is continuing to examine the
possible approaches for needy cities. Eor small communities, how-
ever, the request that the President made for additional funding
for both grants and loans from the Rural Development Administra-
tion is the answer, we believe, for the long term. There is a consid-
erable increase there for communities that are in rural areas below
10,000 and SRE assistance does provide considerable subsidy in and
of itself. Given that it can be provided at zero percent interest, it is
in essence a 40 percent grant subsidy over a long term.
Senator Baucus. I'd just encourage the administration to look,
not only at Boston, but also at smaller communities. They are both
needy. It is true the Boston Harbor is needy, there is no doubt
about that but Boston itself is needy, but it is also true there are
small communities that are equally stressed. I encourage the ad-
ministration to work with the Congress to find a solution to that
problem as well.
331
Senator Chafee?
Senator Chafee. Mr. Chairman, I note that two of our colleagues
have joined us, Senator Kempthorne and Senator Durenberger. If
they have statements, now would be a good time. I know that Sena-
tor Durenberger wants to greet his fellow Minnesotan.
OPENING STATEMENT OF HON. DAVE DURENBERGER, U.S.
SENATOR FROM THE STATE OF MINNESOTA
Senator Durenberger. Thank you very much.
I express to you and the Chairman my regrets on not being here
earlier, and to the members of the panel as well. We were marking
up the clinic access bill.
When I think back to the last reauthorization of the Clean Water
Act, the one we completed in 1987, the issues that I recall most
clearly are the formula for the SRF grants, nonpoint source pollu-
tion, and stormwater permits. While reviewing the materials for
this hearing, I can see that participation in the last reauthorization
will prove beneficial as we work on this new bill. The issues are
still the same.
S. 1114 would substantially reduce the portion of SRF dollars
that get allocated to my State of Minnesota. All of the States of the
Great Lakes region, with the exception of New York, would be
losers. Hundreds of millions of dollars now allocated to water qual-
ity projects in the Great Lakes would be redirected to other regions
of the country. Mr. Chairman, these are the same points I made
when the clean water bill was last reported out of this committee.
I called the SRF formula in the bUl reported by the committee in
1985, the moral equivalent of the lamprey eel. That bill brought a
filibuster on the floor from other Great Lakes Senators and it was
uniformly opposed by House members in the conference and com-
pletely overturned and the conference restored with the minor
modifications. The formula was written in 1981.
One can draw some lessons, I hope, from that experience. No one
will deny that the distribution of the dollars among the States
would change as needs change but formula changes that have no
foundation in policy are likely to fail. The SRF formula proposed
by this committee in 1985 was nothing more than a blatant grab
for bucks with no policy justification.
For instance, I recall that one of the factors in that formula was
the inverse of the cube root of some obscure EPA statistic. Formu-
las like that will just not pass for policy.
I'd like to work with the leadership on this committee and I com-
pliment both the Chair and the ranking member as strongly as I
can for their work in getting this bill before us. I'd like to work
with you to assure that the distribution of SRF dollars is fair and
justified in all cases by good policy considerations.
I will recognize the need for change but I also expect that
changes that reduce the money coming into my region of this coun-
try will only occur if they are going to meet more pressing water
quality problems elsewhere.
Senator Chafee [assuming Chair]. Senator Kempthorne, did you
have statement?
332
Senator Kempthorne. Mr. Chairman, this is a very, very impor-
tant issue that we will be dealing with and so I too have questions
that I will be posing to the members of the panel and would just
note that I was a bit late because of conflict of schedule with the
Armed Services hearing. I'd note that there is a Senate Reform
Committee that has been taking testimony on suggested reform
and I intended to appear and testify on the frustrations of conflict
of schedule, but I had a conflict of schedule.
Senator Chafee. I must say it's very nice having Senator
Kempthorne on this committee because, as everyone knows, he h£is
dealt with these problems firsthand as a Mayor of a large city, so
we are delighted to have your expertise here.
Let me ask the panel about Davis-Bacon. As you know, any time
the Federal Government provides monies we impose mandates that
require adherence to the Davis-Bacon Act which means pa5dng sal-
aries at the so-called prevailing wage which, in nearly all in-
stances, is considerably higher than otherwise.
Mr. Smith, in his testimony suggests we repeal Davis-Bacon man-
dates so that we can get more accomplished with the same dollars.
How do you feel about this. Mayor Fraser?
Mayor Fraser. Our organization has favored the repeal of that
Act.
Senator Chafee. Mr. Adler, I suppose you're not involved in this?
Mr. Adler. That's correct.
Senator Chafee. Mr. Wagner?
Mr. Wagner. Speaking for AMSA, we don't have a position on
that subject. Senator, so I can't really respond. However, coming
from New York, I would offer the opinion that there are many
other restrictions and requirements in the SRF program that we
think should be looked at as well that are onerous and really pre-
venting people from getting these loans in an expeditious way.
Senator Chafee. Ms. Prothro?
Ms. Prothro. We have not supported a change in the general ap-
plicability of Davis-Bacon, but we have been looking at whether or
not it would be appropriate to provide some kind of an exemption
for smaller communities. So we'd like to work with you on that.
Senator Chafee. Mr. Adler, back to this subject of stormwater
and the permits that would be required. Here is the situation as we
looked at it. You devoted a lot of attention to stormwater. If that
were the only question, we might well agree with you but here is
the situation. We've got a whole series of unresolved water quality
problems — nonpoint pollution from farm runoff, wetlands protec-
tion, combined sewer overflows, habitat loss, discharge of pollut-
ants that bioaccumulate in the food chain.
When you look at the water quality problems, stormwater
wouldn't seem to be the highest priority. The problem, under what
you're suggesting, is the reallocation of efforts under the Act and
resources likewise. Let me give you a little illustration and Mayor
Fraser has addressed this.
It's my understanding that it cost 180 cities under this $140 mil-
lion just to prepare their applications. We thought that is a lot of
money. That is the paperwork matter that the Mayor and Ms.
Prothro were addressing. It seemed to me that the approach we
333
took was a better one, particularly for the smaller cities under
100,000 and they follow a plan.
It isn't that they are let off scott free but they come forth and
they say what they are going to do — they are going to sweep their
streets x times a year; they are going to make these various ef-
forts— and that's the way we approached the thing. Yet you would
have these permits, whether they are general permits or specific
permits, it's a whale of a paperwork problem.
Mr. Adler. If I may dis£igree with your first point and agree with
your second point, we disagree that stormwater is not a priority
problem. Again, I'll refer to EPA's data — these are not our data —
that 2.5 percent of the land area, 18 percent of the impaired river
miles, 34 percent of the impaired lake acres, 62 percent of impaired
estuarine areas are identified under the nonpoint source assess-
ment. So nonpoint source pollution polluted runoff is a major re-
maining water quality problem but polluted urban runoff is a large
percentage of that pollution and we need to address that if we are
to restore the health of our urban waters, lakes and estuaries
around the country.
I do agree with you that we should not be spending more limited
resources on paperwork than on-the-ground control, which is why
we propose we look at things like general permits for smaller cities
or countjrwide permits for areas so that you don't have 50 smaller
communities apply for separate permits rather than a count)rwide
permit, taking advantage of economies of scale to address the prob-
lem.
So let's figure out a way to address the problem cost effectively
but not turn our back on the problem altogether.
Senator Chafee. We wouldn't think we were turning our back on
the problem.
Another thing that bothers me about all of this, and we talk
about it, but I'm not sure we do much about it. Mayor Fraser,
maybe you can say something about it. Is any innovation being un-
dertaken in connection with solving these problems? You're always
talking such big dollars that no one dares branch off and try some-
thing new because if it doesn't work, you've sunk a lot of money
into a failure. Are you familiar with innovative steps that are
being taken in handling any of these problems?
Mayor Fraser. Senator, I'm not technically up-to-date. I don't
follow some of the efforts that cities have made to deal with this
problem. I wanted to note in connection with what you were sa5ring
earlier, since I've been Mayor for over a decade, we've faced recur-
rent financial crunches and there has been the need to cut spend-
ing.
One of the things we did is we cut street sweeping. We used to
sweep our streets three times a year in our city. We went down to
two because it was one of the places we could save money. Our esti-
mate is it is going to cost us a couple of million a year just to
comply now with the kinds of efforts that will be needed to address
the stormwater run off.
Our view generally is that we don't think we know enough yet
about what will really work. That's one reason we want to move a
little more carefully here.
334
Senator Chafee. My time is up and I'll get back to you with that
same question, Ms. Prothro.
Senator Kempthorne?
Senator Kempthorne. Mr. Chairman, thank you very much.
Mayor Fraser, if we could continue the conversation with you,
you've indicated that the stormwater is not the highest priority in
this clean water issue. Have you, in your own city, or has the Na-
tional League of Cities come up with how they would prioritize the
issues themselves within the Clean Water Act?
Mayor Fraser. I'd like to say that we have but the fact of the
matter is that when I speak for the organization on this, I come to
it not having the depth of expertise that some of the other mem-
bers do or some of our staff do.
Part of what we're looking at is the continued addition of Feder-
al mandates that are making us do things-and whether it's the
ADA Act or dealing now with the problems of lead in water, or up-
grading sanitary landfills or financing the cleanup of toxic waste
sites, we're getting hit every time we turn around and that's one of
our biggest problems. That's one of our concerns with the storm-
water issue. It's partly a question that as we talk about cleaning up
the environment we have a lot of things to look at, and we are
looking at a lot of them. We're just not sure the stormwater issue
rises to the top of priorities. There are just too many other prob-
lems we're looking at.
Let me add that my own city, Minneapolis, and St. Paul are one
of a dozen cities around the world that have joined in a CO2 reduc-
tion project. We are engaging in extensive planning on ways to
reduce the emissions of carbon dioxide into the air.
So it is not that we are not environmentally conscious, we are
enormously conscious of it but our dollar problem is getting worse
every year. I see the administration saying, well, don't put so much
money into this, but the problem is more of it comes out of our
pockets.
The real difficulty is we're having to charge people without any
reference to ability to pay. Our combined water, sewer and solid
waste is running almost half of the average property tax bill now.
These are direct charges, so that a person who is in poverty pays
the same amount as somebody who is very wealthy. So the whole
thing is not working well. We are very sensitive to these added
costs.
Senator Kempthorne. How would you characterize the extent of
the problem of unfunded Federal mandates?
Mayor Fraser. A very large problem and growing every year.
Nobody thinks local government spends money very efficiently and
I've been wrestling with that problem for a decade and I keep look-
ing at other levels of government and figure we are doing pretty
well.
Senator Chafee. Don't look at us.
Mayor Fraser. Right.
[Laughter.]
Mayor Fraser. Our fiscal problems every year are getting tough-
er. Our police department wants to add more cops now because
we're not doing very well for families and kids in this country, so I
335
don't know whether we should have more cops or be treating
stormwater runoff.
Senator Kempthorne. Can you make a case that there may be
instances where you do not provide for the level of police protec-
tion because you are meeting a Federal mandate?
Mayor Fraser. Oh, yes. It's a balancing act and we have a wide
range of local responsibilities, and we are unable to deficit finance.
Senator Kempthorne. Don't ever start.
Let me ask other members of the panel, just to help me to deter-
mine, what should be the priority, if it's not stormwater? What
should be the priority as we consider the Clean Water Act? Mr.
Wagner?
Mr. Wagner. I'd like to jump to the mike on this issue because
AMSA has been a strong proponent for a while now of comprehen-
sive watershed planning. I think that is the message we'd like to
bring here. We're very pleased to see in S. 1114 the beginnings of a
framework that would allow planning comprehensively.
The reality is that not every water body suffers from the same
problems and those that have similar problems are not there to the
same degree in every case. What the comprehensive watershed ap-
proach would do is to assess that and if in fact there is a watershed
where stormwater is the greatest problem, then that should be at-
tacked first. If there is a watershed where it's the least of the prob-
lems or is not a problem, then it need not be addressed or could
wait on the back burner for an extended period of time.
Senator Kempthorne. So you believe the key should be the com-
prehensive watershed planning?
Mr. Wagner. Absolutely, yes. We'd like to work with the com-
mittee to even strengthen S. 1114 further in that regard.
Senator Kempthorne. All right. I appreciate that.
Anyone else? Mr. Smith?
Mr. Smith. Senator Kempthorne, I would agree in essence with
what Mr. Wagner just mentioned. Comprehensive watershed man-
agement planning is a mechanism by which to help establish those
priorities that can vary greatly from watershed to watershed and
cannot on a national scale, let alone on a State scale, identify one
problem as predominating or having higher priority. That is not
the only mechanism by which that can be done.
States are currently involved in a regular evaluation and moni-
toring process wherein the Congress, under Section 305(b) of the
Clean Water Act, instream monitoring is getting more and more
recognition as a means to determine not only where there are prob-
lems but where the resources are nationally.
Senator Kempthorne. My time has expired. Mr. Chairman,
thank you very much.
Senator Chafee. Senator Durenberger, Senator Wofford has a
time problem and if he could just give his statement and ask a
couple of questions?
Senator Wofford. Mr. Chairman, I'm delighted we're holding
this series of hearings and I'm very sorry that inescapable obliga-
tions cut in at both ends and I'm just here to pay my respects to
this panel whose testimony I will read and my old friend, the excel-
lent Mayor, Don Frsiser, and to thank you also for inviting Paul
Marchetti from Pennvest, our State Infrastructure Investment Au-
336
thority. It was started by Governor Casey while I was in his cabi-
net and I saw it grow and I saw it dramatically improve water
quality throughout the State and draw on the Federal-State Re-
volving Loan Fund Program.
I commend to you Mr. Marchetti's specific suggestions for what
we can do. I've read them, I agree with them, and I'm just very
sorry that I can't be here for more of this very vital hearing. I've
read a good part of the testimony and we're on the right track.
Thank you.
Senator Chafee. Thank you.
Senator Durenberger?
Senator Durenberger. Thank you, Mr. Chairman.
Don, I want to welcome you and everybody else. Most of the wit-
nesses are people or organizations T^ath which we are very familiar
and very grateful.
Let me begin by endorsing Don Fraser's comments which does
not need to be done these days. I think the President of the League
of Cities is just the latest in a series of honors, if you will, although
I don't know that he looks at it that way when he undertakes the
tasks that have come Don Fraser's way over many years of public
service.
Don, you probably don't know but I spent a good part of Satur-
day riding around in a police car in south Minneapolis and I must
say, it's a revelation and an endorsement of what you've said about
the difficulties of being a Mayor, but also says something about the
difference in the way you can govern at the local level and how dif-
ficult it is to balance, and how dependent you are on the judgment
of people that are a part of city government. You don't see that at
other levels of government as you do when you have to run a city.
I know you take a lot of heat for things, those of you who are
mayors, and other people at the city level, but I must say, when I
look at the problems with which communities are faced in this
country, I don't envy you your position at all.
You've also been a member of an organization called the CSO
Partnership. Minneapolis has difficult and expensive combined
sewer problems, along with other cities, that are members of that
partnership. I wonder where the partnership is right now on CSO
policy that EPA has put out? Does Minneapolis, the partnership, or
the League still have problems?
Mayor Fraser. I think we feel very comfortable with the direc-
tion we're moving in with the CSO and the 15-year permit. In Min-
neapolis, we are about 95 percent separated. We have another $34
million of expenditures ahead of us. We think that issue is moving
well.
Senator Durenberger. I'd like to know what you think about
sewer rates compared to the cost of other municipal services. How
much, for example, does the average Minneapolis family pay for
sewer services? Do you receive a lot of complaints when you have
to raise rates?
Mayor Fraser. I don't have that broken out separately from
water because we bill them together. We bill the sewer rates based
on winter water consumption so in the summertime they are using
water to water the lawns and so on, we don't end up charging them
for sewer use.
337
I can just say those rates are going up steadily. The combined
water, sewer, sohd waste collections are running close to $50 a
month and that's about half the average property tax bill of a
homeowner in the city. Our city's family income has not kept pace
with the metropolitan income. We're experiencing a steady growth
of poverty in our city.
The problem with these kinds of charges is that they take no ac-
count of how able or unable someone is to pay them. It's not a very
good way to finance government but we are forced to do it because
we don't have any other choices.
Senator Durenberger. Is there an awareness level on the part of
the consumer?
Mayor Fraser. Yes. It seems almost every year we're raising
water rates, sewer rates and solid waste rates. We had been billing
quarterly and we think we have to go monthly now because the
bills are getting so large. There's quite a high level of consciousness
but people, in a way, are accepting because they don't see a choice
but it's becoming increasingly difficult for them.
Senator Durenberger. One of the observations that always
amazes and interests me about peoples' view of Minnesota is that
they see all the lakes and beautiful cities like Minneapolis that's
got lake after lake after lake and all the greenways connecting it
and nobody gives any thought that there is also some cost associat-
ed with protecting that kind of resource. Can you give us some idea
of the cost of doing that in a city like Minneapolis?
Mayor Fraser. I don't know that I can give you an overall cost.
As you know, perhaps better than others, one of the difficulties
we've been experiencing with the beautiful lakes in our city has
been the runoff into the lakes. The algae has been flourishing with
the fertilizers from the lawns being sent into those lakes, so our
park board has been trying to deal with that now for some time.
The one cost figure I can share with you is that we're estimating
that our stormwater requirements will add several million dollars
a year at the front end and they will continue to climb as we at-
tempt to address the broader issue of stormwater runoff.
Senator Durenberger. Maybe I'll ask both Don Fraser and Mr.
Wagner about the issue of permit fees. This bill is going to require
cities to pay fees to the States to fund State programs. Industrial
dischargers will also have to pay the fees. I'm just wondering
whether AMSA and the League of Cities support those particular
provisions in the bill?
Mr. Wagner. AMSA does support those provisions. We've said
for a while now that one of the problems with the Clean Water
Program is inadequate resources at the State level to manage the
program and to do the technical and scientific work for setting
water quality standards on a rational and scientific basis. So we
think this is a modest price that dischargers should pay to help
support those programs to get a more rational system under which
they are regulated.
Mayor Fraser. We're a little bit concerned about the fees. We
are charging customers the cost of our systems in the city and then
turn around and pay additional fees. That is an issue on which I
don't feel I can speak in any detail. What I'd like to do is have our
338
staff be in touch with the subcommittee staff and work on that
question.
Senator Durenberger. Thank you.
Senator Chafee. Thank you.
I was very interested in your testimony, Mr. Smith, in which you
said about the State Revolving Loan Fund that, through that you
could get projects done quicker and in half the time than a project
which received a Federal grant. Do you stand by that statement?
Mr. Smith. Yes, sir, we do. The time savings essentially comes in
due to the fact that States are able to work more closely with com-
munities in developing projects and determining which require-
ments of the Revolving Loan Fund apply and which don't. Under
the Grants Program, all that work only got us up to the point of
awarding a grant; there was no construction that followed that
until after bids had been let in the community and initiated.
Under the State Revolving Loan Fund, most States award loans
at the time of award of those bids, so there is a very small lag time
between the time the loan is awarded and the project actually
breaks ground.
Senator Chafee. I was going to ask you the last question, Ms.
Prothro about innovation. Your agency has some innovative
thoughts on how to handle all these problems?
Ms. Prothro. I think especially in the Stormwater Program, I
think that was the original context of your question, we really
would like to promote innovation. We don't think end-of-the pipe
controls are going to be the answer in the long term for storm-
water, although in some cases, it may be necessary.
I certainly agree with what Mayor Fraser said. We don't know
exactly what's going to solve the water quality problems in all
cases, although we know we do have water quality problems from
stormwater. We think in some cities, for example, it's as simple as
eliminating illegal connections to the storm sewers, making sure
that domestic sanitary waste is not going into the storm sewers. In
other cases, maybe the possibility of using pollution prevention ap-
proaches and management programs of that sort may prevent the
pollution from getting into the storm sewers in the first place.
So we really do want to promote a lot of innovation in this area.
That's one of the reasons, as I said in my oral testimony, that we
think some delay in the application of the water quality standards'
numeric limits might be appropriate and reasonable here while we
work on this and don't unnecessarily rush to solutions that in the
long term may be expensive and not as effective as a prevention-
based approach.
Senator Chafee. One of the things that our bill contemplates is
that instead of these permits being required for the smaller cities,
that there would be a plan they would follow, perhaps street
sweepers going twice a year. I must say I'm for that but at the
same time, I don't think I've seen a street sweeper in the past 10
years. Do they still exist or have they gone the way of the horse
collar, or do you know? Mayor? I remember those great things that
looked like a tank that came down the street with brushes, and
maybe I'm just not around when they are there but I'd be willing
to give anybody a dollar that could show me a street sweeper in
339
the City of Washington. I suppose that wouldn't apply to you in the
City of Minneapolis, Mr. Mayor?
Mayor Fraser. We'd collect your dollar in Minneapolis.
Senator Chafee. You would?
Mayor Fraser. Yes.
Senator Chafee. Are they at night? When do they function?
Mayor Eraser. We have sweepings now twice a year, one in the
fall after the leaves have fallen because if the leaves get carried
into the system, then they clog things up, so we attempt to clean
the streets after the leaves have come off the trees and then we
have usually winters with lots of snow and debris, so in the spring-
time we also sweep a second time.
Senator Chafee. I must say it must be very hard with the
number of automobiles we have parked along the curbs, so how can
the street sweeper do his job?
Mayor Fraser. They are posted. We post signs and we do pieces
of the city each day.
Mr. Abler. Senator, if I could jump in. I don't want to minimize
street sweeping's importance but I agree with what Ms. Prothro
said about prevention over end of pipe treatment. We would view
end of pipe treatment as the least preferable stormwater solution.
We should begin with site design type of practices that minimize
runoff to begin with.
I'd cite the example of Davis, California which led the way in the
1970s and 1980s with innovative site design practices as a way of
preventing stormwater control and found that stormwater control
saves money for the city in the long run. Flood control, where you
have to build expensive capture, collection and then treatment sys-
tems is very expensive. That's why we believe we need to get the
newly developing areas into the innovative, prevention-oriented
stormwater programs before the development has occurred. It will
cost us more to collect the flood water and to treat it later than to
prevent it to begin with.
Senator Chafee. Okay, Mr. Adler.
Thank you all very much for coming. We appreciate it.
We'll now move to the next panel of four witnesses and if they'd
come forth promptly.
This panel consists of Ms. Terry Agriss from New York State;
Mr. Kenneth Bruzelius; Mr. Paul Marchetti; and Mr. Ronadd
Marino.
Ms. Agriss, you go first. I will say I will have to be quite stern
about limiting you to five minutes. We are running short of time
here and I want everyone to have their chance.
Ms. Agriss, why don't you proceed?
STATEMENT OF TERRY AGRISS, PRESIDENT, NEW YORK ENVI-
RONMENTAL FACILITIES CORPORATION, REPRESENTING THE
COUNCIL OF INFRASTRUCTURE FINANCING AUTHORITIES
Ms. Agriss. Thank you very much. Senator.
I appreciate the opportunity to appear before you today. My
name is Terry Agriss. I'm the President of the New York State En-
vironmental Facilities Corporation. I also have the privilege this
340
year to be the President of the Council of Infrastructure Financing
Authorities and I'm testifying on their behalf today.
We are very pleased that the State revolving funds have been es-
tablished in all 50 States and also Puerto Rico. As of June of 1992,
over $6 billion in grants had been received by the States for the
State revolving funds. Including State match and the leveraging
that we've been able to do as of June of last year, $10.7 billion in
loans had been made from State revolving funds throughout the
country. That was on behalf of 1,363 projects at that time and
we've been very busy ever since; we are updating that survey even
as we speak.
One of the interesting things about the State revolving funds is
they have been able to finance not only the sewage treatment fa-
cilities themselves, but we have been able to be creative in many
instances so that we have been able to finance combined sewer
overflow projects, stormwater control projects, and also nonpoint
sources of a variety of kinds.
One of the things that we would strongly urge the committee is
that with the reauthorization of the Clean Water Act that you
remain flexible and that you allow the States to continue to be as
creative as they have been, on the financing side and we would
hope, as well, on the project facilities side.
The SRFs, we believe, are working very well, but we also believe
that there is a significant need for continued funding and we ap-
preciate the levels that are included in S. 1114. As you know, EPA
estimates that over $100 billion worth of projects still need to be
constructed and completed and, in fact, we believe the current
amounts of money that will be available through the SRFs are of
great concern. The Administration, we believe, had intended for
the SRFs to continue at $2 billion a year and we are concerned
that the number might be significantly smaller as we look into
1994.
One of the reasons for our concern is that we believe that the
SRFs do have the ability, after they are fully funded, to indeed
meet the needs that have been identified, notwithstanding the size
of the need. In our analysis, we have looked at the funds continu-
ing to be capitalized at $2 billion a year. If we did that for the next
12 years, we believe the funds would be fully capitalized. At that $2
billion a year level for 12 years, we would be able to finance more
than $133 billion worth of projects over the next 20 years. That's a
significant amount of money; it's obviously well more than grants
would ever be able to finance at similar levels.
In fact, what we see now is that many States have gone to lever-
aging. We expect that 60 percent of the monies in the SRFs
throughout the country will be leveraged in a very short period of
time and that can allow us to fund enormous numbers of projects.
Senator Chafee. Could you repeat that? What were your assump-
tions to get to your sums?
Ms. Agriss. Yes. If the funds were to be capitalized at $2 billion
a year for the next 12 years —
Senator Chafee. By capitalized, you mean if the funds were to
continue at the rate of $2 billion a year?
Ms. Agriss. That's correct.
Senator Chafee. Keep going.
341
Ms. Agriss. That over the course of the next 20 years, we would
be able to finance $133 billion worth of projects so that would be
looking at $2 billion a year for the next 12 years or $24 billion. But
because of the revolving nature of the funds and our ability to le-
verage those funds, we would in fact be able to do $133 billion
worth of projects.
Senator Chafee. What is the next step between your 20 years
and your 12 years?
Ms. Agriss. What we're saying is that after 12 years, you would
no longer need to continue capitalizing the funds.
Senator Chafee. Capitalize meaning?
Ms. Agriss. Appropriating monies for them.
Senator Chafee. Why did you mention 20 then?
Ms. Agriss. We're indicating that even after you stop appropriat-
ing money for the funds, because the funds revolve in the SRFs, we
would continue to be able to finance projects and with their revolv-
ing nature and with leveraging, we would be able to do $133 billion
in project financing.
Senator Chafee. So with $24 billion of Federal funds?
Ms. Agriss. That's correct.
Senator Chafee. Over 12 years, you could stretch it out or keep
it active for 20 years and you'd leverage to a total of 160?
Ms. Agriss. $133 billion. That's based on the State matching for
the revolving fund plus the local communities putting some money
in through loan repa5mient.
Ms. Agriss. That includes the 20 percent State match, it also in-
cludes some modest assumptions on how much interest earnings
would go into the funds. We've assumed that the funds would earn,
on average, 1 percent a year on their monies and also that for
loans that are made with the direct capital in the funds, they
would receive a 2 percent interest rate on them.
We can give you the details. I'd be happy to provide them to the
committee.
Senator Chafee. You've got this in your testimony, extrapolating
the subsidy and so forth. I think you explain it pretty well.
Ms. Agriss. There's a chart on the last page, I think that helps
in giving all these numbers.
Senator Chafee. Fine.
You can have a little more time because I took your time.
Ms. Agriss. Very briefly and to summarize my testimony, we do
believe the SRFs provide very significant benefits. They do provide
low interest to municipalities. Some people have indicated this is
not quite as good as grants. We've done analyses that indicate, par-
ticularly for communities where many elements of their projects
are not grant eligible, the loan program can in fact not only com-
pete, but in fact, in many instances, surpass the benefits that a
grant program at 55 percent would provide.
Just a couple of other numbers, not to confuse anybody, but the
State revolving funds frequently are saving somewhere on the
order of 2.5 percent of the interest rate, so instead of a 6.5 percent
rate, the loans would be made at say 4 percent. For a $10 million
project using this kind of analysis, the savings to the municipality
on the $10 million project would be $3.1 million over the full 20
years of the loan.
342
If you extrapolated those numbers to the total loan pool that
we've made so far — ^the $10.7 billion that had been loaned out as of
last year — the savings are anticipated to be somewhere on the
order of $3.3 billion to the communities that had received those
loans.
Briefly, I would like to note we are very pleased that in your bill,
S. 1114, there is a provision for hardship communities. We believe
that most people look at those hardship communities primarily as
small communities. We feel very strongly that small communities
can be benefited if they have financial hardship through what we
call a principal subsidy. Rather than providing a direct grant to
those communities, we believe the SRFs can be used creatively so
that only interest earnings on the SRF funds would be used to pro-
vide what might be called principal writedowns to those small com-
munities.
It has the effect of reducing the amount of money that a small
community would have to repay to the State revolving loan fund
but it also would keep the actual amount of money originally in
the fund intact so that you don't diminish the value of the fund
over time.
Senator Chafee. You've used up the bonus time I gave you.
Ms. Agriss. If could have about 30 more seconds, I'd just like to
note that for larger communities, we believe loan stretchouts
beyond the 20 years are the appropriate way of dealing with hard-
ship.
Finally, I would strongly suggest that technical assistance is
enormously important, particularly for small communities. We ap-
plaud the committee's efforts and suggestions of how to provide fi-
nancial and technical assistance.
We would look forward to working with the committee on how
that might be refined and perhaps improved in order to not dimin-
ish the size of the funds.
Very finally, I would urge the committee to stress the need for
coordinating with other Federal agencies. The SRFs can work
closely with RDA. I believe Ms. Prothro's testimony, to the effect
that there is a lot of money in RDA, should be looked at carefully
in conjunction with the SRFs.
Thank you very much.
Senator Chafee. Thank you very much. We appreciate it.
I notice that Mr. Marchetti is on your board and he works with
you on the subject.
Mr. Bruzelius is here and perhaps Senator Durenberger wanted
to greet him.
STATEMENT OF KENNETH BRUZELIUS, PRESIDENT, RURAL
COMMUNITY ASSISTANCE PROGRAM, NEW PRAGUE, MINNESOTA
Mr. Bruzeuus. Good morning, Mr. Chairman and Senator
Durenberger. I am pleased to be here to testify this morning.
My name is Ken Bruzelius. I'm the Executive Director of the
Midwest Assistance Program in New Prague, Minnesota.
Senator Chafee. Where is New Prague?
Mr. Bruzeuus. That is just south of the Twin Cities about 45
miles and has a great bed and breakfast, the Schumacher Hotel.
343
[Laughter.]
Mr. Bruzeuus. A little PR.
The RCAP network includes national, regional, State and local
offices serving all 50 States and Puerto Rico. Over the last 20
years, RCAP has provided on-site wastewater technical assistance
to small rural communities. The communities assisted by RCAP
are primarily very small communities with populations under
3,500. They are disadvantaged communities, often communities
with minority or underserved populations.
For example, Newburg, a community in Missouri, with a popula-
tion of 598 was issued an abatement order by the Missouri Depart-
ment of Natural Resources as a result of longstanding documented
problems at its wastewater treatment facility. The enforcement
action required that Newburg take immediate action to resolve
these problems without consideration of the costs to the residents.
The Midwest Assistance Program was able to work with the com-
munity of Newburg to provide an innovative, technical solution to
the problem. Unfortunately, it is very difficult for States to accept
innovative solutions. There does not seem to be a well-founded
process for validating such solutions so that they can be accepted
by the regulators and by the engineers.
As you know, more than 29 million Americans lack access to
basic waste water treatment and disposal services. A study con-
ducted by the North Carolina Rural Community Assistance Pro-
gram found that nearly 250,000 residents of that State still use a
privy, drain their raw sewage into streams, or lack running water.
The same is true in many other States and it is reported that more
than 80 percent of all communities in violation of sewage treat-
ment requirements are in small, often rural communities.
A recent study by the Center for Community Change indicated
that States find small community compliance problems with the
following problems: the failing on-site septic systems, poor oper-
ation and maintenance, inadequate level of treatment, and exces-
sive infiltration and inflow. Those responses confirm EPA needs
survey findings of similar problems.
Senator Chafee. Mr. Bruzelius, youVe got a long ways to go and
you've got short time.
Mr. Bruzeuus. And I'm going to move.
In fact, we would like to suggest to you some recommendations
in terms of the legislation. I would like to thank Senator Baucus
and Senator Chafee and this subcommittee for their willingness to
avoid the one size fits all approach.
As I mentioned, RCAP works with small communities. We would
recommend that States be required to set aside at least 15 percent
of the total SRF each year for projects serving small, disadvan-
taged communities. States should be permitted to use SRF match-
ing funds to provide grants for planning and design assistance and
other up front costs to small systems whether or not they are suc-
cessful in getting a loan. No one project should receive a loan from
the State's SRF in an amount greater than 25 percent of the
State's total SRF in a given year.
States should be permitted to extend low interest loan payments
for perhaps up to 40 years for projects in small, disadvantaged com-
munities, or find other means to subsidize the costs. In addition to
69-677 0-94-12
344
the technical assistance by States that is included which we strong-
ly support, we believe there should be national third-party techni-
cal assistance available specifically targeted to communities with
populations under 3,500 and to disadvantaged communities.
RCAP favors the repeal of easement of the Davis-Bacon, especial-
ly as it relates to contracting and construction in small rural com-
munities. We have found that does in fact add to the cost of
projects.
We certainly thank you for the opportunity of testifying and
would be happy to work with the subcommittee in regards to items
within our testimony and within the bill.
Thank you.
Senator Durenberger. Mr. Chairman, can I ask just one ques-
tion of Mr. Bruzelius?
Senator Chafee. Sure.
Senator Durenberger. You talked about the compliment to the
two main authors of this bill on getting away from one size fits all
and that was an appropriate comment.
One of the things the bill does do in that regard is it opens up
the SRF program to septic systems. Instead of having central
sewers and POTWs, a city can go to a septic tank on site to manage
protection of health and water quality. As I understand it, the city
would bill the homeowners for that particular service and out of
that repay the SRF loan. Could you tell us your perspective on that
kind of option?
Mr. Bruzeuus. We certainly support and believe that kind of
option can work. However, we also believe that there are many
rural communities that cannot effectively build sewer systems,
even under the septic tank and alternative treatment methodology
with just a loan, that some subsidy needs to be provided in many
rural, low income communities to enable them to solve their prob-
lems and in other communities, where there is high groundwater,
where there are other circumstances, they really need to be moving
from the septic system to a more managed community wastewater
treatment system.
Senator Durenberger. Your point is the cost of putting in a
septic system at a certain level or size of community or economic
status of the community or something like that is still too high so
that it can't be paid back through some kind of fee?
Mr. Bruzelius. An example is the community of Garrison, Min-
nesota with which you are very familiar, I'm sure, where it is a
resort community and yet the residents there are rather low
income, many elderly people, and they have individual septic sys-
tems, but there is high groundwater, there is concern about Lake
Mille Lacs, there are many problems basically the State is sa3dng
you need to take that discharge into a different watershed in order
to protect the lake. Those types of situations become very expen-
sive for the community, so there needs to be alternatives.
Senator Durenberger. That part, I understand, but where a
septic system would be an acceptable alternative, is it still too
costly in some communities?
Mr. Bruzeuus. It really depends on where you can take the ef-
fluent from those septic systems. Just to have on-site treatment in
345
many areas doesn't work and in some cases where it does work,
yes, I'd say a loan may help.
Senator Durenberger. Thank you, Mr. Chairman.
Senator Chafee. Mr. Marchetti who is Executive Director of the
Pennsylvania Infrastructure Investment Authority in Harrisburg,
Pennsylvania.
Mr. Marchetti?
STATEMENT OF PAUL MARCHETTI, EXECUTIVE DIRECTOR, PENN-
SYLVANIA INFRASTRUCTURE INVESTMENT AUTHORITY, HAR-
RISBURG, PENNSYLVANIA
Mr. Marchetti. Thank you, Mr. Chairman.
Good morning. As you pointed out, my name is Paul Marchetti.
I'm Executive Director of the Pennsylvania Infrastructure Invest-
ment Authority, otherwise known as PENNVEST.
What I'd like to do this morning is to briefly describe the PENN-
VEST program and also offer some comments on Senate Bill 1114
that I think the subcommittee might want to consider £is this bill
moves forward.
As Senator Wofford pointed out, PENNVEST was created in
1988 by Governor Casey in order to address a large number of
drinking and waste water problems that existed at that time across
the State of Pennsylvania. About a third of our sewer systems were
under limitation bans, connection bans, and we led the Nation in
the outbreak of waterborne diseases at that time.
Since PENNVEST was created with approximately $1 billion in
funding, three-quarters of which came from the State, and the bal-
ance of which came from the SRF Program, we have been able to
fund approximately 650 drinking water and waste water projects
across the Commonwealth with a total funding of slightly over $1
billion.
In 1992, a referendum passed overwhelmingly in Pennsylvania
that gave us an additional $350 million in funding capacity and
also gave us the ability to fund stormwater projects.
Most of our assistance is in the form of low interest loans. We
average about 2.2 percent in our interest rates. We have about 5
percent of our assistance in the form of grants which we fund
through State appropriations. The majority of our funding goes to
larger systems, although approximately 30 percent goes to smaller
systems which are defined as those with 1,000 connections or less. I
should point out also that they constitute over half of the recipi-
ents of our loan and grant awards. Small systems also receive
about 75 percent of our grant assistance.
Probably the primary characteristic of PENNVEST which is an
attribute reflected in S. 1114 and that I commend the subcommit-
tee for putting into this legislation is flexibility. We have a lot of
flexibility in the State program, some of which is lacking in the
SRF Program. I'm pleased to see that some of that flexibility is
now being written into this legislation.
In terms of my comments on S. 1114, I'd like to express my pleas-
ure to see that the loan-based approach that I think has been suc-
cessful in Pennsylvania as well as other States in the SRF Program
346
has been maintained. I think that has been a very successful en-
deavor and I am glad to see that it continues.
Among the provisions I would like to comment on briefly in
terms of funding, the needs and the SRF funding needs in Pennsyl-
vania are over $3 billion. If we got the funding that is proposed in
this bill along with what we have received already, we would get
approximately $1 billion between 1989 and 2000. As I'm sure you
hear from many States, we would like to see that funding in-
creased if at all possible.
Second, as far as the principal writedown provision goes, as it is
incorporated in this bill, I am in favor of that. I think it addresses
the needs of many small and economically disadvantaged commu-
nities that have a very difficult time in meeting the user rates that
are otherwise required to pay for these projects. I think the flexibil-
ity that the States would have to use a portion of the SRF as a
principal writedown in order to provide some grant assistemce to
these communities would be very helpful.
Third, I support the inclusion of land costs as an eligible item.
We now do that with our State program and I think it's entirely
appropriate that be eligible under the SRF. As far as the leverag-
ing provision proposed in this legislation, I would urge the commit-
tee to not require that. I think leveraging is a good idea, it certain-
ly is true for Pennsylvania, but it's not necessarily true of every
State. Leveraging, although it's advantageous, it does not increase
the total capacity of the fund but rather moves some of that fund-
ing sooner into the present rather than having it available later. I
think States should have the ability to decide when they want to
time their SRF funding.
Finally, I would like to encourage the inclusion of an additional
provision and that would be allowing extended term loans in cases
where user rates are still very high. I think the 20-year restriction
should be relaxed to perhaps 30 years or at least something coinci-
dental with the design life of the facility being funded.
That concludes my comments. I'll be glad to take any questions.
Senator Chafee. Thank you, very much. That was good testimo-
ny.
I was interested in one comment you made in which you said,
"Pennsylvania has the largest rural population in the country."
I'm stunned at that.
Mr. Marchetti. So was 1. 1 was surprised to hear that.
Senator Chafee. I'll give you another stunner. I was Governor
when Bill Scranton was Governor of Pennsylvania and I remember
him saying once that there are more deer killed on the roads in
Pennsylvania than in any other State or maybe there are more
deer in Pennsylvania than any other State in the Nation. Does that
ring a bell?
Mr. Marchetti. That could very well be true.
Senator Chafee. It's a big State with a lot of rural and wooded
areas.
Mr. Bruzelius, I've been pondering over your statement that
250,000 residents of the State of North Carolina lack indoor plumb-
ing. I checked on the population of North Carolina. What do you
think it is?
Mr. Bruzeuus. I do not know, sir.
347
Senator Chafee. It's 6,037,000, so 250,000 residents without
plumbing is 4 percent of the population. Do you think you're accu-
rate?
Mr. Bruzelius. I believe so. The 1990 Census deals with sub-
standard housing and one of the primary characteristics in the sub-
standard data is lack of central water or sewer services.
Senator Chafee. And also your 50,000 households in Virginia
seems high but that leads us into Mr. Marino.
[Laughter.]
STATEMENT OF RONALD MARINO, VICE PRESIDENT, PUBLIC FI-
NANCE DIVISION, SMITH BARNEY, HARRIS, UPHAM & CO., INC.,
REPRESENTING THE PUBLIC SECURITIES ASSOCIATION
Mr. Marino. Thank you, Mr. Chairman.
My name is Ron Marino and I'm a Vice President in the Public
Finance Division of Smith Barney. I'm here today to testify on
behalf of the Public Securities Association. While I'm doing that,
I'll also try to distinguish my position from theirs.
I think basically what I am here to try to do today is look at
some of the fundamental public policy and public finance issues.
I'm certainly not an environmental systems sinalyst or an engineer,
so I really don't know the technology but I can talk a little bit
since I worked in New York City government for 8 years and
public finance for the last 6 about some of the principles embodied
in the legislation.
I think fundamentally. Senator, there is an intense competition
growing throughout the United States over Federal aid. It's cer-
tainly not an insight, we know that. We know there is less Federal
aid, more pressures on the State and in turn, more pressure on the
counties, and in turn, more pressure on the cities to balance the
various equities and interests that Mayor Fraser mentioned earlier.
Usually when you try to balance those interests and equities, in-
frastructure loses out. It certainly isn't chic, it's not sexy, and
unless an intense storm hits Florida, then we quickly see our de-
pendency on a strong infrastructure system or the bulkheads break
in the City of Chicago and half of Chicago gets flooded, or a bridge
collapses over the Mohawk River on the New York State Thruway,
then we suddenly understand the importance of the infrastructure
system.
Most basic I think is the Federal role in this. You've selected a
very creative Federal role through the revolving loan fund. Revolv-
ing loan funds I think allow a State, and in turn the counties and
localities, more flexibility in the grant programs. It's a self-insulat-
ed source of capital that will actually grow over time as the loan is
repaid. It's a more efficient system. As Mr. Smith said, the loan
program actually gets the construction started faster than the
grant program. It's a vehicle to make feasible projects more feasi-
ble and unfeasible projects, because they can't meet the market re-
quirements for capital, makes those projects feasible. It invests less
public dollars as you go through the system of making more capital
available.
348
Last, it gives more self-sufficiency and a more efficient decision-
making process as we go through the system of allocating the pri-
orities within a State, in a county and last to the city.
In 1987, we were told that there were $83 billion of need just in
this one area of wastewater and also competing needs in other in-
frastructure aresis.
As Terry said in her testimony and Paul in his, while we can't
meet that $83 billion, what we do need is the basic legislative
design to allow flexibility on the local level, to allow these two
States, New York and Pennsylvania with very distinct programs, to
aggressively leverage those dollars.
Some of the provisions in this bill tend to help that process as we
move forward over the next 5 or 6 years. Allowing a loan term to
be extended to the period of probable usefulness of the facility I
think is quite important. Allowing land acquisition is also impor-
tant.
I also understand in talking to some of the staff and in discuss-
ing with Senator Graham, that the Committee is also interested in
trying to increase the velocity of the loan. How can we get this
loan processed quicker and get the loan repayments back into this
local bank that each State will create? Again, I think flexibility
will be the key word here. You will need to look at various State
models and allow, as the present legislation does, for this money to
be used only for construction projects or in conjunction with con-
struction or with the long-term takeout.
What you need to do is to look at the credit quality and the abili-
ty to pay of the counties and the localities. To mandate certain re-
quirements would make it very difficult and indeed make the pro-
gram unusable for counties of a low income nature or for counties
that have a low credit quality. We need to assist those counties
through some credit mechanisms. Indeed, it might sound counter
intuitive that allowing for a principal writedown, actually lowers
the cost for the entire financing because the rating agencies look at
the weakest link. If you can help the weakest link, you will up-
grade the overall number of projects and lower the cost of those
projects being financed.
Senator Chafee. I'm not sure how you differ. You said you dif-
fered from Ms. Agriss.
Mr. Marino. No, I wasn't differing. I said I was supporting what
she was sajdng on that particular point.
Senator Chafee. Okay. Go ahead.
Mr. Marino. A model you might look at in terms of the Federal
mandates is the Intermodal Surface Transportation Efficiency Act
where this committee also has jurisdiction over that legislation. In
that model, in the revolving loan fund, when the loan is recycled
and repaid, msmdates are eliminated for Davis-Bacon for MBE,
WEE, certain Federal construction requirements. That may be a
way of incenting localities and States to use this money and then
to be free from certain requirements. You want to eliminate all the
vestiges of Title II.
Last, Mr. Chairman, let me say this because of your interest, I
live in the City of New York in the Borough of Brooklyn about a
mile-and-a-half south of the Brooklyn Bridge. The city actually has
mechanical sweeping four times a week, two times on the north
349
side, two times on the south side, Monday, Thursday, Tuesday,
Friday, and we use mechanical, GM and Mercedes-Benz.
Being a former city official, I'm sure we can arrange for a tour.
If you're ever in the area, we'll get you down there.
The other thing is we actually had a program with 125 manual
sweepers that would do the intense commercial areas of Manhat-
tan and the boroughs but that's been eliminated due to the fiscal
situation of the city.
Senator Chafee. Manual, you mean just pushing?
Mr. Marino. Right, the guys with the brooms and the cans.
Those guys were out there doing it.
Thank you. Senator, for the opportunity.
Senator Chafee. Thank you, very much.
Mr. Marino, as I understand your testimony, you are supportive
but the only problem you had was some of the mandates that go
along with the Federal program, correct?
Mr. Marino. I think that's one area, Senator, that you want to
provide flexibility and discretion. I think most States now have
quite strict requirements for environmental, for MBWE & WBE,
for local wage rates. You might want to utilize those State require-
ments rather than mandating Federal requirements. I think often
we lose sight of the balance between the three levels of govern-
ment. While it's important for the Federal interest, because you
have money in this program and you do have an interest in it, I
think at some point that interest terminates and you should allow
the State, the county or the localities' rules and regulations and
standards to be utilized.
Senator Chafee. What do you say about that, Mr. Marchetti?
Mr. Marchetti. I think I would have to support what Mr.
Marino is saying. In Pennsylvania, we have a very extensive design
process for sewer systems and review process. I think the States
generally do a good job of ensuring that this program functions in
a very efficient way. I think the States ought to maintain that
flexibility to do that on their own.
Senator Chafee. What do you say, Mr. Bruzelius?
Mr. Bruzelius. I certainly agree that those requirements in-
crease the cost of local projects and ways to take the Federal man-
dates off and make it more of a State or locality issue would help
to fund more projects and get more bang for the bucks.
Senator Chafee. All right.
Senator Graham may have some questions; if so, he will submit
them to you and you can respond for the record.
Senator Lautenberg has a statement he'd like included in the
record.
[Senator Lautenberg's statement follows:]
STATEMENT OF HON. FRANK R. LAUTENBERG, U.S. SENATOR FROM THE
STATE OF NEW JERSEY
I welcome today's hearing to review issues that are critical to my State and its
environment: sewage treatment funding and municipal pollution control.
We simply cannot achieve the goals of the Clean Water Act without adequate
sewage treatment facilities. While we have provided over $60 billion in Federal
funds for these facilities, the remaining needs are monumental.
The state revolving loan program, which this Committee initiated in the last
Clean Water Reauthorization, is making efficient use of limited Federal and state
350
funds for sewage treatment improvements. I support continuation of the funding for
this program. And I am pleased that S. 1114 would increase the authorization for
the state revolving loan program.
But with the large remaining needs, it's going to take more than Federal funding
to get the job done. A few years ago, Senator Bradley and I introduced legislation to
remove barriers to the privatization of sewage facilities. Last year, EPA announced
that it would be developing an initiative to increase privatization.
I hope that our witnesses today can give us their views on the role privatization
can play in meeting our sewage treatment needs.
One need which must be addressed is correction of combined sewer overflows.
CSOs discharge raw sewage, industrial waste, and floatables, polluting our water,
closing fishing grounds, and discharging garbage which winds up on our beaches.
I'm pleased that the environmental community and the metropolitan sewage agen-
cies have been able to negotiate a regulatory program for CSOs so we can get on
with the job of reducing the impacts that CSOs have.
I hope we'll see this same spirit of cooperation as we address the contentious prob-
lem of storm water control.
Senator Chafee. Again, thank you all very, very much for
coming. We appreciate it and it has been very helpful.
[Whereupon, at 12:15 p.m., the subcommittee was adjourned, to
reconvene at the call of the Chair.]
[Statements submitted for the record follow:]
STATEMENT OF HON. DONALD M. ERASER, MAYOR, CITY OF MINNEAPO-
LIS, MINNESOTA AND PRESIDENT NATIONAL LEAGUE OF CITIES
Mr. Chairman, members of the Subcommittee: I am Don Eraser, Mayor of Minne-
apolis and President of the National League of Cities. I am here today to testify on
behalf of NLC and the 16,000 cities and towns across the nation we represent on S.
1114, the Water Pollution Prevention and Control Act of 1993.
For years, the nation's cities and towns have been your allies in securing enact-
ment of national standeirds to protect our environment. The National League of
Cities worked with you and supported reauthorization of the Clean Air Act Amend-
ments of 1990; we rejected recent attempts to weaken the Safe Drinking Water Act;
we worked with you in establishing the State Revolving Loan Fund emd on Super-
fund.
For too long now the ability and capacity of local governments to absorb and im-
plement unfunded mandates has been dismissed and ignored by both the federal
and state governments. Tliere are many municipalities that want you to rescind the
overload of federal dictates. What that tells you in part is that municipal officials
feels sufficiently impacted by the federal deficit that we are no longer sure that it is
in our best interest to ask you to pay for what you mandate; the preference is that
you just stop mandating.
But, what you must also understand, is that these same mimicipalities have
reached the point where they are confronted with Hobson's choices: having to
choose whether to provide safe drinking water to their citizens or public access to
all handicapped individuals; whether to upgrade their sanitary Igmdfills to meet new
federal requirements or implement a federal mandate to control pollution from
stormwater run-off; whether to provide lead-free public housing or finance cleem-up
of toxic waste sites— ^aU of which, however worthy, are unfunded requirements im-
posed on municipeilities by the federal government. The resources to pay for it all
are simply not there.
Our financial constraints are different from yours not only in magnitude, but in
the very limited access local governments have to sources of revenue. We are con-
strgiined by state law in what we can tax, when we can tax, and how much we can
tax. Most municipalities have access only to limited portions of the most regressive
taxes; few municipalities share in revenues generated by income taxes and even
fewer are permitted to impose such a tax. And, unlike the federal government, we
are prohibited from deficit spending.
We are pleased to note that our untenable circumstances have at last been recog-
nized and that this committee's leadership — Senators Baucus and Chsifee — has
taken the criticsd first step toward restoring the governmental partnership that is
essential if we are to accomplish effectively our mutual national environmental ob-
jectives.
The priority Clean Water Act issues for the nation's cities and towns are substan-
tially addressed in your proposal:
351
• Clarification of Congressional intent and revisions of the stormwater manage-
ment program;
• Revision of the requirements for addressing pollution from Combined Sewer
Overflows; and
• A continuing federal financial commitment to municipalities to assist in imple-
mentation of Clean Water Act requirements.
The other issue in which we have a vital interest is how you resolve the current
conundrum on wetlands and we look forward to reviewing that proposal when it is
completed.
STORMWATER
The stormwater program has been a major issue for the National League of Cities
for over ten years. We have been to the Congress three times on this issue over the
past several years and in succession, the Senate, this Committee and the House
Public Works Committee have taken the initiative to delay implementation of the
program for the nation's smaller cities and towns. It has been, and continues to be,
unacceptable to local officials for the federal government to hold municipalities re^
sponsible to accomplish what no one knows how to do at a price that is absolutely
unaffordable. The bill pending before you at long last begins to address the real
issues facing municipalities in implementing a stormwater program.
What we believe has been poorly understood is that no one — not EPA, not the
Congress, not the environmental community — has ever made a credible case to mu-
nicipal officials that urban stormwater run-off is:
— first of all a priority problem of a magnitude deserving the investment of mil-
lions— if not billions — of scarce local dollars;
— second, an issue we can address effectively regardless of the resources invested;
and
— third, the major contributor of what, in effect, is a non-point problem, to ongo-
ing pollution in our rivers and streams.
For NLC, the bottom line on a stormwater amendment is no end-of-pipe require-
ments and S. 1114, at least for the foreseeable future, provides municipalities with
that absolutely essential relief. The provision in your bUl that imposes a ten year
moratorium on numerical effluent limits and water quality standards, cannot be
amended or deleted. It is not negotiable. You have taken an important step in the
right direction, a step which will keep much of the municipal community as your
allies in passing this measure.
It is also important for you to understand that while the provisions in S. 1114 are
a vast improvement over where we are now, the new proposal is not without signifi-
cant cost. Recent estimates by the American Public Works Association for the cost
of level 1 BMPs, that is, the least costly strategies to control pollutants in urban
run-off, is over $1.1 bUlion a year. That represents an average cost of half a million
dollars a year for the cities that will be required to implement a stormwater man-
agement program. And, the CZMA Guidance goes far beyond level one BMPs.
We would like to recommend several revisions to your stormwater proposal. First,
we would like you to include a legislated role for local officials in the re-write of the
CZMA Guidance and the development of any additional Best Management Practices
as they apply to municipal stormwater programs. Local officials are, after all, on
the "cutting edge" and the only repository of knowledge on this issue. The nation's
larger cities are, and have been, struggling with this program. We have already in-
vested significant local resources in stormwater management. Use this knowledge,
build on it, learn from it. Don't allow the expenditure of scarce resources reinvent-
ing wheels we have already thrown away because they don't work. Such an addition
to your bill would absolutely clarify that we are again peirtners, working together to
solve mutual national problems!
Second, we would propose you dedicate some federal resources to finding the tech-
niques that will accomplish the objectives of a stormwater management program.
We must begin to develop the knowledge about what works and what doesn't work
in controlling pollutants from stormwater, or we will be no further along ten years
from now in knowing the appropriate approaches to stormwater run-off. While we
have no specific policy on the matter, and are usually opposed to set-asides from the
SRF, you might want to consider an amount off the top for grants to municipalities
to test and assess new and innovative stormwater management strategies and pro-
grams.
We do not have the resources at the local level to invest in demonstrations that
may or may not work. And right now, we have no idea whether BMPs or any other
strategies will have any significant impact on the receiving streams. Certainly, we
352
have no information on whether numerical effluent limits are achievable, or what,
if anything, will get us to water quality standards. It is unfair to ask the citizens of
a given municipality to finance the research for what some perceive is a national
problem or to risk local resources on a program that may provide no benefit. We
cannot justify expenditures for experimentation to our local citizenry. That is a na-
tional responsibility. If you are serious about numerical effluent limits and water
quality standards for stormwater run-off than there must be a program to finance
the research, the trial and error, that will get us there, if such a feat is even possi-
We must take advantage of this ten year period to investigate how and whether
these requirements can be met. We would think it is self-evident that a body of
knowledge indicating whether a requirement is even feasible is essential before
moving forward to implement such a requirement.
Our third recommendation is to ask you to include "municipal industrial facili-
ties," within the system- or jurisdiction-wide permit. Under current EPA regula-
tion's municipally owned and operated "industrial" facilities such as sewage treat-
ment plants, municipal garages, airports must file separate permit applications. We
believe that if we are to be held responsible for pollutants in our stormwater run-
off, we will certainly have to address all sources of pollutants over which we have
direct control. By including municipal facilities in a city-wide permit, the same ob-
jective will be accomplished without the added expense of applying for additional
permits.
STATE REVOLVING FUND
NLC recently re-examined and developed new policy on the concerns of local gov-
ernment in the financing of our national goals in attaining and maintaining the na-
tional commitment to clean water. The Baucus-Chafee measure is again a signifi-
cant step in the right direction: a renewed federal investment in meeting Clean
Water Act needs; provision for grants to distressed communities; and an expanded
number of pollution control activities eligible for financial assistance.
We are most pleased to see your recognition that for some municipalities — those
whose citizens are facing unrealistic cost increases in water and sewer bills — compli-
ance with federal Clean Water Act requirements will be possible only if non-repay-
able sources of revenue are available. Allowing the states to use their matching
share for grants should— particularly in states that are experiencing severe finan-
cial constraints— facilitate broader opportunities for local compliance. We are disap-
pointed, however, that no portion of federal funds are made available for grant
funding to municipalities. ^^ ..i. i. x •
We also support your grant provision s broad reach and the recognition that it is
not only small communities that need grant assistance.
As currently draffed, my city would not qualify as a distressed community, but let
me assure you we are only half a percentage point away. Water and sewer bills in
Minneapolis are more than 50% of the average property tax liability.
NLC's policy also endorses expanding the activities eligible for federal financial
assistance under the Clean Water Act. We also commend you for including septic
systems as eligible activities for financial assistance.
I would, however, also reiterate our concern that some grant funds be made avail-
able for demonstration stormwater programs. Your bill proposes to deposit SRF
funds that remain unobligated after two years to the federal treasury. While we rec-
ognize such funding might ultimately prove to be unavailable or hopelessly inad-
equate, you might consider redirecting unobligated balances to a stormwater demon-
stration program rather than the proposed reversion to the federal treasury.
COMBINED SEWER OVERFLOWS
NLC strongly supports the committee's ratification of EPA's proposed CSO guid-
ance and your provision of authority to issue "long-term," that is, 15 year, permits.
As you may know, NLC was part of the negotiation that developed the proposed
guidance and although consensus was never achieved, we are generally satisfied
with the guidance. re ^ \^Tu■^
Mr Chairman, Senator Chafee, you are to be commended for your ettorts. While
undoubtedly there will be some of my colleagues who will believe you have not gone
far enough, we are thankful for your efforts to restore rationality to a process that
was getting out of hand and for your recognition that we are partners in helping to
attain our mutual environmental objectives. ^ , ■ ^ . r
I would like to request that NLC's Policy on the Clean Water Act be mclude tor
the record and to thank you for the opportunity to testify.
353
National League of Cities
Energy, Environment and Natural Resources
1993 National Municipal Policy
2.05 Water Quality And Supply
A. Problem
It is becoming increasingly apparent that no section of the country is immune to
the problems associated with both natural and man-made water pollutants. Urban
stormwater and construction runoff have long been recognized as major contributors
to water quality problem, and in many older cities, the existing sewer system with
deteriorating pipes may be one of the main causes of water pollution. The growing
concern over the introduction of toxic chemicals and pesticides into the environ-
ment and their impact on the ground water have added a new dimension to existing
problem.
New treatment plants are generating mountains of sludge to be disposed of, and
serious questions about land application practices encouraged by federal legislation
are being raised as the concern over heavy metals, organic chemicals, and pathogen-
ic organism grows.
There is increasing evidence of organic contaminants, viruses, and other disease/
causing organism in our nation's public water supplies.
Expanding industrial activity has resulted in the discharge of a wide variety of
synthetic organic chemicals into the rivers from which a large number of cities
draw their drinking water. Inspite of increasingly stringent controls on water pollu-
tion, small amounts of these chemicals have still been widely detected in the treated
drinking water of many cities. Several of these synthetic organic chemicals are
known as possible carcinogens, although the exact extent of the public health
hazard posed by quantities of those chemicals present in cities' drinking water is
not fully known.
The limited availability of water in all parts of the country also appears to be a
growing and difficult problem.
Individual cities and in some cases entire regional water basins are feeling the
constraints of limited water supplies. In some places, constraints have become true
shortages. New reservoirs or diversion projects can no longer be solely relied upon
to solve the problem. The number of possible sites, the environmental disturbances,
the financial costs, and the absolute supply of water severely limit these structural
solutions. Nor can greater amounts of groundwater be relied upon. In some locales,
ground water mining has led to exhaustion of supplies, diminished stream flow, and
land subsidence, and salt water intrusion.
Water has not traditionally been subject to price-determined allocation. Instead, it
has been distributed according to a complex mix of state laws, federal regulations
and charges, and local rates. It is a haphazard system at best, one which nearly
defies rational evaluation. For may projects federal funding and water rates are
such that taxpayers subside projects, the benefits of which go disproportionately to a
limited number of agricultural and industrial uses.
B. Goals
The basic principle for dealing with water pollution must be that no one has the
right to pollute — that pollution continues because of technological limits, not be-
cause of any inherent right to use the nation's waterways for the purpose of dispos-
ing of wastes. However, the impracticability of immediately eliminating all pollu-
tion also must be recognized. A reasonable relationship of economic and social costs
and benefits should be a necessary precondition toward achieving a nonpoUution
goal. The ability of municipalities to comply with any clean water program must be
recognized as contingent upon adequate funds for building treatment facilities. In
addition, any clean water goal must be applied on a uniform, national basis to pre-
vent movement of industry in search of loosely enforced standards.
The nation's drinking water should be as safe as is technologically feasible at rea-
sonable cost. Most Americans receive their drinking water from public water system
owned and operated by local governments. It is thus imperative for the continued
health and welfare of the nation that local governments have the financial re-
sources and technical expertise needed to provide adequate and safe drinking water
to their citizens.
354
C. Clean Water Act Policies
1. Federal Funding
Federal participation in the financing of projects mandated by the Clean Water
Act is critical to the ultimate achievement of national water quality goals. The fed-
eral government must continue and expand its partnership with states and local-
ities in the funding of Clean Water Act mandates. Federal contributions to the fi-
nancing of water pollution control needs must be both substantial and a reliable
long-term source of capital.
a. State Revolving Loan Fund
NTC continues to support the state revolving loan program (SRF) as a supple-
ment to, not a substitute for, a grants program. The federal government should
authorize a annual appropriation of funds which would be distributed to the
states according to a specified formula. The states should then establish their
own revolving loan programs for the distribution of loans, loan subsidies, or
bond subsidies to localities for meeting Clean Water Act man-dates. Such a sup-
plementary program would help leverage federal funds, reduce annual local
debt payments, and provide localities with added flexibility in structuring their
Clean Water Act financing plans. Congress should prohibit states from using
the interest on SRF loans to local governments to meet state matching require-
ments.
b. Grants
It is estimated that the nation's cities and towns face over $200 billion in un-
funded Clean Water Act mandates to comply with secondary treatment require-
ments and separation of combined sewer overflows. These cost estimates do not
include implementation of separate stormwater management or wetlands pro-
tection or mitigation progreim.
NTC calls on Congress to restore grant funding to mist municipalities in pro-
gressing toward meeting the nation's clean water goals and objectives. Without
such assistance it is unlikely that municipalities will be able to comply with fed-
eral clean water msmdates.
c. Use of Funds
Federal funding for Clean Water Act purposes should be available to meet all
Clean Water Act mandates imposed on municipalities including construction of
wastewater treatment plants, interceptors and major appurtenances, infiltra-
tion/inflow correction, major sewer rehabilitations, repair, upgrading, collector
sewers, combined sewer overflows, separate stormwater management program
and wetlands mitigation projects.
Cities should be eligible for grant or loan funds or any combination of loans and
grants to meet their water pollution control needs. Under no circumstances
should any community be permitted to use grant funds for repayment of loans
granted under the Clean Water Act.
The use of loans and/or grants should be tailored to the specific needs and ca-
pacity of each municipal applicant for federal financial assistance. Allocations
of funds to municipalities should take into consideration a community's ability
to pay and past local efforts to address the problem.
d. Sources of Funding
The federal government should redirect non-domestic spending priorities to
assure adequate resources to meet Clean Water Act mandates. Congress should
allocate a portion of these redirected resources to a fund dedicated to implemen-
tation of water quality requirements.
Under no circumstances should the federal government look to traditional local
sources of revenues (e.g., a federal tax on water and sewer user charges, a feder-
al tax on industrial dischargers to POTWs) to fund increased federal participa-
tion in financing Clean Water Act mandates.
e. Tax Code
Congress should remove current restrictions on the availability of federal tax
incentives for private financing of wastewater treatment facility needs, since
such financing arrangements may reduce capital costs and expedite project con-
struction, upgrading, repair, rehabilitation, etc.
355
2. Compliance
To enable municipal compliance with federal secondary treatment requirements,
Congress should restore adequate grant funding and assure full funding of the SRf!
Additionally, state governments should provide increased assistance for construction
of wastewater treatment facilities and localities should collect sufficient revenues
through assessment of user fees to help pay for the needed construction.
3. Local Financing
Local governments should have the choice between the ad valorem property tax,
metered user charges, and any other mechanism for recouping construction and op-
erating costs. Federally mandated sewer user charges should 1^ deductible from fed-
eral income tax.
4. Level of Treatment
The statutory requirement of "secondary treatment" should be defined as a de-
sired level of water quality and not restricted to any one particular process. This
desired treatment level required of municipalities should be defined to prevent ex-
penditures for unnecessary and expensive facilities. Moreover, the least expensive
solution should be favored, such as low flow augmentation, when such a solution is
the most economically efficient solution.
5. Needs Survey
Cities should cooperate with their states and the EPA to develop a accurate and
equitable needs estimate for the annual survey required by the Act. EPA must
assure that project priority lists submitted by states give highest priority to projects
in areas of greatest need, and assure the highest return in the amount of pollution
controlled for each dollar of federal assistance expended. Attention shotdd also be
given to problem of small, rural communities.
6. Areawide Planning
Where wastewater treatment planning is on a areawide basis, local elected offi-
cials must have primary responsibility. Management agencies should be designated
in response to the desires of local elected officials, and should assure a fair voice for
each participating government on a one-man, one-vote, or weighted vote basis. Pref-
erence should be given to existing planning and management agencies where they
have demonstrated expertise and capability. Each city should be designated a man-
agement agency, if so desired. River basins should continue to be basic units for the
development and administration of water resources. River basins should be devel-
oped to assure the maximum benefits possible in both water supply and recreation
to the communities they serve.
Areawide water quality management programs required under Section 208 must
be assured adequate federal funding for implementation and continued planning
and management. Funds must be made available for adequate technical assistance
to aid in the transition from planning to actual implementation of plans.
7. Discharge Analysis
Any extensions of the deadline for compliance with secondary treatment stand-
ards should allow adequate time for individual analysis of current discharge prac-
tices. The analysis should focus on all relevant environmental effects including air
quality, land use and energy efficiency. When evidence indicates that the technique
utUized does not significantly degrade the environment, the facility should be ex-
empted from additional treatment. The practice should continue to be monitored
and if a unfavorable change is noted, additional treatment should be required.
8. Desalinization and Recycling
Government policies should encourage expanded use of desalinization processes
and recycling of wastewater along with recovery of sludge and other resources mate-
rial.
9. Beneficial Use of Sludge
Federal regulations on the management of municipal sewage sludge should en-
courage its beneficial reuse. Reasonably anticipated adverse effects associated with
potential sewage sludge exposure and local geographical and climatic conditions
must be considered in the seie disposal of sludge. If site specific consideration can be
shown by reasonable risk assessment analysis to be environmentally sound, then
the management practice should be permitted.
356
10. Sedimentation and Silting
Sedimentation and silting of lakes, creeks, estuaries, or other streams must be
checked and avoided in all future planning. Whenever such silting and erosion has
already occurred, research should be continued to find ways of correcting this condi-
tion, within a ecologically sound framework.
11. Research
EPA should support research on problems growing out of the management of
wastewater treatment facilities such as combined sewer overflows, land application
of treatment effluent and sludges, and source reduction.
Innovative and alternative technologies have not been used to their fullest poten-
tial. Therefore, federal research, development, and public education of these technol-
ogies should expand, but not at the expense of research on management and oper-
ational issues. , . , . . . ,.
Source reduction technologies and programs are prohibitively expensive for indi-
vidual municipalities to develop. For example, to enable municipalities to reduce
levels of metals and other toxic pollutants from non-industrial sources, EPA should
undertake research to identify products introduced by small business and residen-
tial generators and suggest control programs for reducing these pollutants.
12. Pretreatment
EPA should establish national categorical pretreatment standards only for those
industries that it has classified as m. or polluters and only for those classes of toxic
pollutants which are known to be widespread and which may be causing human
health and aquatic life problems. EPA should be required to publish, by date specif-
ic, a listing of categories for which action will be required.
Local governments should be allowed to devise methods to satisfy national stand-
ards that not only assure protection of water quality but which are also cost effec-
tive imder the conditions of their particular jurisdiction. Therefore, as a alternative
to federally mandated implementation of the national categorical pretreatment
standards. Congress should authorize states to approve local pollutant elimination
programs.
To qualify for the alternative local program, a Publicly Owned Treatment Works
(POTW) should be required to demonstrate to an authorized state agency that: 1)
the POTW is in compliance with the requirements of its permit under the National
Pollutant Discharge Elimination System (NPDES); 2) it has developed and imple-
mented a local pollutant elimination program that in the aggregate is equivalent to
implementation of the national categorical pretreatment standards; and 3) it is
maintaining a local monitoring and reporting program which is adequate to disclose
the quality of the receiving waters.
13. State Water Quality Standards
The current Clean Water Act requires states to designate how each water body is
to be used within its jurisdiction and to develop standards for attaining that use.
Under no circumstances should a state be allowed to downgrade or revise its water
quality standards where the designated uses have already been attained. However, a
state may revise its water quality standard if it can demonstrate that: 1) the exist-
ing designated use is unattainable because of irretrievable man-induced conditions;
or 2) attainment of the designated use would result in substantial and widespread
adverse economic and social impact.
Where the water quality of a stream exceeds the level necessary to maintain a
designated use, a state should have the option to allow lower water quality for that
stream because of necessary and justifiable economic or social development for
which there is no feasible alternative. In no case should the degradation of water
quality interim with or become injurious to existing instream use. Before a state
exercises such a option, it should be required to hold public heatings and coordinate
with all affected governmental agencies.
14- Toxicity Testing
NLC supports the use of Whole Effluent Toxicity Testing (WETT) for the assess-
ment of the potential toxicity of wastewater discharges; however, legislation should
be adopted to prohibit the use of such tests as "pass/fail" NPDES permit conditions
imposing strict liability on POTWs.
15. Common Law
No municipality injured by a willful or negligent violation of federal or state law
should be deprived of a remedy if one exists under the federal Water Pollution Con-
357
trol Act and other appropriate laws. However, EPA must be made a party where
the defendant can demonstrate it has acted in good faith.
16. Pollution Prevention
In addition to treatment policies, the federal government should develop, advo-
cate, and institute pollution prevention measures. Prevention strategies are more ef-
fective in keeping toxics out of wastewater and far less costly than end-of-pipe tech-
nologies. Products containing chemical levels which constitute a significant percent-
age of the total loading should be restricted as to their composition and/or use.
17. Separate Storm Sewer Requirements
NLC continues to support a more simplified and flexible approach to management
of municipal stormwater run-off which would allow for orderly and cost effective de-
velopment of both information and program design than that which exists under
current EPA regulations.
Congress should amend the Clean Water Act to regulate urban stormwater run-
off under a newly-enacted provision of the Act separate from the NPDES program.
Such regulations should require implementation of Best Management Practices
(BMPs) to the Maximum Extent Practicable MEP) with a legislative prohibition on
requirements for end-of-the-pipe treatment: Management of run-off from municipal
industrial facilities should be incorporated as part of a system- or jurisdiction-wide
stormwater management program. Municipal compliance with stormwater manage-
ment requirements should be based on implementation of site-specific Best Manage-
ment Practices required in the permit.
18. Combined Sewer Overflow (CSO)
In establishing CSO guidelines, the federal government should use a technology-
based approach determined on a case-by-case basis using best professional judgment
weighing costs and benefits. The cost-benefit analysis should carefully consider the
cost of CSO control, the intermittent and dilute nature of CSO discharges, the ex-
tremely large rate of the discharges, and the often remote locations of CSO outfaiis
£igainst measurable benefits.
In controlling pollution from combined sewer overflows, EPA should develop a
risk-based policy which implements controls and establishes implementation sched-
ules based on the severity £md/or frequency of pollution caused by overflows.
Technology-based requirements should not be assumed to involve end-of-the-pipe
technology such as retention followed by conventional wastewater treatment. The
technology-based requirements should provide for a wide variety of control tech-
niques such as infiltration/inflow control, street sweeping, and conveyance away
from sensitive environmental areas. Partial or total sewer separation should be
phased in over time.
Municipalities shall be deemed in compliance once control plans and implementa-
tion schedules are in place, assuming the controls are appropriate and the schedule
for implementation is mgdntained.
EPA should establish a "wet weather task force" of state and local government
representatives to develop realistic water quality standards taking var3dng climatic
and hydrogeological conditions into account.
Finding allocations should take into consideration a community's abUity to pay
and past local efforts to address the problem.
19. Non-Point Pollution
Congress and the Administration should proceed as expeditiously as possible
through expanded research and development, technical and managerial assistance,
and funding to aid the efforts of local and state governments in the control of non-
point sources of water pollution.
Congress should authorize a new supplemental grant program for the funding of
non-point source pollution abatement.
TESTIMONY OF GREG SMITH, CHAIRMAN, MUNICIPAL ASSISTANCE TASK
FORCE, OHIO ENVIRONMENTAL PROTECTION AGENCY
Mr. Chairman, I am Greg Smith of the Ohio Environmental Protection Agency
and Chair of the Association of State and Interstate Water Pollution Control Ad-
ministrator's (ASrWPCA) Task Force on Municipal Assistance. As you know,
ASIWPCA is the national organization of State officials who implement the Clean
Water Act on a dedly basis. Our Association is committed to the environmental ob-
358
jectives set forth in the law, and we appreciate the opportunity to appear before you
today to present the states' Clean Water perspective.
Tremendous strides have been made in cleaning up and protecting the environ-
ment. Since 1972, States have gained considerable experience addressing Serious'
water quality problems confronting the nation and we come to share that experi-
ence and expertise. The States' recommendations are premised on the following
principles:
PRINCIPLES
1. The Clean Water Act is fundamentally sound. Significant refinements should how-
ever, be made to address program effectiveness including:
• Increased funding for State management ,„„t^^
• Continued Federal capitalization of the State Revolving Loan Fund (SRF).
• Increased State flexibility to operate programs more efficiently and effectively,
to maximize environmental results and undertake comprehensive approaches.
• Elevated USEPA priority on the program's fundamentals— (eg: up-to-date efflu-
ent guidelines and water quality standards.)
• Enhanced nonpoint source management programs in the States.
2 States must continue to have the land role in program development and manage-
ment Delegation of NPDES and SRF programs are cost effective, managenally effi-
cient and institutionally appropriate.
3 Additional time is needed to carry out the 1987 Amendments. Lack of funding,
inadequate technical resources and late issuance of policy and regulatory guidance
have created unnecessary delays which must be accommodated in any reauthoriza-
tion.
4 Any new mandates must be accompanied by increased funding above the current
baseline. Expanded flexibility for States to tailor their programs in the most effi-
cient and cost effective memner is also essential.
RECOMMENDA'nONS SUMMARY
Municipal pollution from treatment plants and runoff cause both localized and
national environmental problems. Because these problems can be significant and
chronic, the Association recommends the following actions to enhance the program
and maintain momentum. The Bill introduced by Senators Baucus and Chafee rep-
resents a good starting point. The ASIWPCA membership is in the process of re-
viewing this Bill £ind our Association will compile comments at our August Annual
Conference. Once that review is complete, we will forward our more detailed com-
ments to you Mr. Chairman. At this time, we provide the following:
• $5 Billion in Federal funding annually should be authorized and appropriated
for the SRF in accordance with the needs mandated by the Clean Water Act.
Specific comments: Statutory mandates must be balanced to reflect a $2.5 Bil-
lion SRF level. The Bill provides a $2.5 Billion baseline, with the possibility of
up to twice that amount if annual budget targets are met. While the States ap-
preciate the Committee's continued support for the SRF, the historical track
record in addressing deficit reduction leads one to question the likelihood of ad-
ditional funds in the out years.
• States oppose any effort to expand eligibilities without significant additional
funding, it cannot be overemphasized that $2.5-5 Billion is inadequate to accom-
plish the requirements of the current statute.
• States are concerned that dedicated sources of revenue are essential to
maintain the SRE, i.e. leveraging potential, maintenance of Fund corpus, and
preservation of good State bond ratings. Any deviations from current law
should be undertaken with State consultation.
• States stronely oppose the Bill's requirement that States go beyond their exist-
ing 20% match to, in effect, leverage in order to achieve a 100% match for Fed-
eral funds. We anticipate that a number of States will not be able to fully par-
ticipate under such conditions and the Federal government, which has trouble
balancing its own budget is in a most precarious position when attempting to
dictate to the States in this regard. Leveraging must remain option^ and
should not be mandated arbitrarily by law. Several States have mdicated that
this proposal, if implemented, could "kill" their SRE Programs. Other States
have refrained from leveraging until such time as major CSO construction is
needed. Forcing States now to leverage will foreclose that option.
The State Revolving Loan Fund (SRF) Program should be streamlined arid focussed
on construction of priority projects, in the shortest time frame, at reasonable cost.
359
Specific comments: The States applaud the Senate's efforts to streamline the
SRF program.
Small-hardship communities should be assisted under the umbrella of the SRF in
the form of principal subsides.
Specific comments: The Senate Bill responds to the issue of affordability, but the
universe of eligible projects is overly broad. The threshold criteria would be sub-
ject to manipulation and the emphasis on loan forgiveness limits State creativi-
ty and will, over time, significantly erode Fund corpus. States must have the
flexibility to structure hardship programs to meet the specific needs in their
State, in a manner that preserves the integrity of the SRF.
The Act should support the Agency's revised policy on controlling combined sewers.
Specific comments: The ASIWPCA supports the bill's effort to encompass
USEPA's draft poUcy.
• The stormwater program should be revised to focus on priority water quality
problems. Workable permit requirements must be the focal point.
Specific comments: The Senate BUI does create an opportunity to make progress
in addressing problems with the current program. However, it does not go far
enough.
KEY ISSUES
I. INFRASTRUCTURE FINANCING
To continue and strengthen the State/Local/Federal partnership, the Federal gov-
ernment needs to continue to financially assist communities in their effort to meet
Clean Water Act mandates. The commitment in the 1987 Act to create and support
the SRF has not been met. The challenge is to assure adequate funds and use the
Federal funds available efficiently/effectively to equitably bring about municipal
compliance. A successful stragey must outpace inflation on over $200 Billion in ex-
isting needs. The SRF is the only viable mechanism to address inflation and continu-
ing need, because it leverages Federal capitalization funds over 2-5 times while re-
volving in perpetuity for community use.
A. State Revolving Loan Fund
ASIWPCA enthusiastically supports the SRF and we recommend that all Clean
Water infrastructure assistance be incorporated under the Title VI umbrella.
Beyond question, the SRF has been the most successful program established under
the 1987 Amendments. All 50 States have created and are successfully implement-
ing SRFs. In a pioneering effort to "reinvent government", before the term became
politically correct, the SRF was designed to reward initiative and compliance, rather
than encourage delay. The experience of the States clearly documents that projects
can be buUt cheaper (in half the time) than a project which has received a grant.
1. Federal Funding: Continued authorization funding support is needed for two
reasons:
Traditional Needs: Under the 1987 covenant between Congress, the Administra-
tion and the States, the Act authorized $18 Billion for municipal wastewater treat-
ment, $8.4 Billion of which was to capitalize the SRF for $78 Billion in pre-1987 Act
needs. Regrettably, Federal appropriations have fallen $1.7 Billion short of the au-
thorization States estimate that at a minimum $2 Billion annugdly will be needed to
adequately capitalize the SRF for pre-1987 requirements.
New Requirements: The 1987 Act mandated substantial changes that were not
considered when the covenant was reached, which will significantly impact local
governments related to:
• More stringent water quality standards (i.e. advanced treatment),
• Toxics control requirements,
• Sludge management,
• Stormwater permit requirements,
• Nonpoint source control,
• Estuary protection,
• C!ombined sewer overflow correction, and
• Rehabilitation of existing facilities which reached their design life.
ASIWPCA estimates that the total wastewater treatment needs of this nation in
the next 20 years will exceed $200 Billion. To adequately capitalize the SRF, further
Federal capitalization funds are needed and well worth the modest investment re-
quired.
Recommendation: $5 Billion should be authorized annually.
360
2. Eligibilities: The SRF is grossly undercapitalized to meet the already broad eli-
gibilities in the current law.
Recommendation: There should be no expansion of eligibilities until the Fund is
adequately capitalized to meet the $200 Billion in currently estimated needs.
Specific comments:
• "Subsurface sewage disposal" and "associated management organizations"
should be defined. Emphasis on subsurface will not encompass all systems need-
ing attention
• Careful analysis is needed before establishing further eligibility for individuals.
Otherwise, the Fund's corpus will be endangered.
• The intent to limit assistance for discharge activities should be explained and
clarified.
• Dedicated sources of revenue should be maintained, as Indicated above.
3. Formula and Needs Survey: Because the Association represents £ill 50 States, it
is impossible for ASIWPCA to take a position on the allotment formula. The Asiso-
ciation, is however, concerned that the methodology be objective and reasonably at-
tainable within the data, resources and time available. The Needs Survey has been
difficult to complete because there are many projects involved and judgment calls
have to be made. As nonpoint source and watershed plans evolve, needs will in-
crease exponentially.
Recommendation: A more concerted effort should be made by USEPA to develop a
credible and comprehensive Needs Survey. All needs eligible for SRF financing
under the Act should be included.
Specific comments: The survey methodology envisioned (e.g. assessment for tra-
ditional categories as well as a costing out of watershed plans) is impractical.
Short deadlines, limited resources and lick of data complicate an already com-
plicated system. All needs envisioned can be effectively reflected under the cur-
rent Needs Survey approach.
B. Grants: ASIWPCA does not support re-creation of a grants program for several
reasons:
• States worked diligently to establish SRFs and involve communities in the pro-
gram's creation. The resurgence of Title II grant funding undermines these pro-
grams and encourages communities to hold out for the possibility of a future
grant. This delays compliance and it reinforces the notion that if they put off
solving their problems long enough, the Federal government will come to the
rescue. Grants send the wrong message and penalize progressive cities and
towns which took initiative to address their responsibilities to meet require-
ments of the Law.
• In today's budgetary environment, grants are no solution. Annual funding
would be required far in excess of $10 Billion to make on any measurable
progress nationally. This does not take inflation into account.
Recommendation: A Title Il/grant program should not be re-established. The As-
sociation supports the Senate Bill's incorporation of that philosophy.
C. Small Community Assistance: Refinements are needed in the SRF for small-
hardship communities, in a manner that preserves the Fund's integrity.
States track over 15,000 small communities, less than 10,000 population under the
Clean Water Act — 49% need wastewater construction over the next ten years of
over $10 Billion. Over one-third of SRF projects are for small communities. While
many are financially capable, in approximately half of the States, more than 50%
needing construction cannot afford the debt service on a SBF loan for all project
costs. The smaller the community, the less viable the SRF appears to be. Additional
assistance needs to be provided under an existing program administered by the
States, with "one stop shopping".
Recommendation: "Tide VI should be eunended to provide a supplementary authori-
zation in Title VI for small hardship communities under which States are author-
ized to:
Define "small", since what is suitable in one State may not be in smother.
Blend principal subsidies with SRF loans to achieve a target State level of project
affordability.
Make planning, design, construction, and acquisition of land/easements eligible.
Exempt recipients from Title II/Federal cross-cutting laws, including the Davis
Bacon Act
Allow up to 40 years for loan repasmient for projects less than $10 Million
361
Enable States to use a generous amount of administrative funds for outreach/
technical assistance.
Specific comments: The Senate bill makes progress. However:
• States must have the ability to define affordability and community size, so that
there is no manipulation or circumvention of intent, the program is compatible
with existing efforts and funds are targeted to communities in need.
• Principal subsidies are much more desirable than loan forgiveness. The Bill
could not adequately protect find corpus (which could erode quickly) or assure
compatibility with leveraging. It would create buUt-in incentives to "gold plate"
designs and carelessly manage finances.
• States question whether is it appropriate for communities of more than 10,000
population to qualify. The need in the smaller communities is well demonstrat-
ed and funds are limited. Forgiveness up to $20,000,000 (by community for all
time or by project^the bill is not clear which) or 20% of the capitalization
grant could easily be reached with one project. Competition could easily crowd
out less sophisticated small communities that are most in need of assistance.
• The provisions on technical assistance are complex and may actually provide less
incentives than current State efforts. The objective is to get small commimities
into the process. Tying assistance to payback in a potential SRF loan or partial
grants is not always an incentive and appears to compete with the private
sector. It would be much simpler to increase the State administrative set aside.
• The bill should extend the loan repayment period and eliminate application of
other Federal laws as much as possible.
D. State Revolving Loan Fund Program Refinements: Based on State experience
with the SRF, implementation program enhancements are needed to expedite and
improve program performance as well as make the program more attractive to the
ultimate consumer, loc£d governments:
• State Administrative Costs — As defined by USEPA, 4% of the capitalization
grant is available for State program administration and no more. This is inad-
equate: 1) the accumulated size of the SRF is not considered, and 2) when capi-
talization grants end, so do funds for administration.
Recommendation: The 4% administrative allowance should be tied to the authori-
zation level, with a minimum of $400,000 oer State. No limitation should be placed
on other contributions to the Fund (e.g. using loan repayments, bond proceeds. State
funds, or other monies).
Specific comments: Provisions would provide relief in States that are highly le-
veraged, in most (e.g. small, rural States) any increase in funding based on the
new approach (0.5% of total capitalization grants and funds deposited) appears
to be negligible.
• Requirements— Each Title II Federal requirement applied increases costs and
construction time which is problematic in a loan progreim.
Recommendation: The Act should clarify that only requirements specified in their
entirety in Title VI apply and:
• Cross-cutters: The many Federal cross-cutting laws should not apply.
• Eligibilities: Since the SRF was created to fund projects broadly eligible imder
Sections 212, 319, and 320, the 20% limitation in Title 11 on use of funds for
collector sewers, rehabilitation, combined sewer overflows, etc., should not
apply.
• Title II: Some Title 11 objectives have value, but States should have discretion
to apply them as appropriate. At a minimum, the following modifications to
Section 602(bX6) are necessary. Delete:
Section 201(gX5), Innovative/ Alternative Analysis
Section 201(6)(g), Recreation/Open Space Requirements
The word "proportional" in Section 204(bXl), User Charge Requirements
Mandatory value engineering in Section 218
Specific comments: States applaud the Committee for its efforts, but urge fur-
ther simplification.
• Land Eligibility — The SRF should provide "one stop shopping".
Recommendation: Acquisition of land, easements and rights of way should be eli-
gible. The States support the Committee's effort to do so.
• Loan Amortization Period — Loan terms should be more affordable.
362
Recommendation: States should have flexibility to extend the 20-year loan repay-
ment period up to 30 years for small hardship communities and up to 40 years
for those with projects less than $10 Million.
Specific comments: More consideration should be given in the Bill to this issue
as a mechanism to readily achieve affordability.
• Federal Oversight— There is no policy on the USEPA/ Inspector oversight.
Recommendation: The bill should clarify the duration of oversight, particularly re-
lated to reviews and audits. States should be able to use the Single Audit Act to
satisfy the law.
• Title II Closeout — ^This issue needs to be addressed.
Recommendation: States should be able to use Title II de-obligations and reallot-
ments in the SRF. Title VI administration funds should not be used to close-out
the grants program, since they are inadequate for long term SRF management.
Specific comments: Use of unobligated funds (which could be significant under
the Bill due the leveraging requirement) should not be limited to replacement
of failed innovative/alternative systems. There can be much more environmen-
tally critical uses for the funds.
The Bill appropriately addresses Title II closeout under Section 205(g).
• Planning Setaside — This holdover makes no sense in a loan program.
Recommendation: The 40% Title II pass-through to local governments should not
apply to Section 604(b) funds.
Specfic comments: States oppose any additional setasides of SRF funds for
other purposes. There are already too many funds setaside. Planning should be
funded elsewhere.
• Consistency: Project consistency with plans developed under the law is desira-
ble.
Specific comments: Funding for projects developed under past efforts (e.g. the
Great Lakes Water Quality Agreement) should not be held up or delayed while
entities endeavor to develop watershed plans.
COMBINED SEWER OVERFLOWS (CSOs)
Through intense negotiations between cities, States, environmental groups and
USEPA, the CSO program is now heading in the right direction and should be sup-
Efforts to address CSOs have been stymied by lack of understanding of the prob-
lem inadequate funding and lack of consensus on a workable approach in a reason-
able timeframe. The agreement reached recently under the USEPA Management
Advisory Group by the Agency, provides a workable format for addressing national
policy for CSO deadlines and program requirements.
Recommendation: The Clean Water Act should support the national policy. The
Association supports the Senate Bill's effort in this regard.
Specific comments: NPDES delegated States should have the same authorities
throughout the provisions as the USEPA Administrator. The law should recog-
nize that in some instances the deadlines envisioned would be overly generous.
Efforts to update bacteria standards should be addressed by requiring USEPA
to update Section 304(a) criteria. Withholding permits is a circuitous route to
addressing this complex issue and municipalities could be unduly exposed to cit-
izen suits.
STORMWATER
ASIWPCA supports the Act's stormwater control objectives. However, the pro-
gram should be refined so that it does not overwhelm and/or undermine the State
NPDES permit program. Congress must recognize that there is a extremely large
number of additional NPDES sources to be addressed (e.g. some States estmiate that
stormwater permits will exceed permits issued under NPDES by ten-fold.)
Requirements need to be more consistent with the funding available and expected
water quality benefits. The most significaiit sources should be addressed first. All
parties should clearly understand expectations.
Recommendation: The first round of permitting should emphasize specific control
levels, followed by water quality assessment to identify needed additional ac-
tions based on standards. A realistic schedule is needed that phases implemen-
tation of regulatory programs:
• For municipal dischargers, controls that reduce discharges to the maximum
extent practicable should be required.
363
• For industrial dischargers, the first round permits should require implementa-
tion of BMPs.
• Permits should not be required for municipalities less than 100,000 population,
unless the discharge significantly contributes to pollution or the town is served
by a separate stormwater system with a total population of 100,000 or more.
• Permits should not be required for industrial indirect discharges to permitted
municipal separate storm sewers, unless the discharge is in violation of local
requirements and an individual stormwater permit is needed.
Specific comments: The provisions make significant progress clarifjdng control
requirements and their relationship to water quality standards. Although the
intention was to more discretely focus the program on water quality problems,
the BUI falls significantly short of that objective.
• Some provisions are confusing.
• There is overly broad inclusion of municipalities in SMSAs and source catego-
ries.
• Requirements would often be extremely resource intensive and difficult to
justify based on the arbitrary botmdaries and likely water quality improve-
ments.
• The wet weather monitoring requirements would be extremely costly and
would not consider or identify some important pollutant sources, such air bom
pollutants.
SUMMARY
Mr. Chairman, the Association appreciates your leadership, and that of Senators'
Baucus and ChaJPee, in providing a legislative vehicle for national debate on Clean
Water. As you proceed to refine the bill, ASIWPCA and the States look forward to
working closely with you and your staffs. I am delighted to answer and questions.
TESTIMONY OF EDWARD WAGNER, DEPUTY COMMISSIONER, NEW YORK
CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION
SUPPORT FOR THE CLEAN WATER ACT
Mr. Chairman and members of the Subcommittee, I am Eklward Wagner, Deputy
Commissioner of the New York City Department of Environmental Protection. I
appear before you today representing the Association of Metropolitan Sewerage
Agencies (AMSA). AMSA's members represent the nation's largest wastewater
treatment agencies. We serve the majority of the sewered population in the United
States, and collectively manage over 14 billion gallons of wastewater each day.
I am pleased to be here today to provide our perspective on the reauthorization of
the Clean Water Act, and the recently introduced Water Pollution Prevention &
Control Act of 1993, S. 1114. We sincerely appreciate the opportunity to share with
you our thoughts and recommendations as environmental practitioners dedicated to
protecting and improving the quality of the nation's waters.
AMSA supports the reauthorization of the Clean Water Act and its goal of fish-
able and swimmable waters. AMSA believes that this reauthorization must use em
integrated and comprehensive strategy that establishes new priorities for achieving
water quality goals. It must recognize the wide range of conditions present in our
nation's watersheds and provide flexibility to decision makers so that they can ad-
dress site-specific conditions. It must target all impediments to ecosystem health. It
must develop mechanisms for control that properly balance environmental gains
and their cost-effectiveness. And it must provide the funding to implement its clean
water mandates.
WhUe this is AMSA's vision of a reauthorized Clean Water Act, we also acknowl-
edge, in our initial review of S. 1114, that the Senate legislation goes a long way
toward realization of these goals. AMSA's concerns and priorities are present in the
bill and reflected in its language. We commend Senators Baucus and Chafee for in-
troducing legislation that clearly moves our national clean water program forward.
AMSA has recently initiated a detailed review process of S. 1114 and will be report-
ing our specific comments and recommendations to the Subcommittee in the coming
weeks.
PUTTING THE REAUTHORIZATION INTO PERSPECTIVE
First and foremost, it is important to put reauthorization of the Clean Water Act
into an historical perspective. This nation, its states, cities and towns have made
364
enormous progress in the more than 20 years since the passage of the 1972 Clean
In 1972, national standards that targeted point sources made sense because we
had identifiable problems traceable to easily controlled sources. Congress provided
funding, necessary deadlines and enforcement mechanisms. Coupled with a consid-
erable amount of public support and motivation, this set the stage for our nation to
successfully address many of its clean water challenges.
Today we face new challenges. While public support for environmental progress
and improvement continues, the new and emerging issues we must address are
more complex and costly. The control of combined sewer overflows and the manage-
ment of stormwater and nonpoint sources of pollution provide excellent examples of
new clean water priorities. Today, fiscal shortfalls at every level of government are
unprecedented, which make dollars harder to get.
RECONCILING OUR CONSTRAINTS, OUR EXPECTATIONS AND OUR NEEDS
In a reauthorized Clean Water Act we need to reconcile the constraints of the
1990's with our continued high expectations and the need to make continuing
progress.
Funding
Reconciling constraints with expectations within the context of the Clean Water
Act will involve several things, the first of which is an increased and ongoing Feder-
al financial commitment, in partnership with state and local governments. Attached
to my testimony is a report AMSA has published called "The Cost of Clean". Among
the key fmdings of the report are the following:
• Funds totalling over $23 billion will be required for AMSA's member agencies
to meet currently mandated clean water needs to the year 1995;
• We can expect operation & maintenance costs— which are paid totally by local
government— to double every eight years;
• Historical data allows us to project that annual household user fees will, at a
minimum, double every six years; and that
• Currently, local governments pay 80-90% of the "Cost of Clean .
I believe that we — my colleagues on this panel and the members of this distin-
guished Subcommittee— should work together to keep the Federal feet to the fire.
We must not lose sight of the fact that the Clean Water Act sets forth a national
program with an integral relationship to our nation's long term environmental
health and economic growth. „ ^r i
The State Revolving Loan Fund Program (SRF) provides an excellent framework
to fund our national clean water program. It is, however, a program that can be
made exceedingly better with adequate funding, streamlined requirements, competi-
tive rates and increased flexibility to allow both grants and loans. AMSA urges the
Subcommittee to use this reauthorization as an opportunity to reassess the program
and make it more responsive to this country's needs and goals.
The funding provisions in S. 1114 make important progress toward improvmg the
viability of the SRF program. The legislation's expanded eligibilities and significant
incentives should not go unrecognized. AMSA lends it support to S. 1114 s provisions
acknowledging the special needs of "disadvantaged communities and endorses the
bill's recognition that "disadvantaged communities" can come in all sizes.
Each of these actions represent significant forward progress; however, our survey,
and many others like it, document the need for high levels of Federal funding to
support the Clean Water Act. We cannot overemphasize the fact that local govern-
ments cannot go it alone when it comes to funding our national clean water prior-
We're as committed as you are to aggressive progress in the clean water program;
however, the kind of progress we're striving for comes with a high price ts^ f^a.^ul
require a doubling of Federal dollars for the clean water program. AMSA s long
term funding position is attached to my testimony. You'll note that the Association
calls for a $6 billion dollar a year Federal commitment to clean water. This is not
an estimate pulled from the sky, but an accurate reflection of our nation^ funding
needs to effectively meet existing requirements. I hope you will agree with me that
Federal government support is essential to meet the environmental challenges we
face as a nation.
Combined Sewer Overflow Control
The next step in reconciling constraints with expectations is for all of us to refo-
cus our concerns and priorities. We need to resist the temptation to set unrealistic
365
deadlines and prescribe national solutions to local problems. Prescriptive national
solutions do not, by their nature, provide the level of flexibility necessary to consid-
er site-specific circumstances and result in the unnecessary expenditure of ever
more scarce resources.
In support of this recommendation for necessary and desirable flexibility, I offer
the following example. U.S. Environmental Protection Agency finalization of a draft
National Combined Sewer Overflow Control Policy is anticipated this Fall. The
policy — developed as a result of a stakeholder negotiation process in which AMSA
took part — provides the balemced level of direction local communities have needed
to proceed with CSO controls. In this policy, national direction is coupled with suffi-
cient flexibility to consider site-specific variables. It is a welcomed solution to a com-
plex problem — and one that resvdted in an alliance of support between the Environ-
mental Protection Agency, States, cities and the environmental community.
AMSA was gratified by the support for the National Combined Sewer Overflow
Control Policy reflected in S. 1114, the Water Pollution Prevention & Control Act of
1993. The bipartisan recognition of the need to support this Policy, in the reauthor-
ization of the Act, is weU-founded and will result in environmentally sound CSO
control nationally — without breaking the financial backs of local governments. The
national policy, in concert with the legislative language in S. 1114, will allow re-
sponsible, effective CSO control to proceed. AMSA urges you to fully support, with-
out further amendment, the combined sewer overflow provisions in S. 1114.
Stormwater Management
Some of my colleagues on this pemel will have much more to say than I about S.
1114's approach to the important issue of stormwater management. AMSA would,
however, like to speak in support of S. 1114's recognition of the effectiveness of best
management practices in the control of stormwater, and endorse the legislation's
movement away from the requirement of nmneric water quality limits in storm-
water permits.
THE SEARCH FOR A SOLUTION
There is a very important temptation that we — as a nation — must resist. I speak
of the propensity to attempt to fix programs that aren't broken. There's an old
adage, "If it isn't broken, don't fix it.' That adage applies to many of the programs
within the Clean Water Act. AMSA was gratified to see this approach taken by the
drafters of S. 1114. The legislation represents a vast improvement over that which
was under consideration during the 102nd Congress. The Committee and staff are to
be commended.
The attention paid in S. 1114 to many long standing programs, as well as the im-
portant areas of pollution prevention, water conservation and, of course, comprehen-
sive watershed management is a notable improvement. While AMSA will have con-
structive recommendations to improve and strengthen the bill, the legislation repre-
sents a significant step forward.
Comprehensive Watershed Management
AMSA views a national program for comprehensive watershed management as
the best way to link limited resources with continued environmental improvements.
Our Association spent much of the last two years coming to one clear conclu-
sion— that comprehensive watershed management, as a means to achieve our na-
tional water quality goals, makes a lot of sense. AMSA was gratified to see, in provi-
sions of S. 1114, that the leadership of the Senate Environment & Public Works
Committee shares this significant conclusion.
With our testimony we have provided you with the Principal Tenets that guided
the development of the proposed legislation we have drafted entitled, the Compre-
hensive Watershed Management Act of 1993. The vision contained in the Compre-
hensive Watershed Management Act of 1993 calls for the development of compre-
hensive watershed management plans with the participation of all point sources,
nonpoint sources, users of the watershed, citizens and levels of government.
As AMSA envisions it, the process for restoring watershed ecosystems follows ra-
tionally from a scientific analysis of site-specific conditions and the technologies
available to improve those conditions. Priorities are established based on the qu^ity
and use of receiving waters, ecosystem health, and the sources of pollutants that
legitimately threaten the watershed. AMSA believes that comprehensive watershed
management planning must emphasize establishing priorities, maintaining flexibil-
ity smd empowering local, regional and state government and the affected communi-
ty-at-large to solve their unique problems.
366
The comprehensive watershed management language contained in S. 1114 takes a
important step in the right direction. In particular, AMSA would like to commend
the bill's authors for the significant incentives for watershed planning in the legisla-
AMSA believes that comprehensive watershed management should be the new
foundation for the future direction of our Nation's clean water program. AMSA
looks forward to working with you to broaden and strengthen the watershed provi-
sions inS. 1114. We hope to share our specific recommendations in future testimony
before you, Mr. Chairman, when the Subcommittee focuses specifically on the issue
of comprehensive watershed management in July.
CONCLUSION
In conclusion let me suggest the following. We need to consistently search for
better ways of doing things — more flexibility and more attention to site-specific vari-
ables, a better public awareness of what the problems are, the importance of solving
them, and the best solutions. Local consensus-building must become an essential
step in the framework for reaching the environmental milestones we set.
In short, we must strive toward a better understanding of the most effective, yet
pragmatic, means through which we can accomplish our national clean water goals.
There has to be a measurable and meaningful return for our investment.
As we shift our attention toward fully restoring our watershed ecosystems, we all
recognize that we have a long way to go. No one ever suggested that the task of
improving and protecting the nation's waters would be an easy one — however, work-
ing together, I know we can succeed.
Again, AMSA will be providing detailed comments and recommendations regard-
ing S. lil4, the Water Pollution Prevention and Control Act of 1993, in the coming
weeks. We look forward to working closely with this Subcommittee, the Environ-
ment & Public Works Committee and the Senate as they proceed with reauthoriza-
tion of the Clean Water Act.
This concludes my testimony. I would be pleased to answer any questions you
may have.
Attachments: The Cost of Clean
Long "Term Funding Position Statement
Principal Tenets —
The Comprehensive Watershed Management Act of 1993
LONG TERM CLEAN WATER FUNDING
MARCH, 1993
AMSA believes long term Federal funding for the nation's clean water program at
a level of $6 billion/year is essential to continued environmental progress. Clean
water funds should be provided through a combination of direct grants to munici-
palities and capitalization grants to states for State Revolving Loan Funds (SRF).
The source of these funds would be general fund revenues and newly generated
dedicated revenues. , . ^. ^ , ..
The funds would be disbursed through an equivalent combmation ot direct grants
to municipalities (at 50% of the total funds provided) and capital grants of the re-
maining 50% to SRFs for loans. The allocation of grant funds within each state
would be determined on a state-by-state basis.
These funds would be used to support the efforts of the nation s communities to
meet current and emerging requirements of the Clean Water Act, including upgrad-
ed treatment, combined sewer overflow control, stormwater management and the
rehabilitation and replacement of facilities.
Funding for other local environmental infrastructure construction, particularly
that related to Safe Drinking Water Act requirements, should be provided in addi-
tion to clean water funding for wastewater facilities construction needs.
BACKGROUND
AMSA believes that the Clean Water Act's historic focus on technology-based
standards and end-of-pipe treatment, framed by aggressive schedules for compliance
and supported by significant federal funding, has achieved enormous reductions in
the pollutants discharged to our nation's waters. These successes would have been
impossible without one element in particular— the significant Federal support pro-
vided through the Construction Grants Program.
367
The fact of the matter is, the grants program worked. Federal, state and local
monies provided the impetus to improve and protect our nation's waters. Today, sig-
nificant needs remain. Wastewater construction needs to meet mandated require-
ments of the Clean Water Act remain at significant levels. An estimate based on the
U.S. Environmental Protection Agency's 1990 Needs Survey places total unmet
needs at $110 billion. This total includes $25 billion for unmet secondary treatment
needs. In addition, combined sewer overflow control needs, reported at $16 bUlion
1990, could potentially total as much as $200 billion, depending on National Pollut-
ant Discharge Elimination System (NPDES) permit requirements. C!ompliance with
federal stormwater NPDES permit reqviirements and water recleimation and reuse
projects will result in needs in addition to these amounts.
AMSA's Financial Survey and Cost of Clean report document that annual house-
hold user fees are doubling every six years and are projected to increase at a greater
rate in the future due to increased construction, operation, maintenance and financ-
ing costs for existing and newly mandated requirements.
Recognizing the budgetary constraints existing at all levels of government, we
must manage environmental expenditures carefully to achieve the greatest benefit
for the dollars available for investment. As we look to FY 1994, our focus must shift
to a more comprehensive approach, addressing the control of costly, more complex
and diverse sources of pollution. One thing, however, must not change. Continued
federal funding of projects mandated by the Act is critical to the ultimate achieve-
ment of national water quality goals.
Further, AMSA believes that federal financial assistance is required to support
research gmd development for a sound, scientific basis in the development of a water
qugdity-based pollution reduction strategy. Federal financial assistance is also neces-
sary to support state administrative costs and the development of comprehensive,
site-specific, pollution reduction strategies.
PRINCIPAL TENETS OF THE COMPREHENSIVE WATERSHED
MANAGEMENT ACT OF 1993
1. The overall objective of comprehensive watershed management planning is to
make cost-effective, site-speciiic decisions that achieve water quality objectives
that protect the designated beneficial uses of a watershed.
2. Science must be the basis for pubUc policy decisions.
3. All players must be at the table to equitably address future water quality objec-
tives.
4. Local government and publicly-owned treatment works must have an active
role in establishing water quality objectives for the watersheds in the which
they Eire located.
5. Local stakeholders (government entities, sources of watershed impacts, users of
the resources within the watershed, the public and others with a specific inter-
est in how the watershed is managed) must have the clearly stated opportunity
to provide recommendations and direct advice and counsel to the Governor re-
garding the designation of their watershed boundaries and the makeup of its
Commission.
6. Progress on water quality improvement, including minimum standards of oper-
ation (MSOs), must continue as comprehensive watershed management plan-
ning moves forward. Until a watershed management plan is completed, permit-
ting agencies that are responsible for National Pollutant Discharge Elimination
System (NPDES) permits must take into account those sources within a water-
shed that cause water quality impairment and must accordingly exercise flexi-
bility and discretion in exerting their regulatory authority in setting effluent
limits and compliance schedules, and in conducting enforcement activities.
7. Time frames for completing a comprehensive watershed management plem
must be realistic.
8. Implementation of elements of the comprehensive watershed management plan
must be verified and enforced to assure equity among all sources or categories
of sources of pollutants of concern in a watershed.
9. The scheduling of compliance with Clean Water Act requirements and prioriti-
zation of resources to achieve water quality objectives shall be guided by water-
shed plans. One expected outcome of an approved watershed management plan
is that NPDES terms, conditions and limits shall be modified as appropriate to
cost-effectively achieve the water quality objectives of the plan.
10. C!omprehensive watershed management planning and the federal/state legisla-
tive and regulatory framework shall be compatible emd fully integrated.
368
TESTIMONY OF ROBERT W. ABLER, NATURAL RESOURCES DEFENSE
COUNCIL, INC.
Mr. Chairman and members of the committee:
Thank you very much for this opportunity to appear today to testify on funding
and municipal pollution issues in Clean Water Act Reauthorization. My name is
Bob Adler. I am a Senior Attorney and Director of the Clean Water Project of the
Natural Resources Defense Council, Inc. (NRDC). ^ I also chair the Steering Com-
mittee of the National Clean Water Network, which has over 420 groups nationwide
working together to strengthen the Clean Water Act. ^ Also with me today is Diane
Cameron, an environmental engineer at NRDC, to answer any technical questions
about stormwater. , , ,. xi.- u •
I would like to commend Senator Graham for schedulmg this comprehensive
series of hearings; and Senators Baucus and Chafee for introducing S. 1114, which
will serve as an important starting point for most of the issues that will be ad-
dressed during these hearings. A number of other important and commendable bills
have been introduced by other members of this Committee, such as S. 815 by Sena-
tor Lieberman on the National Estuary Program, and S. 997 by Senator Lautenberg
on beach protection.
INTRODUCTION AND SUMMARY
Significant progress has been made over the past twenty years to reduce water
pollution from municipal sources. Yet municipal pollution remains among the most
daunting challenges facing water quality officials around the country for two rea-
sons First, the cost of municipal pollution control remains high at a time when fed-
eral, state and local fiscal resources are becoming increasingly scarce. Second, the
intermittent but severe pollution that occurs in cities around the country every time
it rains, from both separate and combined sewer systems, has not received the same
attention as traditional sewage discharges. ^ ^, „, , a ^
NRDC strongly supports efforts to increase funding for Clean Water Act pro-
grams. It is essential, however, that if more federal dollars are spent on pollution
control the public be assured that it is purchasing more, not less, environmental
protection This means that we must find better, more efficient ways to spend our
pollution control dollars. We must seek solutions to CSO and stormwater discharges
that are cost-effective, without turning our backs on the serious human health and
environmental problems caused by those releases. And increased federal funding of
pollution control programs must be accompanied by increased accountability to the
public that more environmental protection will result. , j , , .^,
For these reasons, NRDC and other environmental groups worked closely with
the Association of Municipal Sewerage Agencies last year, to negotiate a rational
framework for resolving CSO problems in a cost-effective way. While the municipal
officials who were party to those negotiations were consistent in their defense of
municipal budgets, they chose to seek a solution that would nonetheless result in
significant environmental progress. This process was laborious, consuming many
long and frustrating hours of discussions. Ultimately, however, we reached a land-
mark agreement on CSOs, and are extremely pleased that the results of this negoti-
ation are included by reference in S. 1114. ,, ^ x, u *
By sharp contrast, we were extremely disappomted to learn that the approach to
stormwater control in S. 1114 undercuts, rather than supports, ongoing efforts to
negotiate a reasonable solution to municipal stormwater problems. For the past
year NRDC and other environmental groups have been engaged in detailed discus-
sions with the California Stormwater Quality Task Force, the National Association
of Flood and Stormwater Management Agencies, and others m an effort to reach
consensus on a workable, nationwide municipal stormwater program. While it is im-
possible to predict the success of such negotiations in advance, I believe it is possible
to reach an accommodation which is satisfactory to all interests. By proposmg to
exempt large categories of municipalities from stormwater permits, however, and by
weakening substantially stormwater control requirements for even the largest of
cities we fear that the stormwater provision of S. 1114 will now repolarize the
stormwater debate. Municipal stormwater officials may no longer feel a need to
compromise. At this point, NRDC and other environmental groups believe we will
have to oppose the stormwater provision of S. 1114. Therefore, we urge Senators
BaucusandChafeetoreconsider section 402 of S. 1114. ,,,. o,,,. uv.
Finally there are a number of concepts, not currently included in b. 1114, whicn
could contribute the more cost effective use of federal water pollution funding.
These include incentives for least cost water planning, to assure that water consei^
vation investments are assessed on an equal basis with increased capacity; improved
369
incentives for innovative and alternative water pollution control techniques, espe-
cially where they result in reduced construction as well as operations and mainte-
nance costs for small communities; and set-asides in SRFs for programs that are
consistent with sound watershed plans, as suggested, for example, in Senator Lieber-
man's NEP bill, so long as firm mandates exist for implementation of those plans.
I. THE NEED FOR INCREASED, MORE EFFECTIVE CLEAN WATER FUNDING
A. Shortfalls in Clean Water Funding
The federal government has invested tens of billions of dollars in municipal
sewage treatment since 1972, ^ with total federal, state and local expenditures of
over $130 billion. These investments gained impressive results. The percent of the
U.S. population served by wastewater treatment plants jumped from 42% in 1970 to
67% in 1975, 70% by 1980, and 74% by 1985. * As of 1988, 58% of the U.S. popula-
tion was served by plants providing secondary treatment or better. ^ EPA estimates
that annual release of organic wastes have been reduced by 46% as a result of this
improved treatment, despite a large increase in the amount of wastes treated.
The same measure viewed from the opposite direction, however, shows a glass
only half full. By 1988, public sewer systems serving 26.5 million Americans provid-
ed less than secondary treatment, and 1.5 million people had no treatment, dis-
charging raw sewage into pubUc waters. ® About 70 million people were not served
by Public sewers at all; ' while many of these people have properly designed and
maintained septic systems, others have in-ground systems that leak pollutants into
surface or groundwater. ® In 1990, EPA estimated that the cost of meeting these ad-
ditional municipal treatment needs through the year 2010 would exceed $110 billion
(in 1990 dollars). ^ The EPA Needs Survey, moreover, does not account fully for
funding needed to address pollution from CSOs. Estimates of the cost of addressing
this problem are as high as an additional $80 billion. ^° Other important clean
water programs, such as the requirement for cities to develop comprehensive pro-
grams to control polluted urban runoff, impose additional costs on many commimi-
ties. Cities estimated that they spent $130 to 140 million nationally to prepare
stormwater permit applications, and that compliance costs will be higher. ^ ^
Judged by these investment needs, while our municipal pollution control efforts
have taken a giant step since 1972, we are still only half way to our destination.
Some of these needs are for advanced treatment systems to reduce disch£u-ges of nu-
trients; but others are still to tackle ongoing releases of raw sewage into the Na-
tion's waters.
In addition to these project needs, federal, state and Tribal water quality manage-
ment programs around the country require increased funding as well. For exeimple:
• EPA funding has not grown as fast as the proliferation of Congressional man-
dates. EPA's operating budget was slashed badly in the early 1980s. While some
amends were made in the late 1980s and early 1990s, EPAls overall operating
budget grew by only 25% (in constant dollars) from 1981 to 1992, a time during
which major new environmental laws were passed or in early phases of imple-
mentation (such as Superfund and RCRA), and others were expanded dramati-
cally (including the Clean Air and Clean Water Acts). ^^
• State and tribal water quality programs also are underfunded. The States have
identified a $400 million shortfall in the funding they believe is necessary to
manage state water quality programs. Native American Tribes believe an ad<i-
tional $40 million is needed for tribal water resource programs nationally. ^^
While the high cost of municipal pollution control is felt all over the country,
cities at the extreme ends of the size spectrum appear to be hardest hit:
• Some of the highest sewage treatment bills are concentrated in a few large
cities, such as New York (estimated $10 billion in needs), Los Angeles ($5 bil-
lion), Cincinnati ($2.5 billion), Sacramento, Boston, San Diego and Seattle (each
above $1 billion). Rate hikes in these cities could have serious impacts on urban
poor populations. ^*
• Other severe funding problems occur in small, rural commimities where lack of
access to bond markets and diseconomies of scale make modem sewer sjrstems
difficult to afford. ^^
B. The Case for Increased Federal Funding for Cleem Water
Available public opinion data shows that Americans support stronger water qual-
ity protection overwhelmingly. In its Fifth Annual survey of the best places to live
in America, MONEY Magazine ranked what Americans most want in a city. The
most highly-valued characteristic was clean water. The local leisure activity with
370
the highest rating was access to a lake or ocean. ^^ Both measures indicate the high
value Americans place on the quality of our water resources.
More rigorous surveys underscore the public's concern about water pollution. In a
1992 Roper poll, water pollution topped the list of the most serious environmental
problems, with 77% of the respondents agreeing that water pollution was one of the
"most serious" problems. An even higher percentage (79%) believed that current
water pollution regulations do not go far enough in protecting public resources. ^''
A comprehensive review of over 500 public opinion surveys conducted since
1974 18 confirms that the public ranks water quality high among environmental
problems. According to this survey, most people believe water quality problems are
getting worse, and the percentage of people who share this view has increased since
the Clean Water Act was passed, i®
Meeting our water pollution needs will be expensive, but it is useful to put these
costs in perspective. As a nation EPA estimates we spend less than half of the
money on environmental protection that we spend on clothing, a third of what we
spend on defense and medical care, a fifth of what we spend on housing, and a sixth
of what we spend on food. Moreover, while environmental investment has been in-
creasing over the past two decades, it is actually declining as a percentage of our
total capital investment, that is, we invest a smaller percent of our money in the
environment than we did several years ago. ^o
As a second perspective, in 1992 Ck)ngress (through the Intermodal Surface Trans-
portation and Efficiency Act (ISTEA)) agreed to federal spending of roughly $30 bil-
lion a year over five years to improve highways and other forms of surface trans-
port. While this spending may be justified, it is ironic that we spend 15 times as
much each year to build and restore our artificial railroads and highways as we do
to protect and restore the natural riparian highways that served as America's origi-
nal, natural transportation system, and provide us with so many other economic
and ecological benefits as well.
Finally, by not investing in clean water, we are also losing access to potential
jobs. Different sources indicate that investment of $1 billion in water and
wastewater infrastructure will generate between 6,400 and 15,600 jobs directly in-
volved in project completion. Estimates of indirect effects could be as large as 13,600
jobs per billion dollars invested. Total effects, including direct, indirect, and induced
have been estimated at 34,200 to 57,400 jobs per billion dollars invested. And, the
estimated $8.3 billion (1991 dollars) shortfall in funds for water and wastewater cap-
ital for the period 1993-2000 could represent 2,865,900 to 4,810,000 job-years of em-
plo5mient. ^ ^
According to the Maryland Institute for Ecological Economics, even more jobs can
be created by investing in "natural infrastructure," through the restoration of wet-
lands, streambeds, fisheries habitat, and other essential components of aquatic eco-
systems. These economists predicted that investments in aquatic ecosystem restora-
tion would produce an average of 30 jobs per million dollars spent, a higher job cre-
ation rate than generated through public investment in roads (37% higher), water
and sewer systems (24% higher), and major defense contracting (28% higher). 22 The
National Academy of Sciences proposes a long-range program to restore America's
badly-degraded aquatic resources. ^3 Investment in such a program could generate
tremendous long-term ecological as well as economic benefits.
Increased public spending to protect and restore our aquatic ecosystems, then,
produces multiple public benefits. Most important, it will help to provide cleaner
water and healthier habitat for fish and wildlife. This, in turn, can improve human
health and restore fish and wildlife populations that are valuable for their own
sake, and support important industries as well. Incidentally but also important,
public investment in clean water also creates jobs in many sectors of the economy.
C. Proposals to Improve the Use of Federal Dollars
If additional federal dollars are spent on water pollution programs around the
country, the public should be assured that its tax dollars are being spent wisely. The
following proposals would help to ensure that federal funding of SRFs will be used
as cost-effectively as possible.
1. Least Cost Water Planning
We welcome the recognition of water conservation as one of the new water pollu-
tion control strategies highlighted in the Findings of S. 1114. Additionally, section
403 of the bill would authorize technical assistance on water conservation to com-
munities and businesses, and the establishment of a national clearinghouse on
water conservation technologies. Both of these are useful steps, but they fall far
371
short of the nation's need to bring cost-effective water conservation measures quick-
ly on line.
Simply put, water conservation is dollar conservation. In recognition of the huge
costs that remain before us to achieve our water quality objectives, Title I of the bill
would extend and increase Federal financial assistance to States for aid to publicly-
owned treatment works. Given the enormity of the job remaining to be done, the
Federal taxpayer has a strong interest in making sure that limited dollars are spent
effectively.
Under these circumstances conservation opportunities should be carefully
weighed by each claimant on Federal funds. Many of the costs of wastewater collec-
tion and treatment are closely related to the queintity of wastewater flows that must
be handled. This is true for capital costs, as well as operating costs. Communities
from San Jose to New York Qty are finding that investment in water conservation
can reduce the need for investment in wastewater treatment, on & cost-effective
basis.
We recommend that communities seeking financied assistance from state revolv-
ing funds for purposes of expanding wastewater treatment capacity be required to
prepare an "integrated resource plan." This approach to planning is gaining wide-
spread acceptance among electric utilities and state regulatory agencies. Integrated
resource planning involves the evaluation and comparison of a wide range of meas-
ures to improve efficiency, whether on the customer's side or the utility's side of the
meter. Measures that reduce demand are compared with measures that increase
supply for a given service — in this case, wastewater treatment. Integrated resources
planning would also seek to identify opportunities for saving costs for water supply
systems as well. The product of such a plan is a project or projects that will reduce
the life-cycle costs and environmental costs to society. Where water conservation is
not cost effective, it is not part of the project.
We also recommend that the eligibility criteria for the use of state revolving
funds be clarified for water conservation projects. Where water conservation meas-
ures are found to reduce the capital or operating costs of wastewater treatment,
they should be eligible for funding by the states.
2. Targeting Funding to the National Estuary Program and Similar Watershed
Management Programs
The National Estuary Program (NEP), added to the Clean Water Act (as section
320) in 1987, £dlows the Grovemor of any state to nominate an estuary as an "estu-
ary of national significance." If EPA finds that supplemental controls are necessary
to attain the water qugdity goals of the Act, these estuaries are eligible for funding
to convene a conference to develop a comprehensive management plan for the estu-
ary. Congress initially designated eleven estuaries for priority consideration, and
the program has now grown to include 17 estuaries around the coiuitry. ^^
Management conferences are intended to assess trends in water quality and natu-
ral resources; evaluate pollution and other sources of impairment; and develop and
implement comprehensive corrective actions to restore and maintain the chemical,
physical and biological integrity of the estuary. Designed as a participatory process,
NEP managements conferences are to include representatives of affected states and
foreign nations; federal agencies; local governments; and affected industries, educa-
tional institutions and the public.
The NEP strives to be a true comprehensive watershed initiative, instructing that
all sources of impairment be assessed and remedial actions designed and implement-
ed to tackle these problems. However, NEP suffers in scope and ultimate commit-
ment to implementation. The 21 estuaries now included in the program, for exam-
ple, represent just a third of the estimated 35,624 square miles of estuaries in the
country, ^s
More important, while section 320(f) (2) of the Clean Water Act states clearly that
"[u]pon approval . . . such plan shall be implemented," the law includes no firm
way to ensure that the public will get appropriate action for its money. First, while
the provision identifies items that must be considered in developing a plan, few spe-
cific mandates limit EPA's ability to approve management programs as sufficient to
meet the requirements of the Act; and no provision requires that, as Congress in-
tended, the program be used to go beyond the existing (non-NEP) requirements of
the law. Second, future NEP grants are not conditioned on actual implementation of
management plans. EPA reported in April, 1992, over five years after the program
was created, that only two of the estuary conferences (Puget Sound and Buzzards
Bay) had completed management plans and moved fully into the implementation
phase. ^^
372 •
(
In order to make NEP a working rather thsin a paper model for watershed protec- f
tion, Ck>ngress should:
1. Mandate implementation and fixed time- frames. After development of the
CCMPs there is no firm requirement that the plans be implemented. In addition,
the planning process itself is often unnecessarily stalled and, therefore, extends well
beyond its five year limit. To date, the National Estuary Program has been general-
ly successful at identifying water quality problems. However, it is essential that the
program move from problem identification to implementation of the solutions to
these problems. Section 320 of the CWA should be amended to extend the program,
but with strict requirements for the plans to be implemented in a timely way. Fed-
eral financial assistance should be provided to assist in the effort. Deadlines are nec-
essary to ensure that individual members of the management conference are not
able to stall the entire process.
2. Expand the role of the EPA. The role of the EPA, as an active participant and
as a coordinator of the appropriate environmental agencies, has not been consistent
in each of the projects nor has its level of commitment to the NEP. Section 320 of
the CWA should require the EPA to take on a more aggressive leadership role in
assisting the program to fulfill its goals. Actions taken by the EPA need to be co-
ordinated better with the Governorls office and state coastal zone management of-
fices. States should also be required to adopt the stronger (or more protective) of
their own state coastal management and environmental protection plans or the
fmalCCMP. ... ^ . ,
3. Increase citizen participation. Citizen participation durmg the development of
the CCMPs is often inadequate, as is the funding necessary to accomplish this goal.
Section 320 should be strengthened by requiring citizen participation in all aspects
of the CCMP process. Public hearings should be held on a regular basis throughout
the life of the program. Funding is needed to ensure full citizen participation and
for public education efforts.
4. Establish a Funding Mechanism for State Implementation. Due to state budget
shortfalls and & lack of federal support, many states have not been able to follow
through on their CCMPs; therefore, there is no guarantee that these plans will ever
be implemented, monitored, and enforced. The Clean Water Act should include a
funding mechanism to ensure that the states are given federal assistance so that the
CCMPs can be implemented, enforced and closely monitored. Federal funds also pro-
vide an incentive for states to undertake the more politically difficult task of put-
ting the planning elements into practice. States are eligible to receive CCMP imple-
mentation funds under the State Revolving Fund (SRF) program, however, current
appropriation levels are severely inadequate to meet the growing demand for fund-
ing.
5. 815, introduced by Senators Lieberman, Dodd, Moynihan and O'Amato, would
increase NEP funding contingent on resolution of many of these problems. The Lie-
berman bUl, however, is just one example of watershed-based planning that can be
used to target the use of SRF dollars. Similar tools should be used to direct the use
of funding in other types of water bodies around the country, as an incentive for
sound watershed-based planning and management. However, as with the Lieberman
bill, set-asides for such funding must be made contingent on firm assurances that
plans will be implemented properly, and not just used for endless planning.
n. THE NEED FOR EFFECTF/E STORMWATER AND CSO CONTROLS
A. Urban Stormwater
1. STORMWATER CAUSES SERIOUS ENVIRONMENTAL PROBLEMS
Members of this Committee are well aware of the serious problems caused by pol-
luted stormwater runoff. During debates on the 1987 Water Quality Act Senators
Mitchell and Chafee noted:
Runoff from municipal separate storm sewers and industrial sites contains sig-
nificant volumes of both toxic and conventional pollutants, including 13 toxic
metals, in the discharge from municipal separate storm sewers that were stud-
ied. Of these, lead, copper, and zinc were the most pervasive; EPA found these
pollutants in at least 91 percent of its samples. The same study also estimated
that municipal separate storm sewers discharge 10 times the total suspended
solids that the Nation's secondary sewage treatment plants discharge.
Toxic and conventional storm water contaminants may adversely affect public
health, harm fish and other aquatic life, and prevent or retard water quality
improvements even when the best available pollution controls are installed on
other point sources. 2''
373
EPA's Nationwide Urban Runoff Program (NURP) is the primary evidence of the
ubiquitous nature and significant quantities of pollutants in urban runoff:
Data collected under the NURP indicated that on an annual loading basis, sus-
pended solids in discharges from separate storm sewers . . . are around an
order of magnitude greater than solids in discharges from municipal secondary
sewage treatment plants. ^®
Chemical oxygen demand, fecal coliform, and oU and grease in urban runoff are
also significant. EPA describes urban runoff as "an extremely important source of
oil pollution to receiving waters. . . ." ^^ Construction runoff is also a massive prob-
lem:
Intensive construction activities may result in severe localized impacts on water
quality because of high unit loads of pollutants, primarily sediments. . . . Sedi-
ment loadings rates from construction sites are typically 10 to 20 times that of
agricultural lands, with runoff rates as high as 100 times that of agricultural
lands, and typically 1,000 to 2,000 times that of forest lands. Even a small
amount of construction may have a significant negative impact on water quality
in localized areas. ^°
Stormwater also contains toxic chemicals: 77 of 120 toxic priority pollutants moni-
tored were found in storm water from residential, commercial, and light industrial
lands. ^^ Of these toxics, 24 were found in over 10 percent of all samples taken. ^^
The NURP authors described the water quality impacts of urban runoff as falling
into three categories:
• short-term receiving water impacts during or following storm events (where pol-
lutant concentration is important);
• longer-term downstream receiving water effects — the buildup of contaminants
in the sediments of "sinks" like river mouths, lakes, and bays (where seasonal
or annual pollutant moss loads are important). (Although NURP did not exam-
ine in detaul this phenomenon, NURP data enable coarse estimates to be made
of runoff annual mass loadings from large urban areas.)
• physical effects of storm flows on the hydrology and geomorphology of urban-
ized watersheds — including stream channel scouring. ^^
The flow of storm water itself damages streams, and is a major source of degrada-
tion of water bodies in urban areas. The severe physical habitat effects that can
result from storm water discharges can include streambemk erosion and rapid
changes in streeim cheumel morphology, loss of protective riparian trees and other
vegetative cover, and the loss of pool and riffle structures. All of these changes,
caused by high volume and velocity stormflows that occur with great frequency
after the construction of impervious surfaces such as parking lots, destroy the habi-
tat necessary to support fish £ind other aquatic life.
More recent information confirms the severe continuing impacts of polluted
stormwater urban runoff. Studies conducted by NRDC in U.S. cities have shown
that the contribution of urban runoff to total annual pollutant loadings to urban
streams and estuaries rivsds, and in some cases surpasses, loadings of the s£une pol-
lutants from factories and sewage plants. ^* Using national average runoff pollutant
concentration data derived from the NURP study, NRDC made coarse estimates of
runoff pollutant loadings for heavy metals, oil and grease, BOD, nitrogen, and phos-
phorus for seven urban areas around the country: Baltimore, MD; Washington, D.C.;
Harrisburg, PA; Tidewater, VA; Los Angeles, CA; Atlanta, GA; and Cleveland, OH.
Although the results varied from city to city, these "Poison Runoff Indexes" showed
that runoff rivals, and in some cases surpasses, factories and sewage plants as a
source of these pollutants. For instance, in most of the urban areas modeled by
NRDC, zinc loadings from nmoff exceeded the loadings from large factories in the
State or region. ^^
EPA, as well, confirms the continuing significance of stormwater pollution. Over
9800 impaired river miles, or 5.7% of total unpaired miles, were polluted by con-
struction runoff in the 1988-90 section 305(b) reporting cycle, and over 18,000 im-
paired river miles, or 10.6% of total impaired miles, were polluted by storm sewers
from urban sites in the same cycle. ^^ According to a 1992 EPA study of stormwater
discharges, urbanization degrades a disproportionate share of our nation's waters:
While urbem population areas take up only about 2.5% of the total land surface
of the country, stormwater pollution from these urban areas and associated
urban activities (i.e., storm sewers/urban runoff, combined sewers, hydromodifi-
cation, land disposal, construction, urban growth, etc.) accounts for a propor-
tionately high degree of water quality impairment (i.e., 18% of impaired river
miles, 34% of impaired lake acres, and 62% of impaired estuary square miles
374
reported under 319) when compared to that from rural activities (i.e., agricul-
ture, silviculture and mining) which take up approximately 53% of the total
land surface. ^''
2. THE STORMWATER PROGRAM HAS FACED CONTINUOUS DELAYS SINCE 1972
Despite these severe problems, it has taken EPA over twenty years, with constant
prodding from environmental groups, Congress and the courts, even to begin to deal
with stormwater. In 1973, EPA acknowledged that stormwater discharges fall
within the Clean Water Act definition of "point source." However, EPA rules ex-
empted many stormwater discharges from NPDES requirements, arguing there
were simply too many outfalls to regulate. ^^ NRDC successfully challenged EPA's
authority to exempt these and other point sources from regulation. ^9
NRDC's successful court challenge, however, was a classic case of winning the
first battle in what would be a very long war. Over the course of the next decade,
EPA issued and reissued stormwater control regulations, only to have them chal-
lenged in court, or withdrawn by the agency itself as administrations and policies
changed Separate proposed or final rulemaking notices were issued in 1979, 1980,
1982, 1984, and 1985. *°
In the 1987 Clean Water Act Amendments, Congress recognized the role of con-
taminated storm water runoff in the ongoing severity of the pollution of this na-
tion's waters, and expressed impatience with EPA's slow progress:
. stormwater runoff from urban areas contains large volumes of toxic mate-
rials and other pollutants. Since 1972, municipal separate storm sewers have
been subject to the point source permit requirements of the Clean Water Act.
However, EPA only 4rlecently began to develop a permit program for these
sources. * ^
To address this long history of delay, in 1987 Congress put EPA on a new, phased
schedule for regulating storm water. EPA was first to regulate large cities (systems
serving over 250,000 people) and industries, then medium municipalities (systems
serving over 100,000 people), and finally small municipalities and other sources. *^
Congress extended these statutory deadlines reluctantly and only because EPA
had failed to develop a viable storm water program. Senator Stafford stated, ". . . I
generally do not support willingly any delays in environmental programs, especially
a program to control a source of toxic pollutants as important as this one is. EPA
should have developed this program long ago. Unfortunately, it did not." *^ Con-
gress fully expected EPA to enforce the statutory deadlines in the 1987 Amend-
ments. Senator Chafee stated, "... I expect EPA to move rapidly to implement this
control program," ** and Senator Stafford said, "[t]he conferees believe that these
new dates are responsible and reasonably can be achieved in virtually all cases." *®
Once again, however, EPA violated the law's deadlines for issuing stormwater
regulations. The first phase of stormwater rules was issued nearly two years after
the deadline (November 16, 1990), after a deadline suit was brought by an environ-
mental group in Oregon. EPA again included major loopholes in its rules — for exam-
ple, exemptions for a large number of industries and construction sites, which were
once again rejected by a federal court after a legal challenge by NRDC. EPA still
has not issued rules for small cities and other sources of stormwater; *« last year, in
an obscure, last-minute provision of the Water Resources Development Act which
was subject to no public comment (much less debate). Congress provided an addition-
al two-year extension for the remaining municipal areas.
This chronic history of delay in dealing with the severe problems caused by storm-
water pollution outlined above are summarized in table 1.
TABLE l.-DEU\YS IN IMPLEMENTING THE URBAN STORMWATER PROGRAM
Date Event
1972 Clean Water Act Requires Permits for All Point Sources (applications by 1973, permits by 1974)
1973 EPA Regulations Exempt Most Sources of Stormwater
1975 U.S. District Court Rules EPA Loopholes illegal
1977 U.S. Court of Appeals Upholds District Court
1980 EPA Issues Rules Responding to Court Decisions, but Exempts Cities Outside "Urbanized Areas"
1982 EPA issues "Nonenforcement Letter" informing Cities it would not Take Enforcement Actions Against
Cities with Permit Applications
375
TABLE l.-DEU\YS IN IMPLEMENTING THE URBAN STORMWATER PROGRAM-Continued
Date Event
1984 EPA Rule Further Extends Stormwater Permit Deadlines Until 1985
1985 EPA Rule Further Extends Stormwater Permit Deadlines Until 1987 and 1989
1987 Congress Modifies Program and Extends Stormwater Permit Until 1992, with Phased Permitting
1989 EPA Sued for Missing 1989 Deadline for Issuing Stormwater Rules
1990 EPA Issues Rnal Stormwater Rules Extending Compliance Deadlines Beyond Those in 1987 Law
1991 EPA Issues Revised Rules Further Extending Stormwater Compliance Deadlines
1992 EPA Issues Revised Rules Again Extending Stormwater Compliance Deadlines
1992 U.S. Court of Appeals Prohibits EPA from Further Extending Stormwater Deadlines
1992 Congress Provides Additional Extension of Stormwater Deadlines for Small Cities (in WRDA)
1993 S. 1114 Proposes to Exempt Most Cities Under 100,000 From Stormwater Permits Altogether
3. THE CURRENT MUNICIPAL STORMWATER PROGRAM IS FLAWED
Perhaps more important than the rulemsiking delays were fundamental flaws in
the rules issued by EPA in 1990:
(a) EPA narrowed significantly the scope of municipal separate storm sewer sys-
tems covered by the first rounds of permitting, leaving the vast majority of cities for
later; and
(b) EPA failed to provide any significant guidance on the scope or substance of
municipal stormwater programs, leaving on-the-ground controls entirely up to indi-
vidual cities.
(a) Gaps in Coverage
Under EPA's implementation of 402(p), a total of 173 cities with populations of
100,000 or greater, and 47 counties with unincorporated populations of 100,000 or
more, were required to have stormwater permits by October 1, 1992. *'' EPA ex-
cluded from coverage a total of 411 municipalities, each of which included popula-
tions over 100,000 according to the 1980 Census. Many of these are densely-populat-
ed suburbs of major metropolitan areas such as Atlanta, Chicago, Boston, Detroit,
New York, Cleveland, and Philadelphia. ** These areas suffer from some of the
most severe stormwater pollution problems in the nation. (Even more cities would
be excluded if 1990 Census data were used.)
EPA's judgment was affected by its concern over workload:
The need to establish a reasonable number of permits . . . during the initial
phase of program development that will provide an adequate basis for a storm
water quality program for over 13,000 municipalities after the October 1, 1992
general prohibition on storm water permits expires. *®
Congress was concerned about the number of municipal permits. But it expressly
addressed this concern in two ways. First, in section 402(pX3XBXi), it allowed munic-
ipal storm water permits to be issued on a "system- or jurisdiction-wide basis,"
rather than fcr every storm water outfall. ^° Second, Congress phased in municipal
permitting requirements according to population.
EPA limited storm water permits to portions of counties in "urbanized areas," as
defined by the Census Bureau. While density is one valid criterion to distinguish
between the severity of stormwater problems, according to EPA's own data the
Census Bureaus' definition is inappropriate. The Census Bureau defines "urbanized
areas" according to a complex definition which includes, as one factor, density of at
least 1,000 persons per square mile. *^ Whatever its reasons for selecting this crite-
rion, the Census Bureau did not consider the appropriate density cutoff for weighing
storm water runoff.
NURP, the most comprehensive study of urban storm water, indicates that a far
lower density cutoff is appropriate. NURP indicates that a density of approximately
one person per acre, or 640 persons per square mile, is the appropriate cutoff for
storm water runoff concerns. ^^ Many of the nation's largest suburban areas were
excluded from first-round permits under this reasoning. ^^
Even more irrational was EPA's decision to exclude portions of counties covered
by EPA's initial rule that consist of incorporated places with populations lower them
69-677 0-94-13
376
the statutory cutoffs. EPA even excluded whole counties that otherwise would meet
the population cutoff and "urbanized area" requirements if most (all but 99,999 or
fewer) of the residents lived in incorporated places with populations lower than
100,000." , „ . ,
These exceptions generated anomalous and illogical results:
(1) The rule covers a county with "urbanized" areas and a population of slightly
more than 100,000, but without any incorporated places; but it would cover a
county with urbanized areas and a population of one million, most of whom reside
in a series of adjacent incorporated places each of which is smaller than 100,000.
This scenario is typical of many suburban areas that are highly developed, but are
comprised of a large number of incorporated places each of which is smaller thsm
100,000. This explains why such densely-populated suburban counties as Nassau
County, Long Island; Cook County, IL; and San Mateo and Santa Clara Counties, CA
are not included in EPA's rule. These areas include contiguous, densely-populated
incorporated places each of which is below 100,000 people.
(2) The rules cover some parts of a county with a million people and "urbanized
areas;" but exclude from coverage some of the most densely-populated portions of
those counties, i.e., those parts within incorporated places of less than 100,000
Even EPA's own recent stormwater literature points out the need to expand the
scope of regulation to additional urban areas:
"The 220 Phase I NPDES municipalities have a combined urban population of
78 million. The remaining 80 million people located in urbanized areas are out-
side of Phase I municip^ties. Most urban growth occurs in the urban fringe
areas outside of core cities. For example, between 1970 and 1980, the population
of incorporated cities with a population of 100,000 or more (Phase I cities) in-
creased by only 0.6 million, with the population of many of these cities decreas-
ing. Between 1970 and 1980, the population of urbanized areas outside of cities
with a population of 100,000 or more increased 30 times more (an increase of
18.9 million) than the population of these core cities. This is important from a
stormwater perspective as numerous studies (e.g., NURP) have shown that it is
much more cost effective to develop measures to prevent or reduce pollutants in
stormwater during new development than it is to correct these problems later
on." ^*
Thus, there are as many large urban areas currently outside of the NPDES storm-
water permitting sjretem as there are cities beneath the NPDES umbrella. This
"regulatory gap," as the quote from EPA above makes clear, is all the more crucial
considering that the areas left out of the NPDES umbrella are experiencing the
most rapid growth rates, and thus have the most urgent need for immediate estab-
lishment of water-sensitive master plans and site design practices, before excavation
and building ever begin.
(b) Absence of Substantive Requirements
Most of the municipalities that have now applied for their initial permits (Part I)
have conducted stormwater pollution studies to develop city-wide stormwater man-
agement programs (Part 11). However, because EPA has not provided substantive
performance targets (such as the minimum urban area that must be covered by
well-accepted stormwater management measures) for the permits, urban citizens
and stormwater utility ratepayers may have little or no assurance of permit pro-
gram accountability and effectiveness. , ^ ^.
In section 402(pX3XB), Congress clearly intended to provide a new substantive
standard for storm water control from municipal sources. But a new standard is far
different from no standard. The Legislative History confirms that municipal storm
water sources must be subject to defined minimum controls. *®
Congress cited the need for EPA to develop detailed substantive programs for mu-
nicipal storm water control as the primary reason for the temporary exemption of
storm water from NPDES permitting. In explaining the Conference provision on the
Senate Floor, Senator Stafford explained why he reluctantly supported a delay m
the municipal storm water program:
I would like to expledn to my colleagues why a little more time is needed to
develop a comprehensive municipal storm sewer program. These programs will
not necessarily be like industrial discharge permits. Often, an end-of-pipe treat-
ment technology is not appropriate for this type of discharge. As an EPA offi-
cial explained during a meeting of the conferees:
These are not permits in the normal sense we expect them to be. These are
actual programs. These are permits that go far beyond the normal permits we
377
would issue for an industry because they in effect are programs for stormwater
management that we would be writing in these permits.
As my colleagues know, I generally do not support willingly any delays in en-
vironmental programs, especially a program to control a source of toxic pollut-
ants as important as this one is. EPA should have dTeveloped this program long
ago. Unfortunately it did not. ^''
This same expectation is noted in the Conference Report itself:
... the conference substitute temporarily prohibits the Environmental Protec-
tion Agency and States from requiring permits for certain municipal separate
storm sewers . . . in order to provide a sufficient period of time to develop and
implement methods for managing and controlling discharges from municipal
storm sewers. *®
Thus, Congress reluctantly accepted four years of delay largely to allow EPA suf-
ficient time to develop a comprehensive new mvmicipal storm water program. In its
final regulation, however, EPA failed to provide any substantive, prescriptive re-
quirements for municipal storm water management programs. ^^ As a resvUt, EPA's
regulations are almost entirely vague, and there are virtually no hard criteria by
which to judge the adequacy of municipal storm water permits and programs. Nor
do municipal applicants have a clear target to shoot at when they prepare their
permit applications. ^°
Thus, rather than meeting its commitment to Congress to take advantage of the
temporarj' reprieve granted by section 402(p) to develop comprehensive municipal
storm water control programs, EPA punted its responsibility to municipalities
around the country. These applications will be reviewed by individual NPDES
permit-writers (who themselves will have no guidance in the regulations to decide
which applications propose adequate programs), and will result in vastly different
requirements, inconsistent water pollution control emd potentially severe inequities
in costs and water quality among communities.
NRDC agrees that storm water programs should reflect comprehensive regional
prc^rams of structural and nonstructural approaches. A single, rigid set of criteria
and performance standards would be impractical and unwise. However, the need to
provide for flexibility does not obviate the duty to provide a minimum set of per-
formance standards that will realize Congress' goal of establishing programs that
reduce storm water pollution to the maximum extent practicable. ^^
EPA's own statements underscore the need for municipal storm water permits to
provide for sufficient uniformity in pollution reduction to achieve the goals of the
Act. EPA's response to comments on its draft rule under 402(p) stetes:
EPA agrees that as much flexibility as possible should be incorporated into the
program. However, flexibility should not be built into the program to such an
extent that all municipalities do not face essentially the same responsibilities
and commitment for achieving the goals of the CWA.^^
EPA's completely open-ended, non-substantive municipal storm water permit appli-
cation requirements at best will result in haphazard, unpredicteble, and unenforce-
able storm water pollution control programs, and at worst will result in a collection
of "paper programs" with no ultimate reduction in storm water pollution. ^^ Mini-
mum standards for accepteble storm water control programs are feasible. This is
strongly suggested by EPA's own finding that urban storm water discharges around
the country are surprisingly similar.
NURP and other studies have verified that even mean concentration of pollut-
ants in urban nmoff from residential and commercial areas remains relatively
constant from one area to another. . . . **
NRDC suggested several options for such controls in comments on the proposed
rule, drawing from the experience of state and local storm water programs around
the coimtry. Various kinds of performance standards for runoff pollutant reduction,
and control of the stormflows themselves, are technically feasible and in many cases
are in place at the State and local level around the country. Data on the pollutant
reductions achievable by various Best Management Practices are available from
well-known sources, including EPA's final NURP report, which included BMP per-
formance data from studies of fourteen wet detention basis in six cities, and a 1987
urban runoff BMP manual from the Washington Metropolitan Council of Govern-
ments. ^® At least five states have storm water control and water quality laws that
contain substantive storm water control requirements for various categories of
urban land use and development.
There are several ways that flexibility in storm water programs can be main-
tained, while still providing substantive pollutant reduction standards for storm
378
water that will ensure that all permittees have essentially the same commitment to
achieving the goals of the Act. Flexibility can be maintained, for example, by estab-
lishing separate performance standards for each of the climate regions in the
United States designated by EPA, «« to address variations in urban runoff charac-
teristics linked to variations in precipitation patterns.
EPA can provide additional flexibility in its municipal storm water permitting
guidelines by providing States and permit writers with a choice of several different
types of performance standards for runoff control programs. There are at least four
different categories of performance standards, and all have examples in current
State and local progran^:
• Required Best Management Practices (BMPs), possibly a region-specific, manda-
tory menu of BMPs which each municipality must implement as a permit con-
dition. Considerable information exists on the performance characteristics of
various BMPs, on which EPA can base its choices for the list of required BMPs.
Not all permittees have to choose the same BMPs, but they must choose an ade-
quate number from EPA's menu. An example of a BMP requirement is the Dis-
trict of Columbia's rule mandating installation of an oil and grease treatment
device for "storm water discharge facilities." Examples of mandatory BMP pro-
grams are also provided by State and local erosion and sediment control laws
around the country. „ ^ ^
• Pollutant reduction performance standards, which establish mmimum pollutant
reduction levels as a percent of annual baseline raw runoff loadings, based on
analyses of the engineering and municipal program literature. Maryland's Criti-
cal Areas Act contains a pollutant reduction performance standard for redevel-
opment and new development in the regions within the State's Critical Area
that are designated "Intensely Developed Areas." The runoff performance
standard requires that these developments install runoff controls that will
achieve a postKievelopment pollutant loading that is ten percent below the pre-
development loading from the site. «' The Maryland Critical Areas Act also
Provides EPA with methods for applying the "keystone pollutant" concept, and
baseline loading estimates, both of which are useful in applying runoff pollu^
ant reduction performance standards.
• Service area performance standards, which establish a minimum percentage of a
permittee's total area, or total impervious area, to be serviced by pollutant re-
duction BMPs. EPA could determine the total percentage of watershed drainage
area that must be served by retrofit BMPs in the watershed, as well as by
BMPs installed concurrently with new developments, and use these figures to
set "minimum area served" performance standards for urban runoff controls.
• Flow/Hydroloaical performance standards, which may establish retention re-
quirements in several different ways: minimum design storm capture, down-
stream peak discharge control, or minimum runoff flow capture. State policies
have been aimed at achieving pollutant reduction, and at maintaining or ap-
proximating the natural flow regimes of the receiving streams.
Florida requires storm water permit applicants for areas of 100 acres or less to
provide for the retention, or detention with filtration, of the first one-half inch of
runoff, or of the first one inch of rainfall, whichever is greater. For areas greater
than 100 acres, the performance standard consists of mandatory treatment of runoff
from the first one-inch of rainfall. « 8 , „ ^ i:,t,a
No single one of these proposals is necessarily the only correct approach. But hiFA
had ample options from which to choose, and had no excuse for choosing none.
The concept of "pollution prevention," a congressional mandate under the Pollu-
tion Prevention Act of 1990, provides & particularly attractive approach for estab-
lishing meaningful but flexible requirements for the Clean Water Act stormwater
program, through the following rvmoff prevention and reduction hierarchy:
1) for new development: runoff prevention through mapping and preservation of
natural drainage ways, preservation of mature forest zones along waterways,
and caps on the amount impervious surface; ^^
2) for redevelopment and retrofitting of existing developed areas: runoff reduction
through revegetation, impervious surface reclamation (e.g. retrofitting parking
lots with grass swales designed to capture and filter the lot's runoff, thus pre-
venting or severely reducing the need to discharge to a nearby stream);
3) chemical source controls and toxics use reduction (e.g. policies that require
lawn service companies to test lawns for nutrient content and pest problems
before applying chemicals, in order to reduce lawn chemical use); and
4) conventional "end-of-pipe" stormwater treatment devices, such as extended de-
tention ponds, infiltration trenches, and catch basins.
379
This "stormwater policy hierarchy" in turn could be incorporated into a compre-
hensive watershed restoration program that highlights the importance of urban
waters to inner-city dwellers, relies on local citizen groups and municipalities to ini-
tiate and structure long-term restoration strategies (that may include community-
based studies like surveys of urban fishing patterns, and locally-based skilled jobs
like urban forestry), and channels federal dollars to priority urban watersheds to
help fund the restoration work. '° Such a program would help to focus the energies
of urban activists into the work of "re-greening the urban landscape," enshrining
this ecological goal as a critical part of the Clean Water Act's goal of "fishable,
swimmable", waters for all Americans.
4. SECTION 402 OF S. 1114 EXACERBATES RATHER THAN SOLVES PROBLEMS WITH
THE STORMWATER PROGRAM
While S. 1114 attempts to resolve many of the problems with the current munici-
pal stormwater program, it fails to do so effectively in some cases, and takes us dra-
matically in the wrong direction in others. In particular, the bill:
1) relies on the CZARA urban runoff measures in defining Maximum Extent Prac-
ticable, which means that the current "write-your-own permit approach will be
largely continued;
2) exempts cities and urban/suburban counties under 100,000 population that are
not within a much larger jurisdiction; and
3) exempts even the permitted municipalities from either numeric limits, or compli-
ance with water quality standards, for the first two permit terms, meaning that
the permits will remain largely unaccountable to larger, ecosystem restoration
goals, including the most fundamental coals of the Clean Water Act.
Below, we explain these problems in more detail, and provide specific proposed
amendments to fix them.
PROBLEM #1: Reliance on the CZARA urban runoff measures in defining
Maximum Extent Practicable means that the current "write-your-own" permit
approach will be largely continued; little will be provided in the way of a specif-
ic, national "technology floor" for urban stormwater permits.
"CZARA" stands for the Coastal Zone Act Reauthorization Amendments of 1990.
This new program is a blend of two programs that have focused on land-based
sources of water pollution: Clean Water Act Section 319, and the Coastal Zone Man-
agement Act. CZARA required EPA to work with the National Oceanic and Atmos-
pheric Administration to come up with guidance to the States in regulating polluted
rvmoff from land uses known to degrade coastal waters. One of the results of this
new mandate is a thick technical tome published by EPA on rimoff "management
measures." known as the "Blue Book," this guidance contains management meas-
ures for agriculture, urban developments, and other land uses.
Although the concepts embodied in the management measures are sound, they
are often too weak because they are too vague, general, and lacking in performance
standards to guide their implementation by both States and landowners. The man-
agement measures are usually followed by laundry lists of site-level practices. These
practices are the nitty-gritty, on-the-ground actions that landowners need to take to
protect water quality. But because the actual practices are voluntary, ensuring that
the management measures get implemented, and backing them up with enforce-
ment procedures, wUl be a Herculean and thankless task for many State water
quality agencies.
The CZARA technical guidance has five categories of maneigement measures that
specifically relate to controlling runoff from urban areas: New Development; Con-
struction; Existing Development; Onsite Disposal (septic) Systems; and Roads, High-
ways and Bridges. We dwcuss the New Development and Existing Etevelopment
measures in detail below. The onsite disposal measures contain some objective per-
formance standards; neither the "Construction Activities," nor the "Road, Highway
and Bridges" measures contain objective stemdards.
The Existing Development Management Measure requires that "watershed man-
agement programs" be developed to reduce runoff in four ways:
1) "identify priority local and/or regional watershed pollutant reduction opportu-
nities, e.g. improvements to existing urban runoff control structures;"
2) "contain a schedule for implementing appropriate controls;"
3) "limit destruction of natural conveyance systems;" and
4) "where appropriate, preserve, enhance, or establish buffers along surface water-
bodies and their tributaries."
Each of these items are important elements of any stormwater management pro-
gram, and should be included in NPDES permits. However, in and of themselves,
380
they contain no objective ^eans of determining effectiveness in reducing existing
runoff loadings. No quantitative performance standard determines the scope of their
application in each permitted jurisdiction. For instance, while the exhortation to
"limit destruction of natural conveyance systems" is laudable, the d^ree to which
it should be applied by each permittee is unspecified.
Similarly, element # 1, "identify . . . improvements to existing . . . control struc-
tures" is extremely vague, and lacks a means to verify whether each permittee has
satisfied its intent. If the intent is to require each urban area to install a minimal
number of detention ponds, infiltration trenches, consti-ucted wetlands, or other
"retrofit" devices, then the measure should have specified a quantitative minimum
for these devices. For instance, the measure could have specified that "improve-
ments be made to a minimum of 50% of the permittee's existing stormwater control
structures." Instead, a permittee could conceivably have a permit under this pro^s-
al that reads "retrofit [a few] [several] [five to ten] stormwater devices per year, ' in
an area that has a thousand devices awaiting a retrofit.
Without some form of quantitative or otherwise objectively verifiable performance
standard attached to the management measures, it is difficult if not impossible for
the permitting authority, or citizen water watchers to ascertain whether Congress'
intent, and the letter of the law, is being met. . » . ,
The Pollution Prevention. Management Measure requires that prevention and
education" programs be developed to address the following urban runoff sources:
1) household hazardous chemicals;
2) lawn and garden activities;
3) turf management on golf courses, parks, and recreational areas;
4) discharges into storm drains;
5) commercial activities including parking lots and gas stations; and
6) improper disposal of pet excrement.
While these are important source categories for urban runoff, no specific activities
("practices") are required. Thus, if a local government sends a "pesticide use reduc-
tion education" brochure to golf courses in its jurisdiction, does that satisfy the golf
course portion of the management measure? K so, there is no guarantee that actual
water-sensitive practices will be installed on any golf course in this example, only
that some kind of education take place. While education is an important part of
runoff reduction programs, it must be accompanied by specific kinds of runoff reduc-
tion practices in order to be effective.
CZARA Measures Pertaining to New Development
Virtually everyone in the stormwater management field agrees that an ounce of
prevention is worth a pound of cure— that it makes sense to require stormwater
management site designing as part of the suburban/urban development zoning and
planning process. . v ^ r
There are three measures related to new development m the urban chapter ot
EPA's CZARA Technical Guidance. These are: 1) "New Development"— which con-
tains a single numeric standard, namely, an 80% reduction m' total suspended
solids loadings on an annual basis is required for the post<x)nstruction phase for
new developments; 2) "Watershed Protection"— which contains no objective stand-
ards for implementation; and 3) "Site Design"- which contains no objective stand-
ards for implementation.
As NRDC commented to EPA on the draft version of this guidance last summer,
these measures are conceptually correct, but they have the effect of promoting an
end-of-pipe, rather than a prevention mentality for stormwater. By requirmg a nu-
meric standard only for total suspended solids, EPA is, in effect, pushing developers
to install stormwater "physical devices" like detention ponds and infiltration
trenches, which constitute "end-of-pipe" treatment devices. , . , . , ^
By including the good concepts of watershed protection and site design, but re-
quiring no objective, verifiable performance standard to back them up, EPA is virtu-
ally guaranteeing that business as usual will continue unabated and unchallenged.
NRDC's study of two counties that have had new development stormwater man-
agement requirements implemented since the mid-1980s demonstrates the futility of
the kind of end-of-pipe controls that the EPA CZARA measures will (madvertently)
promote ''^ In this study, of Prince George's and Montgomery Counties, Maryland,
we found, for example, that estimated phosphorus loadings fi:t)m the two counties
had increased by 20% by 1990 above the level of 1985— despite the fact that end-of-
pipe stormwater treatment devices were assumed to have been mstaUed, and work-
ing up to literature performance levels— in all new developments.
The implication of this stormwater management study is clear: without planning-
level controls that include progressive transportation planning to reduce the
381
amount of new imperviousness and the number of vehicle-miles, and natural drain-
age way preservation and other "design with nature" approaches "stormwater
mitigation" devices will not serve to adequately protect waters of the U.S. from the
effects of suburban sprawl.
Furthermore, NRDC and others have shown that simple "new development storm-
water requirements" are not enough — legislation must provide some specifics to the
effect that imperviousness shall be minimized (with numeric caps, at least on a wa-
tershed basis) . . . and that natural drainage ways shall be preserved as part of the
stormwater management planning and design. The research by NRDC cited above
suggests that suburban sprawl, even when it incorporates stormwater management
devices, creates significant additional nutrient loadings that cem overwhelm, or
cancel out, any gains made by controls on other sources, for instance, tertiary
sewage treatment.
Remedy: Amend S. 1114 proposal to specify a short list of universally-applicable
urban management measures, to include the following, and require EPA to es-
tablish quantitative or otherwise verifiable criteria for their implementation,
for inclusion in all municipal stormwater permits:
1) parking lot retrofits to capture, attenuate, and/or filter runoff;
2) new development controls specifying numeric caps on imperviousness and nu-
meric floors on vegetation preservation, and that preserve all natural drainage
ways;
3) public education with target populations, frequency of outreach, and other spe-
cifics required;
4) minimum percentage of existing flood-control devices within each permittee's
jurisdiction to be retrofitted for stormwater quality benefits;
5) chemical source controls including gas station measures and practices;
6) mandatory planning coordination between stormwater managers and transpor-
tation and land use planners;
7) illicit discharge program with an objectively verifiable conveyance system sur-
veying and discharge elimination protocol (e.g. require use of dry weather sampling
at a minimum number of outfalls, require CXTTV use in a minimum percentage of
conveyance pipelines etc.);
8) other measures, including region-specific measures as deemed appropriate.
There are many standard urban nmoff manuals available that demonstrate the
feasibility of standard management measures nationwide, for mitigating and abat-
ing runoff from existing development. These include: the 1992 Stormwater Manage-
ment Manual for the Paget Sound Basin, published by the Washington State De-
partment of Ecology; the Minnesota Pollution Control Agency's 1989 Best Manage-
ment Practice Manual entitled Protecting Water Quality in Urban Areas; and the
1993 California Storm Water Best Management Practice Handbooks, published by
the California Storm Water Quality Task Force.
PROBLEM #2: Exemptions for smaller cities and urban/suburban counties
under 100,000 population that are not within a much larger jurisdiction. This
provision targets the "pocket" or "enclave" municipalities (those within larger
urban cities or counties) for inclusion in permits, while leaving all others un-
regulated, including many of our largest, most rapidly growing suburbs.
According to a report from EPA on the environmental impacts of stormwater dis-
charges:
... it is much more cost effective and institutionally feasible to develop con-
trols for new development than it is to retrofit old development. ''^
Furthermore, the same report states that:
Urban fringe areas are experiencing the largest land use changes due to rapid
growth in population resulting in an excessive net increase in pollution load-
ings. Many of these fringe areas are not currently covered under the Phase I
NPDES stormwater program. ''^
EPA's current policy of exempting the "urban fringe areas," including many of
the counties and cities undergoing the most rapid growth in the country, from the
stormwater permitting regulations, is left largely unchanged by the Baucus-Chafee
bUl. To further quote from the EPA report cited above.
Under Phase I [the issuance of permits to the large and medium municipalities),
EPA defined municipal separate storm sewer sj^tems on the basis of political
boundaries, including 173 incorporated cities (having a population of 100,000 or
more) and 47 of 500 counties having an unincorporated population of 100,000 or
more. The counties that were addressed by the 11/16/90 regulation were in a
handful of States, primarily MD, VA, FL, and CA. While the current regulations
382
indirectly address suburban growth in these States, in most carts of the country,
the regulations only address core cities and exclude suburban or "urban fringe"
development." (Emphasis in original.) ''*
By exempting many small cities, as well as rapidly-growing coimties, from storm-
water permits, the Baucus-Chafee bill misses the best opportunity to implement pol-
lution prevention measures now — so that we can avoid much higher retrofit/mitiga-
tion costs later.
In addition, the wholesale exemption of smaller, stand-alone urban areas means
that existing stormwater problems will not be corrected. The Nationwide Urban
Runoff Program (a joint study of 28 urban areas conducted in the early 1980s by
EPA and USGS) data shows that site-to^te variability in runoff quality is highly
difficult to predict. To quote from the NURP conclusions:
As a result of extensive examination, it was concluded that geographic location,
land use category ... or other factors . . . appear to be of little utility in con-
sistently explaining overall site-to-site variability in urban runoff . . ." (empha-
sis added). '^^
This conclusion means that, as a general rule, the quality of runoff— its relative
degree of contamination — ^was not foimd to vary in any discernible pattern from lo-
cation to location. Thus, it is not possible to conclude, from currently-available, com-
prehensive studies, that small cities' nmoff quality is different from large cities'
runoff.
The Baucus-Chafee "small municipality" provision has the benefit of including
the "urban enclaves" within pre-existing permits— for instance,^ those incorporated
cities and towns within counties already captured by the "large or medium"
(100,000 and above population) permitting cat^ory. Since urbanization patterns
vary around the country, in some regions the Baucu&<3iafee "small city" policy may
capture most of the key urban areas in the region. In other r^ons, this will not be
the case, and the Baucus-Chafee proposal will have the effect of leaving the polluted
runoff of significant urban areas unregulated. As one stormwater policy expert has
observed:
The patterns and functions of local governments in suburban fringe areas vary
from State to State. In some States, such as MD, VA, FL and CA, and, to a
lesser degree, a number of southern States and TX, large urban populations
outside of core cities are in imincorporated portions of counties. In these cases,
the county government conducts the major functions of local government. How-
ever, in most States, including New England, Mid-Atlantic, Great Lake, Mid-
western, and most Western States, the primary form of local government for
many municipal functions is not a covmty but either an incorporated place or a
minor civil division. '* ,..,..
This observation points to the need to expand the scope of permitted mumcipahties
far beyond the urban "enclaves" that exist in a few states. In the many regions
listed in the quote above that do not follow the "County-dominated" urbanization
pattern, the mere capture of small municipalities only when they are in urbanized
areas within already-permitted (large and medivun) municipalities, will exempt sig-
nificant sources of urban polluted runoff, including already-developed vu-ban areas
and rapidly-growing urban areas.
THE REMEDY: Delete the exemption for urban areas of less than 100,000
people outside currently-permitted areas, and provide less drastic relief through
authority for general permits or county-wide permits.
We recognize the administrative burdens that stormwater permitting imposes on
federal and state permi^writers, and the cost of stormwater permitting for smaller
cities who lack the same access to financial and technical resources as Isirger cities.
The answer to this problem, however, is not simply to "write off' water quality in
urban areas. Instead, it is to find more efficient ways to bring smaller cities into the
stormwater program in a cost-effective manner. Two options could be explored as a
more rational and cost-effective approach to stormwater permits for smaller citi^ in
ways that give appropriate attention to serious environmental problems caused by
polluted urban runoff: , .^ /. „
(1) EPA or states could be authorized to develop a general permit for smaller
cities, perhaps with variations by hydrol(^c region, rather than requiring smaller
jurisdictions to submit individual stormwater permits. Such general permits can
draw on the extensive information submitted by larger municipalities, on a region-
specific basis, as part of existing stormwater programs.
(2) Cities under 100,000 could be included within a single, areawide stormwater
permit for the next largest governmental size (county, borough, township, parish.
383
etc.), as appropriate to the political structure in individual states). This would allow
smaller cities to take advantage of appropriate economies of scale, emd would reduce
substantially the permitting burden on EPA and state officials.
PROBLEM #3: Exempting permitted municipalities from either numeric
limits, or compliance with water quality standards, for the first two permit
terms.
Especially given the absence of any objective, verifiable technology-based floor for
stormwater controls, exempting stormwater permits from numeric permit standards
and compliance with water quality standards leaves the program with no account-
ability whatsoever. This proposal casually tosses away one of the most fundamental
principles in the Clean Water Act — compliance with the water quality standards de-
signed to assure waters that are fishable and swimmable — and leaves nothing in its
place. This suggestion will be met with serious objections from water quality activ-
ists around the country who rely on water quality standards and enforceable nu-
meric permit limits as the most basic Clean Water Act tools and objectives.
A limited-term, explicit exemption from meeting water quality standards in mu-
nicipal stormwater permits should not even be considered unless it will be replaced
with an explicit, acceptable list of applicable management measures, along with
other stringent permit-writing guidance to help ensure that a national "technology
floor" is established for the permits. While even this would constitute a significant
weakening of existing law, at least it would trade one enforceable current set of re-
quirements with another that is less burdensome on permittees and permit-writers,
but potentially more effective in resolving the real-world problems caused by urban
stormwater runoff.
REMEDY: There are two potential options to fix this problem: 1) eliminate this
provision entirely from the bill; leave numeric limits and WQS compliance to
drive better, more ambitious urban stormwater programs; or, 2) specify that,
while numeric effluent limits are not required at this time, minimum technolo-
gy-based performance standards discussed above must be employed, and munici-
pal permits shall be designed to reach water quality standards compliance in
the receiving waters in the second and all subsequent permit terms.
B. Combined Sewer Overflows
Combined sewer overflows (CSOs) are discharges of raw (untreated) human
sewage mixed with stormwater runoff", and often with industrial wastes, which
occur during storms because older sewer pipes carrying both stormwater and raw
sewage become overloaded. During overflows the foul mixture is diverted from the
sewage treatment plant at overflow points and is discharged directly into our rivers,
lakes and coastal waters.
The CSO problem is a big one. EPA estimates that over 1,100 collection systems in
the United States, "serving" approximately 40 million people, have combined sewer
systems. "Of those, 328 systems serving about 25 million people had documented
needs for wastewater treatment control as of 1988. ''^ The documented price tag to
fix these problems totaled $16.4 billion in 1988 dollars. ^» Over half of these CSO
needs are located in marine and estuarine systems which "serve" approximately 12
million people. ®° Thus, while the number of systems around the country which
have CSOs is relatively small in comparison to the total niunber of sewage treat-
ment systems (approximately 1100 out of over 24,000 collection and treatment sys-
tems), ®^ the affected systems serve nearly 16% of the nation's population. ^^
A number of large U.S. cities have significant CSO problems. A 1992 NRDC study
showed that over 165 billion gallons of raw sewjige mixed with polluted stormwater
and industrial discharges are discharged into surface' waters by 14 large cities with
combined sewer systems:
ESTIMATED ANNUAL COMBINED SEWER OVERFLOW RELEASES FROM 14 U.S. CITIES
Organic
City Gallons Sediments wastes Copper Lead Zinc
(pounds)
Altanta 5.3 bil
Boston 5.2
Bridgeport 1.7
Chicago 27.0
Cleveland 5.9
1.5 mil
5.5 mil
4,500
15,000
15,000
9.4
4.3
3,900
7,900
11,000
1.1
0.4
1,500
4,900
5,000
10.0
6.9
21,000
4,400
144,000
26.0
4.7
6,700
9,200
12,000
384
ESTIMATED ANNUAL COMBINED SEWER OVERFLOW RELEASES FROM 14 U.S. CITIES— Continued
Organic
City Gallons Sediments wastes Copper Lead Zinc
(pounds)
Mn-St.Paul 1.6
Narragansett 2.6
New Bedford 1.1
NYC 84.0
Phila 20.0
Richmond 4.1
San Fran 1.7
Seattle 2.9
D.C 2.2
2.5
0.7
800
1,500
3,500
3.5
2.3
3,000
1,700
7,000
1.7
0.5
1.000
3,300
3,300
83.0
38.0
71,000
240,000
240,000
23.0
17.0
17,000
58,000
58,000
9.1
2.5
3,500
12,000
12,000
1.8
1.5
1,500
4,900
5,000
2.8
1.5
2,100
4,200
5,400
5.4
0.9
1,900
5,500
5,200
Total 165.3 194.3 86.7 223,200 372,500 525,400
SOURCE: NRDC, "When It Rains It Pollutes" (April 1992).
The quantity and range of pollutants discharged by CSOs are significant. While
precise figures are not available due to a shortage of monitoring data, the following
estimates can be made:
• Total suspended solids in CSO discharges can range fi-om roughly 400 to 700
milligrams per liter — which is roughly two to three times the suspended solids
concentration of "normal" raw sewage. ^^
• Biological Oxygen Demand (a measure of the organic material in water that
can rob aquatic life of oxygen) ranges in concentration in CSOs from roughly 80
milligrams per liter to 150 milligrams per liter. ^* (In comparison, the effluent
from a sewage treatment plant is required to meet a 30 day average discharge
standard of 30 milligrams per liter. **)
• Fecal coliform counts in CSO discharges can range from 200,000 to over
1,000,000 per 100 milliliters. ®^ (In comparison, many States recommend that
b'athkig be restricted at beaches where fecal coliforms exceed 200 per 100 milli-
liters. 8')
Very little information is available on the toxic pollutants discharged by CSOs.
However, since twelve percent of the total flow to sewage treatment plants nation-
wide consists of industrial wastewater, ^^ industrial toxics are likely to be present in
significant quantities in CSO discharges; industrial flow to these systems receives no
treatment at the POTW during overflow events. And as discussed above, urban
stormwater runoff, which makes up the bulk of total volumes of CSO discharges,
also contains numerous toxic pollutants including heavy metals, oil and grease and
organic chemicals. , . .
While major progress has been made in the past decade m achievmg a mmunum
level of secondary treatment for municipal POTW discharges, the CSO control pro-
gram has lagged far behind. One principal reason is that, while CSOs have been
eligible for some portion of construction grant financing, relatively few of these Fed-
eral funds actually have been available for CSO abatement. The magnitude of CSOs
contribution to water quality problems also may have been obscured to some degree
by sewage treatment plant discharges 'until the secondary treatment program was
well on its way. ^ , x- /^oz-v u
Either because EPA did not wish to press the States to take action on CbOs when
the agency lacked a major federal grants program to assist them, or because it had
other priorities, until recently EPA did very little on a national level to bring CSO
discharges under control. Although EPA maintains that CSOs are subject to BAT
standards, EPA did not draft a national categorical standard for CSO discharges but
instead has left State or Regional permit writers no alternative but to rely upon
their best professional judgment (BP J) for CSO permitting.
In August of 1989, EPA did publish a National Combined Sewer Overflow Control
Strategy. The Strategy called upon all States (or EPA where it is the permit-issuing
authority) to develop and submit to the agency, by January 15, 1990, a statewide
permitting strategy for CSO controls. The permitting strategy requires that the re-
sponsible entity do the following:
385
1. Identify communities with CSOs, including each CSO point, and determine
whether the CSOs are subject to permits and, if so, whether they are in compli-
ance with applicable standards;
2. Set priorities for achieving compliance, and describe how compliance will be
achieved (including descriptions of the nature of control measures to be ap-
plied);
3. Issue permits (where possible, on a system-wide basis rather than for individual
outfalls) for each CSO system. Permits are to include monitoring requirements
and permit reopener clauses based on results of the testing; and
4. Establish compliance schedules in those instances where statutory deadlines
cannot be met, using administrative enforcement orders or other legal enforce-
ment tools.
The CSO Strategy gave extremely limited guidance as to what constitutes BAT,
the minimum level of technology required under EPA's interpretation of the law-
proper operations and maintenance; maximum use of the sewer collection system
for storage; pretreatment program revisions to minimize C!SO impacts; maximiza-
tion of the POTW's capacity to accept storm flows; prohibitions on dry weather over-
flows; and control of solids and floatables. The Strategy also notes that, where water
quality standards are not met, additional controls must be placed on <i[scharges. But
it still leaves it to individual permit-writers to decide what will actually be required
to control each CSO permittee.
According to EPA, 30 strategies had been received from the States and Regions as
of July 20, 1992, all of which have been approved; another 5 states have combined
sewers, but claim they need no strategy. ^^ Meanwhile, recognizing the inadequacy
of the existing permitting strategy, EPA committed to issuance of a revised, hopeful-
ly stricter policy.
During the summer and fall of 1992 EPA convened a policy dialogue in which rep-
resentatives of cities, states and environmental groups attempted to reach consensus
on a new CSO permitting strategy. While the parties did not reach full consensus on
this strategy, a joint framework for a new strategy ultimately was presented to
EPA: Building on this framework, in late December EPA released for public com-
ment a new Draft CSO permitting strategy. 8° In this proposal EPA added the fol-
lowing to the six earUer minimum controls: pollution prevention (including water
conservation), public notice of waters affected by CSO discharges, and adequate
monitoring. In a major step forward, however, the new strategy proposes a menu of
minimum technology-based controls from which cites may choose. ® ^ In addition, the
proposal would require relocation or elimination of releases to sensitive waters
wherever feasible.
NRDC strongly supports the incorporation by reference of this compromise CSO
strategy in S. 1114 (although the Committee should incorporate into its final bill the
more comprehensive beach protection elements of S. 997 as well).
CONCLUSION
We appreciate this opportunity to testify on the funding and other municipal as-
pects of Clean Water Act Reauthorization. We look forward to working with the
Committee on these and other issues as these hearings proceed,' and during Com-
mittee and Subcommittee markup. I would be happy to answer any questions at this
time.
ENDNOTES
1. NRDC is a nonprofit environmental advocacy organization with over 170,000 members and
supporters nationwide. NRDC has been involved in Clean Water Act issues for more than 20
years.
2. This testimony is presented on behalf of NRDC and the American Ocefins Campaign, but is
consistent with the National Agenda for Clean Water endorsed by all Clean Water Network
groups.
3. EPA, National Water Quality Inventory, 1990 Report, 134.
4. World Resources Institute CWRI), 1992, World Resources 1992-1993, 167.
5. Council for Environmental Quality (CEQ), 1990. 21st Annual 303, 309.
6. CEQ, 21st Annual Report, 309.
7. CEQ, 21st Annual Report, 309.
8. Patrick, Ford, and Quarles, 1987. Groundwater Contamination in the United States, Univer-
sity of Pennsylvania Press, 2nd Ed., 61-63.
9. EPA, National Water Quality Inventory. 1990 Report, 135-36. These numbers derive from
EPA's "Needs Surveys" for sewage treatment plant construction. Interestingly, EPA's 1980
Needs Survey showed remaining sewage treatment needs of $119 billion — ^not much higher than
386
the 1990 report. Pollock, Lynne M., "Financing Under the Clean Water Act: The Move from
Federal Grants to State Loans," 84 Water Resources Update (Winter 1991), 25.
10. National Water Education Council, 1992. Cause for Concern: America's Clean Water Fund-
ing Crisis, Jonathan C. Kaledin, ed., 12. ,„„„.,..,
11. Nation£il Association of Flood emd Stormwater Management Agencies, 1992. Municipal
Separate Storm Sewer System Permit Application Costs, 1, 5.
12 Center for Resource Economics, 1992. Analysis of Environmental Protection Funding,
Report to the House-Senate Conference on the 1993 VA, HUD, Independent Agencies Appropria-
13. Letter from Roberta H. Savage, Executive Director, Association of State and Interstate
Water Pollution Control Administrators, to Honorable Max Baucus, Chair, Senate Environment
Subcommittee, December 23, 1991, 2; Statement of Bill Frank, Jr., Chair, Northwest Indian
Fisheries Commission, before the House VA, HUD, Independent Agencies Appropriations Sub-
committee, May 1, 1991, 1.
14 National Water Education CouncU, Cause for Concern, 3, 29.
15 U S Environmental Protection Agency (EPA), 1990. Environmental Investments: The Cost
of a Clean Environment— A Summary (Office of Policy, Planning, and Evaluation, EPA-230-12-
90-984), 4-4 to 4-5. ,.™ „ ^. .. .
16. Smith, Marguerite T.; and Debra Wishik Englander, 1991. "The Best Places to Live m
America." In: Money, Volume 20, Number 9, (September 1991), 140.
17 Roper Organization Inc, 1992. Natural Resource Conservation: Where Environmentalism is
Head in the 1990s, The Times Mirror Magazines National Environmental Forum Study, 5, 8.
18. O'Connor, Bord and Fisher, 1992. "Fresh Water Quality, Quantity, and Availability, Amer-
ican Public Perceptions," Pennsylvania State University (prepared for the National Geographic
Socifitv).
19. O'Connor, Bord and Fisher, "Fresh Water Quality," Figure I.
20. EPA, The Cost of a Clean Environment, vii, 2-6.
21. National Utility Contractors Association, 1992. A Report on Clean Water Investment and
Job Creation, Apogee Research, 6. . ^. ., , , t x .■ i t xm ^ r
22 Memorandum from Dennis King, Associate Director, Maryland International Institute for
Ecological Economics, to WilUam Painter, Chief, Water Policy Branch, Office of Policy, Planning
and Evaluation, U.S. EPA, November 30, 1992. ^ .^ ,
23. National Research Council, 1992. Restoration of Aguatic Ecosystems: Science, Technology,
and Public Policy (Washington, D.C., National Academv Press).
24. U.S. Environmental Protection Agency (EPA), 1992. The National Estuary Program After
Four Years. A Report to Congress, l-4.Three of these estuaries are on the West Coast, 4 in the
Gulf of Mexico, and the rest on the East Coast. /d. . ., . , „, ^ ,
25. EPA, The National Estuary Program After Four Years, 9. And: EPA, National Water Qual-
ity Inventory. 1990 Report, 48. „ „ . „r
26. EPA, The National Estuary Program After Four Years, i, 25. , „ .
27 A Legislative History of the Water Quality Act of 1987, Congressional Research Service,
Comm Print No. 1, 100th Cong., 2d Sess. 391, 646 (1987 Legislative History).
28. 55 Fed. Reg. 47991. .... • u
29. 55 Fed. R^. 47991. (Although NURP did not attempt to study oil and grease m urban
runoff, EPA cites other studies that documented significsmt quantities of oil and grease in urban
stormwater.)
30. 55 Fed. Reg. 47992 (emphasis added).
31. 55 Fed. Reg. 47991.
32. 55 Fed. Reg. 47992. ^ „ ^ ^ „
33. EPA, Results of the Nationwide Urban Runoff Program, 5-8 and 5-9.
34 Natural Resources Defense (CouncU, "Poison Rimoff Indexes for Washington, D.C.; Balti-
more, MD; Tidewater, VA; Harrisburg, PA; Los Angeles, CA; and Cleveland, OH."
35 See, for example, NRDC's summary of results for the four Chesapeake Bay cities: Cohn-
Lee, R. and Cameron, D. (1992) "Urban Stormwater Runoff Contamination of the Chesapeake
Bay: Sources and Mitigation." The Environmental Professional, Vol. 14, 10-27.
36. EPA, 1990 National Water Quality Inventory, 12-13.
37 U S Environmental Protection Agency (EPA), 1992. Environmental Impacts of Stormwater
Discharges: A National Profile (EPA 841-R-92-001), 7.
39. ^NR^^Triin%96F. Supp- 1393 (D.D.C. 1975; Aff'd, NRDCv. Costle, 568 F.2d 1369, D.C.
Cir 1977). The (Dourt held that Congress intended all point source discharges to be subject to the
NPDES permit program. Id. 1396. The (Dourt reasoned that, "(t)o allow the exemptions made by
the Administrator is to diminish the effect of the Act ... If a point source is exempted from the
permit requirement, the Administrator then has no effective control over the polluter." Id. 1399.
The court acknowledged that EPA had been assigned expansive tasks but nevertheless ruled:
. [t]he compelling congressional intent is clearly present. It is expressed in the statute itself
and in the legislative history, both of which demonstrate that the discharge of pollutants with-
out a permit is unlawful." Id. 1400. r> ■ r ■ Tt^mrxry
40 The details of this rulemaking history are set out in NRDC s Openmg Brief m NRDL v.
EPA Nos. 90-70611 and 91-70200 (9th Cir., U.S. Court of Appeals).
41. 1987 Legislative History, 1304, 617. , ^,.. ^ . u, .. j
42. In section 405 of the 1987 WQA (adding section 402(p) to the CWA), Congress established
explicit and firm deadlines for EPA regulation of storm water discharges. Section 402(pXl) of the
Act provides that EPA cannot require a permit for certain storm water discheirges until October
1, 1992, with five exemptions (discharges that are required to obtain a NPDES permit pnor to
(Dctober 1, 1992): (A) A discharge with respect to which a permit has been issued prior to Febru-
ary 4, 1987; CB) A discharge associated with industrial activity; (C) A discharge from a municipal
387
separate storm system serving a population of 250,000 or more; (D) A discharge from a munici-
pal separate storm sewer system serving a population of 100,000 or more, but less than 250 000-
or (E) A discharge for which the Administrator or the State determines that the storm water
discharge contributes to a violation of a water quality standard or is a significant contributor of
pollutants to the waters of the United States. The statute makes clear that all storm water dis-
charges associated with industrial activities remain subject to all requirements of sections 301
and 402 of the Act, but subjected discharges from municipal storm sewers to new reouirempnts
CWA, § 402(pX3)(B). ^ ^•
43. 1987 Legislative History at 618, see also pp. 368, 391, 392,
44. 1987 L^lative History at 368.
45. Id. at 632. Furthermore, Senator Stafford stated, "(t)he8e (municipal emd industrial permit
application deadline) dates are outside dates." Id. at 618.
46. In late 1992 Congress once again granted EPA and these stormwater sources a reprieve,
giving EPA until October 1, 1993 to issue r^ulations, and the sources until October 1, 1994 to
submit permit applications.
47. 40 C.F.R. Part 122, and Appendixes F-I. EPA defined large and medium municipal sepa-
rate storm sewer systems to include only two types of municipal entity: (1) "incorporated
place(s)" with populations greater than 250,000 and 100,000, respectively, as determined by the
'latest Decennial (1980) Census" (listed in Appendices F and G to the rule); and (2) counties
listed in Appendices H and I to the rule, excluding "municipal separate storm sewers that are
located in the incorporated places, townships or towns within such counties," (r^ardless of
whether those incorporated places are covered under (1)).
48. Excluded areas include: Fairfield County, CT (population excluding incorporated places
579,000); Fulton County, GA (201,000 excluding Atlanta); Cook, Lake and will Counties, IL (C3ii-
cago suburbs — over 2 million people excluded); Suffolk, Middlesex, Essex and Norfolk Coimties,
MA (Boston suburbs — 2.6 million excluded); Macomb, Oakland and Wayne (bounties, HI (Detroit
suburbs — 2.5 million excluded); Bergen, Essex, Union and Hudson Counties, NJ, and Westchest-
er and Nassau (bounties, NY (closest New York suburbs — over 4 million excluded); Cuyahoga,
Lorain and Lake Counties, OH (Cleveland suburbs — 1.4 million excluded); Montgomery and
Delaware C!oimties, PA and Camden, Gloucester and Burlington Counties, NJ (Philadelphia sub-
urbs— 2.3 million excluded). Of 1.4 million people in Santa Clara County, CaUfomia, only
825,000 live in the two incorporated places that have more than 100,000 people (San Jose and
Sunnyvale). None of the people in adjacent San Mateo County (population 613,500) live in incor-
porated places. The result: under EPA's formulation, over 1.2 million people in the densely pop-
ulated San Francisco suburbs of San Mateo and Santa Clara counties are not covered by the
rule. Thus, the megalopolis of urbanized areas from South San Francisco to Pacifica, San Bnmo,
Burlingame, San Mateo, San Carlos, Redwood City, Menlo Park, Palo Alto and Mountain View
are outside the purview of the rule.
49. 55 Fed. R^. at 48039, col. 1.
50. As explained by Rep. Rowland, who was responsible for the municipal stormwater amend-
ment in the House, this reduced the number of necessary permits from the "millions" to the
"thousands." 1987 Log. Hist, at 351-52, 672. Including all municipalities as defined by the 1987
law would raise the total covered by the rule from 219 to only 641.
51. See 55 Fed. Reg. at 48041, n. 5.
52. NURP Final Report, see. e.g., Tables 6-1 E.R. at 6. NRDC brought this and other informa-
tion to EPA's attention in NRDC's comments on the proposed rule. NRDC comments (March 7
1989), pp. 13-14 & n.25.
53. Just some examples of whole counties that would meet the 640 persons/square mile test
indicated as appropriate under the EPA NURP study but that are not ''urbanized areas" accord-
ing to the Census Bureau include San Mateo County, CA (population 613,500); Santa Cleira
County, CA (over 1.4 million); Fairfield County, CT (821,000); Hartford Ojunty, CT (825,200)-
New Haven County, CT (779,000); Duval County, FL (646,000); Seminole C^ounty, FL (240,100);
Fulton Ck)unty, GA (622,700); (Dook, Ehipage and Lake Clounties, IL (over 6 million); Lake County
IN (492,000); Jefferson County, KY (681,o00); Middlesex County, MA (1.3 million); Oakland
Coimty, MI (over 1 million); Hennepin County, MN (988,000); St. Louis County, MO (993,000);
Bergen County, NJ (837,000); Nassau County, NY (1.3 million); Cuyahoga County, OH (1.4 mil-
lion); and Montgomery County, PA (672,000).
54. 40 C.F.R. §§ 122.26(bX4Xii) and (7Xii).
55. EPA, Environmental Impacts of Stormwater Discharges, 11 (emphasis added).
56. 1987 Legislative History at 368 and 632 (Sen. Chafee), 391, 646 (Sen. Durenberger). 559
(Rep. Roe), 847 (Conf. Rept.).
57. 1987 Legislative History at 617-18.
58. 1987 legislative History at 846 (emphasis added).
59. The requirements for municipal storm water management plans are set forth at 40 CFR
§ 122.26(dX2Xiv). The provision begins by parroting the statutory language of section 402(pX3XB),
and then lists a series of purportedly more detailed requirements. However, none of these re-
quirements establishes minimum criteria or performance standards. While applicants are in-
structed to describe structural and source control methods to reduce pollutants from storm
water, and to estimate the annual pollutant load reductions from their proposed management
program, nowhere are they required to achieve any specified level of reduction of any pollutants
via their storm water permits and programs. 40 CFR § 122.26(dX2XivXA). Municipedities are re-
quired to describe a series of control measures that can be included in each such prc^am, 40
CFR § 122.26(dX2XivXa) (l)-(6), but virtually none of these are mandatory, and no minimum re-
quirements or performance standards attach to these "descriptions". The remaining require-
ments for management programs are equally vague. 40 CFR § 122.26(dX2XivXC) requires a de-
scription of a program to control nmoff from solid and hazardous waste disposal facilities and
industrial sites, but imposes no mandatory or minimum control measures or performance stand-
388
ards. 40 CFR § 122.26(dX2XivXD) requires a description of a program to control runoff from con-
struction sites, but again includes absolutely no minimum control requirements or performance
stfindards. As stated in the final rule preamble, the Part 2 permit application does nothing more
thtm provide "municipalities with the opportunity of proposing a comprehensive program" of
storm water controls." 55 Fed. Reg. at 48045, col. 2-3. See also id. at 48052, col. 1-2.
60. In comments on the prop<»ed rule, some municipalities expressed frustration with this
lack of guidance. See 55 Fed. R^. at 48054, col. 1.
61. The Conference Report states that "controls may be different in different permits. All the
types of controls listed in subsection (oX2XC) are not required to be incorporated into each
permit." 1987 Leg. Hist at 847. As shown below, however, the fact that each permit need not be
identical and select every item from EPA's menu of standards does not mean that EPA's menu
can be empty.
62. 55 Fed Reg. at 48038, col. 2 (emphasis added.)
63. The State of New York, Dept. of Env. Cons, wrote of the proposed rule that "(t]he draft
regulations are totally devoid of any implementable national objective for municipal stormwater
permits." The N.Y.D.E.C. further stated that "EPA is obligated to give the State a much better
definition of MEP" (maximum extent practicable— i.e., the level of control required) and recom-
mended "a body of nationally approved BMP guidelines" for the permits.
64. 55 Fed. Reg. at 48038, col. 3 (emphasis added).
65 U S EPA, 1983. Results of the Nationwide Urban Runoff Program, Final Report. Washing-
ton Metropolitan Council of Governments, 1987. Controlling Urban Runoff: A Practical Manual
for Designing Urban BMPs. r ■
66. Nine precipitation regions are outlined in the EPA stormwater rule for purposes of settmg
monitoring requirements. 55 Fed. Reg. at 48073. , , „ , • ^
67. Schueler and Bley. "Chesapeake Bay Critical Area— A Framework for Evaluatmg Comph-
ance With the 10% Rule." Metropolitan Washington (Council of (iovemments for Maryland
DNR. May 1988. The Florida stormwater rule can also be considered a poUutant reduction per-
formance standard. Although it is written as a flow retention standard, it is based on a pollut-
ant reduction objective of 80 to 95% removal of phosphorus and other typical runoff pollutants.
68. Livingston, Eric. "Urban Storm Water Quality Management: the Florida Experience." Im-
plementation of the Florida Stormwater rule by individual water management districts has also
included use of the design storm concept. Other States with hydrologic-type storm water per-
formance standards include: Pennsylvania (preservation of natural flow regimes); Maryland
(maintenance of pre-development peak discharge rates for a 2-year storm event); £uid North
Carolina (Minimum design volumes and maintenance of pre-development peak discharge rates).
69. This has been shown to be quite feasible as a design principle for landscape architects, and
less costly by a factor of four than conventional pave-as-usual, treat-later, end-of-pipe approach-
es. Sykes, R., 1989, "Site Planning," Chapter 3.1 in Protecting Water Quality in Urban Areas.
Best Management Practices for Minnesota. Minnesota Water Pollution Control Agency. The
author, Robert D. Sykes, ASLA, is Associate Professor of Landscape Architecture, University of
Minnesota. "The modem classic example of a comprehensive approach to development incorpo-
rating all of these (water-sensitive site design) goals is Woodlands New Community located
north of Houston, Texas, planned and designed by Wallace, McHarg, Roberts and Todd, Land-
scape Architects and Planners, Philadelphia, Pennsylvemia. ... In the original planning, engi-
neers compared the cost of the natural drainage system to that for a conventional approach and
foimd that the natural drainage option saved over $14 million" Id. 61, 3.1-7.
70. Natural Resources Defense Council, 1993. Draft biU, Urban Watershed Restoration Act of
1993- 15 pp.
71 Op cit. at n.35.
72 U.S. EPA (1992) Environmental Impacts of Stormwater Discharges. EPA 841-R-92-001, at
19.
73. Id. at 16.
75 US EPA, 1983. Results of the Nationwide Urban Runoff Program. Volume 1— Final
Report, at 9-5. NTIS#PB84-185552. , ^ _. „„, „ . „
76 Weiss, Kevin (1993). From an unpublished paper dehvered at the Chicago EPA Region V
Stormwater Conference, April 1993 at 8. "Stormwater and the Clean Water Act: Municipal Sep-
arate Storm Sewers in the Moratorium."
77 U.S. Environmental Protection Agency (EPA), 1989. 1988 Needs Survey Report to Congress:
Assessment of Needed Publicy Owned Wastewater Treatment Facilities in the United States,
Office of Municipal Pollution Control, 1, 15.
78. EPA, 1988 Needs Survey Report, 15. ., j . .^
79. EPA, 1988 Needs Survey Report, 12. EPA's documentation requirements are detailed m the
Needs Survey at Appendix D. These requirements (which effectively keep out of the official
"count" those needs which do not meet the requirements) have the effect of underestimating the
CSO problems which the States themselves deem to be in need of correction. The States of Illi-
nois, Maine, New Jersey, New York, Oregon, Pennsylvania and Washington estimated that they
had an additional "separate" (i.e., not ^'documented" in accordance with EPA requirements)
need for CSO correction funds of nearly $2.14 billion in 1988. Id. Appendix A-7.
80 EPA 1988 Needs Survey Report, 15. The same pattern holds true for the sepeirate needs.
Of the States citing additional separate CSO needs outside the documented needs in the Needs
Survey, 6 of 7 are miirine coastal States and one is a Great Lakes State. Id. Appendix A-7.
81. EPA, 1988 Needs Survey Report, 12. , . . ^ . ^ »
82 1990 U S population is estimated to be 249 million. National Oceamc and Atmospheric
Administration (NOAA), 1990. "Fifty Years of Population Change along the Nation's Coasts,
1960-2010," 4.
389
83. U.S. Environmental Protection Agency (EPA) (undated). "Seminar Publication: Benefit
Analysis for Combined Sewer Overflow Control," Office of Technology Transfer, 2, citing Lager
A. et al, "Urban Stormwater Management and Technology, Users Guide" (1977)
84. EPA, "Benefit Analysis," 2.
85. 40 C.F.R. § 133.102.
86. EPA, "Benefit Analysis," 2.
87. See, for example, the State Water Quality Standards for Florida, Maryland New York
and North Carolina. NRDC, Testing the Waters, 12.
88. U.S. Environmental Protection Agency (EPA), 1986. Report to Congress on the Discharge of
Hazardous Wastes to Publicly Owned Treatment Works, E-3.
89. U.S. Environmental Protection Agency, Status of Combined Sewer Overflows Strategy Ap-
provals (current as of 7/20/92).
90. U. S. Environmental Protection Agency (EPA), Draft Combined Sewer Overflow Control
Policy (December 18, 1992).
91. These include no more than 4 overflows per year in urban areas and no more than 5 in
rural areas; or capture or elimination of 85% of overflows by volume or the equivalent in pollut-
ant mass.EPA Draft Combined Sewer Overflow Control Policy, 18-19.Cities may adopt alterna-
tive controls if they can demonstrate compliance with water quality standards and protection of
designated uses.
TESTIMONY OF MARTHA PROTHRO, ACTING ASSISTANT ADMINISTRATOR,
OFFICE OF WATER, ENVIRONMENTAL PROTECTION AGENCY
Good morning, Mr. Chairman and Members of the Subcommittee; I am Martha
Prothro, Acting Assistant Administrator of the Office of Water at the United States
Environmental Protection Agency (EPA). Accompanying me this morning is Mi-
chael B. Cook, who is Director of the Office of Wastewater Enforcement and Compli-
ance within EPA's Office of Water. I am grateful for the opportimity to testify this
morning. Along with last Wednesday's hearing and those scheduled in the weeks to
come, today's hearing provides a valuable opportunity to examine a variety of issues
surrovmding reauthorization of the Clean Water Act (CWA), and an occasion for the
Administration and the Congress to share our views.
While the Administration has not had time to take positions on most of the fund-
ing provisions in the S. 1114, I would like to point out several major differences be-
tween the bill and the President's budget. First, the authorization level for the
Clean Water SRF in the bill starts at $2.5 billion in FY 1995 and can increase by
$500 million each year until the year FY 2000, when it can reach $5 billion. This
compares to $2 billion per year in the President's proposal for FY 1995 to 1998, a
difference of $5 billion over the four years. Second, S. 1114 authorizes $300 million
for nonpoint source grants in FY 1995 increasing to $600 million in FY 2000, com-
pared to $100 million per year in the President's proposal. We acknowledge the
Committee's eff'orts to tie spending to government-wide deficit reduction goals. How-
ever, we are concerned that the levels proposed in S. 1114 may be unrealistic to
meet the discretionary spending caps in the revised Budget Enforcement Act en-
dorsed by the Congress and the Administration.
I will address my remarks to four areas of concern: the future federal role in
funding our nation's wastewater infrastructure; funding of our regulatory programs
through permit fees; controlling discharges from combined sewer overflows (CSOs);
and, controlling storm water discharges.
STATE REVOLVING FUNDS
For nearly four decades now, the federal government has provided substantial
funds to local communities for constructing wastewater treatment works and other
water quality projects. Since 1972, with the passage of a comprehensive package of
amendments we now know as the Clean Water Act, EPA has distributed more than
$60 billion to improve the quality of the nation's waterways. Most of these federal
funds have been awarded under Title 11 of the Act as direct gremts to local commu-
nities for the construction of wastewater treatment works. Today, federal dollars are
capitalizing State Revolving Funds (SRFs), which are operating in all 50 States and
Puerto Rico.
It is very important for the States to be able to fund necessary water pollution
control efforts. Through federal capitalization of State revolving loan funds, we help
the States provide assistance to local communities striving to achieve water quality
standards and comply with the mandates of the federal law. Because great strides
have been made in improving water quality from traditional point sources such as
municipal wastewater treatment plants and industrial dischargers, our priorities
are now shifting to include the newer mandates to control combined sewer over-
flows, storm water discharges and nonpoint sources of pollution.
390
Because of differences in the pollution problems affecting the different water-
sheds, the costs of compljdng with water quality standards and guidelines are un-
evenly distributed among States and communities. In some cases, such as some
cities with combined sewer overflow control needs, the costs are extraordinarily
high on a per capita basis. In addition, some needy communities face risks to their
local environment and public health because they simply cannot afford the costs of
treating wastewater on their own. This raises a troubling issue of environmental
equity for the people in needy communities who cannot afford to pay the ftxU costs
to clean up the local environment or may even have an incentive to accept the pol-
lution that-wealthier areas reject in order to increase local income or emplo3Tnent.
EJconomic conditions in many States in recent years have prevented them from
capitalizing their SRFs beyond the minimum required in the Act. Additional capi-
talization from the federal government will help ensure that the funds will be able
to continue meeting wastewater treatment needs in the future. Without additional
capitalization, existing State SRF programs will not generate funds to provide even
current levels of State and federaJ assistance to localities. Thus, although munici-
palities bear most of their own wastewater treatment costs, there continues to be an
important role for the federal government in financing water pollution control ef-
forts.
BACKGROUND
The SRF program was established in the 1987 amendments to the Act. In that
year. Congress decided to phase out the Title II construction grant progremi, and re-
place it with a new mechanism for funding wastewater treatment and other water
quality projects. The SRF program has brought a fundamental change in the rela-
tionship among all levels of government in clean water funding. No longer is the
federal government awarding grants directly to loced communities, with the State
acting as intermediary. Instead, EPA now awards grants to States to capitalize
State Revolving Fimds (SRFs). From these fimds. States can make low interest loans
and provide other types of assistance (but not grants) for the construction of public-
ly-owned wastewater treatment works, and for a wide range of nonpoint source and
estuary protection projects and activities.
Congress was very far-sighted in requiring a shift to SRFs. As SRF loans are
repaid into the funds, they become available to other communities that also wish to
borrow. In this way, the SRFs are largely self-sustaining, providing funds for water
quality far into the future. This self-sustaining feature is critical to the success of
the funds.
The transition from the Title II construction grant program to the Title VI SRF
program has gone well. Over $7 billion of federal capitalization grant funds have
been awarded to the States. These funds, along with State matching funds and bond
proceeds, have made more than $11 billion available to localities for needed water
quality projects. More than 1300 municipalities have received low interest loans
through the SRF. Approximately 70% of the loan assistance provided to date has
been for the construction of secondary and advanced wastewater treatment plants.
Another 25% has been used for sewer construction. The remaining 5% has been
made available for combined sewer overflow abatement, storm water control, non-
point source management and other projects.
The SRF program is widely considered a success, and a prototype for the federal.
State and local partnership in infrastructure financing. SRF loan repajrments con-
tinually replenish the funds, making more dollars available for water quality im-
provement projects. States can use their SRF accounts to issue bonds and thereby
leverage the amount of funds available for project assistance: According to reports
from the States, SRI" funded projects proceed faster £ind at a lover cost than projects
funded by direct construction grants.
The success of the SRF program lies in the degree of latitude it allows States to
fund projects and activities that reflect real environmented priorities. Like its prede-
cessor, the construction grant program of Title II, it has been notable for an absence
of the scandals that sometimes afflict other federal funding programs. Indeed, the
SRF program has essentially fulfilled the hopes of its creators. It has become the
prototype for a federal. State and local partnership in infrastructure financing.
Underlying the enactment of the SRF program in 1987, was Congress's vision of
the federal role in funding water quality facilities. With an adequate funding com-
mitment from the federal government, responsible stewardship, and additional fund-
ing by State officials, wise use of innovative financing techniques, and a well-under-
stood level of wastewater treatment needs, the SRFs could be counted on as the
391
chief source of funding for water quality projects and activities in the years to come.
It was assumed that, by 1994, federal funding would no longer be necessary.
By the end of this fiscal year, appropriations for the SRF program will nearly
match the amount authorized by Title VI in 1987. State officials have managed the
funds effectively, and many States have found innovative means to stretch SRF dol-
lars further. Unfortunately, SRFs are not yet able to meet water quality needs. If
States had to rely upon repayments and current levels of State funding alone, SRFs
would only generate about half the level of assistance which was provided to mu-
nicipalities over the last 10-15 years under the construction grant and, more recent-
ly, SRF programs. Moreover, the number and cost of needed water quality projects
has escalat^ well beyond what we predicted in 1987. In particular, we now have a
better understanding of the costs of addressing wet weather problems (i.e., combined
sewer overflow abatement and storm water management). We also have new, more-
stringent water quality standards to meet in many areas.
In the intervening years, we have improved our understanding of the wide variety
of human activity that impairs the quality of our waters. Along with our improved
understanding, comes an increased appreciation of the costs that we must bear to
restore water quality.
The Agency will soon release the results of the 1992 Needs Survey. The total esti-
mated needs, which include both documented and modeled needs, have increased to
well over $100 billion. The combination of increasing needs and undercapitalization
argues strongly for continued federal financial support for the SRF program.
Authorizations for the current SRF program are scheduled to expire in fiscal year
1994. Nearly $9 billion has been appropriated to date for the SRF program. The
President's budget includes $1.2 billion for fiscal year 1994, and $2 billion for each
of fiscal years 1995 through 1998 — an additional $9.2 billion which, when funded,
would double the amount currently available.
We have learned a lot since the first Title VI grant was awarded in March of
1988, and we have some suggestions on how to improve the program. I will summa-
rize some our recommendations in six broad areas.
Expanding Eligibility for SRF Funding
The first issue I would like to discuss is the expansion of the projects and activi-
ties eligible for assistance under the SRF program.
Under section 201(gXl) of the current law, only 20 percent of the amount of capi-
talization grant funds can be used for combined sewer overflows, storm water pollu-
tion control and other sewer projects. With the growing evidence of water quality
problems associated with wet weather flows, EPA' is proposing to remove statutory
limitation on funding of combined sewer overflow and storm water maneigement
projects.
We are also considering SRF eligibility for development and implementation of
water use efficiency activities, including installation of water saving plumbing fix-
tures and for development Euid implementation of pollution prevention plems and
activities. These activities can reduce the need for costly expansion of treatment ca-
pacity.
Possible Funding Limitations
Activities eligible for funding under the current statute are, in many ways, unre-
stricted by the current statute. Funding of nonpoint source management activities is
particularly open-ended. One interpretation of the current statute is that any activi-
ty that a State includes in its section 319 plan is eligible for SRF assistance. We are
concerned that some States are proposing projects that may contribute to water
quality improvement, but primarily address other environmental objectives or
public purposes. For example, some wish to use SRF funds for municipal landfills or
to correct leaking underground storage tanks.
A number of issues have also arisen with respect to the eligibility of various pri-
vate parties to receive SRF assistance. These issues have emerged most prominently
in recent years, with the completion of nonpoint source management plans and the
movement away from a sole focus on traditional publicly-owned treatment works.
Consequently, within the Agency we have questioned whether we should limit SRF-
eligible activities in some way based on the purposes, benefits, or ownership of the
measures that are proposed for fimding. We are currently reviewing these issues
and will formulate our position in the near future.
Project Targeting and Priority Setting
Ensuring that States can target funding for State priorities is fundamental to the
SRF program. States are required to fvmd municipal wastewater treatment facilities
392
based upon priority systems and priority lists. No such requirement exists for State
funding of nonpoint source or estuary projects.
We are considering whether changes should be made to the SRF program to pro-
vide for States to adopt comprehensive priority systems for all activities eligible for
SRF funding. This could help to ensure that scarce SRF funds go to projects with
highest returns in terms of water quality improvement and risk reduction.
Meeting the Needs of "Needy" Communities
We are often urged to meike fundamental changes to the SRF program to better
meet the needs of "needy" communities.
Under the current SRF program, States may provide loans to communities with
interest rates ranging from zero percent to market levels. It has become apparent
that some communities cannot afford to repay SRF loans even at zero percent inter-
est. These communities are not well served by other sources of loan financing be-
cause of their limited credit-worthiness. Projects in these Communities are often ex-
pensive on a per capita basis. Many States and groups representing small and eco-
nomically disadvantaged ("needy") communities have recommended that certain
changes be made to the SRF program which would enable States to provide more-
affordable financial assistance.
In the short term, we are requesting funding only for cities that meet certain
hardship criteria. For FY 1994, we have proposed that grant funding would be avail-
able to any city that has more than $2 billion in documented needs and user charge
rates that exceed 0.65 percent of median household income. Currently, only the city
of Boston meets both criterion for "needy cities" grants, and the Agency supports an
authorization of $100 million for the program in FY 1994. We will continue to con-
sider whether other provisions would be-appropriate for the long term. We look for-
ward to working with the Subcommittee in this regard.
The loan and grant programs of the Rural Development Administration (RDA)
will play a key role in providing assistance to small communities that cannot afford
SRF loans for the total cost of their projects. The RDA will receive significant in-
creases in fimding under the Administration's budget proposal and will increase em-
phasis on helping communities to meet environmental requirements in its loan and
grant programs. Over the period from FY 1994 to 1997, the President's budget pro-
posal for RDA would provide more than $2.4 billion in grants and more than $3.9
billion in loans to rural communities to assist with wastewater treatment needs.
EPA is working with RDA to encourage selection of projects based on environmen-
tal benefits as well as financial need.
In addition, we recommend some adjustments to the SRF program to better serve
communities for which traditional SRF assistance may not be the answer. We seek
authorization to use up to one percent of the Title VI appropriation for making
grants to Indian Tribes and Alaska Native Villages for the construction of
wastewater facilities pursuant to Title II. Our proposal includes authority to provide
the allotment under Title VI to the District of Columbia, Virgin Islands, Pacific
Tioist Territory, Guam, and other single level-of-government jurisdictions in the
form of grants for implementation of activities eligible under Title VI.
Captalization Options for the SRF Program
Perhaps the most basic questions we must face in our discussions on reauthoriza-
tion of the SRF program are: how much can the federal government afford to con-
tribute to the program, and, what changes are needed to ensure the long-term finan-
cial health of the program, including additional capitalization beyond the currently
proposed federal authorization period?
The answer to these questions is dictated by national budget constraints and
issues relating to the federal role in such funding. For fiscal year 1994, we propose
authorizing $1.2 billion for Title VI. For fiscal years 1995 through 1998, the authori-
zation should increase to $2 billion a year. Based, on the current SRF program, the
Agency estimates that over a twenty year period States will provide SRF loans at a
total value of approximately two and a half times the initial federal capitalization.
Since 1987, EPA has been allotting funds to States in accordance with a Congres-
sionally-established formula that reflected the needs and population patterns that
existed at that time. In the past few years, our understanding of needs has improved
and, of course, populations have shafted. It is now appropriate to reexamine our
needs estimates and growth rates and develop a more suitable allotment formula for
the years to come.
In the past. Congress has been responsible for devising the allotment formula.
When Congress has chosen to consult with us as part of their deliberative process,
we have encouraged Congress to consider relative needs as one of the primary fac-
393
tors that should be given weight in deciding the equitable distribution of such a
large amount of federal funding. We have always supported Congress making the
decisions in this area, because the very nature of allocating funds among States is
fundamentally more appropriate for Congress than for the Agency. We stand ready
to provide technical assistance, as we have in the past, but ultimately this process is
best accomplished through the legislative branch.
Leveraging
We note that S. 1114 would require States to make binding commitments equaling
200 percent of their capitalization grants, rather than 120 percent as under current
law. This would compel many States to leverage fund accounts. Although the Ad-
ministration has not had time to analyze this measure thoroughly and to take a
final position, we foresee the following problems. First, in order for leveraging to
succeed, a State must have a large number of projects ready to receive loans imme-
diately, in order to ensure that interest earnings are available immediately to the
State to meet its bond market repayment obligations. Many States are not in a posi-
tion to do this. As a consequence, under a mandatory leveraging program, funds
from these States would have to be reallocated. Second, in order to make leveraging
work. States need to charge interest rates that are higher than the interest they are
pajong on their bonds. Several states have predominantly small and needy commu-
nities and tend to give very low- or no-interest loans to a majority of their SRF bor-
rowers. If these States raised their interest rates significantly in order to pay off
leverage bonds, many local participants might be unable to obtain needed loans. Fi-
nally, leveraging provides only short-term benefits (in terms of increasing the
number of projects that can be funded); over the long term, interest earned by the
State is used to pay off bonds instead of providing for future assistance. Thus, the
size of the program may actually decrease in some cases.
OTHER FUNDING ISSUES
While the SRF program provides the major share of federal funding for water
quality projects in the U.S., there are other funding issues that we must examine in
the context of Cleeui Water Act reauthorization.
The population along our 2,000 mile boundary with Mexico has grown enormously
in recent years, in towns and cities south of the border and in the "colonies" of U.S.
border States. This population growth has been accompanied by a number of serious
water quality problems. Several contaminated Mexican waterways flow into the
U.S., threatening the Imperial Valley of California, the area of Nogales, Arizona
and other important U.S. water resources. In many areeis, the U.S. and Mexico
share surface and ground-water resources that have become polluted. In many of
the colonies, where hxindreds of thousands of people have settled, basic sanitation
facilities are lacking.
Almost $130 million have been appropriated through fiscal year 1993 for
wastewater treatment facilities in the vicinity of San Diego and Tijuana Mexico, to
correct water pollution problems along the ocean beaches and estuaries near San
Diego. In fiscal year 1993, $70 million have been appropriated for assistance to the
colonies. For fiscal year 1994, the Agency is requesting an additional $150 million
for a range of projects and activities. This figure includes $70 million for the Tijua-
na project, and $20 million for other wastewater treatment projects along the
border. The remaining $60 million will be for the colonies.
In general, we oppose earmarking SRF funds for particular purposes. The SRF
program should remain the primary vehicle for meeting the funding needs of States
and municipalities, other them small communities funded through RDA. However,
we are concerned about the cost burdens faced by several communities. For truly
hard-pressed communities, those for whom SRF funding may not be a feasible alter-
native, the Agency is now exploring other options.
PERMIT FEES
The next subject I will discuss is permit fees. The 1987 amendments to the CWA
contained a number of major new mandates, including new program responsibilities
relating to storm water permitting, sludge management, and water quality stand-
ards. We recognize that States are finding the costs to fulfill the mandates to be
very burdensome and have often had to divert substantial resources from their base
scientific and regulatory activities into areas of new mandates. While the State
funding problem is primarily a problem the States must themselves address, the
federal government can help and, since the States are critical to the success of the
CWA, the federal government should help. In order to help the States, we are study-
394
ing options to ensure that States have adequate funding to execute their responsibil-
ities. One option would be mandating State permit fees as a condition of program
approval, possibly modeled after those in the Clean Air Act, that would be designed
to recover the cost of State permit, enforcement and monitoring programs.
Currently, the main federal authority for the water program to develop a permit
fee structure is found in the Independent Offices Appropriations Act or lOAA,
which authorizes a fee for service to a discrete entity. Our ability to use the lOAA
to recover the costs of broadly applicable efforts, such as the development of regula-
tions and standards, or activities which appear to provide no direct tangible benefit
to the permittee, such as compliemce monitoring, is not clear. Without specific au-
thority to develop program cost recovery fees, it is unlikely that States or EPA will
have sufficient abUity to recover the costs of developing and administering these
progrsuns.
We need authorization to recover the costs of developing and implementing gener-
ally applicable regulations, standards and guidance, as well as those specific to an
industry category. We seek specific authorization to recover the costs of monitoring
compliance and ambient water quality, conducting laboratory quality assurance ac-
tivities, creating and maintaining data inventories, responding to inquiries (includ-
ing the development of status reports on program implementation), and implement-
ing the fee system itself. This fee system would not be for punitive purposes or to
fund the general treasury, but specifically to fund the implementation of the
NPDES, pretreatment and sludge programs.
Thirty-nine States have developed wastewater fee systems; however, few are suffi-
cient to fully fund the program and several are not sufficient to bring total funding
to adequate levels. We believe that authorizing a federal fee program in unauthor-
ized States and States with inadequate fee programs of their own will serve as a
powerful example and incentive for States to develop appropriate systems.
Current State fee systems must be considered, however. Some are sufficient to re-
cover a majority of progreim costs even now and need not be abandoned. Others,
while insufficient in monies collected, use fee schedules or formulas which have
gained the acceptance of the regulated community through the years. Some fee sys-
tems are based strictly on flow. Others consider categories of discharge. Some are
annual fees based on loadings of toxic pollutants and may promote pollution preven-
tion, while others recover flat fees for the processing of an application. No one
method is the best; each has its merits. The States should be given latitude in deter-
mining the basin for fees. The most important factor is the sufficiency of the result-
ing revenues. This could be encouraged through imposition of a federal fee system
based on a rough measure of sufficiency for program costs and then providing defer-
ence to acceptable State fee systems.
COMBINED SEWER OVERFLOWS
Discharges from combined sewer overflows (CSOs) remain a significant threat to
public health and the environment in over 1100 communities serving 43 million
people. The costs to correct this public health and water quality problem are signifi-
cant. However, existing statutory authority is sufficient to allow EPA and States to
tackle this problem through the NPDES program. In 1993, EPA published a Draft
CSO Policy that constituted a breakthrough in correcting the CSO problem, notably
because it reflected fundamental agreement among States, cities and citizens groups
and also recognizes the site specific nature of CSO impacts and the ability of com-
munities to pay for the necessary controls.
Today, most cities in the United States have separate sewer systems for storm
water runoff and for sanitary wastes. However, in the older sections of the country,
primarily in the Northeast and Great Lakes regions, combined sewer systems stUl
exist. During dry weather, combined sewer systems carry sanitary wastes and com-
mercial and industrial wastes to publicly owned treatment works. In periods of rain-
fall, however, the storm water runoff can greatly exceed the capacity of the com-
bined sewer system and overflow the structures that normally divert the
wastewater stream to the publicly owned treatment works. The storm water — along
with the sanitary and industrial wastewaters that are in the system — then flows di-
rectly into surface water bodies such as lakes, rivers, estuaries, or coastal waters.
These resulting overflows from the combined sewer systems are called CSOs.
CSO discharges contain pollutants from raw domestic sewage, industrial and com-
mercial wastes, and storm water rxmoff. Raw sewage from households can introduce
pathogenic bacteria into swimming waters and drinking water supplies. Other pol-
lutants cause biochemical oxygen demand that depletes the oxygen in the water and
alter aquatic ecosystems. From commercial and industrial waste components, the
395
overflows can contain additional nutrients, metals, bacteria, toxic organics, dissolved
and settleable solids, and floatable materials. The storm water component contains
sediment, organic waste, toxic materials and floatable debris washed from streets,
lawns and gardens, parking lots, construction sites, and industrial areas.
Numerous studies have concluded that CSOs are major contributors to water pol-
lution in some water bodies. For example, the Natural Resources E)efense Council is
conducting a continuing investigation of beach closings. Their first report, in 1991,
stated that "[h]igh levels of bacteria in coastal waters are responsible for the over-
whelming majority of the beach closures and pollution advisories in the 10 States
studied." More than 2400 beach closures and pollution advisories issued in 1989 and
1990 were due to the presence of high levels of bacterial contamination.
Like all point sources of pollution, CSOs are covered under the Clean Water Act.
Under the NPDES program, municipalities must have permits for their CSO dis-
charges. These permits are intended to ensure that the discharges will not cause the
receiving waters to violate applicable water quality standards (including any uses,
such as fishing and swimming, that have been designated for those waters), and that
the discharges meet the technology-based requirements of the Act.
Historically, control of CSOs has proven to be extremely complex for a number of
reasons. First, CSOs can exhibit extreme variability in the volume, ft-equency and
characteristics of the discharge. Second, compared to other waste water treatment
technologies, relatively few studies have been completed that document the efficien-
cy or cost effectiveness of CSO controls. Third, while we know that CSOs can have
significant impacts on water quality, there has been difficulty distinguishing contri-
butions to water quality impacts by CSOs from impacts from other sources (e.g.,
non-point sources) during wet weather events. Last, and probably most important,
are the financial considerations for communities with CSOs.
In an effort to resolve these challenges, EPA's Office of Water issued a National
Combined Sewer Overflow Strategy on August 10, 1989. The strategy reaffirmed
that CSOs are point sources subject to NPDES permit requirements and the Clean
Water Act. The 1989 Strategy recommended that all CSOs be identified and catego-
rized according to their status of compliance with these reqviirements. The strategy
set forth three objectives: a) to ensure that if CSO discharges occur, they are only as
a result of wet weather; b) to bring all wet weather CSO discharge points into com-
pliance with the technology-based requirements of the CWA and applicable State
water quality standards; and c) to minimize water quality, aquatic biota, and human
health impacts from wet weather overflows. In addition, the strategy called upon
the States to produce State-wide permitting strategies designed to reduce pollutant
disch£u-ges from CSOs.
While the 1989 Strategy was successful in focusing increased attention on CSOs,
the Strategy fell short in resolving many fundamental issues. In January of this
year, EPA published in the Federal Register (58 FR 4994) a Notice of Availability for
a draft CSO Control Policy. The permitting portions of the Policy were developed as
a result of extensive input received during a negotiated policy dialogue with key
stakeholders including municipal groups. States, environmental groups, and other
interests. The negotiated dialogue was conducted through the Office of Water's
Management Advisory Group. The public comments on the Draft Policy have been
highly supportive and indicate that the Draft Policy was successful in dealing with
issues that had prevented significant progress in the past. The policy contains provi-
sions for developing appropriate, site specific NPDES permit requirements for all
combined sewer systems that overflow as a result of wet weather events. The Draft
Policy also provides for enforcement initiatives to require the immediate elimina-
tion of overflows that occur during dry weather and to ensure that the remaining
CWA requirements are complied with as soon as possible.
First, the Policy would have CSO permittees immediately undertake a process to
accurately characterize their combined sewer systems, demonstrate implementation
of the nine minimum controls, and develop a long-term CSO control plan. Once the
long-term CSO control plan is completed, the permittee will be responsible to imple-
ment the plan's recommendations as soon as practicable.
Second, State water quality standard authorities would be involved in the long-
term CSO control planning effort to coordinate the review and possible revision of
water quality standards and implementation procedures on CSO-impacted waters
with the development of the long-term CSO control plan.
Third, NPDES authorities would issue or reissue permits to require immediate
compliance with the technology-based and water quality-based requirements of the
CWA, and after completion of the long-term CSO control plan, incorporate the ap-
propriate requirements into NPDES permits.
396
Leistly, NPDES authorities would also commence enforcement actions against all i
CSO permittees which have CWA violations due to CSO discharges during dry
weather. In addition, NPDES authorities should ensure the implementation of the
nine minimum controls and incorporate a schedule, with appropriate milestone
dates, to implement the required long-term CSO control plan into a civil judicial
action or administrative order.
We believe that this Draft CSO Policy has been met with great acceptance be-
cause of the appropriate considerations given to: the need for sound characterization
of combined sewer systems; the site specific nature of CSO impacts; the need for ef-
fective planning and public participation; special emphasis for environmentally sen-
sitive areas; and the recognition that municipal affordabUity affects the timing of
CSO control implementation.
Our goal is to publish a final policy in the Federal Register m October 1993.
About the same time, EPA plans to issue a number of final and draft guidance docu-
ments to support the implementation of the Final Policy.
We believe that revisions to the CWA are unnecessary to properly control CSOs.
The existing CWA provides sufficient legal authority to implement the draft policy
and bring CSOs into compliance with CWA requirements and State water quality
standards.
A few comments on CSO costs are important. Our soon to be released 1992
NEEDS survey provides us with estimates of the costs for cities to achieve the
degree of controls outlined in EPA's draft CSO policy. We estimate the CSO abate-
ment costs to these 1100 cities to be about $43 billion. To help put this estimate into
perspective, this country has invested approximately $80 bUlion in the nearly 15,000
publicly owned treatment works in the United States. Another important aspect of
the $43 billion estimate is that it is not equally distributed among the 1100 commu-
nities with CSOs. We believe that a relatively small number of large cities will bear
a significant portion of the total cost.
By way of reminder, we are talking about approximately 1100 cities with com-
bined sewer systems serving a population of about 43 million. Almost 85% of the
systems are located in eleven States in the northeast and Great Lakes (Maine, Mas-
sachusetts, Vermont, New Jersey, New York, Pennsylvania, West Virginia, Illinois,
Indiana, Michigan and Ohio. While many large cities like Boston, New York, Chica-
go, and San Francisco have combined sewer systems, over 60% of the 1100 systems
serve populations of fewer than 10,000.
STORM WATER
The storm water program is based largely on the 1987 Water Quality Act amend-
ments. States report that storm water discharges from diffuse sources are responsi-
ble for approximately one third of remaining assessed surface water impairment.
The 1987 Amendments established a two phased program to address the discharge
of contaminated storm water to our nation's water. Phase I of the program more
than: doubled the size of the existing national industrial and municipal NPDES
permit program. Phase II has the potential for further increasing the size and scope
of the NPDES program more than ten times again.
Under Phase I, section 402(p) specifically requires EPA to establish a storm water
program with permit application and issuance requirements both for industrial ac-
tivities and for municipal separate storm sewer systems over 100,000. In November
1990, the Agency issued Phase I application regulations for 220 municipalities and
counties as well as 11 categories of industrial activity. Under Phase H, EPA is re-
quired to develop storm water program strategy to address all remaining storm
water discharges to protect water quality. These include contaminated storm water
discharges from light industrial, commercial, retail, residential activities as well as
small municipalities. xl i- x j
EPA and. States have made impressive progress on Phase I with limited re-
sources. However, there is a tremendous amount of work left to be done, and there
are several important issues that should be considered in the context of reauthoriza-
tion. Over 100,000 industrial activities and more than 250 municipalities and coim-
ties have been identified for permit issuance under the Phase I storm water pro-
gram. More than half of identified industrial activities have been covered by either
EPA or State general permits, but tens of thousands still do not have coverage
under Phase I permits. On the municipal side, EPA and States have received munic-
ipal permit applications from most of the large and many of the medium munici-
palities. States and EPA Regions must now work with each of these municipalities
and covmties in developing and issuing systemwide storm water permits. The real
Phase I challenge for all of us is to continue the national momentum and assure
397
that storm water permit coverage translates into effective on-the-ground storm
water management practices and achieves real environmental gains.
Under the CWA, municipal storm water permits must require immediate compli-
ance with effluent limits based on applicable State water quality standards. Given
the complexity of storm water discharges and controls and the time it takes to im-
plement municipal or county-wide storm water management practices, immediate
compliance will simply not be possible for many cities. Providing one or more five
year permit terms to meet water quality standards may be a reasonable alternative.
Under current CWA provisions, the storm water program requires CWA permits
for industrial activities even if they are discharging to municipal separate storm
sewer systems, which also must obtain storm water permits. Some have argued that
this approach is redundant and inefficient, and also undercuts the effectiveness of
municipalities in dealing directly with industrial facilities discharging to municipal
systems. One possibility in this area would be to allow EPA to authorize municipali-
ties to establish programs for storm water permit issuance and controls where they
have the appropriate authority and are willing to commit to implement national
storm water requirements.
On the industrial side, providing facilities with a mechanism to avoid regulation
under the storm water program where there is no exposure of materials, equipment,
or wastes to storm water is an approach that may create powerful incentives for
industry to adopt storm water pollution prevention practices. EPA originally estal>
lished so called "opt-out" provisions for light industry as part of its 1990 storm
water application rule. These provisions, however, were overturned by the Ninth
Circuit Court of Appeals as inconsistent with CWA statutory storm water provi-
sions. This is an area in which additional flexibility for EPA and the States might
allow us to accomplish the pollution prevention objectives of the storm water pro-
gram in some cases without the need to issue a permit.
With regard to Phase n of the storm water program, which is not due for full
implementation until October 1, 1994, EPA has undertaken several outreach efforts
to solicit input on potential scope, control strategies, and appropriate deadlines.
Over the past year, EPA has held 6 public meetings to discuss and receive com-
ments on how best to approach Phase 11. In September of 1992, the Agency also
issued a Federal Register Notice requesting additional comment. We are evaluating
available information on activities that may be covered and assessing a number of
possible approaches on how to proceed with Phase H. Initial estimates indicate that
Phase n has the potential to affect more than 1,000,000 (and perhaps as many as 7
million) additional commercial, retail, and light industrial discharges.
We are presently developing different options for a Phase n strategy that will
provide the most effective targeting of high risk sources, and identify appropriate
roles for federal. State, and local government. We are attempting to strike the right
balance between pollution control under the nonpoint source program and the issu-
ance of permits under the NPDES program. We generally think that many Phase II
sources may best be addressed under an expanded and strengthened nonpoint
source program, while reserving the authority to regulate any storm water dis-
charge as a point source if control efforts under the nonpoint source program fail or
are deemed inadequate.
CONCLUSION
With some modest changes to the programs I have outlined today, and continued
leadership by the federal government, I believe we can achieve the goal of cleaning
up the nation's waters for the generations that follow us.
Thank you Mr. Chairman. I will be happy to answer any questions that you and
the other members of the Subcommittee may have.
TESTIMONY OF TERRY AGRISS, PRESIDENT, NEW YORK ENVIRONMENTAL
FACIUTIES CORPORATION
Mr. Chairman and members of the Committee, I am Terry Agriss, President of
New York State's Environmental Facilities Corporation. I am pleased to appear
before you today to testify both in that capacity and as President of the Council of
Infrastructure Financing Authorities (CIFA). CIFA is a national organization of
State and local authorities whose mission is to facilitate financing of public infra-
structure facilities. Most of our State members manage at least the financial compo-
nent of the State Revolving Loan Funds (SRFs) for wastewater treatment, and as
such, are vitally interested in the future of the SRF program.
398
My testimony will address Title VI of the Clean Water Act and the SRF provi-
sions. Briefly, we support a reauthorization of this program which, from our experi-
ence as State managers, is operating as an extremely efficient and economic means
to provide low-cost financing of public wastewater treatment needs. Clearly, the
SRFs have fulfilled the vision which Congress had when it created the loan funding
mechanism in 1987, and we are pleased that the Title I provisions in S. 1114 reflect
this Committee's continued bi-partisan support to maintain and expand the SRFs.
We urge the Committee and the Congress to extend the programmatic and financ-
ing authority for Title VI which, with some minor legislative adjustments, can ad-
dress the nation's major needs for wastewater funding well into the next century. In
support of this assertion, let me respond to some questions which the Committee
may wish to pose:
I. Is the SRF Mechanism Working?
With five years experience, we are pleased to say that the SRF program is work-
ing and working well. All 50 States and Puerto Rico have met the requirements of
Title VI of the 1987 Act, having passed the requisite laws, provided the necessary
matching funds, and set up the administrative and financial management mecha-
nisms to effectively put the program in place. All of these State programs are now
fully operative, making low interest rate and interest-free loans to communities to
meet their wastewater financing needs.
A survey undertaken by the Ohio Water Development Authority of all State SRF
programs found that as of June 30, 1992, States had received nearly $6 billion in
federal capital grants for their SRFs. This federal investment, together with $1.4 bil-
lion in State matching funds and over $5 billion created by leveraging the individ-
ual State Funds, has formed a total lending pool of $10.7 billion from which 1,363
project loans have been made. It is noteworthy that the federed contribution has
been nearly doubled by state match and leveraging of the funds. The ability to le-
verage the fund and its revolving nature comprise the distinguishing features of the
SRF its capacity to take a limited federal capital contribution and parlay it into
expanded long-term financing.
II. Is There a Need for Further Federal Financial Assistance?
The present equity in the SRFs is not enough to fully finance necessary municipal
treatment projects. Nationally, wastewater treatment funding needs are now esti-
mated in excess of $100 billion. New federal requirements for combined sewer over-
flow correction and storm water pollution abatement as well as non-point source
controls, will cause these estimates to escalate. In New York State, estimated treat-
ment needs are $24.3 billion. In your state, Mr. Chairman, our Florida member ad-
vises that the State has estimated needs of $6 billion over the next 20 years. These
are costs for legitimate projects necessitated by requirements of the Federal Clean
Water Act under consideration here today. If Congress expects states and communi-
ties to meet these mandated requirements, it must continue to provide financial as-
sistance. Without it, you will see a deterioration in municipal compliance which will
endanger not only our nation's water quality, but erode the foundation of the coop-
erative compact between the localities, the states and the federal government, in ac-
complishing our environmental objectives. It is that simple.
III. Are SRF's the Most Efficient Means of Delivering Assistance?
From the state and national perspective, there is a definite advantage to loans
over project grants. While we appreciate that some municipalities would prefer
grant assistance over a subsidized loan, and that you may be hearing this from your
constituents and colleagues, there are sound reasons, in terms of economy of nation-
al expenditure and efficiency of project financing, for Congress to maintain the SRF
funding approach. Most importantly:
Loans Provide Assistance to More Projects: The combination of the state
match, the debt service payment, and the additional funds that can be made
available by leveraging, creates a loan pool capable of financing a much larger
share of project needs than would a grant program.
For example, if the SRF were funded at $2 billion a year for 12 more years
with the existing 20% state matching requirement and a leveraging factor of
2:1 for 60 percent of the Funds (the amount of leveraging now anticipated), a
loan pool would be created capable of financing $133 billion in projects over the
next 20 years. The same amount of federal assistance, directed to grants for
55% of the costs of eligible projects, would finance only $44 billion in
wastewater projects — less than one third of the amount that could be financed
through the loan program. Moreover, with the loan program, new projects will
399
continue to be financed after federal contributions stop, whereas the grant as-
sistance program stops with the last federal contribution. With the growing di-
mension of estimated need for wastewater funding it seems clear that responsi-
ble federal programs should be aimed at sustaining and enhancing the loan pro-
gram. A graphic depiction of this SRF scenario, is attached to my testimony.
Low Interest Loans Provide Substantial Subsidy to the Rate Payer: At a time
of impending rate-payer rebellion, SRF below market loan rates can substan-
tially reduce the long-term financing costs for public infrastructure. For exam-
ple, a $10 million dollar project financed through the SRF at approximately 250
basis points (2.5%) below market rates, would save the rate payers $3.1 million
in interest costs over the 20 year loan repa3Tnent period.
Extrapolating this subsidy to the entire national SRF program, assume that
the $10.7 billion in the loan pool is loaned at an average interest rate of 3.5%
against an average market rate for tax exempt borrowing of 6%. The total
saving to the borrowing communities and their rate payers over the period of
loan repayment would be approximately $3.3 billion. Some will argue that this
still does not compare favorably to a grant subsidy, but one must remember
that project grants, on average, cover approximately only 40% of the total
project costs. The remaining 60% must be financed by the community, usually
through borrowing with tax-exempt bonds at the market rate, which will be sev-
eral hundred basis points above the SRF subsidized loan rate.
Loans Will Contribute to Long-Term Federal Deficit Control: The permanent
funding base provided by the SRF eventually diminishes the demand for future
federal contribution. Loan programs begin revolving money for new projects
almost immediately and can reduce the structural deficit by at least $2 billion
annually when the SRF is fully capitalized.
Loans Are More Efflcient: Experience with the SRFs, thus far, has demonstrat-
ed their efficiency as compared to grants. Greater local responsibility under a
loan program results in lower project costs, encouraging communities to build
to meet their actual needs rather than building to meet grant eligibility. For
example, in 1989, the Town of West Monroe in central New York State built a
low pressure sewer system and treatment facility using $650,000 in SRF loan
proceeds and a $45,000 state grant. By contrast, a few years earlier, the same
town, anticipating a Title n grant, plemned a facUity to achieve the same envi-
ronmental purpose which would have cost $1,250,000. The record is replete with
such examples.
Loans Are Less Bureaucratic: Loans, which are more efficient to manage from
a federal and state perspective, significantly reduce the manpower require-
ments for federal supervision as compared to grant administration. Since 1987,
total staffing in EPA's Wastewater and Enforcement Compliance program has
been reduced by more than 100 FEES, reflecting, in part, the shift from grants
to loan management.
Loans Fund Projects Faster: Because SRFs can fimd the total cost of many
projects, they remove the need for communities to raise the additional financing
necessary to cover their matching share of the grant plus the non-grant eligible
components of the project. Moreover, with full availability of financing, projects
are being completed up to 50% faster than under the grant program. There is
no waiting on grant priority lists or for EPA grant reviews. There is an old
adage in the construction business that "time is money." Expedited project con-
struction leads to substantial savings.
Also, loan financed construction occurs more quickly because the loan pro-
gram does not penalize communities that start their projects in advance of a
loan. Because SRFs allow loan refinancings, municip^ities are encouraged to
begin the design and construction phase when they are ready. Costs of planning
and design can be refinanced under the SRF program, so the borrower does not
risk forfeiting future financial assistance by early project starts.
Since many SRF's have adopted a policy of immediate loan availability, there
is no need for borrowers to arrange separate interim financing for the project,
avoiding additional financing costs. States with large needs have been able to
leverage their available loan fimds and are operating imder a policy that any
project can be financed when it is ready. Leveraging can double or triple imme-
diate available loan assistance.
IV. Is There Need For Additional Subsidy to Small Communities?
Even with interest-free loans, some small commimities will still find the cost of
loan repayment too onerous because of economic conditions in the community or ex-
400
ceedingly high compliance costs. In these situations, some additional subsidy may be
advisable. CIFA supports authorizing States to use Principal Subsidies to reduce the
cost of SRF loan repayments to manageable levels for hardship communities. In es-
sence, a principal subsidy uses interest earnings from the SRF to "write down" a
portion of the loan's principal. As proposed in S. 1114, the amount of principal sub-
sidy should be geared to the ability of the community to afford the annual repay-
ment costs. J- . i • i-U i.
An advantage of a principal subsidy program as opposed to a direct grant is that
it can be run as a part of the SRF, thereby streamlining administration for both the
borrower and the lender. We recommend that you give States latitude in how they
provide for such subsidies within the context of the SRFs. For example, to protect
the corpus of the fund, a state might set aside fimds in an earmarked reserve, using
the interest on the reserve to pay a part of the service costs on a community's subsi-
dized loan. Other states may prefer to identify the repayment stream from strong
credit risks, as a subsidy for weaker loans. In any event, the Committee is correct in
limiting the percentage of the Fund that can be dedicated to such subsidies. While
such subsidies require more capital from an SRF than an ordinary loan, most states
with large rural populations and significant needs, are not currently leveraging
their funds through the public bond market. By leveraging their SRF monies for
projects in more credit worthy communities, states should have adequate funds
available to make direct loans and principal subsidies to projects in their economi-
cally disadvantaged communities.
V. Is the SRF Adaptable to Addressing New Pollution Control Needs?
We are pleased that S. 1114 conceives of the SRF as the principal financing mech-
anism for a range of water related pollution control financings. Indeed, a number of
states are already using their SRFs to finance combined sewer overflow and storm
water control projects and correction of failed septic systems. A few states have
made advances in using the SRF to finance non-point source control projects, and
EPA should be encouraged to allow SRF fvmding for pollution prevention projects
including measures for water conservation. While S. 1114 identifies all of these pur-
poses as eligible for SRF financing, it ties them closely to the development of ap-
proved water quality management plans. In as much as many States are already
financing these important control and remediation measures, I am sure it is not the
intent of the Committee to delay such further projects until comprehensive plans
have been completed and approved. , , , /. , j-
The SRF is an adaptable financing mechanism and we look forward to expandmg
its purposes to include the financing of Public Drinking Water Systems as proposed
in President Clinton's new initiative. These water related purposes can all be effec-
tively addressed through the SRF mechanism. In this respect, we would like to em-
phasize to the Committee the need to maintain flexibility for the states in managing
the financial elements of the funds in order to achieve maximum efficiencies in
fund management. For example, states should be allowed to commingle the SRF
loan repayment stream with other State loan pool repayments including State
drinking water SRFs, when authorized. For purposes of leveraging, it would be
much more efficient to allow the combining of state and federal program funds into
a single pool pledged to the same revenue bonds, recognizing that some accounting
of loans made with the proceeds of these bonds would be needed to reassure EPA
that the purposes of the SRF program are being fulfilled. We recommend that the
Congress instruct EPA to provide maximum flexibility to the States iii the manage-
ment of the SRFs, in keeping with sound financial management practices.
VI. Are There Other Modifications That Would Improve the SD Program?
In addition to reauthorizing the SRFs, a few changes are needed in the Title VI
provisions to make the program more efficient and manageable. Specifically, we rec-
ommend the following:
Eligibility of land For SRF Financing: As provided in S. 1114, extension of
funding eligibility for land acquisition associated with wastewater collection
and treatment should be allowed. With present limited eligibility for land acqui-
sition, communities receiving SRF loans now have to find other sources of fi-
nancing for project related land purchases, causing complications and delays in
initiating project construction. Eligibility for land becomes especially important
with the increased emphasis on correction of CSOs and non-point source prob-
lems where additional lands may be needed for run-off retention.
Administrative Costs: Cost of administering the Fund will continue and should
be a legitimate use of a small percentage of each State's Fund, rather than
being tied to a diminishing and eventually disappearing federal contribution.
401
We support the use of a small percentage of the total value of the Federal and
States capitalization for purposes of administering the SRF for the life of the
program.
Extended Loan Payback Period: For larger projects where principal subsidies
are not efficient, States should have the flexibility to extend the loan payback
period beyond the present 20 years. We would recommend reserving this benefit
for special economic hardship cases tied to the project life rather thsm a specific
number of years.
Technical Assistance: We support the provision in S. 1114 allowing States to
use a portion of their matching funds to assist small communities with techni-
cal and financial management. From our experience in New York State, we are
convinced that this small allocation of funds to techniced and financial assist-
ance will return larger dividends in terms of more efficient and cost-effective
project design, realistic rate schedules that service debt and provide for ade-
quate operation and maintenance and assurance of basic accounting and finan-
cial management practices.
With respect to small communities, however, I would like to raise an issue
with the Committee with respect to the need for coordinated federal program.
While there are legitimate cases of hardship in our rural and non-urban com-
munities, it is not always the result of an absence of federal funding. In fact,
there may be more federed funding available for small community water and
sewer assistance next year than for all other communities in the nation. The
U.S.D.A., Rural Development Administration budget request has close to $1.3
billion in grant and loan funding for water and sewer. The Community Develop-
ment Block Grant program provides grant assistance to small communities for
public facilities including wastewater treatment, as does the Economic Develop-
ment Administration. These programs were all increased under the Clinton FY
1994 budget, while the SRF program was dramatically reduced — leaving the
nation in the potentially ironic position of advancing more federal assistance for
small communities than for all the rest of the U.S. population. While this may
be an anomaly of a new Administration's first effort at budgeting, it highlights
a serious problem of lack of federal coordination with respect to clean water
funding — a problem greatly exacerbated at the local level by a confusion of un-
coordinated and dissimilar federal assistance progreuns. One useful initiative
the Committee might direct, is for EPA to take the lead in undertaking an
effort at coordinating a federal approach to small community assistance in the
area of environmental facility financing. At present, the States are left with the
task of helping their small communities sort out their best option from a welter
of confusing and not always cooperating federally assisted programs.
Title II Provisions: CIFA supports the elimination of the grant related require-
ments in Title II of the Clean Water Act, which are now applicable to equiva-
lency" projects equal in dollar amount to a State's annual Capitalization Grant.
These provisions, which include those defined in 201(b), 201(gXl), 201(gX2)
201(gX3), 201(gX5), 201(gX6), 201(nXl), 201(o), 204(aXl), 204(aX2), 204(bXl),
204(dX2), 211, and 218, are either redundant or extraneous to loan eurangements
under the SRF, and in some cases add months and even years to the time re-
quired to move a project to construction.
Water Quality Infrastructure Needs Assessment: Authorization for an expand-
ed needs assessment of all potentially eligible wastewater facilities to provide
improved data on infrastructure financing needs is essential. This is an impor-
tant component of the nation's information base on infrastructure inventory
£md needs and a measure agednst which to assess progress and future program
direction.
We hope that these observations will be useful to you and the members of the
Committee as you work to fashion the provisions that will reauthorize the nation's
clean water law, id thank you for this opportunity to testify.
402
Annual Loan Obligations for SRF Program
(Assumes Funding Ends in 2005)
$10,000,000
$9,000,000-
s- $8,000,000
I $7.000,000
•a
< $6,000,000
$5,000,000- "V
$4,000,000
1994 1997 2000 2003 2006 2009 2012 2015 2018
1) Annual federal aj^ropriation of $2 billion, ending in 2005
2) Only states that are currently leveraging or expected to
leverage soon are included in the leveraging program
3) Sixty percent of the program will" be leveraged at two times
the capitalization amount
4) Forty percent of the program will be direct loans at two percent
interest rates
5) All loan programs are assumed to have a 1% return on equity
.6) Includes recycling of SRF funds fron 1990-93 c^italization
appropriations
Prepared by the N.Y. State Environmental Facilities Corporation
403
TESTIMONY OF KENNETH BRUZELIUS, PRESIDENT, RURAL COMMUNITY
ASSISTANCE PROGRAM, NEW PRAGUE, MINNESOTA
Good morning, Mr. Cheiirman and Members of the Subcommittee. I am Ken Bru-
zelius. President of the Board of Directors of the national Rural Community Assist-
ance Program (RCAP) network. The RCAP network includes national, regional,
state and local offices serving all 50 states and Puerto Rico.
Over the last 20 years, RCAP has provided on-site wastewater technical assistance
to small rural communities. The communities RCAP assists are primarily very
small communities with populations under 3,500, disadvantaged communities, and
those with minority or underserved populations.
For example, Newburg, a community in Missouri with a population of 598, was
issued an abatement order by the MO Department of Natural Resources as a result
of lo"g-standing, documented problems at its wastewater treatment facility. This en-
forcement action required that Newburg take immediate action to resolve these
problems without consideration of the residents' ability to meet the costs of any im-
provements. The Midwest Regional RCAP — Midwest Assistant Program (MAP) of
which I am the executive director is currently providing techniwil assistance to
Newburg at no cost to the community. These technical assistance efforts have re-
sulted in marked improvements in the operation of the existing plant. MAP is also
assisting the community leaders in Newburg to identify their wastewater treatment
needs and to locate resources.
Wastewater Needs in Small Disadvantaged Communities
More than 29 million Americans lack access to basic wastewater treatment and
disposal services (EPA 1990 Needs Survey). A study conducted by the North Caroli-
na RCAP, found that nearly 250,000 residents of that state still use a privy, drain
their raw sewage into streams, or lack running water. In Virginia, state officials es-
timate that 50,000 households lack indoor plumbing.
EPA's 1990 Needs Survey Report to Congress on Wastewater Treatment Facilities
estimated the current need for wastewater facilities nationwide at $110.6 billion,
and reported that more than 80% of all communities in violation of sewage treat-
ment requirements are in small (rural) conmiunities.
As part of an analysis of wastewater facility financing (Through the Revolving
Door) conducted by Rapoza Associates for the Center for Community Change, State
Revolving Loan Fund (SRF) staff in 45 states were asked to rank existing small com-
munity compliemce problems in order of frequency. They answered:
• failing on-site septic systems
• poor operation and maintensmce
• inadequate level of treatment
• infiltration/inflow.
These responses confirm EPA Needs Survey findings that the use of inadequate
on-site septic systems is prevalent in small (rural) communities and that these septic
systems need to be replaced by new municipal collection and treatment facilities.
In a recent Government Accounting Office (GAO) report, a Montana official re-
ported that in several small towns in his state raw sewage was overflowing from
septic systems into nearby surface waters. Illinois alone has as many as 400 small
(rural) communities with failing septic systems and deteriorating wastewater treat-
ment systems. And, Utah state health department officials say they may have to
condemn entire small towns because the towns cannot afford to make necessary im-
provements to their wastewater treatment facilities.
EPA Wastewater Funding and Small Communities
While more than 86% of aU local governments serve populations of less than
10,000, a January 1992 Government Accounting Office (GAO) report on the existing
Clean Water state revolving loan funds (SRF) noted that small communities are re-
ceiving less than a proportional share of financial assistance from the SRFs, given
the percentage of population in these communities. The GAO report showed that
communities with populations under 10,000 received 24% of the money loaned from
the SRFs between 1987 and 1990, while they represented 38% of the total popula-
tion. Although 70% of all US municipalities have populations of less than 3,500,
only 11.7% of EPA Construction Grants were awarded to communities of this size.
In Through the Revolving Door several reasons were listed for the difficulties
small communities have had in obtaining SRF funds. Many states consider the abili-
ty to repay the loan to be nearly as important as a community's health and environ-
mental needs. Many small, disadvantaged communities cannot support the neces-
sary user charges or rate structure to generate sufficient income to repay SRF
404
loans. Often, projects serving populations of under 1,000 cannot borrow from the
SRFs without supplemental grants or principal subsidies. Communities of this size
have limited debt service capacity and require 0% or negative interest loans to
reduce loan repajrments to an affordable level.
Also, while many small system projects are rated high on state priority lists they
are often passed over for funding because they are not ready to begin construction.
These small communities have part time leadership and need technical assistance to
complete the necessary pre-construction studies and preliminary loan requirements.
This technical assistance enables the community to plan for necessary improve-
ments to system operations and management practices, set realistic yet affordable
user charges, establish reserve funds for equipment replacement and repair, and de-
velop future capital improvement plans to maintain compliance. It also provides
small communities with assistance in eveduating and implementing restructuring
and consolidation options.
S. 1114 — Specific Recommendations
I would like to thank senator Baucus, Senator Chaffee and the Committee for
their willingness to avoid the one size fits all" approach of many federal regulations
and laws. Many of the gimendments to the Clean Water Act proposed in S. 1114 —
including those related to the State Revolving Loan Funds Program and small and
disadvantaged communities — acknowledge the necessity to solve wastewater treat-
ment problems of small communities differently than large metropolitan cities.
RCAP offers the following comments and suggestions for consideration by the Com-
mittee:
(1) States should be required to set aside at least 15% of the total SRF (federal and
state funds] each year for projects serving small disadvantaged communities as de-
fined in S. 1114 o,nd projects in unsewered small communities with failing (or failed)
on-site septic systems. EPA Needs Survey data, GAO report findings, other
wastewater needs data, and the fact that these communities have not been success-
ful in obtaining a proportionate share of existing SRF funds readily justify the tar-
geting of these funds.
(2J States should be permitted to use SRF matching funds to provide grants for
planning and design assistance and other "up front " costs to small systems whether
or not they are successful in getting a loan. S. 1114 now allows for award of these
grant funds in the event a smgdl system "does not receive a loan". However, many
small communities — particularly disadvantaged communities — do not have monies
to pay adl of the upfront costs involved in applsdng for the SRF even if they may be
reimbursed for these expenses (a grant) or the expenses can be added to the total
loan amount when awarded.
(S) No one project should receive a loan from a state's SRF for an amount greater
than 25% of the state 's total SRF in a given year. The need for this restriction is
obvious. The funds appropriated for the SRF program are insufficient to meet the
needs nationwide or in individual states. These funds must be distributed to the
greatest number of projects possible and not depleted by one or two large projects.
(4) States should be permitted to extend low-interest loan payments for up to 40
years for projects in small, disadvantaged communities or unsewered communities
with failing septic systems. This offers another alternative to making projects in
these communities more affordable yet maintains the integrity of the loan fund.
(5) In addition to the technical assistance by states included in S. 1114, provision
should be made for national technical assistance specifically targeted to communities
with populations under 3,500 and disadvantaged communities. RCAP strongly sup-
ports the provision of funds to the states for technical assistance related to Clean
Water issues. However, the funds available to the states for this purpose are limited
and limit states' abilities to reach very small, rural, and disadvantaged communi-
ties. These communities are also the communities least likely to know about the
availability of SRF funds or other funding resources, know how to go about appljdng
for funding, or who to contact. Often their only contact with state government has
been a result of enforcement actions related to non-compliance, and they are reluc-
tant to approach the state for any assistance. Third party, national nonprofit, tech-
nical assistance providers can provide this assistance.
S. 1114 includes important revisions to the existing Clean Water Act, and begins
the important national debate on how to best protect our clean water resources and
provide wastewater treatment. Thank you for this opportunity to testify on behalf of
the small communities RCAP represents. We look forward to continuing to work
with you on these issues.
405
Bnitd 3tates Senate
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
WASHINGTON. DC 20510-6175
October 12, 1993
Mr. Kenneth Biuzelius
President
Rural Community Assistance Program
P.O. Box 81
New Prague, Minnesota 56071
Dear Mr. Biuzelius:
The Subcommittee appreciates your paiticipation in the hearings of the Subcommittee on
Clean Water, Fisheries and Wildlife in its review of the Clean Water Act. In furtherance of our
review, we have a few follow-up questions for the record. Please provide your answers to Bill
Leary at 505 Hart Senate Office Building, Washington, D.C. 20510 by October 29, 1993.
Senator Ken^thome following June 23, 1993 hearing:
Y 1 . On the debate now taking place between the wisdom of providing further assistance under
the Clean Water Act in loan or grant form, which do you beheve to be the most effective
form of assistance?
E>oes your viewpoint apply equally to large and small communities?
Y 2. I note Aat Davis-Bacon requirements apply to construction of wastewater treatment
facilities and o&er projects funded through the State Revolving Loan Fund. Data
generously suggests that these prevailing wage requirements substantially drive up the
cost of projects. At a time when local and state governments are financially strapped and
struggling to conq)ly with numerous environmental mandates, wouldn't it make sense to
exempt these projects from a requirement that mandates wage payments equal to the
highest paid in the area where the project is located, rather than a rate dictated by the
competitive noaiket?
406
RURAL
COMMUNITY
ASSISTANCE
PROGRAM
eoe South King StiMt
Sulto402
LBOBburB. viroinia 22075
709/771-8836
Metro 4784652
Fax 703/771-8753
Senator Bob Graham
Chairman
Subcommittee on Clean Water,
Fisheries And WUdlife
United States Senate
Committee on Environment and
PubUc Works
Washington, DC 20510-8175
E>ear Senator Graham:
Mr, Ken Brxazelius, RCAP's President^ asked me to
respond to your letter of October 12, 1993, regarding
follow-up to his testimony on the reauthorization of
the Clean Water Act. The questions raised by Senator
Kcmpthome related to three areas: the need for grants
and/or loans, the impact of Davis-Bacon requirements,
and the treatment of stormwater as non-point sources
of pollution in communities with populations under
100,000.
First, as Mr. Bruzellus stated in his testimony, small
communities ~ particularly k>wer-income
communities ~ have not benefited horn the existing
state revolving loan funds (SRF) for wastewater
fadlities because these communities can not afibrd to
repay the loans or pay up front costs necessary to
complete tt\e loan application process. Grants and/or
other financing mechanisms, like principal subsidies
currently used in the SRP program in New York state
or negative interest loans, are needed to make
necessary system improvements affordable for these
communities.
Grant funds should be made available to snudl and/or
low-income commimities to cover the up front costs
related to project planning and design/etc., whether or
not the community is successful in accessing the SRF.
These grants might be reimbursed to die SIU' if the
community received reimbursement from another
source Oike RDA) for these costs or nUght be added to
the SRF loan total where affordabiUty is not affected.
Criteria for any grants or subsidies under the Oean
Water Act should be limited to communities that are
small (under 5,000) and/or low-income communities.
407
Regarding the Davis-Bacon requirements for federal
construction programs imder the Clean Water Act,
Senator Kempthome Is correct when he states that the
prevailing wage requirements imder this act drive up
the cost <rf projects. This can be a particular problem in
small commimities where project hbor costs can be
artificially high due to Davis>Bacon requirements in
comparison to local wages and disproportionately
increase the overall cost of the project. In small and
lower-income communities the "extra" costs of
con^lying with Davi8>Baoon often have a negative
Impact on the affordability of the project and loan.
Finally, w^ile we can not specifically address the
applicability of the Coastal Zone Management Act
BMPs to other non-coastal zone watershed areas, we
strongly encourage watershed protection actions as part
of any pollution prevention strategy. Watershed
protection activities and plans must be treated as
. regional, not local, imperatives and small
communities within a watershed must be included in
any regional watershed planning and protection
programs.
Sincerely,
[ithleen M. Stanly
jtlve Director
69-677 0-94-14
408
STATEMENT OF PAUL K. MARCHETTI, EXECUTIVE DIRECTOR, PENNSYL-
VANIA INFRASTRUCTURE INVESTMENT AUTHORITY, HARRISBURG,
PENNSYLVANIA
I am Paul Marchetti, Executive Director of the Pennsylvania Infrastructure In-
vestment Authority, commonly referred to as PENNVEST. I appreciate the opportu-
nity to speak with you today about the State Revolving Fund (SRF) program. My
testimony will describe the PENNVEST program, which implements the SRF in
Pennsylvania, and wUl also address a number of provisions in S. 1114 that would
moify this program, particularly those in Title I.
PENNVEST OVERVIEW
PENNVEST was created by Governor Robert P. Casey in 1988 to address the
pressing water quality problems that plagued Pennsylvania at that time. The Com-
monwealth lead the nation in cases of water-borne disease and a third of our sewer
systems were under connection bans or limitations. These conditions were not only
environmental concerns but also inhibited economic growth and job creation across
the Commonwealth. The Governor saw PENNVEST as a mechanism for addressing
both of these issues simultaneously.
PENNVEST was initially capitalized by $1 billion in funding for both drinking
water and wastewater projects. Approximately three fourths of the capacity came
from the state, with the balance coming from the federally funded SRF. Much of the
state's contribution, and all of the federal contribution, is comprised of revolving
funds that are used to make loans whose repayments remain with the PENNVEST
program. Thus, we are also able to issue revenue bonds to finemce additional
projects in the future ($142.5 million have been issued to date).
Pennsylvania's voters in 1992 added an additional $350 million in state borrowing
capacity to fund more projects. This referendum also expanded PENNVEST's fi-
nancing authority to include storm water projects.
PENNVEST was created to serve the clean water financing needs of all Pennsyl-
vanians, with a particular emphasis on small systems and rural areas. Pennsylvania
has approximately 2,500 community drinking water systems and almost 4,000
wastewater systems. Seventy-five percent of these systems are small (defined as
having fewer than 1,000 connections). Taking wastewater systems alone, approxi-
mately 70 percent are small. Pennsylvania also has the largest rural population in
this country. Of our 67 coxmties, 55 are considered rural (defined as having a popu-
lation of 200,000 or fewer).
PENNVEST financial assistance is comprised primarily of low-interest loans, al-
though a small amount (five percent) is comprised of grants funded by state appro-
priations. The interest rates on our loans range from a minimum of 1.0 percent up
to a maximum of four to five percent, depending upon prevailing market. interest
rates. We average about 2.2 percent. For any individual project, we can provide up
to $250,000 in state funded grants. However, we never allow grants to constitute
more than 50 percent of our assistance to a project. We will also extend the term of
our loans to 30 years in cases where even a 1.0 percent loan and a maximum grant
is not enough to make a project reasonably affordable. We can, of course, only do
this with state funds.
The interest rate that we charge a borrower, as well as the amount of grant fund-
ing, if any, that we provide, is determined by a comparison between the costs of a
project and the financial capability of the project's users to pay for it. Smaller, more
economically disadvantaged communities will receive proportionally larger interest
rate and grant subsidies than will other borrowers, simply because the typical water
or sewer project is large and expensive relative to the user base available to repay
our loan.
Since its inception in 1988, PENNVEST has provided $1.2 billion in funding to
688 drinking water (325) and wastewater (363) projects across the Commonwealth.
Of these funds, $344 million (29 percent) have gone to small systems. These systems
have also received 75 percent of our grant funds. From a slightly different perspec-
tive, approximately 50 percent of our assistance has gone to rural areas. This is not
to say that urban areas have been neglected by this program either. For example,
we have made a $20 million loan offer to the City of Philadelphia. Other urban
areas in the Commonwealth have received similarly large loans from PENNVEST.
In addition to the environmental benefits that PENNVEST has created across the
Commonwealth, the program has also helped create over 13,000 permanent jobs in
this state, in addition to approximately 41,000 direct construction jobs.
409
Looking only at the SRF portion of the PENNVEST program, we have approved
86 SFR loans since December of 1988, for total funding of $189 million. Of these, 52
loans are closed and the projects are under construction. We have disbursed $81 mil-
lion in funds to date for these projects. Seven of our SRF loans are amortized and
their repayments, along with those paying interest only, provide PENNVEST with
approximately $84 million in SRF income every month.
COMMENTS ON S. 1114
I would now like to offer some comments on specific provisions contained in S.
1114. These comments will focus on the funding provisions of the bill and will also
include one suggestion for an additional provision that I think would improve the
SRF mechanism. Let me preface these comments, however, by saying that I believe
that the SRF program as it is currently structured has been enormously successful,
both in Pennsylvania as well as in states all across the country. I am pleased to see
that S. 1114 continues the fundamental, loan-based program that has worked so well
to date.
Funding Levels: Section lOlQi)
S. 1114 continues SFR funding through FY 2000 at an annual funding level of $2.5
billion, with the possibility of additional funding if federal deficit reduction goals
are met. I am grateful for this continued financial support for the SRF program. It
is much needed in Pennsylvania, as I am sure it is in other states. Our wastewater
funding needs are estimated to be over $3 billion (in 1990 dollars). Our needs for
combined sewer overflow (CSO) projects alone are $1.9 billion. With the proposed
baseline funding of $2.5 billion annually, Pennsylvania would receive a total of ap-
proximately $1 billion in federal financial assistance from FY 1989 through FY 2000
under the present allocation formula.
We could obviously use even more funding than that envisioned by S. 1114, and I
urge committee members to find as much additional funding for wastewater projects
as possible. I understand the motivation for tying additional funding to deficit re-
duction goals but hope that this restriction might be loosened, if not eliminated, so
that communities across the country, particularly smaller and poorer communities,
can receive the financial assistance they need to comply with federal water quality
standards.
Loan Principal Forgiveness: Section 101(d)
In cases where even a zero interest loan will result in user rates that are exces-
sive relative to project users' ability to pay, states should be able to write-down a
portion of the SRF loan principal as a grant. It is appropriate that S. 1114 recog-
nizes this need and provides states with the flexibility to do this. It is also appropri-
ate that the use of principal forgiveness is constrained by limiting it to a percentage
of the federal capitalization grant. I am pleased to see that the use of this mecha-
nism is tied to users' ability to pay, which, in my opinion, is the only relevant crite-
rion for sacrificing fund capacity to make loans more affordable through principal
forgiveness.
In Pennsylvania, we use grants only if the effect on a system's user rate meets
some threshold minimum dollar reduction from what the user rate would be with-
out the grant. We do this in order to avoid using scarce grant resources in cases
where they will have limited financial impact. The committee may want to consider
a similar limitation for principal forgiveness. Aside from this possibility, however, I
encourage the committee to maintain the flexibility that S. 1114 provides the states
in using this mechanism.
Land Cost Eligibility: Section 101(aX2)
When funding a wastewater project with state funds, PENNVEST allows land
costs to be included as an eligible item for funding. This is also true for drinking
water projects. I agree with the provision of S. 1114 that would make necessary
land, easements, and rights-of-way costs eligible for funding under the SRF.
Technical Assistance Funding: Section 101(c)
Providing technical assistance to small communities on management and finan-
cial matters is important to the financial health of the SRF program. I agree with
the provision in S. 1114 that allows states to use a portion of their state matching
funds, up to 2 percent of the federal capitalization grant amount, to provide such
assistemce.
410
Leveraging: Section 101(g)
I do not agree with the requirement contained in S. 1114 that all states must le-
verage some portion of their SRF funds. In Pennsylvania we leverage the funds in
our state program, having issued $142.5 million in revenue bonds to date. We also
intend to leverage our SRF funds as funding needs arise. Our experience and needs
are not necessarily the same as those in other states, however, and this state-to-
state variability should be recognized in this legislation.
While leveraging may allow projects to be funded sooner than they would be oth-
erwise, it does not increase the total amount of funding that will ultimately be
available from the SRF. Some states may need more funding now than they antici-
pate needing in the future, while the reverse may be true of other states. While it is
probably true that the funding needs of all states exceed the financial resources
available in the SRF program, some states may prefer to conserve their available
resources for the future rather than expend them on project funding now. The
timing of funding through decisions about leveraging is, in my opinion, better left to
the states to determine. Requiring a minimum amount of leveraging from all states
eliminates flexibility that I would prefer to see retained in the SRF program.
Extended Loan Payback
An additional provision that I recommend the committee consider for inclusion in
S. 1114 would allow states to extend loan payback periods beyond the presently au-
thorized 20 years. In cases where the user rate that will result from a SRF project is
higher them what is reasonably affordable, states should be allowed to extend the
term of their SRF loans. In PENNVEST, we will go out as far as 30 years. I suggest
that as a reasonable maximum although, again, the needs of other states may differ.
A reasonable standard for the loan term maximum is the design life of the facility
being built. Whatever maximum term is chosen, this allowance for some extension
beyond the current limit of 20 years would help ease the financial burden facing
small and economically disadvantaged ss^stem users.
This concludes my testimony. I want to thank the subcommittee for the opportu-
nity to appear here today and I would be glad to address any questions that you
might have.
411
Commonwealth of Pennsylvania
PENNVEST
Pennsylvania Infrastructure Investment Authority
Keystone Building, 22 South Third St.. Hamsburg. PA 17101
(717) 787-8137
Governor Robert P. Casey, I^ul K. Marchetti,
Chairman Executive Director
October 28, 1993
Bill Leary
505 Hart Senate Office Building
Washington, D.C. 20510
Dear Mr. Leary:
I am writing in response to an October 12, letter addressed to
me by Senator Bob Graham, as Chairman of the Subcommittee on Clean
Water, Fisheries and Wildlife, Committee on Environment and Public
Works. That letter transmitted three questions raised by Senator
Kempthorne following hearings on S.1114 in which I was a
participant. The questions, and my responses, are as follows.
Q #1. On the debate now taking place between the wisdom of
providing further assistance under the Clean Water Act in
loan or grant form, which do you believe to be the most
effective form of assistance?
Does your viewpoint apply equally to large and small
communities?
A #1 There is no doubt in my mind that loans provide the most
effective form of assistance for the construction of
infrastructure projects. It is vitally important that
the recipients of public assistance be provided with the
correct incentives to economize on both the design and
use of the facilities constructed with this assistance.
The greater the financial stake that the recipient has in
the design and operation of a facility, the more
efficient will be the facility's design and the more
effective will be its operation.
That having been said, I recognize that there are
circumstances where even low, or zero, interest loans may
pose a difficulty for a community to repay, particularly
when the user base is small relative to the size of the
facility that must be constructed. In such situations it
is appropriate that grant assistance be combined with low
interest loan assistance in order to make the project
affordable to users. This is both equitable and sound
412
loan financing, since easing the burden of repayment with
grant funds will improve the chances of repayment of loan
funds .
The critical point in the application of grant funds to
infrastructure financing is that they must always be
provided in conjunction with loan funds. In order to
maintain the efficiency incentives of loan-based
financing, some repayment must always be expected of the
recipients of financial assistance. This repayment
should be tied as closely as possible to the users'
ability to pay for the services provided. Grant funds
are appropriate for closing the gap between this
affordable payment and the costs actually needed to
construct the facility. It is vitally important to the
effective administration of financial assistance that
this combining of loan and grant funds be accomplished by
a single financing entity, such as a State Revolving Loan
Fund.
These observations apply equally to large and small
communities, although it is likely that the mix of loan
and grant funds will differ by the size of the community,
with small communities being in greater need of grant
funds to offset relatively higher project costs and
resulting user rates.
Q #2 I note that Davis-Bacon requirements apply to
construction of wastewater treatment facilities and other
projects funded through the State Revolving Loan Fund.
Data generously suggests that these prevailing wage
requirements substantially drive up the costs of
projects. At a time when local and state governments are
financially strapped and struggling to comply with
numerous environmental mandates, wouldn't it make sense
to exempt these projects from a requirement that mandates
wage payments equal to the highest paid in the area where
the project is located, rather than a rate dictated by
the competitive market?
A #2 If local labor markets are truly competitive, which I
have no reason to disbelieve, then there will be little
or no difference between the "highest paid" wage rate in
the area and any other rate. Consequently, the effect of
Davis-Bacon requirements should, at least on this
argument, be rather small.
Taking a broader view, however, I certainly cannot
disagree with the general premise that reducing
unnecessary costs involved in designing and constructing
wastewater treatment plants would help State Revolving
Loan Funds (SRF's) to stretch their scarce dollars to
413
meet a larger amount of environmental and public health
needs. All of the Title II requirements involved in
financing such projects with SRF monies should be subject
to a critical review of their need and effectiveness
relative to the costs that they impose on the projects
being funded.
Q #3 I understand that S.1114 would allow communities under
100,000 to treat their stormwater outflows as non-point
sources of pollution and that where those communities are
located in an impaired watershed, a non-point sources
best management practices plan would have to be in
effect. The model proposed for that plan is that
contained in the Coastal Zone Management Act. Could you
address the general applicability of the Coastal Zone
•Management BMP's to other regions of the country with
vastly different geography, climate, and hydrology?
A #3 In a word, no. PENNVEST is strictly a funding agency,
which causes us to concentrate on the financing aspects
of the SRF program. The technical nature of the question
you raise, and particularly the broad scope of the
applicability of the issue, lies considerably outside my,
or my agency's, area of expertise. I can refer you,
however, to Caren Glotfelty in Pennsylvania's Department
of Environmental Resources (717-787-4686) . As the Deputy
Secretary for all water programs in the Department's
jurisdiction, Ms. Glotfelty is well versed in the issues
you raise and could provide a thoughtful and informative
answer .
I hope that my responses have been of some assistance to you.
If you have any additional questions on the SRF program, please do
not hesitate to contact me.
Sincerely,
Paul K.V/Marchetti
Executive Director
Bernie McShea
Rich Fiesta
414
TESTIMONY OF RONALD J. MARINO, VICE PRESIDENT, PUBLIC FINANCE
DIVISION, SMITH BARNEY, HARRIS, UPHAM & CO., INC.
Mr. Chairman and Members of the Committee:
My name is Ronald Marino, Vice President in the Public Finance Division of
Smith Barney, Harris Upham & Co., Incorporated. I am here today to represent the
Public Securities Association as the Committee reviews the accomplishments of
State Revolving Loan Funds (SRLF) for wastewater treatment and facilities and un-
dertakes legislative recommendations for the continuation of the program to 2000
PSA is the international trade organization of banks and securities firms engaged in
the markets for municipal securities, U.S. governments and federal agency securi-
ties, mortgage backed securities and money market instruments.
While Federal financial assistance has been available to assist localities to build
wastewater treatment facilities since the 1950's, it is the passage of the Clean Water
Act in 1972 that established national standards for pollution control and authorized
an $18 billion grant program to assist states and localities to meet these new Feder-
al mandates. In 1987 when the Clean Water Act was being reviewed for reauthoriza-
tion there was increasing concern and criticism of the grant program by the Con-
gress. With policy foresight to limit the increasing Federal role and to create a flexi-
ble financing mechanism for the states, Congress authorized a State Revolving Loan
Fund Program as the mechanism to leverage ever scarcer Federal resources.
While our infrastructure funding deficiency was clear in 1987 and still is today,
Congress and the capital markets have made significant steps to start closing that
gap. In 1987, the nation's wastewater treatment needs were estimated to exceed
$83.5 billion. Congress authorized $8.4 billion to capitalize the SLRF's to 1994. All 50
states have undertaken the required legal and financial operational steps to imple-
ment the program. A year old survey by the Council of Infrastructure Financing
Authorities indicated that, at that time, the States had received almost $6 billion of
Federal capital grants which were leveraged with $1.4 billion to create a loan pool
of $10.7 billion. This leveraging factor will begin to increase as loan repayments con-
tinue and grow over time. ,,
Various studies including EPA's "State Revolving Fund Fmd Report to Congress
indicate that the dynamic structure of SRLF can provide project funds of between
2 0 to 4.0 times the initial assets. An added benefit can be the loan pool itself. If the
loan pool is carefully administered, an SRLF can provide sufficient revenue genera-
tion to provide an "internalized" means of credit support, promoting an investment-
grade credit rating through the structure of the loan pool without having to rely on
state guarantees. ^ . , , u u x
SRLF's are not a bizarre new technology. Their purpose and goal can be best un-
derstood within the context of the declining level of Federal aid and the competition
between the capital and expense side of the budgets of state, county and municipal
government. Their fundamental principal is that SRLF's can provide a steady,
stable source of capital dedicated to environmental facilities which will be:
• a reliable long-term financing mechanism which continually generates more
capital as more loans are made;
• a structure to facilitate and accelerate the lending of Federal funds;
• a vehicle to make unfeasible or risky projects feasible while investing less
public sector funds and thereby expand the overall number of loans and
projects; , . . , .
• and a more self-sufficient financing and efficient decision makmg process.
Projecting the continuation of the SRLF program, Mr. Chairman, I am aware that
the Committee has a concern to make the program more efficient and to increase
the velocity of the loans being made and loans being repaid. Of course, your goal is
to make loan repayments avaSable sooner for additional loans.
One proposal is to allow or encourage the SLRF to concentrate on construction
financing and delegate to the localities the responsibility to secure permanent fi-
nancing directly from the capital markets or through a state authorized entity. I
believe that there is no statutory prohibition to a state creating such a construction
loan program under the current law. The existing law provides states with the flexi-
bility to establish varied loan terms including maturities up to 20 years. A state can
set loan terms to provide for a construction loan program or decrease the loan re-
payment term to a period of less than 20 years. While a shorter loan term will in-
crease loan velocity, there would be a negative impact on less affluent counties and
municipalities and for those localities whose credit rating will make it difficult or
very costly to rely upon the capital markets for an unsubsidized permanent loan.
The main goal of the SRLF is to encourage counties and municipalities to construct
and/or upgrade existing facilities. The program shov" ctain the flexibility to
415
permit various, loan structures and terms to be offered by each state to the partici-
pants based upon the funding needs and revenue resources. The greatest legislative
emphasis should be placed upon the Congress' interest in encouraging states to le-
verage the federal contribution to the maximum level possible. Some states have
been more aggressive than others in creatively enlarging the size of their program.
Setting some minimum leverage ratio as a goal for program-wide activities is one
clear method. Being cognizant and sensitive to the balance between a locality's abili-
ty to repay the loan and motivating that same locality to participate should be an
underlying principle in setting any leveraging standards. While the Federal govern-
ment should be involved with the development of the programmatic standards and
regulatory framework, the Ck)ngress also should promote some discretion and tracta-
bility for each state to produce a program that can be successful within the local
legal and financial framework.
The most popular and successful structure for leveraging is produced when a state
reserves all or a portion of the Federal contribution as a reserve supporting a state
debt issue. The proceeds of the issue can leverage the size of the reserve anywhere
from two to four times. The reserve acts as a form of credit enhancement, allowing
for a higher credit rating and reducing financing costs to the borrowers, the coun-
ties and municipalities who are the ultimate borrowers.
A significant limitation that restrains the ability of this structure to maximize
the leveraging is the restriction on the investment of the reserve funds. Generally,
the reserve fund must be treated as bond proceeds for the purpose of investment
yield under the arbitrage rules in Section 148 of the Internal Revenue Code. While
the reserve funds do not result from the proceeds of or issuance of debt, states must
restrict the yield that these reserves earn. Easing the restrictions on the investment
of reserve funds will be a strong incentive to leverage.
There are several other recommendations, some based on the 1992 General Ac-
counting Office study of revolving loan funds, which should be considered by the
Committee. Among these are the following:
• Permitting principal subsidies for low income localities that have a difficulty in
repaying even zero-interest loans;
• Permitting the SELF to be used for acquisition of the sites for facilities and a
smgdl percentage to be used for administrative costs;
• Reducing the vestiges of the former grant program's mandates for a number of
Federal rules and regulations.
Again, I thank you Mr. Chairman and Members of the Committee for the oppor-
tunity to discuss these important environmental infrastructure concerns. We appre-
ciate your leadership on these issues.
416
STEVEN J SMIMBEHG, MINORfTV STAFF
lanitd States Senate
COMMFTTEE ON ENVIRONMENT AND PUBLIC WORKS
WASHINGTON. DC 206 1 0-6 1 75
October 12. 1993
Mr. Ronald Nfarino
Vice President, Public Finance Division
Smith Barney, Harris & Upham & Co., Inc.
1345 Avenue of tbe Americas
New York, New York 10105
Dear Nfr. Marino:
The Subcommittee appreciates your participation in the hearings of the Subcommittee on
Clean Water, Fisheries and Wildlife in its review of the Clean Water Act In furtherance of our
review, we have a few follow-up questions for the record. Please provide your answers to Bill
Leary at 505 Hart Senate Office Building, Washington, D.C. 20510 by October 29, 1993.
Senator Kenoptfaome following June 23, 1993 hearing:
V 1. On the debate now taking place between Ihe wisdom of providing further assistance under
the Clean Water Act in loan or grant form, which do you beUeve to be the most effective
form of assistance?
Does your viewpoint apply equally to large and small communities?
\'
2. I note Aat Davis-Bacon requirements apply to construction of wastewater treatment
facilities and other projects funded dirough Ae State Revolving Loan Fund. Data
generously suggests that these prevailing wage requirements substantially drive up the
cost of projects. At a time when local and state governments are financially strapped and
struggling to comply with numerous environmental mandates, wouldn't it make sense to
exen^t these projects fiom a requirement diat mandates wage payments equal to the
highest paid in tiie area where Ae project is located, raAer than a rate dictated by the
con^etitive market?
417
Smith Barney Shearson
October 28, 1993
Senator Bob Graham
United States Senate
Committee on Environment and Public Works
Washington, DC 20510-6175
Dear Senator Graham:
I am pleased that you have contacted me on behalf of the Subcommittee to elicit my views on
the reauthorization of the Clean Water Act.
I am answering Questions 1 and 2, but I am not responding to Question 3 since I do not have
any background or experience in storrawater treatment of outflows.
Question 1
The provision of further financial assistance by the Federal government should continue in the
form of loans due to the lack of available resources. The restricted nature of the Federal budget
precludes the possibility of any additional resources being directed to Clean Water programs.
Thus, the existing funds should be leveraged to the greatest feasible level. The revolving loan
fund process permits the possibihty of aggressive leveraging to take place. My opinion applies
to both large and small communities.
The subcommittee might consider distinguishing between poorer and more affluent communities
for the level of subsidy that a state can provide.
Question 2
I would generally agree with the direction of the Question concerning Davis- Bacon requirements.
State wage regulations or competitive wage rates should be permitted to apply.
I thank you again for this opportunity.
Sincerely,
Ronald J. Marino
Vice President
SMITH BARNEY SHEARSON INC.
1 345 AVENUE OF THE AMERICAS
NEW YORK, NY 10105
(212)464-6000
REAUTHORIZATION OF THE CLEAN WATER ACT
THURSDAY, JULY 1, 1993
U.S. Senate,
Committee on Environment and Pubuc Works,
Subcommittee on Clean Water, Fisheries, and Wildufe,
Washington, DC.
TOXIC POLLUTION: PREVENTION AND CONTROL
The subcommittee met, pursuant to notice, at 9:38 a.m. in room
406, Dirksen Senate Office Building, Hon. Bob Graham [chairman
of the subcommittee] presiding.
Present: Senators Graham, Lieberman, Chafee, Faircloth,
Kempthorne, and Baucus.
OPENING STATEMENT OF HON. BOB GRAHAM, U.S. SENATOR
FROM THE STATE OF FLORIDA
Senator Graham. I will call the meeting to order.
This is a meeting of the subcommittee on Clean Water, Fisheries,
and Wildlife of the Senate Committee on Environment and Public
Works. As you can see, we are using a different format today, one
which I hope will generate a level of discussion and understanding
of these complex and vexing issues. This is one of a series of hear-
ings that we are holding as part of the reauthorization of the Clean
Water Act. Today we are going to be focusing on the issue of toxic
pollution prevention and control.
At this hearing, we anticipate that we'll have some genuine dis-
agreement and differences of opinion on important issues. Just in
the past few days, for example, U.S. PIRG released a report, using
EPA data, which reveals that industrial discharges of toxics into
our waters totaled 654 million pounds in 1991, 63 percent of which
was released to sewers. This is obviously in contradiction to the
original goal of the Clean Water Act that discharge of toxic chemi-
cals be prohibited. We are also told that some of these substances
pose so serious a threat to human and environmental health even
in small amounts that they must be prohibited.
On the other hand, we've been told repeatedly that the Clean
Water Act has worked and is working to reduce the impact of toxic
substances on our waters, that toxic substances represent but 10
percent of the remaining pollution problem. One of our witnesses
has even likened some of the bill before us to central control poli-
cies practiced in Eastern Europe and the former Soviet Union. This
is illustrative of the degree of disagreement that exists on the facts
and the implications of those facts. It's our hope that in this more
informal setting we will be able to narrow the differences.
(419)
420
We have before us a list of difficult issues about which we will
hear disagreement. They range from pollution prevention plsmning
to banning certain toxic substances. They include efforts to im-
prove water quality criteria from which the States set water qual-
ity standards. They include efforts to develop criteria for sediment
quality and to improve the pre-treatment of toxic waste discharge
at treatment facilities ill-equipped to handle it.
I want to work off the agenda that you have received, which indi-
cates a series of subissues under the topic of toxic pollution. We
have panels of generally four persons per subissue. It is my expec-
tation that we will move directly toward a discussion of these
issues. I would ask that those of you who have prepared state-
ments, if you would submit those, and they will be entered in the
record.
We are joined today by the Chair of the committee on Environ-
ment and Public Works, Senator Max Baucus.
Senator Baucus, do you have an opening statement?
OPENING STATEMENT OF HON. MAX BAUCUS, U.S. SENATOR
FROM THE STATE OF MONTANA
Senator Baucus. Thank you very much, Mr. Chairman. I first
want to commend you for your very diligent work. It's obvious that
you devote a lot of time and attention to getting this bill through
the subcommittee so that the full committee can take it up. As you
well know, the Clean Water Act reauthorization is our committee's
top priority, and we hope to get the bill reported out this year and
on the floor of the Senate.
Mr. Chairman, today's hearing, as you've stated, is particularly
challenging. It's about controlling the discharge of toxic pollutants,
not an easy subject. For the past 20 years, this has been one of the
major goals of the Clean Water Act, and I think it's fair to say that
we've made a lot of progress. We've implemented technology-based
standards for major industries. We've worked with States to devel-
op water quality standards, and in 1987 we began a toxic hot spot
program, which I think has been quite effective.
Some people now say that because of this progress, the commit-
tee should turn its Clean Water Act attention elsewhere — for ex-
ample, to controlling conventional pollutants and diffuse or non-
point sources. I agree that we need to do more regarding conven-
tional pollutants as well as non-point pollution. 'There's a major
section in the bill that Senator Chafee and I introduced dealing
with non-point. But I do not believe that we should, therefore,
slack off on toxics, because it is clear that despite our progress,
there is a lot yet to be done.
For example, as you've stated, in 1991 — ^your figure is 654 million
pounds; my staff says it's 656 million pounds, give or take two mil-
lions pounds — of toxic pollutants were discharged by major indus-
tries into the waters of our country. This figure includes only
major facilities required to report under the toxic release inventory
and does not include all toxic water pollutants. The EPA reported
that in 1990 toxic metals and pesticides cause impairment of about
50,000 rivers and stream miles, and this figure is based on reports
421
from only 41 States, which assessed an average of only half of their
waters.
There's growing scientific evidence that toxic water pollution is a
significant threat to aquatic species, to wildlife, and to humans.
Scientists working in the Great Lakes area found tumors in fish,
birth deformities in some species of birds, snapping turtles with de-
formed legs and twisted mouths. In reviewing these findings, the
International Joint Commission on the Great Lakes recently con-
cluded.
When available data on fish, birds, reptiles, and small mammals are considered
along with the human research, the Commission must conclude that there is a
threat to the health of our children emanating from our exposure to persistent toxic
substances, even at very low ambient levels.
The effects of toxic pollutants are not confined to the Great
Lakes. Scientists at a 1991 meeting in Racine, Wisconsin, issued a
consensus report which stated,
A large number of manmade chemicals that have been released into the environ-
ment have the potential to disrupt the endocrine system of animals, including
humans. Among these are the persistent biocumulative compounds that include
some pesticides and other chemicals in metals.
The scientists went on to conclude.
Unless the environmental load of synthetic hormone disrupters is abated and con-
trolled, large-scale dysfunction at the population level is possible. The scope and po-
tential hazard to wildlife and humans are great because of the probability of repeat-
ed and/or constant exposure to numerous synthetic chemicals known to be endo-
crine disrupters.
I know that some of the toxic control provisions of S. 1114 are
controversial. The bill proposes some major changes — that is, con-
sideration of in-plant process changes as a way to control pollution,
phase-out of the most toxic and persistent pollutants, a new initia-
tive for pollution prevention planning, and tightening the Water
Quality Standards Program. As we discuss these provisions, we
need to remember that the long-term health and the vitality of
aquatic species and wildlife, and even humans, may well depend on
our success in controlling toxics.
Thank you, Mr. Chairman.
Senator Graham. Thank you, Mr. Chairman.
The first issue that we will discuss today will be pollution pre-
vention, and I would like to ask if the panelists for that portion of
the agenda would please come forward: Mr. Nikki Roy of the Envi-
ronmental Defense Fund; Anita Dawson, Manager of Environmen-
tal Affairs, American Cyanamid Company, representing the Chemi-
cal Manufacturers Association; Bruce Baker, Association of State
and Interstate Water Control Agencies; and Martha Prothro,
Acting Assistant Administrator for Water at the EPA.
As I indicated, it is our request that any opening statement that
you have be filed. I would like to make a short stage-setting state-
ment for this portion of our discussion and then ask if each of you
would like to make a brief statement, and then we'll proceed to
questions and, I hope, interchange among the members of the
panel.
Ever since the Clean Water Act was enacted, its focus has been
on efforts to control and clean up pollution, with particular atten-
tion to toxic pollution. While we have seen statements of success
from the act, many believe the remaining problems are going to
422
take more than an end-of-the-pipe solution. They favor reducing or
preventing pollution in the first place. One important benefit of
this approach is stated to be that it can prevent the transfer of pol-
lution away from water into another medium, such as air.
Industry says that pollution prevention should be voluntary and
flexible and that it is already being practiced. Industry also is con-
cerned about having EPA become involved in manufacturing proc-
esses. The environmental community believes that industry must
still be prodded into pollution prevention planning and that the
public should have access to a summary of those plans.
The legislation that Senator Baucus referred to directs EPA to
identify not less than 20 pollutants for which discharge reduction
would benefit human health or the environment. Dischargers of
such pollutants are then required to develop pollution prevention
plans sufficient to cover at least 80 percent of the discharge of each
of the listed pollutants. Among the issues we need to address are,
do we need to mandate pollution prevention planning, and if we do,
should EPA decide who should have to do it?
With that introductory statement, I'd like to first call on Mr. Roy
for a brief response to the issue of pollution prevention planning.
STATEMENT OF MANIK ROY, POLLUTION PREVENTION SPECIAL-
IST, ENVIRONMENTAL DEFENSE FUND, WASHINGTON, D.C.
Mr. Roy. First, thank you, Mr. Chairman. It's exciting to be talk-
ing about pollution prevention in the context of one of our main-
stream environmental laws. I worked on pollution prevention for
several years first for the State of Massachusetts, then for EPA,
before coming to the Environmental Defense Fund, and for a long
time the issue has been sort of an add-on to our existing laws. I
think this discussion of pollution prevention in the Clean Water
Act is a first.
The issue of pollution prevention planning, to me, is a matter of
giving the responsibility to industry of investigating their pollution
prevention options and choosing those that make the most sense.
The way we set environmental standards in this country, we ask
EPA to figure out what constitutes an industry segment and then
to decide what pollution control technologies apply to that entire
industry segment. By definition, through that approach, we can't
develop standards that require specific companies to wring the
most efficiency out of their production processes.
Pollution prevention planning such as the type that's in S. 1114,
and is in your bill. Senator Lieberman, and has shown up in vari-
ous States across the country basically puts back to companies the
responsibility of analyzing what options for pollution prevention
exist within their facility and then asks them to carry those out.
Also you were saying in your statement that industry asks for it to
be flexible. I think it's extremely flexible in that industry comes up
with the right answer, but there is a responsibility that would be
formalized through such a planning provision.
Thank you.
Senator Graham. Thank you, Mr. Roy.
I want to express my apology to Senator Lieberman. He came in
so stealthily that I did not realize he had joined us.
423
Senator, did you have an opening statement? I know that you
have introduced legislation precisely on the subject that we are
now discussing.
Senator Lieberman. Thank you, Mr. Chairman. Since you and I
both joined the Armed Services Committee, we've both been more
stealthy.
I look forward to the dialog. I'm a strong supporter of pollution
prevention planning and have introduced legislation on the subject,
and I'm grateful that Senator Baucus and Senator Chafee included
this title in S. 1114, and I look forward to the discussion. Thank
you.
Senator Graham. Thank you.
Mr. Baker?
STATEMENT OF BRUCE BAKER, DIRECTOR, WATER RESOURCES
MANAGEMENT, WISCONSIN DEPARTMENT OF NATURAL RE-
SOURCES, REPRESENTING THE ASSOCIATION OF STATE AND
INTERSTATE WATER POLLUTION CONTROL ADMINISTRATORS,
WASHINGTON, D.C.
Mr. Baker. Thank you. First of all, let me say that I'm a strong
supporter of pollution prevention. I think the States — in the last 10
years, it is one of the areas that there has been more and more em-
phasis and initiatives has been in the area of pollution prevention.
One of the things we've learned is that we're basically running out
of answers with conventional control technologies. There are only
so many end-of-the-pipe solutions that are out there, and we're
finding to deal with some of the more difficult problems that you
have to go to pollution prevention. In addition, it's the cost effec-
tive way to deal with the issue.
So I think it's a great move to put this in the Clean Water Act. I
think it should be featured in the Clean Water Act. I think the dis-
cussion we need to have is exactly how we accomplish it. One of
the concerns that I have is if we tie this to permits, we're con-
cerned about the continuing workload and the complexity of get-
ting out municipal permits and industrial permits. There's already
a backlog in the majority of States, and I'm concerned about
adding to the difficulty of issuing those permits by tjdng the entire
pollution prevention program to that. So I think one of the things
to look at and think about is, are there other ways to do this so
that it doesn't result in complexity in the permit program?
Another thing to think about and a concern we have is making
sure that pollution prevention is done in a comprehensive fashion.
I know you're dealing with the Clean Water Act, but pollution pre-
vention plans, from our experience, need to be comprehensive.
They need to deal with all media. It does not make sense to concen-
trate just on the water stream, and more effort needs to be placed
on a comprehensive approach to pollution prevention so that we
clearly solve the problem and not just move it to another medium.
Also, in doing pollution prevention, our experience has been that
some of the greatest successes we've had have been where we've
given the industry the charge to do a pollution prevention plan,
but we've not prescribed to them exactly how to do it. We've not
prescribed which pollutants necessarily. We may suggest that these
424
are the ones to look at. I'm a little bit concerned about some of the
provisions in here which may cause a mindset among some indus-
tries to only look at what's required as opposed to going in and
doing a comprehensive review of their facility. They really are the
ones in those facilities that understand what they're using in terms
of products and raw materials, and I think what we want to do is
to be careful not to limit their thinking in doing pollution preven-
tion planning.
So I would ask that some thought be given to making sure that
we don't get them to look at goals or to look at only certain pollut-
ants which may really result in less aggressive pollution preven-
tion than we've seen in some industries. Some industries where we
might have said, "Hey, we'd like to see an 80 percent reduction of
pollutant 'X'," have come back and totally eliminated that pollut-
ant from their stream by coming up with innovative solutions.
Other than that — and I think those are sort of how-to issues — I
think the direction, I think the emphasis on pollution planning is
exactly where we need to go.
Senator Graham. Thank you very much.
Ms. Dawson?
STATEMENT OF ANITA DAWSON, MANAGER, ENVIRONMENTAL
AFFAIRS, AMERICAN CYANAMID COMPANY, REPRESENTING
THE CHEMICAL MANUFACTURERS ASSOCIATION, WASHING-
TON, D.C.
Ms. Dawson. Thank you, Mr. Chairman.
I'd like to add to the comments that have already been made,
and, surprisingly, we all agree on this. Pollution prevention is
clearly the way to gain more headway in this field. As you know
and had indicated, CMA fully supports voluntary pollution preven-
tion planning. We agree with Mr. Baker that it should be multi-
media, not focused on a single medium, and we support the hierar-
chy of pollution prevention planning, looking first to source reduc-
tion and to recycle/reuse and to use treatment where that's appro-
priate and there are no other alternatives.
We agree that facility-specific plans are a must because of the
specificity of our production processes and the raw materials that
we use, and we believe as well that the facilities should prioritize
the pollutants for reduction and that they should do that not only
specific to their site conditions, but also with risk reduction as the
primary goal so that the chemicals that they use that are most
likely to adversely impact the environment or human health are
addressed first. . .
There are some provisions in the Senate bill that do not coincide
with the approach that we would take and that we see as the most
effective. We feel the single-medium approach can be a problem in
perpetuating the release to other media while working on the
water side. The list of 20 pollutants would not necessarily get as
much reduction as we could get with individual facilities looking at
their pollutants and prioritizing the highest risk for their facilities.
We are concerned, as is Mr. Baker, about the proposed plans
being a condition of a permit. That would give the EPA and the
States more leverage than we would like to see where we're look-
425
ing at a voluntary program and voluntary goal setting. In past pro-
grams, we've seen goals turning into mandates.
The provisions also do not account for the pollution prevention
activities that have gone on by our facilities already, and we feel
there should be some recognition of that. There may be some areas
where we've already made significant reductions and cannot go too
much farther. Specifically, if you look to the TRI data for the CMA
member companies from 1987 to 1991, we see a reduction in re-
leases to water of 78 percent.
Our final concern on the pollution prevention planning is about
the confidentiality of the information. Our processes are our liveli-
hood and the livelihood of our companies, and we must maintain
confidentiality on those issues.
Thank you, Mr. Chgdrman.
Senator Graham. Thank you very much, Ms. Dawson.
Ms. Prothro?
STATEMENT OF MARTHA G. PROTHRO, ACTING ASSISTANT AD-
MINISTRATOR, OFFICE OF WATER, ENVIRONMENTAL PROTEC-
TION AGENCY
Ms. Prothro. Thank you. Senator. Among EPA's four or so high-
est priorities for the Clean Water Act is improvement in our ability
to deal with pollution prevention as a way to achieve water quality.
EPA fully endorses this approach. We like the idea of facility-spe-
cific planning we and completely support that. We think a lot of
flexibility is needed in how that's done. We think that industry
knows a lot about how to go about pollution prevention planning,
and if we can get them to undertake it and move toward it, we can
achieve a lot.
I certainly agree with some of the other witnesses that multi-
media pollution prevention planning is the way to go, but we sup-
port starting here with the Water Program. We think it's very im-
portant that we have some authority to address in-plant waste
streams. I know this is controversial, but we think this is extreme-
ly important. We believe we may have the authority now, but as
you undoubtedly know, we are challenged on every effluent guide-
line that we issue. We have to litigate.
We think that if we're going to deal adequately with some of the
more complex facilities, where pollutants in the waste stream can
be very much diluted at the end of the pipe, we have to have some
authority to regulate in-stream in order to ensure that we're
moving toward pollution prevention inside the plant. We believe
that effluent guidelines generally could benefit. We may also be
able to reduce sonie of the troublesome litigation that we have if
we have an endorsement for the pollution prevention approach to
controlling toxic pollutants.
Senator Graham. Thank you, Ms. Prothro.
We've been joined by the ranking Member, Senator Chafee, and
also Senator Kempthorne and Senator Faircloth.
If you have any opening statements, we'd appreciate receiving
them.
426
Senator Chafee. Well, thank you, Mr. Chairman. This is an in-
teresting format here. This is what we call a level playing field, I
guess.
[Laughter.]
Senator Chafee. I apologize for being late, and worse than that, I
have to leave at about 10:30. I don't have a statement and I com-
mend you for this hearing set-up you're trying here.
Senator Kempthorne. Mr. Chairman, I simply look forward to
participating in this round-table discussion. Thank you.
Senator Faircloth. Thank you. Mr. Chairman, just a question. Is
this the bill that allows going into plants for inspection purposes?
Senator Graham. That is a provision.
Senator Baucus, would you like to respond to the question of
what is in the legislation? Also, Senator Lieberman has another
legislative proposal on prevention planning.
Senator Baucus. Well, essentially, with respect to the 20 most
toxic pollutants, a facility must develop a plan to attempt to reduce
those 20 toxics to below what the plant would otherwise produce
under the technical guidelines as well as the water quality guide-
lines, effluent guidelines as well as water quality standards. That
plan, though, was voluntary. You must develop a plan, but the pro-
visions of the plan are voluntary. That is, a facility can put in its
plan whatever it wants to put in it. If it wants to dramatically
reduce the discharge from those 20 toxics, if that plant has any or
several of those 20 toxics, it may do so. But if it wants to just reme-
dially decrease the amount of toxics that it discharges, the compa-
ny may do it. , j •
So the amount that it reduces the 20 toxics that are named is
entirely voluntary. It's up to the facility. But that plan is publi-
cized, it's public, so that the public knows or the community or the
State or the world knows the degree to which that facility is at-
tempting to proceed further. That's essentially it. So there's a man-
datory provision and there's a voluntary provision.
Senator Faircloth. There's no mandatory provision to it?
Senator Baucus. The only mandatory provision is, first— I be-
lieve this is in the bill— the EPA must identify the 20 most heinous
toxics, and a second matter to our provision is that a facility that
gets a permit must, as a condition of that permit, include a plan
which reduces further any or all of the named 20 toxics that are
provided for by EPA. But the voluntary nature of the plan is that
the plan may be as ambitious as the company wants to be. There's
no specific part of the plan that the company must reduce its toxics
by "X" percent or whatnot. That's entirely voluntary. It's entirely
up to the company. .
Senator Graham. If I could use that last statement of our Chair-
man as the commencement of questions, a fundamental issue here
is, is Government involvement required in order to achieve pollu-
tion prevention, or is there enough incentive within the economics
of the private sector to lead to voluntary efforts at pollution pre-
Ms. Dawson, from the perspective of the CMA, you alluded to the
efforts that have already been under way. Do you think they are
sufficient in and of themselves? Is any Government role required.
427
and if so, do you have some thoughts as to an alternative Govern-
ment role to the one suggested in the legislation?
Ms. Dawson. Yes, we do, Mr. Chairman. Two issues. Let me first
address the question of the Government role and the legislation
role. There are barriers right now in the Clean Water Act to pollu-
tion prevention in some cases. We feel the first role is to remove
those barriers, and I'll review those, and that the second role is to
provide more incentives.
Clearly, the major industries and the larger companies know
and, as you yourself have recognized, there is money to be saved,
there is production to increase, and there's product quality to im-
prove through many of these changes. However, the changes are
not simply made. They are complex, they take time, and they take
effort, and we believe that the argument that we often hear is that,
"Well, yes, some of the larger companies are developing pollution
prevention plans," but others should as well, and we firmly believe
that there should be more incentives to companies to develop these
plans that protect our environment even further than we do al-
ready under the existing programs.
j Some suggestions of the type of incentives that could help would
be market incentives, such as tax credits or accelerated deprecia-
tion schedules, streamlined permitting or monitoring requirements,
perhaps a longer-term permit for companies that are actively work-
ing in pollution prevention — rather than a five-year permit term, a
10-year permit term to allow more effort to be focused on pollution
prevention planning than the permitting process itself— alternative
compliance strategies to allow the facilities the time to implement,
and that goes back to the question of barriers, Mr. Chairman!
Right now the anti-backsliding provisions of the act create some
difficulties in replacing chemicals. When we change one chemical
for another, we have a new discharge that may increase the
amount of a chemical, and anti-backsliding doesn't allow us to do
that. The anti-degradation requirements also impose restrictions on
any increases in discharge.
Although there are variance provisions in the act, many of them
do not work that well. Particularly, the innovative control technol-
ogy variance is a very good concept. It requires a great deal of
work to obtain the variance, but only provides us an additional two
years, and that two years alone is often not adequate to develop
the changes that we need under pollution prevention when we get
back into process changes and raw materials changes.
Finally, as I indicated, the compliance schedules of the act give
us the same difficulty. The compliance schedules allow time to im-
plement standard available end-of-the-pipe treatment, but not the
time that's required to do the research and development work, to
evaluate impacts on our processes, to evaluate impacts on our prod-
ucts, to make the in-process changes that we want to make and
that you would like to see us make as well.
In conclusion, we need to remove the barriers, and we need more
incentives to promote people to do more pollution prevention and
increase the program.
Senator Graham. I might just say that the panel on anti-degra-
dation policy is intended to focus in large part on the backsliding
provisions, and so I would encourage those who are going to be on
428
that panel, which includes Ms. Prothro, maybe we could return to
this subject at that time.
Senator Lieberman. I was just going to say I think you're on to
one of the key issues here, and I want to invite the response of the
rest of the panel, because in the legislation that I introduced
there's actually less of a role for EPA in pollution prevention.
There's a premise that this is one of those cases where if you re-
quire the companies to produce plans and publicize progress re-
ports, although not the plans, that there's enough of an incentive
that they'll do them without the EPA getting more heavily into it.
In fact, some worry that if you create an EPA involvement here
that may in itself limit some of the technological work companies
themselves might do, and in fact it might delay the presses because
of all the responsibilities that EPA has that may mean that the
regulations will come out slower. But I'm curious what the other
witnesses and EPA representative feel about that, because it's an-
other question.
Senator Graham. Ms. Prothro?
Ms. Prothro. Well, I think we've seen over the years, with 51
effluent guidelines having been promulgated, that industry tends
not to use pollution prevention approaches, but does tend to go
with end-of-the-pipe, so we favor
Senator Baucus. Both a ceiling and a floor, basically.
Ms. Prothro. Yes. They tend to go with the model technologies.
This may occur some because of the reasons that have been dis-
cussed here, but I think our view is that requiring industry to do
the plan makes a lot of sense. I also have some concerns about the
degree to which EPA should mandate the specific pollutants ad-
dress or direct exactly how pollution preventing is to be achieved. I
think we could serve a very useful clearinghouse function and try
to give information to industry and States and others about pollu-
tion prevention approaches that are working, but I'm not sure that
putting us in the position of prescribing the approaches in any
detail will really help, because it may in fact retard some innova-
tion that might otherwise occur.
But, again, I'd reiterate we do support the idea of requiring that
the plan be done as part of the permit process.
Senator Baucus. If I might, Mr. Chairman, I'm just curious
Senator Graham. Senator Baucus, and then Senator Chafee.
Senator Baucus. The purpose of this provision is to achieve a
balance to help resolve the tension between too much restrictive
regulation on the one hand and greater toxic reduction on the
other, and the attempted balance here, as you well know, Ms.
Dawson, is to have EPA name the 20 worst toxics and for a plant
who applies for a permit, as a condition of the renewal of that
permit, publish a plan which indicates the company's goals and
how it intends to reduce its pollutants. ^
Now, why doesn't that accomplish the objective? That is, we re
not telling the plant what to do. We're just saying do something.
That's all we're doing. What's wrong with that? Doesn't that give
the company infinite flexibility? Doesn't that also help us achieve
our goals of greater toxic reduction? Why isn't that a good balance?
429
Ms. Dawson. Yes and no. The overall objective — ^we agree whole-
heartedly with the pollution prevention planning and with volun-
tary pollution prevention planning. My comment is
Senator Baucus. And that's what this is. This is voluntary pollu-
tion prevention planning.
Ms. Dawson. Well, it's called voluntary, but you must recognize
that voluntary programs really do become mandates to us.
Senator Baucus. But what's mandated? What we're mandating is
just that the plant come up with a plan.
Ms. Dawson. We come up with a plan and submit it with our
permit application and make it public, and we have serious con-
cerns about confidentiality issues. I would suggest as well when we
talk about the 20 compounds, I think 20 compounds is probably a
good number and a good starting set, but we would suggest that
you would do better to allow the individual facilities to look at
their SARA 313 lists and prioritize those that are the highest risk
at that facility. I think one of our panelists indicated
Senator Baucus. What about that, Mr. Roy? Should the company
just pick its own under the SARA list, or should it focus on the 20
worst?
Mr. Roy. I don't know if 20 is the right number or whatever, but
I think it's certainly appropriate for EPA to give some guidance on
what the company should be focusing on.
Senator Baucus. That is, to prioritize?
Mr. Roy. Yes, somehow.
Senator Baucus. The problem I have is that if everything's a pri-
ority, nothing's a priority. It's helpful to set priorities, and, there-
fore, I think it's important to name the worst first. We can worry
about the others later.
Mr. Roy. May I tell
Senator Graham. Mr. Roy, and then Senator Chafee has a ques-
tion.
Mr. Roy. I'm sorry. Senator.
Senator Chafee. Go ahead. Why don't you answer Senator
Baucus' question.
Mr. Roy. If I could tell a short war story, I used to work at EPA,
and I worked on something called the Amoco Yorktown Project in
which EPA and Amoco picked an oil refinery in Yorktown, Virgin-
ia, and studied everjrthing they could about the oil refinery. They
went out and they did state-of-the-art monitoring of the emissions
coming out of the various production units, which had never been
done, apparently, at that level of detail. They took Amoco engi-
neers from Chicago headquarters and people who ran the plant and
some of us EPA people and some environmentalists, and they
brainstormed about various options for preventing pollution at the
plant.
In other words, they were making a huge pollution prevention
plan for that refinery, and they discovered things that they had
never known about their facility. It was a 35-year-old facility, a
Fortune 50 company, and a fairly stable production process. Every
hydrocarbon that went up into the atmosphere or went into the
Chesapeake Bay was a hydrocarbon they couldn't sell at the pump.
So in other words, it was exactly the kind of operation that you
would hope would know everything about how hydrocarbons moved
430
within its facility, but they still were discovering things about the
movement of hydrocarbons in the facility.
Now, Amoco's lack of self-knowledge prior to the project that
doesn't really call into question Amoco's business decisions, be-
cause at some point it doesn't pay to track down every little hydro-
carbon for the value of selling it at the pump. What worries me
more is that the various regulations that Amoco faced didn't lead
them to make those discoveries. The planning provisions of S. 1114
and of Senator Lieberman's bill — especially if you wed them with
the whole permitting process — try to lead companies to think about
their production process in a fairly structured way. I think it needs
to be fairly structured. I think it's appropriate for the priority-set-
ting focus to be determined by EPA.
One of the things that Ms. Prothro suggested a couple of seconds
ago was that a lot of the companies tend to go to the model tech-
nologies, the reference technologies that are described in the devel-
opment documents. Actually, in your environmental technology
bill. Senator Baucus, which I believe Senator Lieberman is a co-
sponsor of, there's a section there that tries to, address the problem
created when EPA writes a performance standard around a specific
technology the technology is discussed in the development docu-
ment, and those development document become a bible in the vari-
ous State agencies that are writing the permits. The verification
title of your bill Senator Baucus, tries to get EPA to come up with
data on newer technologies and on technologies that apply to spe-
cific companies that you wouldn't generally base a regulation on.
For lack of the sort of program that would be created by Senator
Baucus's bill, we have companies responding in a reactive way to
the EPA regulations and making the ceiling the floor, as you were
saying.
Senator Graham. Senator Chafee?
Senator Chafee. Mr. Chairman, this isn't a part of the bill that
I've been active in. Let's see if I understand this.
I'm going to ask you this, Ms. Prothro. Under the current
system, there are end-of-the-pipe permits, and we require best
available technology in the case of toxics, and if the toxic is too poi-
sonous in the water, then we totally ban it, but outside of that, if
it's all right, the water can take it under the best available technol-
ogy, that's the way the current system is. Am I right?
Ms. Prothro. That's basically right. There's also a water quality
standard that may be short of a ban, but might require something
more than technology-based controls.
Senator Chafee. OK. Now, what we're suggesting here is that 20
pollutants be selected that are most important, and then the com-
panies would prepare a plan for — currently, everjrthing's going all
right presumably, but they would prepare a plan for the reduction
of these or the prevention of them. Now, that plan would become
public. That plan would be required and would have to be submit-
ted to the State authority, and then the implementation of the
plan is voluntary. But as was pointed out, since it's public, there
would be a lot of public pressure to achieve the goals of the plan. Is
that correct?
Ms. Prothro. Yes. As I understand the bill, a summary of the
plan would be made public rather than the detailed plan itself.
431
Senator Chafee. OK. Now, here's my question to you. This is a
water bill we're talking about. As a result of this, would there be
£iny substantial additional improvement in water quality?
Ms. Prothro. As the result of this approach?
Senator Chafee. As a result of this approach.
Ms. Prothro. I believe that there would be. I believe that pollu-
tion prevention can get us a long way. We've seen this in the pulp
and paper industry now. Once the problems were identified with
dioxin in the waste stream there, many of the companies began to
move toward pollution prevention. They were able to achieve a lot
even before regulations were in place. Others did not move for-
ward. But I think the companies that did move forward showed us
what can be achieved with pollution prevention, and it has benefit-
ed water quality where that's been done.
Senator Chafee. Well, I'm interested to hear that, because I'm
not sure whether the goal of this is water quality improvement or
other environmental or even health goals. I mean, no one will
argue with prevention. We all subscribe to that, whether it's in
health care or in these efforts. But I think it's clear for all of us to
understand exactly what we're doing here.
Do others agree that this will improve water quality?
What do you say to that, Mr. Roy?
Mr. Roy. Yes, I think this could dramatically affect water qual-
ity, but I think you're right that there's potential there not just for
improving water quality, but improving environmental protection
across the board as well as protection of workers. Maybe even pro-
tection of consumers if companies are reexamining their products
as well as the production processes.
Senator Chafee. Well, I'm not fighting against this. I'm a cospon-
sor of the legislation, an enthusiastic cosponsor with Senator
Baucus. I'm just trjdng to get squared away in my own mind in
connection with this particular section whether this should be in a
pollution prevention act or whether it should be under RCRA or
whether this is appropriately under the Clean Water Act.
Mr. Roy. Look at the way that pollution prevention works at
EPA now. We have the main programs — air, water, waste — and we
have pollution prevention a separate program. In some very impor-
tant projects — I think the pulp and paper project is a shining ex-
ample— EPA is making some real determined steps toward inte-
grating pollution prevention in its core programs. But until we look
at the way that rulemaking, permitting, inspections, reporting re-
quirements all impact pollution prevention in our core programs,
pollution prevention is not going to be part of the mainstream
either at EPA or at the companies that are part of the regulated
community.
Senator Chafee. I think another point we've got to remember as
we move this legislation along, and I think Senator Faircloth enun-
ciated these, is that there is out there on the Senate floor a natural
jumpiness about people coming into a plant and the plant owner
being told, "This is all voluntary," but it turns out it isn't volun-
tary. I think we on this side want this legislation to pass, and we've
got to be sensitive to that.
Now, clearly, it's not voluntary, preparing the plan. That's man-
dated, right, Ms. Prothro?
432
Ms. Prothro. Right.
Senator Chafee. Now, the next step; the execution of the plan is
voluntary, but as was pointed out, whether it's a summary of the
plan or whatever it is, the public knows about it. It's released. So
there is considerable public pressure on the plant to subscribe to
the preventative measures. I'm not saying that's bad. I just want to
get it clear in my own mind what we're doing.
Senator Graham. Senator Kempthorne?
Senator Kempthorne. If I may, just to continue on this clarifica-
tion, Ms. Prothro, it is a voluntary program, but no permit will be
issued until they have voluntarily done this plan.
[Laughter.]
Senator Kempthorne. Is that correct?
Ms. Prothro. Yes. As I understand it, doing the planning is man-
datory. The implementation of the plan and the contents of the
plan are voluntary.
Senator Kempthorne. It's an interesting hook.
Ms. Prothro. We believe that when companies look at the ad-
vantages of pollution prevention, once they do that kind of plan-
ning, they'll want to implement it, because there are so many ad-
vantages to it. .
Senator Kempthorne. Well, I guess my pomt is, I m not so sure
we should be so free in using the term "voluntary" if in fact it's a
requirement. I just think we need to be straightforward.
Senator Baucus. Be fair about it. You used the word "it" in two
different meanings in that one sentence. I tell my office all the
time to avoid pronouns, because they're so dangerous. One defini-
tion of "it" is whether "it" is the plan. The other "it" is the con-
tents. I mean, "it" the plan is mandatory. "It" the contents is vol-
untary. T , . 1 .
And it's not designed to be a hook. It s intended and designed to
be a way to bridge this gap, this tension between over prescription
on the one hand and achieving a very needed reduction in toxic
pollutants on the other. We could go the usual way in the Clean
Water Act and just start cranking out these water quality stsmd-
ards and tightening down the effluent guidelines and so on and so
forth. I think most of us have come to the conclusion that might
have some beneficial effect, but it's excessive reliance on remedial
approaches. There's a better way to skin this cat that is not only
remedial, but also prevention.
It's the hierarchy that you mentioned, I think, Ms. Dawson, and
planning process and life cycle planning, I think people who have
studied this issue very deeply are beginning to realize that prob-
ably is, all things considered, a more efficient way and improves
the bottom line of a company's income statement much more than
otherwise would be the case. It's certainly the views generally of,
say, Frank Popov at DOW Chemical, an archproponent of this gen-
erai concept, and there are many manufacturing firms who are
also ardent disciples, because they believe the primary benefit is
improving the bottom line and that a concomitant, adjacent, ad-
junct benefit is significant improvement of the environment.
So this is not supposed to be some trick or some gimmick, some
hook, you may differ with the way it's accomplished, but the inten-
tion is to try to achieve this goal this way.
433
Senator Kempthorne. I have a whole new appreciation of the
concept of dotting your 'T's and crossing your "T"s, wWch now
spell ht."
[Laughter.]
Senator Graham. Just for time msinagement, we are going to
take another four minutes on this panel, and then we're going to
move to the equally exciting subject of toxic bans.
[Laughter.]
Senator Kempthorne. Mr. Chairman, could I just complete that,
then? How will we determine, then, the standards of the plan, and
what do you anticipate will be the cost of entities accomplishing
the plan? And is EPA geared up so that it can review in a timely
fashion for turnaround?
Ms. Prothro. Well, first of all, we are in the process of costing
out various provisions of the bill, and we don't have any cost esti-
mates right now. I think this will be a particularly difficult provi-
sion one to cost out, because it is voluntary and because there's so
much discretion allowed to industry as to how they develop these
plans. So it's going to be difficult to estimate.
Certainly, we would agree with Senator Baucus' statement that
in the long run most industries that have engaged in this kind of
planning have found that it's actually been less costly than the
end-of-the-pipe controls that are necessary in cases where there is
no prevention and that we may need to prescribe in regulations.
I guess your other question was whether or not there would be
other requirements in the permit and whether we would review
the plans. As I understand the bill, there's no requirement that
State or EPA permit writers actually review and approve these
plans. They are made available. I think one of the benefits to us
would be to be able to use some of the information in a clearing-
house way, with proper safeguards for confidential business infor-
mation, of course, but to be able to allow some technology transfer
about efficient ways to prevent pollution so that we don't have to
have expensive end-of-the-pipe controls.
But we would go forward with our Effluent Guidelines Program
and our Water Quality Standards Program independent of this.
This would not replace those activities.
Senator Kempthorne. Thank you.
Senator Graham. Senator Faircloth?
Senator Faircloth. Ms. Prothro, would all plants regardless of
size, have to have this?
Ms. Prothro. I understand that we are to identify those facilities
that would be subject to it. Among the possible candidates would be
industrial facilities that his change NPDES permits. These are
direct dischargers to the waters and significant dischargers to the
sewers. I would guess that we would try to select from within that
large category those that have the greatest quantity of toxics.
Senator Faircloth. It would be any size plant. Another question.
How much is this going to cost EPA?
Ms. Prothro. Well, we have not costed it out yet. We're in the
process of trying to come up with some assumptions on that. It
does not seem to be a terrifically costly provision, though, be-
cause
Senator Faircloth. For you all.
434
Ms. Prothro. For us or for the States.
Senator Faircloth. How about for the factories?
Ms. Prothro. We have not costed that out yet. We're in the proc-
ess of doing so.
Senator Graham. Mr. Roy, Ms. Dawson, do you have any com-
ments on Senator Faircloth's cost question?
Mr. Roy. On the cost issue, pollution prevention planning provi-
sions like these are in place in 19 States across the country, includ-
ing North Carolina, actually.
Senator Faircloth. I'm well aware.
Mr. Roy. So you might be able to get the cost data from those
States. And some of the plans are already in — California, Washing-
ton, and Oregon already have the plans, and it might be interest-
ing to get the data from them.
Senator Faircloth. This is a matter of curiosity; out of the last
15 years, has there been a session of the Congress that EPA didn't
come out with a new water regulation? Have you missed a year?
Ms. Prothro. We're still issuing water regulations, yes.
Senator Faircloth. Well, do you have any idea what you've got
for next year?
[Laughter.]
Ms. Prothro. Yes, I could give you a list.
Senator Faircloth. I'm through.
Senator Graham. Senator Chafee, you get the last question.
Senator Chafee. OK. My question is whether, by going after the
20 most toxic pollutants as regards water impairment, we're in fact
going after the worst actors. In other words, it may well be that
there are other toxics within the plant that don't affect water qual-
ity but affect air which might eventually affect water or health.
Does this seem to be a worthwhile exercise when it's solely restrict-
ed to those that impair the water? What do you think of that?
Ms. Prothro. Well, we're still trying to think this through, but I
have some concerns about our identifying the 20 pollutants. I'm not
sure that we know exactly how to do that in the most effective
way. I believe, as you point out, that there may be some that are
perhaps not the greatest causes of water pollution problems right
now but may be of concern for other reasons, and if this were the
only handle we had on pollution prevention planning as opposed to
some kind of a multi-media approach, perhaps we wouldn't get at
the most important things. So I'm not sure that having us identify
the 20 pollutants is a critical part of this requirement.
Senator Chafee. I just want to say a word in defense of the pol-
lution prevention and that it can indeed reduce costs. In our State,
where we've been involved with pre-treatment, people trying to
avoid the costs of pre-treatment have gone to alternative meth-
ods— in our jewelry industry, for example — and we've had some re-
markable stories of success in which there's been winners in both
ways. It's reduced their costs, and it's been a better process. That
doesn't mean we can achieve that in every instance, but I don't
think we ought to just out of hand dismiss the subject of pollution
prevention. As I've indicated, I have some worries whether, going
after the ones that impair water solely, we're going after the really
bad actors and how to do it. It's a tough area.
Mr. Roy, briefly.
435
Mr. Roy. Briefly. I think your concern is probably a well-placed
one. In my opinion, the facility planning should be absolutely
multi-media. Even if we start from a water concept, it should be
multi-media, and the prioritization — I think it would be a useful
exercise for EPA to go through that prioritization and help the
companies out with that — should consider all media issues as well.
Senator Baucus. Mr. Chairman, many of the panelists have men-
tioned the multi-media need many times. It's sort of the buzz word
these days, and I agree with it. But in just one minute, how do we
begin to accomplish that objective? I mean, it's Senator Chafee's
question. Any top-of-your-head ideas, but hopefully thought
through, that would give us clues how to address that?
Mr. Baker. I think another place is taking into account other en-
vironmental media when you take an action, and I think that's one
way to do it. At least to put some language in that says "consider
other media impacts" when you do
Senator Chafee. You mean air?
Mr. Baker. Yes. Consider them in the process. If you are going to
take an action in water, at least you need to consider. Maybe it
doesn't mean you take actions in air or you do an analysis of the
air, but at least think about and analyze the fact that if you're
going to do this action in water, what might be the impacts on
other media, and I think as a minimum some language to that
effect in there will help make that happen.
Senator Baucus. Ms. Dawson?
Ms. Dawson. Yes, I would agree that that's a good first step. You
have to consider the impacts on the other media so that we're not
taking a water problem and moving it into a solids problem by re-
moving a residue or putting more into the air from that. Certainly,
the other approach is to go with full multi-media pollution preven-
tion planning and look at all the releases at a facility, not just
focus on the water, and by that way get the worst problems first.
Senator Graham. Senator Lieberman is going to have the last
word on this topic.
Senator Lieberman. Thank you, Mr. Chairman. I just wanted to
say I appreciate this discussion, and I'd like to continue on with
the committee and ask my colleagues to take a look at the original
bill that I submitted here, S. 980, which does say that every compa-
ny that has to file under the Toxic Release Inventory has to file
pollution prevention plans, multi-media, and there's no role for
EPA, really, in the proposal or a quite limited role. No listing of
the 20 chemicals or regulations.
The theory here is that the market — and this really goes back to
Senator Faircloth's questions. In all the experience that businesses
have had, they tend to — not only tend to, they do save more money
than they spend on pollution prevention plans. So I have an opti-
mism here that if you just require the companies to do the plans,
that the system's going to work and that this is one case where
maybe it's best not to have EPA too much involved. But, anyway, I
really wanted to respond to Senator Faircloth's questions about
cost.
Senator Graham. Thank you very much. I think with the level of
interest and involvement, this is going to be a central question
436
within the reauthorization of the Clean Water Act. Thank you very
much. , „ ,
Mr. Baker and Ms. Prothro are going to be part of the next
panel. I would like to ask Carolyn Hartmann, representing U.S.
PIRG, and John Stein, Director of Strategic Environmental Studies
for Anheuser-Busch, if they would please take a place at the table.
This committee has already heard testimony as to the great
harm to human and ecological health from what have been called
"persistent and biocumulative toxic substances." These chemicals
pose dangers to fish, shellfish, and humans as they move up
through the food chain. Environmentalists and others have called
for the banning of these chemicals because of the threat that even
small amounts might pose. Worse still, we hear that many of these
substances are in sediment, where they are disturbed by natural
causes as well as dredging and reenter the water column only to
expose fish again and repeat the threat to the food chain.
Industry has expressed concern that bans ignore the benefits of
chemicals to society and we must balance those benefits against al-
leged harm. The bill as introduced directs EPA to develop a list of
toxic pollutants which are highly toxic or biocumulative and then
to develop regulations to prohibit their discharge within five years.
The bill allows EPA to exempt categories of discharges where tech-
nology or pollution prevention options are not available.
In deference to the time, and we went considerably over our
scheduled time on the last panel, I'd like to ask if we could move
directly into the questions. Again, your prepared statements will be
filed for the record. .
Senator Graham. Ms. Hartmann, I wonder if you could give us
some examples of substances which you believe have had such a
deleterious effect on our human or ecological health that they
should be banned and how you would suggest that we proceed to do
so.
Ms. Hartmann. I don't propose sittuig before this committee
today and coming up with a definitive list of chemicals that need to
be banned by "X" date. Wtiat we are proposing is that the commit-
tee conduct a process of investigating the chemicals that have been
identified as problems due to their high toxicity persistence or ca-
pability to bioaccumulate in the environment, review those lists,
and then set up a committee of experts, as it were, to examine that
list and make recommendations as to which substances should be
phased out or potential uses of those substances should be phased
As a second stage, we recommend that what we call the stake-
holders—the industries that are using, producing those substances
or the safe alternatives to those substances— sit down and figure
out what the time lines are for achieving those reductions.
We do know that there are over 70 forms of dioxins that are dis-
charged into the waterways. They're coming from pulp and paper
mills, they're coming from the waste water of incinerators, they re
coming from the production of chemicals. Dioxins, as you may
know, are the byproduct of a number of different chemical process-
es which are using organochlorines. That may be a place to start,
but certainly there are others in the agricultural industry that we
need to start looking at as well.
437
Senator Graham. Mr. Stein, in your prepared statement, you
suggest that you think that these bans might be prohibitively ex-
pensive and run counter to other societal goals. Ck)uld you com-
ment further on your assessment of the desirability of giving EPA
the authority to establish a list of these toxics that should be
banned within five years?
Mr. Stein. Thank you. Senator. As we look at the Senate propos-
al, we see some strong contrasts there. In title III we see some tre-
mendous flexibility being created through watershed planning, and
we in the NEDA project endorse that. The approach there is to
look at the problems and then to work out a method to attack
those in the most efficient manner.
Looking at title II, however, we see a very different approach
there in terms of a very rigid approach based upon stringent com-
mand and control, getting very close to industrial environmental
policy. What we believe within the NEDA water project is that we
should take an approach more similar to that used in title III. That
is to say, let's identify the problem with good science and solid
monitoring. Let's look at where the problems are, determine that
they're really genuine problems, and then before we dictate solu-
tions, let's see what the market can do to bring about solutions
that address both environmental and economic concerns.
I think as an example of that, one approach that should be con-
sidered is pollutant trading. There certainly, I think, are prece-
dents there within the Air Act. It's a concept that's been around
for 15 years in California and is quite successful there. The South
Coast Air Quality Management District is taking it a step further
with their reclaim program.
I think that if we look at market-based incentives that there is
an opportunity to move more quickly and to encourage innovation,
and it's possible that we may be able to achieve our solution more
quickly and at less cost than through strict command and control.
Senator Graham. Ms. Prothro, there have been other examples
in which EPA has been given the directive to develop a list and
restrict or prohibit activities. The record of those mandates has
been a mixed one. What would you think is EPA's capability,
knowledge and administrative, to carry out a directive to identify
and then prohibit certain toxics?
Ms. Prothro. We have authority now under the act, under
307(a), to ban pollutants, but it's one of many tools in our toolbox
that we've used quite rarely. It's an especially difficult process that
we have to go through to use that particular tool, and we would
certainly support some streamlining of it. We realize that there are
probably only going to be a small number of pollutants that we're
going to need to address in this way — small compared to the many
thousands of chemicals that are being discharged in our Nation's
waters, at least.
What we're most concerned about and where I think a ban would
be most appropriate is where a chemical is bioaccumulating — going
up the food chain — or persisting in sediments so that sediments
that are dredged from our harbors are not easily disposed of. These
kinds of pollutants are a particular problem in estuaries and in the
Great L^es and other lakes, and for those a pollutant ban some-
times is really an appropriate response.
438
Now, many of the most toxic chemicals and most persistent
chemicals that we find in fish and sediments are already banned to
some extent — chlordane, DDT. Dioxins are an unintended byprod-
uct of other processes. A pollutant ban may not get at those too
well in a lot of circumstances. Mercury is often released into the
air. These are the pollutants that we see most often causing these
persistent bioaccumulation problems, but there are other chemicals
that are cause for concern, and others may emerge if we learn
more. So strengthened authority in this area would be, I think, a
good tool to add to our toolbox.
Senator Graham. Mr. Baker, if you could, from the State's per-
spective.
Mr. Baker. I would agree a lot with what Martha said. The first
place to look for the substance is in the fish and in the sediment.
The things that are showing up in fish that are causing public
health concerns, the ones that are moving up the food chain, are
clearly the ones that any additional quantity of release is going to
be a problem.
I've been heavily involved in the Great Lakes and trying to
manage the Great Lakes issues, and we've come to the conclusion
in the Great Lakes discussions, particularly with Canada, that it
makes sense for certain substances to look at a ban. No longer can
you try to deal with these issues through end-of-the-pipe or dealing
with just the point sources. I think the issue that we're going to
have is that doing a ban is going to have to be, in some cases,
broader than just the water discharge, because, for example, the
things that we're seeing that are causing problems in the Great
Lakes are also coming from air sources and other products that
contain those substances.
So it may be a good start to look at water, but it certainly has to
be considered in a broader context in order to really be effective for
the ban. Bans are very difficult to do. It can be very hard to be 100
percent successful, and I think that it ought to be carefully used so
that the list of substances where there are bans is limited to ones
that are really in a category where they need to be dealt with in
that fashion and not try to have an extensive list, which I think
will dilute the effectiveness of a ban. But, clearly, I think there's a
role for bans when you're dealing with certain substances.
Senator Baucus. Mr. Chairman, I've got to leave.
Senator Graham. Senator Baucus?
Senator Baucus. Mr. Stein, do you agree with the concept, or do
you not, of bioaccumulation— that is, that there are some chemicals
that do bioaccumulate over time and cause a greater problem than
would be at the initial level of emission? Do you agree with the
concept?
Mr. Stein. Senator, I think that s been demonstrated.
Senator Baucus. OK. Next question. Do you agree with the con-
cept that there may be some pollutants that over time should be
banned as a consequence of bioaccumulation?
Mr. Stein. I think it's something we have to look at very careful-
ly. Over time there have been very few substances that have been
subject to the equivalent of the death penalty. I think it's some-
thing we need to go at very carefully and very cautiously to be cer-
tain that we have adequate substitutes for those and that we are
439
not creating one problem by eliminating another. Right now in our
industry and in related industries we're looking at the issue of
what we'll do without methylbromide as a fumigant.
Senator Baucus. I understand. That's very true. It's a question
that's reasonable and responsible, but nevertheless, pushing stead-
ily onward, we have banned CFCs, for example. Everyone agrees
that it had to be done, even though a few years ago various compa-
nies said, "Oh, gee, you can't find substitutes, and it's incredibly
expensive," and so on and so forth, but we are developing substi-
tutes. There are some side effects of some of these substitutes,
that's true, but I just think it's important if bioaccumulation is a
problem that we push very hard and very aggressively and respon-
sibly to try to find those substitutes, and we should not shirk or
slacken in our steadfast devotion to that goal.
I'm glad you agree with the concept. I think that helps advance
the ball. The next step is to make sure we do it responsibly.
Thank you.
Senator Graham. Senator Lieberman, do you have a question?
Senator Lieberman. No thank you, Mr. Chairman.
Senator Graham. Senator Faircloth?
Senator Faircloth. No, not right now.
Senator Graham. Mr. Stein, you mentioned the idea of encourag-
ing industry to voluntarily look for ways in which to limit or re-
strict the use of these items. Could you discuss further what is the
current state of industry's efforts to identify and limit or restrict or
prohibit the use of bioaccumulative substances, and what might be
done to accelerate that industry initiative?
Mr. Stein. I think Ms. Dawson has talked about a number of in-
centives already this morning that would be useful to industry in
terms of encouraging industry to pursue alternatives to certain
toxic materials. Certainly, the issue or the concept of being able to
trade pollutant loadings also would create an incentive for indus-
try.
I would say that in the industry today we have a strong focus on
total quality, and that's been extended into the environmental area
as well. In our own experience, we are looking at ways to empower
our employees and to drive the focus on pollution reduction down
into the organization and to challenge the capabilities of our em-
ployees to come up with new concepts, and we've been significantly
successful with that in everything from water conservation to solid
waste reduction. I think we need to recognize the efforts that in-
dustry has made here and to encourage cross-fertilization between
industries to maximize the benefits from that effort.
Senator Graham. Yes, Ms. Hartmann?
Ms. Hartmann. I think that while there are industries in this
country that are taking the lead and certainly trying to move away
from using the most toxic hazardous substances, unfortunately the
vast majority of companies are not plajdng that role. There was a
study recently done by a group called Inform, which went in and
looked at a number of chemical industry plants, and they found
that despite the fact that those facilities could put into place a
number of source reduction and toxic use reduction changes in that
plant and basically pay for those changes in a very short period of
69-677 0-94-15
440
time, that the majority of companies are not making these kinds of
changes.
We would argue that with the vast majority of chemicals, the ap-
proach that Senator Lieberman is putting forward, the pollution
prevention planning approach, is appropriate, but that with some
substances that are extremely toxic, persistent, and bioaccumula-
tive, we really need to take a more aggressive approach and set
outer limits for the time period that those substances can be used.
We saw with the example of the CFCs that industries actually
slowed down their research in looking for alternatives immediately
after one use of CFCs was reduced, and that's the aerosol use, and
the money going into research only increased again when the pres-
sure began to build for a phase-out. So a discussion about a phase-
out definitely seems to be encouraging industry to look for the
safer alternatives.
Senator Graham. Senator?
Senator Faircloth. I'll start with Ms. Prothro or anyone that
wants to answer the question. Could you give me a specific exam-
ple of a recent health problem to humans caused by the discharge
of a permitted facility? What we're going after is, can you tell me
of a specific problem caused these toxins?
Mr. Baker. I think the best example that we have is the Great
Lakes with PCBs. Now the manufacture of PCBs has been prohibit-
ed, but PCBs are still being generated from some sources, air
sources and water sources, and they're making their way into the
fish. There have been studies that have been pretty conclusive in
terms of their effect on wildlife and also on human health.
Senator Faircloth. Is that still happening today?
Mr. Baker. Yes, there are active discharges of PCBs
Senator Faircloth. Into the Great Lakes?
Mr. Baker. Into the Great Lakes. Absolutely. And that's of seri-
ous concern.
Senator Faircloth. Well, isn't that against the law now?
Mr. Baker. "The problem is that you can set a standard, and the
standard assumes that there's some safe level of a particular sub-
stance, and that's what we're charged to do in the Standards Pro-
gram. What happens with the Great Lakes is you have some sys-
tems that are overloaded with that particular substance, and,
therefore, you really need to have another tool that says not only
do we need to eliminate further release into the Great Lakes, but
we probably need to find ways to actually destroy and reduce the
PCBs that are there.
Senator Faircloth. Are they coming from industry, or are they
coming from runoff water?
Mr. Baker. They're coming from a variety of different sources.
Senator Faircloth. How are you going to stop them from runoff
water?
Mr. Baker. Well, I think you need to go back to the sources. If
they're coming from storm water, likely it's from an air source,
through air deposition, where they're making their way into the
storm. Go back to the root source and make sure that we eliminate
it.
Senator Faircloth. What's the level of PCB that you re permit-
ting in waste water?
441
Mr. Baker It's a very low level, and basically it's at level of de-
tection.
Senator Faircloth. What level is that?
Mr. Baker. It gets down into the parts-per-billion level in terms
of level of detection, but
Senator Faircloth. Wait a minute now, because I want to under-
stand this. It comes down to parts per billion that you can detect to
now.
Mr. Baker. Right.
Senator Faircloth. If you get levels above that, you can't turn
the water loose. Is that right?
Mr. Baker. Right.
Senator Faircloth. Now, what would this law do? You'd get
tighter than that?
Mr. Baker. Yes. It would go back into the system, and there are
places where you can go back further into an industry and detect
it. We're only measuring at the point of discharge.
Senator Faircloth. What are you going to get down to, parts per
trillion?
Mr. Baker. We basically want to eliminate it altogether so there
are no PCBs.
Senator Faircloth. Is it possible to eliminate?
Mr. Baker. Yes. In some cases, it is; in other cases, maybe not.
Senator Faircloth. Let me tell you something I did with PCBs.
A very bad company that was rebuilding power transformers in
North Carolina dumped miles of it on the shoulder of the high-
ways. Miles of it. For all intents and purposes, we stopped the high-
way program. We moved PCB material. Millions of dollars was
spent digging it up, all of it, many hearings were held to decide
where we could put it, but finally, it was removed. We had hardly
gotten it moved when the EPA said it really wasn't as bad as we
heard it was and we probably committed more problems moving it
and hauling it than we would have leaving it there. You told me to
move it, and we moved it. Then you said, "It really wasn't neces-
sary to move it. You could have left it there,"
Ms. Prothro. Senator, I think part of the problem is that by the
time we see PCBs in the discharge pipes, there's been a lot of dilu-
tion. I think what a ban would help us to do is to go back to the
source, as Mr. Baker said. When you go back to the source, you
may well find it in levels above detection, and you can stop it there
before it mixes with rain water and other things that will wash it
off into the receiving waters.
Mr. Baker. Let me just add that the parts per billion is the con-
centration. When you look at mass loading on an annual basis,
there's something like 290 or 300 pounds of PCBs that are being
released in the Great Lakes, which doesn't sound like a lot, but it's
enough to cause fish
Senator Faircloth. Two hundred pounds are being released from
where?
Mr. Baker. From all sources.
Senator Faircloth. Into the lakes?
Mr. Baker. Into the Great Lakes.
Senator Faircloth. All five of them?
Mr. Baker. Yes.
442
Senator Faircloth. How many pounds?
Mr. Baker. Two hundred and ninety pounds, I think.
Senator Faircloth. How often?
Mr. Baker. That's on an annual basis.
Senator Faircloth. A year.
Mr. Baker. But that's enough PCBs to cause fish advisories so
that people cannot eat the fish in the Great Lakes because those
concentrations accumulate in the system. The system is already
loaded, so you're dealing with a system that can't tolerate any ad-
ditional releases.
Senator Faircloth. All right. Could you give me a specific exam-
ple of a human affected by eating a PCB-laden fish out of the Great
T flicks '^
Mr. Baker. I'm not an expert in the area, but there are studies
that have been done
Senator Faircloth. I thought you were the expert.
Mr. Baker. In the area of human health. But there are — I can
tell you of the studies that have been done that have shown that
there have been effects on babies as a result of mothers that have
been breast-feeding their babies milk that has PCBs in it, and
there are questions about effects at birth, and there are questions
about the ability of those babies in terms of their performance over
time. J. o
Senator Faircloth. Would you send me a copy of the studies.'
Mr. Baker. I'd be glad to.
Senator Faircloth. All right. I'd like to see them. Thank you.
Senator Graham. Thank you very much. Senator.
Thank you very much to the members of this panel.
The next panel is effluent guidelines. Again, Mr. Baker and Ms.
Prothro are going to continue to advise us. They'll be joined by Ms.
Jessica Landman, representing the Natural Resources Defense
Council, and Ms. Anita Dawson, Manager of Environmental Affairs
of American Cyanamid Compsiny, will return.
Senator Graham. The Clean Water Act provides for technology-
based standards called effluent guidelines, which establish nation-
ally consistent minimum levels of treatment for categories of point
sources. The act also provides for water quality standards to be
used where the technology-based standards fail to achieve water
quality goals. More than half the existing effluent guidelines and
new source performance standards have not been changed or up-
dated in over a decade, even though they are supposed to reflect
improvements in technology.
This legislation would allow EPA to include in these guidelines
source reduction practices, including changes in production process-
es. In addition, effluent guidelines are to prohibit or limit cross-
media transfer of pollutants where, technologically and economical-
ly, those are achievable. The bill requires EPA to review existing
effluent guidelines and to revise them whenever there have been
significant changes in factors relating to the guidelines, including
advancement in treatment or source reduction practices. The bill
also directs EPA to assess fees in order to offset the full cost of de-
veloping and publishing guidelines and standards. EPA estimates
that it costs $2 billion to $5 billion to develop a new guideline.
443
Industry has indicated strong opposition to some of these
changes, finding them to interfere with the manufacturing process.
Ms. Dawson, I understand that industry is concerned about the
provisions of this bill, such as those that would allow EPA to revise
guidelines to be updated to reflect new technology, because they
may have just made a substantial investment to comply with the
standards, only then to find EPA changes the rules. That is an un-
derstandable concern. I would be interested in your further com-
ments as to the effluent guidelines provision of this legislation and
any recommendations that you might make as to how the National
Government should deal with the issues that have led to this set of
proposed changes.
Ms. Dawson. Senator, you're right, we are concerned. We're very
concerned about this effluent guidelines provision. I think that we
need to recognize that there are existing programs in place. We al-
ready have the Effluent Guidelines Program controlling our dis-
charges as well as water quality base limits, and the Effluent
Guidelines Program — both programs are continuing to evolve. Ef-
fluent guidelines are reviewed on a periodic basis, and in fact when
EPA looks at our processes during effluent guidelines development,
where we are using pollution prevention practices, those are incor-
porated via the lower numbers in our discharges that EPA sees.
So I'd like to differ with Martha somewhat on her comment that
we don't have pollution prevention now through effluent guide-
lines. We feel strongly that we do. We do have pollution prevention
practices in our plant. Perhaps not 15 years ago, but currently we
are moving further toward that, and they should be included in the
effluent guidelines process as it moves forward.
In regard to the provisions for effluent guidelines in this Senate
bill, we are very concerned that they require EPA to rely on and
require source reduction measures and practices that include
changes in the production process, the products, and the raw mate-
rials that we use. This completely disregards the complexity of
these changes. We feel, as does EPA, that they cannot practicably
define measures and practices, and I'll tell you why we think EPA
feels that way, and we also feel that these decisions about manufac-
turing, about our products and processes, should be left in the
hands of the industry so that we can control our own destinies and
complete on a global basis.
Let me give you an example of a recent pollution prevention
project that we're working on in my company right now. We're
making a relatively simple change in one process step. It's a batch
oxidation reaction. We're changing it to a continuous reaction. This
is reducing our pollutant loading by 50 percent, it's reducing our
volume by 25 percent, and it's also helping us in increasing product
yield and quality. So we certainly have incentive to move forward
through this. But it hasn't been simple. It's taken more than six
months of work in laboratory development, in small-scale testing,
and in full-scale trials to evaluate the impact on every process step,
to evaluate our analytical methods as we go and revise them so we
can have full knowledge of the products and the byproducts in each
process step, and finally going into a full-scale trial and working
this out in the plant.
444
In addition, let me just comment on the people that are involved.
It's involved process chemists, research chemists, analytical chem-
ists, lab personnel, process engineers, and process chemists. It's a
very involved, complex process to make those type changes, and
we're concerned that EPA cannot really do that for us. There are
thousands of chemical processes that exist, and when you get two
chemical processes such as many of ours that we are the only com-
pany working with, it's just incomprehensible for us to see that
EPA could do that for us.
The reason that I say that we feel that EPA also has a concern
on this issue is that in the organic chemicals effluent guideline
rule that was issued on May 28th, EPA had looked at requiring re-
cycling, and they determined themselves that the type of major re-
search and development effort is far beyond the scope of what they
can practicably accomplish, and that's a statement from the pream-
ble to that rule. Senator.
Senator Graham. Ms. Landman, what do you believe are the
principal defects in the current law or implementation of effluent
guidelines?
Ms. Landman. The changes that are recommended in your bill,
we think, represent important evolutionary changes to get at some
of the defects in the way that the law has been implemented to
date. Problems that we have identified include the failure of EPA
to take steps that would prevent industry from selecting a waste
water treatment technology that, for example, could have a cross-
media impact, such as a technology that results in the removal of a
substance from the water only to transfer it to the air. The changes
that would be made in the law by your bill that would authorize
EPA to prohibit the selection of a waste-shifting technology would
get at that problem.
Another very important problem has been EPA's failure to
update and revise these regulations over time as technology has
evolved. You mentioned earlier that some of these regulations are
20 years old or 10 years old and need to be revisited. It's very im-
portant that issue be addressed both by providing the agency with
adequate resources and by providing a clear mandate to plan for
and then carry out those plans for revising the guidelines on a reg-
ular basis.
The underlying philosophy of effluent guidelines was, at the time
this law was enacted, that technology will continue to evolve and
that we should be discharging to the waters only so long as we lack
the technological capability to achieve our zero-discharge goal.
That's why we think that the evolution of guidelines over time is
so essential, and other changes in your bill that would be made to
the law that focus on the need to identify zero-discharge technol-
ogies and select them where they're technologically and economi-
cally achievable also, we think, would help push the agency in the
direction that they have been inadequately focused on before.
We thought that there were options, for example, to select zero-
discharge technologies, at least for new sources, perhaps in the or-
ganic chemicals industry, and we found that the agency did not
adequately address the availability of those zero-discharge technol-
ogies that really could close the loop potentially in certain catego-
445
ries. Your bill would help to move things forward in that direction,
so that's another very important change.
Senator Graham. Ms. Prothro and Mr. Baker, Ms. Landman has
just outlined some of the defects, as she sees them, in the current
law. To which degree are those matters of the law itself or the re-
sources available to the agency or the available scientific capability
to deal with questions like shifting across media?
Ms. Prothro. I guess I see them as sort of intertwined. To the
extent that we can streamline and improve the effectiveness of the
law, then we'll have more resources to devote to producing effluent
guidelines. We do appreciate the bill's attempt to give us a new re-
source base for the Effluent Guidelines Program through the fee.
We're still looking at that and haven't taken a firm position on it,
but certainly it's an expensive program. We gather a lot of data,
we look at a lot of different industrial facilities, we have to antici-
pate litigation over virtually every industrial category that we reg-
ulate, and that means we have to have an extensive record to
defend the decisions that we make.
Now, this is appropriate. We're not arguing that we shouldn't
have to do that. I'm just saying it's an expensive program, and
sometimes it takes a long time. Sometimes I think if we had the
single, unified standard that the bill proposes and some of the
other improvements that the bill would give us, we could move
faster and meet our schedules better.
I did want to respond to Ms. Dawson's point about some plants
doing pollution prevention now without an EPA mandate. We cer-
tainly recognize that, and we're not arguing for the authority to
prescribe process changes. We're merely saying it would be helpful
to us in defending ourselves in this type of litigation and in devel-
oping the guidelines to have clear authority to consider process
changes and other pollution prevention methodologies as a basis
for our guideline limit instead of focusing just on end-of-the-pipe
controls. Once the limit is set, the industry would still have flexi-
bility to come into compliance by a means that they select that's
most effective.
We have in fact required recycling in a number of cases. We
have set zero-discharge limits on occasion. We're moving more and
more under current authorities to using pollution prevention as a
basis for the guidelines, but having the law improved in this way
will help us to defend that approach and maybe avoid some of the
time-consuming and resource-intensive litigation and dispute that
we go through now.
Senator Graham. Mr. Baker?
Mr. Baker. Well, the States strongly support these provisions.
We have really been the victims of the lack of progress on effluent
guidelines, because what you have then is a situation where each
State is trying to move things forward on a State-by-State basis
and on a discharger-by-discharger basis rather than approaching it
across the country on effluent guidelines. So I think the provisions
in the act are appropriate.
I won't repeat the comments that were made by Ms. Landman
and Ms. Prothro. I think they're excellent comments. We also see
the need to make sure that resources are there at EPA to make
this happen. But we want to see them done, we want to see them
446
kept up to date, we want to see them done in a timely fashion. We
think we need to have effluent guideUnes to be there alongside
water quality standards in terms of managing water quality.
Senator Graham. Ms. Prothro, you mentioned the cost and other
administrative concerns relative to this area of the legislation. Do
you believe that the level of fees that would be allowed to be
charged and the time to carry out the various requirements are ad-
ministratively reasonable?
Ms. Prothro. Well, we're still looking at the fees provision. I
guess our primary concern there is the collection mechanism. Be-
cause many of the dischargers that we would be regulating dis-
charge to sewers, we think we'd have to work out arrangements
with localities and States. We need to talk with the Treasury De-
partment about how that would all work. So we're still looking at
that, and I'm afraid I'll have to get back to you. We look forward to
working with you on it. t ,• , i i-n
With regard to the time lines, to some extent I think the bill
really improves our ability to meet mandatory time line; thus, we
think that it's more reasonable than current law. I don't want to
guarantee that we'll always be able to meet even these new dead-
lines, because that does depend largely on the resources available
to us, the complexity of the industries that we're regulating, and
the degree of controversy that arises in the rulemaking process.
But we think this moves in the right direction, gives us a better
framework in which to administer the program.
Senator Graham. Ms. Dawson, I understand that industry has
raised some objections to the provisions that would allow EPA to
include source reduction in effluent guidelines. You alluded to that.
This discussion is somewhat a reverberation of what we talked
about earlier in the prevention of pollution. Do you believe that
this is an excessively intrusive step into the internal operations of
a business?
Ms. Dawson. Yes, Mr. Senator, we believe that this is excessively
intrusive. As I indicated in my earlier comments, our processes are
complex, they're very specific, and we don't believe that it is appro-
priate for EPA to get that involved, nor do we feel that they would
have the capability of doing that. We have specific people that
have worked on these processes for years that work on these pollu-
tion prevention programs. There's a great amount of expertise that
must come from the industry itself in looking at those programs.
I found it interesting that Martha, in her comments, stated that
EPA would like the authority to consider pollution prevention and
source reduction in setting their effluent guidelines. Mr. Senator,
we feel they already have that authority to consider, and our con-
cern with this bill is that it doesn't require them to consider. It
says that they must rely on and require those changes.
We don't see that as a feasible mechanism for EPA to tell us to
go into a specific process and make a change without using our
own expertise to develop those changes, because many of the pollu-
tion prevention ideas that we try and work on simply don't work,
and I don't know how EPA would be able to tell which ones will
work in our processes and which won't. These changes can have
and do have significant impacts on our products. They can change
our product quality slightly that would ri "n our sales. No one
447
would want that product any longer with the change in character-
istics.
So they do matter intensely to us, and we're very concerned that
we remain globally competitive in these very difficult times where
we're pushing as hard as we can with TQM. We are practicing pol-
lution prevention to improve our processes as well as to prevent
pollution, because it's the thing to do. We live near our plants as
well. We're not interested in being polluters, and we really don't
feel that we are, Mr. Senator.
If I may, I'd also like to just comment a moment on the effluent
guidelines themselves and the process of continuing to develop
them. I was a little surprised — I do focus on my own company, and
in my own company we just had organic chemicals guidelines, our
pesticides guidelines are coming, and pharmaceutical guidelines
are also coming, so it was my impression that the guidelines were
being revised, certainly the ones that impact us, and we have made
significant progress in the chemical industry, as I said earlier, on
reducing releases to water, as shown in TRI, by 78 percent between
1987 and 1991.
So I see that the existing program has the authorities needed,
and it is working, it continues to tighten down, and on top of the
technology-based standards, we have water quality standards that
EPA sets to ensure that we're not deteriorating water quality.
Senator Graham. Ms. Landman?
Ms. Landman. I'll respond briefly, if I may. The Effluent Guide-
lines Program, as was mentioned earlier, is a floor — where the
baseline of technology ought to be nationally. I think the earlier
discussion this morning on pollution prevention and the need to
have facility-specific pollution prevention planning really high-
lighted the extent to which these two programs need to work in
concert.
Effluent guidelines are not going to in the future, any more than
they have in the past, go into each and every single plant and dic-
tate anything about how that production process works. Instead,
they will look to the releases from that plant, and they mil apply
on a category basis, not on an individual facility basis.
I think that what we heard this morning was that even after fa-
cilities have achieved that national floor, which is where the efflu-
ent guidelines are going to take them, and that floor is going to, we
hope, be continuously moving us toward our goal of zero discharge,
there will still be plenty of room for innovation and facility-specific
activities to occur in a pollution prevention planning process,
which will remain the facility's own decision making process.
Senator Graham. Are there any other comments by members of
the panel on this issue?
[No response.]
Senator Graham. If not, thank you very much.
The next subject is water quality standards. Ms. Prothro, Mr.
Baker, and Ms. Landman will continue, and then Mr. Jeffrey Silli-
man. Manager, Environmental Affairs, Milliken & Company, Spar-
tanburg, South Carolina, representing the American Textile Manu-
facturers Institute.
Two days ago the subcommittee received a report from the Gen-
eral Accounting Office. This report was critical of EPA for its fail-
448
ure to update water quality criteria documents. These documents
are used by the States to develop water quality standards, which
are the used to set permit limits to achieve the standards. It is at
the heart of the pollutant discharge control.
GAO reports that nearly all the criteria for priority pollutants
that have been developed were developed over 10 years ago, and
few have been updated since. Worse, GAO reports that while EPA
acknowledges that there are serious impacts from pollutants not
even on the list, EPA has no plans to modify or expgmd the priority
list to include them. The final legislation seeks to address this
problem by requiring EPA to develop a plan and schedule for the
issuance of criteria within two years of enactment and every five
years thereafter.
With respect to toxic substances, the bill attempts to speed up
the process by declaring that new criteria documents to water qual-
ity standards be enforceable on the date of publication unless the
State objects and adopts an alternative standard within three
years. States are to adopt standards based on criteria within three
years of the publication of the criteria.
Ms. Landman, I wonder if we could start again with a question
that I asked you on effluent guidelines, and that is, what do you
think are the problems with the current law and its administra-
tion?
Ms. Landman. The problems in part are covered by the GAO
report which you just alluded to, that have to do with keeping the
criteria up to date; but going beyond that, there is the scope of cri-
teria. There are numerous substances of concern for which no EPA
criteria documents have been written to date. In particular, we
have major gaps in the area of items that affect water quality, such
as sediment contamination. We need sediment quality criteria very
badly. We need criteria that address the problems of biological in-
tegrity of waterways, and we need criteria that address wildlife
and the impacts of water pollution on wildlife.
These are all areas where EPA has been limping toward the de-
velopment of some national criteria documents for a very long
time, and we need some kind of a resource commitment on the part
of EPA and on the part of the Congress, and we also need an addi-
tional political commitment, I think, within the agency to address
those gaps.
In addition, water quality criteria documents originate with
EPA, but then form the basis for State adoption of water quality
standards. The process of converting those EPA criteria into mean-
ingful State standards has been extraordinarily slow and cumber-
some. In 1987 the Congress mandated that States, within the next
triennium — that is, by 1990 — adopt for themselves water quality
standards based upon the EPA criteria documents that did exist for
toxic substances.
The process w£is — I should say the three-year time table was not
followed by a large number of States. Ultimately, EPA was com-
pelled, in part, I think, through litigation brought by NRDC, to
step in and promulgate standards for a dozen States that even four
and a half or five years after enactment of the 1987 amendment
still had failed to act.
449
The committee's bill takes a number of very important steps to
fill in these gaps and deficiencies. Notably, it does commit the
agency to a planning process that will result in the development of
additional criteria, and second, and very importantly, it speeds up
the process by which those criteria are translated into meaningful
standards at the State level.
There are a couple of areas in which we feel that additional
changes are needed to make sure that these gaps are filled in an
appropriate fashion. First of all, there are specific substances that
we think ought to be listed in the bill for which standards ought to
be mandated to be developed by the agency and then translated
into something important at the State level in terms of State
standards. Second, we are concerned about an open-ended planning
process, because we had, unfortunately, some negative experiences
in that regard with respect to effluent guidelines in the last go-
round of the Clean Water Act reauthorization.
So what we would recommend would be that the legislation not
simply commit EPA to the development of a plan, but that it be
more specific with respect to how long that list of substances ought
to be that ought to be addressed and that sort of thing. In other
words, broad discretion for the agency, but with a bit more direc-
tion from the Congress as to how that discretion ought to be exer-
cised.
Senator Graham. Mr. Silliman, what are your comments as to
problems with the current law and its implementation?
Mr. Silliman. Thank you. I think, number one, existing pro-
grams— this has been stated — were essentially authorized by EPA
in 1987 to address these persistent toxics. If we compare this to the
effluent guidelines, in operation for over 20 years, we see signifi-
cant improvements in the quality of our Nation's waterways be-
cause of the effluent guidelines. We have not really yet seen the
impact of these toxics showing up in permit limits yet, because
they are only just now getting into the permit renewals.
A very specific concern that I have, representing the textile in-
dustry, has to do with the water quality criteria for metals. When I
bring up metals, I want to assure you this is a broader issue than
just the textile industry. We're talking about the mining industry,
we're talking about the computer industry, electronics, we're talk-
ing about dentist offices, we're talking about photo finishers.
The problem that I have with the water quality criteria for
metals is that these were based on laboratory science where we
used relatively pure water and the most toxic form of the metal
and the most sensitive species and used this to establish the crite-
ria. There's no consideration of what exact form this metal would
really have in the environment.
In the textile area, very specifically our concern is that some of
our dye stuffs have a metal which is part — it's incorporated into a
much bigger molecule that we use to color fabric, and it is very
clear that these materials are not toxic, and that can be demon-
strated. But because of the way the regulations have come through,
our permit limits are established based on these very toxic form of
metals which were used to drive the criteria.
This is not a cheap problem. I'm talking per facility $1 million of
capital investment and probably an additional cost of $500,000, and
450
none of this is for any demonstrated environmental improvement. I
certainly question its impact on the competitiveness of our indus-
try, which is faced with significant imports.
This past year in January — and I commend EPA, because they
recognize that there are problems with the current criteria — ^they
pulled together from the leading scientists, both from their labora-
tories as well as academic institutions, to spend four days talking
about this issue in Annapolis, Maryland. I wouldn't propose to try
to summarize four days of very highly technical discussion, but two
key conclusions that came out of this were, number one, that EPA
needs to focus on the bioavailable form of a metal. That is a form
of the metal that can interact with an aquatic species in some way
as to cause harm, which we would interpret as toxicity. The second
was that the textile dyes that contain metals clearly were of a very
different chemical nature and were never intended to be covered
by these criteria.
If I made some specific recommendations for the current bill, I'd
say, number one, let's make sure we have good science behind
these criteria. When you simply mandate a schedule, and a tight
schedule, and there's not funding there to do the proper research,
inherently the agency has to make very conservative assumptions.
Those conservative assumptions, when they get implemented, can
be extremely costly.
The second one is to focus on the bioavailable toxics. Let's deal
with the big problems first, and let's get those behind us. We do
not have infinite resources to address every problem, to address
every material that we can detect analytically.
Last, I would propose that we mandate an advance notice of pro-
posed rulemaking and guidance. The problem is that when guid-
ance is put out there, it's simply guidance from EPA. When it gets
to the State level, it's implemented as regulation. There has been
no opportunity for good public input into the development of that
guidance, and that would be the purpose of that — let the affected
parties come to the table and have their input and allow public
comment before that guidance goes out.
In summary, my recommendations are good science, focus on
bioavailable toxics, and advance notice of proposed rulemaking.
Thank you.
Senator Graham. Thank you very much.
Ms. Prothro, Mr. Baker, would you like to comment on that diag-
nosis of the current problems?
Mr. Baker. Let me go first. There's probably no group that has
struggled more with tMs issue of water quality standards than the
States. We're the people that have to take those national guide-
lines and translate them into standards and then into permits, and
then we have to enforce them. The problems that are now being
identified with the criteria are not news to the States. We've been
making a lot of noise over time about the need to have better crite-
ria. It's one of the — probably the main reason why water quality
standards are not being adopted as quickly at the State level as
they need to be.
Your idea in the legislation of a plan for the development of cri-
teria we think is an excellent idea. I also think that there needs to
be some emphasis on the resources at EPA to make sure that plan-
451
ning gets carried out, and also some mandate to make sure that
what's in the plan gets done in a timely fashion. It's not going to
help to have plan that does not get implemented that provides us
with the relief that we need in the criteria.
Another area that has come up and you're trying to deal with is
the speeding up of the process. We're very concerned about the pre-
sumptive applicability once the criteria is issued. We think there's
a great benefit to the State adopting water quality standards.
That's where we get into all the issues of due process, the educa-
tion of the public and understanding of the review of the science,
the translating it so that it makes sense. I mean, the standards for
Florida have to be different than the standards for Wisconsin.
Trjdng to address those things at a national scale is nearly impossi-
ble. We do need to have that translation to the local geographic sit-
uation. It has to occur.
Now, if you go ahead with the presumptive applicability, which
we hope you don't, I would make some suggestions that it only
apply to new standards and not to the revision of existing stand-
ards. In many cases. States have already adopted a lot of these
standards, and if there's a revision that gets issued on a criteria,
the concern that we would have is that you may have States that
have more stringent standards that are operating effectively with
that standard, and with this presumptive applicability, you may
see some backsliding on standards that may be difficult for a State
to prevent. It will be very hard to argue continuation of a more
stringent standard when suddenly something comes out and it's en-
forceable at a national level.
Also, we would urge a very formal role in the development of the
criteria. One of the things that frustrates us is we have to imple-
ment these things, we know the problems with these criteria, and
yet it's very difficult for us to play a direct role in the development
of the criteria. We have good scientists at the State level that can
provide meaningful input. We know the problems of implementa-
tion of some of these numbers. The metals issue is an old, old issue
to us that we're all trying to struggle with, and yet we're not di-
rectly plugged into the process. If we could have a direct formal
role of the States in the criteria development and in the prepara-
tion of the plan for criteria, I think you would have a lot more
comfort with States in terms of the process.
Finally, a major issue for us is focusing also on implementation
issues, like mixing zones. Mixing zones has been highlighted in the
bill as a critical issue for translating a criterion into a permit limit.
There are many other issues like that. For example, flows. What
type of flows do you use to calculate effluent limits? If we're going
to have national consistency, if we're going to have meaningful
water quality standards, we need to have, at the same time a crite-
rion is developed, the translation criteria or guidance with that.
Unless you have that, you could adopt the same number and apply
it to every State, but because each State has its own translation
mechanisms, you'll have 50 different results and permits. So it's a
two-part process that needs to be looked at.
In our written testimony, which I won't go through, I listed some
other areas where we think there can be some strengthening. I
don't know that we need to have major changes in this part of the
452
act to get some of these things done, but certainly the effort to
strengthen the criteria development is a very important one.
Thank you. ^ ^_ ,. . i .
Senator Graham. Ms. Prothro, m addition to respondmg to what
has been said, I'd be interested in your comments on the GAO
report. Do you believe that it accurately reflects the current state
of this part of the program? , , ^
Ms. Prothro. Well, let me take that first. I believe that the docu-
ment I've seen, at any rate, is a preliminary summary of where
GAO is in doing a study, which they have not yet completed. I hope
that we're going to be working with them more on this. They seem
quite focused on the need to update the priority pollutant list. It's
certainly true we have not been updating the priority pollutant
list. The main reason is that it doesn't have much significance in
terms of the law or our regulations at this point. We do have flexi-
bility to go beyond the priority pollutant list in our regulations. We
often do. We're not restricted. ^ a ^ i.
Now, I'm very interested in some of the comments that GAO has
made indicating that perhaps, out in the field, folks are more fo-
cused on the priority pollutant list than we are here in Washington
at EPA. We'd like to learn more about that. If that's true, then I
do have a concern about the need to update the list. But I think
that's something we need to work with them on and understand a
little better. i. ., x
We are in fact updating our methodologies. It s takmg a while to
do that. We're consulting widely with scientists around the coun-
try. Our own science advisory board is helping us with that, and we
will be revising our methodologies both for human health criteria
and for aquatic life criteria in the near future. Then we'll have to
revise the existing criteria to reflect that. I think we've learned a
lot in the last few years about bioaccumulation and some of the
other subjects that we've talked about here today that do need to
be reflected in the criteria. , ^.„ ,tt xi.- i
We fully support the plan concept thats m the bill. We thmk
that's a good one, and we certainly support the notion that it would
be done in a very public forum and that we'd get input from a lot
of different parties. I think we've made a lot of effort to bring the
States and others into our planning process now, especially in the
last couple of years. If we can improve that process, we want to do
so. We need the input of all parties.
A lot of the feedback that we get nowadays as we go around and
talk to States and others about water quality problems is that we
need to focus more on conventional pollutants, on biological re-
sources, on ecological risks, and not just on specific chemicals, that
we need to look more holistically at the water quality problems
and use the criteria and standards program to protect those values
and not just chemical purity of the water. So we're trying to move
in that direction. rm . . ,
This is a real challenge for our criteria program. This is also ex-
pensive. It competes with a lot of other work, and yet we think it's
very necessary, particularly as we identify non-point sources more
and more as a matter of concern. The bill does direct us to focus on
some of the non-point source pollutants, and that, we think, is ap-
propriate.
453
With regard to the presumptive applicability for the numeric cri-
teria, when we put them out, I think the bill has a very reasonable
approach to it; the bill gives States an opportunity to go with their
own approach, but provides that if they don't adopt their own ap-
provable approach within a given period of time, then the Federal
criteria would be applicable in that State. I think this is very im-
portant to us. We've devoted a lot of our resources and a lot of our
energy in the last few years to establish criteria in those States
that have not adopted their standards in a timely way.
States had almost 10 years to adopt numeric toxic criteria. Very
few of them had done that until EPA threatened to promulgate for
them. By the time many of these standards got in place, there were
accusations that the criteria were out of date. There were problems
in legislatures that delayed adoption in particular States. I think
some kind of a Federal backstop here is necessary not only to keep
the process moving, but also to allow us to use our resources to
work on criteria instead of to promulgate for the States on a State-
by-State basis, as we had to do this last time.
So we support that provision very much. We also support having
public comment in our criteria development process on individual
criteria. In fact, we do issue our criteria for public comment now.
We are usually disappointed that we don't get more feedback in
that process. Perhaps there's more we could do to bring the States
and others into that process. We're certainly open on ideas on how
to improve that.
Senator Graham. Any other comments on this subject?
Ms. Landman. I'm going to have to make one brief comment
with respect to the mixing zone provision that's contained in the
bill. The mixing zone concept is really a concept that says that a
pollutant is not harmful if it's diluted with the water that's in the
stream or in the lake or in the estuary. This is the concept that is
inimical to the underljdng thesis of the Clean Water Act, which is
that dilution is not a solution to pollution.
It is true that States utilize the mixing zone concept now to allow
the discharge of substances into their waters. It's a concept that we
have a lot of problems with, and we can't support including in the
legislation a provision that essentially gives a Congressional impri-
matur to this idea, particularly with respect to toxic pollutants. If
the provision were limited to conventional pollutants that don't
have persistent or potentially bioaccumulative effects on water-
ways, perhaps there's room for discussion, but with respect to toxic
pollutants, mixing zones are not acceptable.
Mr. SiLLiMAN. Could I also comment on that? I think that the
mixing zone has been an integral part of the implementation of the
water quality standards, and I think it needs to continue, because
we've made several comments here. Yes, there may be some toxici-
ty. A lot of things can be toxic at some level, and we're looking not
at what is happening right where the pipe goes in, but when it's
mixed with a river, and that's the whole purpose of a mixing zone.
Second, there was some presumption that the toxicity as such is
also related to bioaccumulation, and that's not necessarily true,
and that certainly was not the basis, for example, of what under-
lies the water quality standards for metals.
Senator Graham. Thank you very much.
454
Senator Graham. Our next panel is going to focus on contami-
nated sediment. Ms. Beth Millemann of the Coastal Alliance; Mr.
Frank Hackmann of the U.S. Chamber of Commerce; Dr. Morgan
Rees, Deputy Assistant Secretary for Planning Policy and Legisla-
tion of the Office of the Assistant Secretary of the Army for Civil
Works; and Ms. Prothro will be our participants in this next panel.
I understand that Ms. Millemann could not participate. Mr.
Brett Hulsey is substituting for Ms. Millemann.
We have already touched upon the issue of contaminated sedi-
ment in our previous discussion. We know that there are great
health risks from this contamination and that they involve pollut-
ants that have entered the water decades earlier, settled into sedi-
ment, and are now being released back into the water. Some of
those' pollutants enter the water from discharges, some from other
sources, such as air. We are told that EPA has had the authority
for years to set water quality standards for sediment contamina-
tion but has never exercised that authority. This bill gives EPA
clear authority to do so and starts them out by requiring EPA to
develop not fewer than eight criteria sediment contaminations
within four years.
Mr. Hulsey, I'd like to ask if you could give us your diagnosis as
to what you think the problem is in terms of the way in which the
current law has affected contaminated sediments.
Mr. Hulsey. Thank you. Senator, and thank you for addressing
contaminated sediments. It's one of the most difficult issues in the
clean water arena and in the Great Lakes.
My name is Brett Hulsey. I'm the Great Lakes Program Director
for the Sierra Club, and contaminated sediments or cleaning up
those sediments is our highest priority. We appreciate your leader-
ship in the bill in dealing with these sediments £ind settmg dead-
lines for sediment quality criteria for eight chemicals.
As we've heard here today, PCBs and dioxins are a major prob-
lem throughout the Nation, in the New York/New Jersey Harbor
and many others, and as you can see from the map up here, virtu-
ally every harbor in the Great Lakes has contaminated sediment
problems. Many of these harbors are clogged, and if you will flip to
the next chart, we recently released a study trying to analyze some
of the jobs at risk in the Great Lakes based on these contammated
sediment problems. The top threat in the study "Clean Lakes,
Clean Jobs" was to the tourism area, which is one of the top econo-
mies in the Great Lakes. We estimated that there were $69 billion
at risk and almost three million jobs. Those are direct jobs. We
didn't calculate indirect jobs.
Looking at other industries, in both the commercial and sports
fishing industries, we estimated a $4 billion industry with 89,000
jobs at risk. In the shipping industry— a speaker earlier spoke of
competitiveness. Half of the U.S. steel is produced m the Great
Lakes basin. Many of these harbors are so clogged that steel com-
panies are losing millions of dollars a year because they cannot
fully load their ore boats, bring them into Indiana Harbor and
others. We calculated the risk there to be about $3.5 billion and
about 44,000 jobs. , , . „
This is a first attempt to understand what the total impacts ot
contaminated sediments are in the Great Lakes. We feel if we were
455
to extrapolate this to the other three coasts, simply multiplying
these numbers by three — very simple mathematics — that we might
be looking at somewhere over 10 million jobs and almost $400 bil-
lion in jobs at risk throughout the Nation. That's a calculation we
need to do. We haven't done it yet, but that's just sort of a quick
sketch.
So we feel contaminated sediments are the biggest problem. We
also tried to calculate some health costs, assuming between 10 and
20 percent of people drinking Great Lakes water might be sub-
ject— their health bill might be related to contamination. EPA has
estimated that over 38,000 lifetime cancers are caused, for instance,
from people eating Great Lakes fish, and this is an estimate we
find that is cause for concern and cause for clean-up.
The study alluded to earlier by Mr. Baker dealt with the fact
that children of mothers who eat Great Lakes fish tend to be born
prematurely, they tend to have higher health costs when they are
born, and after four years they tend to have lost memory and may
lose up to five IQ points because of the PCBs that their mothers
ingested before they were born. In fact, seeing the videos of some of
these kids, many of them were unable to take the tests because
they could not sit down and concentrate long enough at four years
old to take these tests. I say that these kids make Bart Simpson
look like a rocket scientist as to their inability to just sit down and
concentrate.
So this is what we feel is the risk. This is a problem in every
major harbor in the United States. There's current litigation in the
New York/New Jersey Harbor. Several years ago, former Congress-
man Lehman from Florida testified to the problems they were
having in the Miami River and the Miami Harbor on this as well.
I think the bill you have before you takes some really good first
steps in dealing with it, especially in giving us standards for PCBs
and dioxins, which we think are two of the worst problems. We'd
sdso like to see standards for some heavy metals — mercury, lead,
cadmium, and several others. We also need a national program to
deal with this problem. EPA has been struggling under short staff
to get five draft criteria out, which will hopefully be out this
summer, but we need this to be a major focus of this Clean Water
Act, and I think this is a great step we can take in moving forward.
We have been leaders in this in the Great Lakes. We've actually
cleaned up one harbor, the most contaminated harbor in the Great
Lakes that had PCBs of 500,000 parts per million, Waukegan
Harbor, but unfortunately most of the clean-ups are proceeding
right now under Superfund consent decrees and are very slow.
There have been a lot of things said about the Superfund Program,
but it's currently the best tool we have for cleaning up toxic har-
bors.
We'd like to take a look at the EPA and Corps relationship on
ocean dumping as well. That's been a huge issue for us, and I
assume foll^ from the Corps will talk about that later.
We'd also like to support the Metzenbaum-Glenn clean water re-
authorization bill. They will take sort of our pilot programs that
we've developed in the Great Lakes to clean up these harbors and
move that the next step forward to full-scale clean-ups so that we
can start creating some models and giving people in the Great
456
Lakes some hope that our fish are going to be safe to eat, our water
is going to be safe to drink, and our Great Lakes are going to be
cleaned up in our lifetime.
Thank you very much.
Senator Graham. Thank you, Mr. Hulsey.
Mr. Hackmann, from the perspective of the U.S. Chamber of
Commerce, what is your assessment of the current state of con-
taminated sediment law and its implementation?
Mr. Hackmann. Well, I think it's true that there are areas of the
country that have contaminated sediment that is a real problem,
but I don't think, from our perspective, that the solution to that
problem is another national command-and-control, prescriptive
kind of approach. I think that the localized areas of sediment con-
tamination can be dealt with under current authority, certainly on
a first-step kind of a basis, and I do not see the need for another
whole program on top of all the other programs that are already
there.
Two of the chemicals mentioned, one has been banned for over
20 years and the other has never, to my knowledge, been intention-
ally manufactured in the United States by anybody— that being
PCBs and dioxin. So I just don't think that the problem lends itself
to the kind of solution that's envisioned.
I also think there's a real danger, if you do too much aggressive
movement in a harbor, of making things worse, not better. I don't
think you necessarily make things better if you disturb the sedi-
ment. , , __^ , _ ,
Senator Graham. Ms. Prothro, it s been stated that EPA has had
the authority, but it has not been exercised. Does EPA agree that it
has the capacity to deal with this issue and has failed to do so, and
if so, why?
Ms. Prothro. We think we do have the authority under current
law to promulgate criteria for sediment quality. We have not done
so as yet, but we have been working for the last several years to
develop a methodology and specific criteria. We are hopeful that
we'll be able to establish those even without specific authorization
in the law, but we would welcome both a clarification and support
specifically from Congress on our moving forward on sediment cri-
teria. We will be moving forward on that in any event, however.
Sediment contamination really is a case of the sins of the father
being visited on his sons and daughters, I suppose. It's really one
where we're facing tremendous costs in "in situ" contamination
that may not be readily remediated. Although we have some au-
thority under the recent Water Resources Development Act amend-
ments, which will help us by authorizing some inventories to be de-
veloped and some other work in the sediments area, I'm not sure
that we've been able to identify any legislative solutions to this
problem. I think there are many, many practical problems that we
still have to work on that are going to take a long time to solve.
One suggestion we would have for perhaps an addition to the bill
would be some specific authorization for EPA to help States ad-
dress the health risks of fish contamination associated with sedi-
ment contamination. EPA could do this by establishing some basic
guidelines as to how fish consumption advisories should be devel-
oped and communicated. It's unfortunate that we would be in a po-
457
sition where we have to warn people about health risks rather
than simply solving those health risks, but in reality I think we
have to face up to the fact that it's going to be many years, per-
haps lifetimes, before we can actually solve this problem in many
of our waterways.
We certainly would be happy to work with the subcommittee on
other ideas that might be suggested by others as to how we could
improve our authority in this area.
Senator Graham. Dr. Rees, it's been suggested that one of the
problems here is that solving the issue of contaminated sediment
may itself create additional problems in disturbing the water
column. What is the experience of the Corps of Engineers in terms
of technological options in terms of how to deal with this problem?
Dr. Rees. During the past 20 years or so since the original pas-
sage of the Clean Water Act, the Corps of Engineers has spent over
$100 million on researching questions like this on what the impacts
are of dredging and disposal of dredge material. There are occa-
sions where disturbing the material causes resuspension, and we've
studied those and we've dealt with those in many instances. By and
large, we find those effects to be very temporary and transient, just
during the dredging episode. We have tested the circumstances by
comparison with the surrounding water and find that the effects
are physically limited to the dredge site and don't last very long.
There are a lot of other problems, though, that continue to be ad-
dressed. Focusing on just one aspect of the dredging or disposal
option, we believe, is not good science. We support very, very
strongly, and frankly have since 1972, a cross-media approach to
the analysis of the effects of dredging and disposal. You can't
simply look at what happens in the water without also having to
consider what happens in other alternatives in the way any par-
ticular project is carried out.
We note with great interest and support the discussion in the
proposed legislation that deals with cross-media evaluations and to
find out what really, in a broader environmental context, is the
best course of action.
Senator Graham. At an operational level, there's been some con-
cern by the Corps of Engineers when it is engaged in a mainte-
nance project, such as a standard harbor maintenance of depth of
channel project, as to whether it has the authority to extend that
to also include the elimination of contaminated sediments within
that harbor. Could you talk some about how the Corps has seen its
authority, both legal and financial, to engage in these sediment re-
moval projects?
Dr. Rees. The Water Resources Development Act of 1990 (WRDA
90) provided the authority that you're referring to, and in fact that
authority was originally provided in the 1972 Clean Water Act to
the Environmental Protection Agency, not to the Army Civil
Works Program, The WRDA 90 authority is a duplicate of author-
ity that EPA has had for 21 years. We have had it for three years.
There has not been any funding for that program in either agency,
certainly not in the Army and, to the best of my knowledge, not in
EPA, either.
Let me add a point there. We have provided guidance to the field
offices of the Corps that where contaminated sediments exist out-
458
side the navigation channels, the Corps should proceed with remov-
al if they can show that there is a relationship to that removal
with the interests of navigation. The basis for this position is that
the funding for the dredging program comes from the Harbor
Maintenance Trust Fund, and that's all contributed by the mari-
time interests. So where we can show a relationship between the
objectives of the work and the source of the money for the pro-
gram, we've told the Corps field offices that they should proceed.
Senator Graham. Are there any other comments on this issue?
Mr. HuLSEY. A couple of comments, just to respond to Mr. Hack-
mann's comments about PCB and dioxin. As Mr. Baker pointed out
before, current NPDES discharges in the Great Lakes are releasing
about 290 pounds of new PCBs into the lake every year. A quick
calculation shows that that's enough to contaminate 195 million
pounds of fish at the action limit of two parts per million. So in
addition to controlling new sources, we have to eliminate current
sources.
Right now many dredge projects that the Corps is supposed to be
involved in the Great Lakes and the New York/New Jersey Harbor
and others cannot proceed because of either legal entanglements
over the contaminated sediments issue or just an inability to deal
with the toxic pollution. So that's why we want to work out a clear,
practical national program to help deal with these issues and give
us something that the courts can work with, the environmental
community can work with, and provide us a degree of scientific cer-
tainty in the States with these clean-up plans.
Senator Graham. What is the nature of the legal impediments to
your carrying out a removal of contaminated sediments?
Dr. Rees. Without knowing a specific case, it's hard to say. As we
get into each case, we find that there are very many factors that
are different, and we really don't have any broad precedent that
we can follow in how to deal with these cases. I guess the bottom
line legally for clean-up of material is there's no question that EPA
and Army both have the authority to do that. The question is, what
do you do with the material once you dig it up? Where do you put
it, and what are the legal implications of getting rid of it? And we
can't really tell that until we get into the individual case and see
what the area is surrounding the dredging site.
For example. New York City has been mentioned, and there is a
pending lawsuit there, so we need to be careful about how we dis-
cuss that. But it's clear from the record that for many, many years
the Corps, the EPA, and others have spent a lot of time and a lot of
money searching for practicable alternatives to the disposal options
there, and no matter which alternative is selected or which alter-
native is analyzed, we find that there are serious legal impedi-
ments for implementing each one.
This, again, gets back to the cross-media analysis that we believe
is critical to the success is solving this problem one way or another,
because if you say, "Well, you can't put it in the water," well, then,
you start to look upland, but all the land regulations say, "Well,
you can't put it upland," and the air regulations say, "Well, you
can't burn it," and it's a vicious circle that we've been chasing
around for many years trying to find some way out of it.
459
I'd like to follow up on a comment Mr. Hulsey made here, if I
may, that I think relates to this question. There have been some
serious problems in the Great Lakes with disposal of dredge mate-
rial, and there's no question about it. In 1970 an act was passed
that allowed the Corps of Engineers to build confined disposal fa-
cilities to contain all the contaminated dredge material. The au-
thority under that act has lapsed, but the notion was that the au-
thority would extend for a period of 10 years, during which time
the quality of the sediments would be improved through water
quality management practices. Well, that didn't happen, and we
find that the sediments are still polluted.
The bottom line of all that is that the maritime interests are
faced with the problem of dealing with the pollutants that are, by
and large, caused by other people, and the other people just walk
away from the problem, and the maritime interests are left with
dealing with that problem. This was a real difficult problem to
handle. I think we have begun to make some progress. In fact,
we're quite optimistic.
We've developed a relationship with the State of Ohio, the Port
of Toledo, the Environmental Protection Agency, and the Corps,
and we've been working for several years now on a much broader
problem-solving approach and not just looking at handling the
dredge material. We're looking at what the objectives of the water
quality standards are and how the navigation interests fit into
that. We're looking at where the sources of the different pollutants
are and what the State and Federal agencies are doing about man-
aging those sources, and we're very optimistic that that's going to
lead us somewhere in the future — not in the next year or two, but
maybe 5 or 10 years down the road — to seriously reducing the prob-
lem that we face today, and I hope I'm right. We're optimistic, and
we're going to continue on that.
Mr. Hulsey. The Metzenbaum bill would continue the funding
for that relationship between the Corps and the EPA and citizen
groups, and we support that as well.
Senator Graham. Any other comments on this subject?
[No response.]
Senator Graham. If not, thank you very much.
Senator Graham. Next we are going to discuss anti-degradation
policy. Mr. Hackmann is going to continue to join us, representing
the U.S. Chamber; Ms. Prothro; and then we'll be joined again by
Ms. Jessica Landman of the National Resources Defense Council.
The anti-degradation provisions of the Clean Water Act are de-
signed to keep clean waters clean — that is, to resist the temptation
to allow pollution of clean or pristine waters down to water quality
standards applicable to less pristine waters. We've heard that
many States have not implemented this policy. The bill directs the
States to do so. The bill also declares certain waters, including
those to be outstanding national resource waters, which cannot be
degraded under the Clean Water Act.
In our earlier discussion on pollution prevention, it was stated
that there were some inhibitants to effective pollution prevention,
and one of those was the anti-degradation provision in the Clean
Water Act. I wonder if anyone would care to comment as to the
460
degree to which this provision constitutes a barrier to pollution
prevention on a voluntary basis by industry.
Mr. Hackmann. I'll go first, if nobody else wants to volunteer.
Senator Graham. Mr. Hackmann?
Mr. Hackmann. From industry's perspective, I think the reason
it's a barrier is this: Oftentimes in pollution prevention, you are
substituting a material. In other words, you're reducing one thing,
but maybe you're putting in something else. If that something else
wasn't in your permit previously because you didn't use it, and
now you have to modify your permit to discharge it, even though
clearly the overall environment and the cross-media impacts and
everything are clearly better off, on a strictly speaking parametric
analysis, more of this chemical is going to be coming out, and read
in its most literal and negative kind of way, if that increases your
baseline concentration, that can be viewed as degradation of the
water quality, and you don't in effect get a credit for reducing the
other thing that you reduced. I think in a capsule form, that's our
concern.
Senator Graham. Ms. Landman?
Ms. Landman. I'd be happy to try and respond to that. In a cer-
tain sense, it can be said that protection of outstanding national re-
source waters, which is one of the components of the legislation
that we do strongly support, would prevent someone from taking
an action that would degrade those outstanding waters, and there
can be circumstances in which a prohibition on any discharge is ap-
propriate. Now, for an existing facility to be discharging to an out-
standing national resource water and have that problem arise,
that's a little bit difficult for me to conceive of, because by defini-
tion those waters are essentially pristine, and no existing factory is
going to have a problem wanting to increase its discharge.
With respect to existing facilities that would like to experiment
with pollution prevention, the anti-degradation regulations that
EPA now has don't say, "Never, no, no, will you be allowed to in-
crease the discharge of a substance." What they do say is that if
you can make a very strong case that the degradation of that water
is necessary to allow economic and social development in the area
where those waters are located and you can show that you're doing
everything else that you need to do to comply with the Clean
Water Act regulations and so forth, then you can make a case for
an increase up to the point where water quality standards might
be violated.
So I believe that the anti-degradation provisions of the regula-
tions do establish appropriate limitations on the tjrpes of degrada-
tion that can occur, but also have adequate flexibility to allow true
pollution prevention efforts to go forward if the case can be made.
One of the big problems that we do face in implementing anti-
degradation, though, is that there is no explicit discussion of the
issue of anti-degTadation in the existing Clean Water Act. Al-
though it is mentioned — a mention of the concept was added in
1987 there is no clear mandate in existing law that tells EPA that
this is an important responsibility, to carry it out, and to help the
States carry it out. That is one of the reasons that we welcome the
addition that S. 1114 would have with respect to anti-degradation
461
and with respect to addressing the issue of outstanding waters and
their need for protection.
Senator Graham. Ms. Prothro?
Ms. Prothro. Senator Graham, I've been joined by Bill Diamond
from our Water Office of Science and Technology. I'd like to ask
him to comment on this issue.
Mr. Diamond. In response to your question about whether or not
we think anti-degradation is a barrier to pollution prevention or
experimentation with new chemicals, we think that the existing
process examines whether or not there is a potential degradation.
But, as Ms. Landman pointed out, we don't think it's a ban or a
mandate that would prevent expermintation with new chemicals.
There are mechanisms under the current law and regulations that
allow us to look at those new additions to determine if there is deg-
radation; if there is degradation, then there is a review process on
whether or not it should be allowable. But it's not a ban in and of
itself.
Senator Graham. One of the reasons for the language that's in
this bill is the allegation that many States have not implemented
the national policy relative to anti-degradation. What has caused
the States to be reticent to implement this policy, and do you think
their reasons have been sufficient? And if not, do you believe that
this legislation would be a sufficient remedy?
Mr. Diamond. There's a number of reasons why anti-degradation
hasn't been utilized as much as it can be to maintain the goals of
the act. One of them is just the historical focus of the program. The
focus of the program recently has been on the adoption of water
quality standards for toxics. As we get into the implementation
phase of that, we expect that there will be more anti-degradation
issues coming to the fore.
An example of that is the regulation that the agency recently
proposed for the Great Lakes Initiative. Anti-degradation is one of
the central features there and is getting a lot of discussion and
debate. We think anti-degration can be utilized more, and we think
there has to be more cooperation with the States to achieve them.
One of the areas that the bill does address that States, I think,
have underutilized is the designation of outstanding national re-
source waters, or ONRWs. There have been some designations by
States. It hasn't been as widespread as maybe some would like.
One of the problems there is the prescriptive nature of ONRW re-
quirements. Once you have an ONRW, there can be no new or in-
creased discharges at all. That means a fairly rigid locking away of
those water bodies. Some of the States want to grant additional
protection, but are unwilling to put them away permanently, so to
speak. I think they've been creative in trying to come up with solu-
tions that provide additional protection, and we're trying to work
with them in our regulations to make those more workable.
Ms. Landman. One key reason why States have hesitated to step
to the fore in this area, I believe, is that they have felt a need for
clear direction from the national level. At different points along
the way in the past five to seven years, EPA regional offices and
EPA headquarters have begun the process of developing national
guidance on how you go about implementing an anti-degradation
program. That guidance has never quite blossomed into a full na-
462
tional guidance on the part of EPA, and we think that kind of lead-
ership from Washington, not dictating to the States exactly how to
run their programs, but giving them clear guidance on what types
of things they need to consider and that sort of thing, would be ex-
tremely helpful in moving this program along.
In particular, an area that needs clear Federal direction and
guidance is how you go about implementing this very important
concept for land uses and activities that disturb land, that cause
polluted runoff problems. For the most part, to the extent anti-deg-
radation has been implemented, it has been with a focus on dis-
charge permittees. If somebody comes in and they say they want a
new permit, that's the trigger for an anti-degradation review.
Since so much of our existing and threatened problems from
water pollution have to do with land use activities, from agricul-
ture to new developments of resorts and so forth, it's important
that in protecting pristine waters we have clear guidance from
EPA on how States and localities should think about preventing
pollution from runoff sources as part of an anti-degradation effort.
Mr. Hackmann. I think we come to this issue from a slightly dif-
ferent perspective. From our perspective, first of all, the anti-degra-
dation concept basically sets a tighter water quality standard than
the water quality standard that would otherwise apply. In basic
terms, it says if the water is better than the water quality stand-
ard, you have a very high burden to overcome to allow that water
quality to get, if you will, worse, even though it's still within the
Speaking from the State perspective, although I don't currently
work for State government, I think one of the reasons the States
are reluctant to adopt rules is that they've learned, painfully in
some cases, that if they adopt rules based on guidance, they may
not be able to change those rules if EPA later changes its guidance.
A number of States got tripped up on this in the Air Act, some in
the Water Act, some in other areas, and I think that their reluc-
tance is understandable until there's clear-cut guidance.
Finally, I think that these are areas better left to local decision
makers about how they want to run their community and repre-
sent the values and the cultures and the local governments of those
areas and shouldn't be mandated from Washington.
Senator Graham. I want to come back a moment to the issue of
the degree to which anti-degradation has been a barrier to volun-
tary pollution prevention. Since we've had some States that have
adopted anti-degradation standards and others that have not, is
there a difference in the degree to which companies have voluntar-
ily engaged in pollution prevention practices as a function of
whether they are in a State that has or has not adopted anti-degra-
dation standards?
Ms. Prothro. Senator, I don't think we are aware of any evi-
dence that is the case. In fact, I think you could just logically argue
that an anti-degradation provision might encourage pollution pre-
vention in order to allow for more development— in other words,
the more a pollution is reduced through a prevention approach, the
more likely it is that other development could be permitted under
the anti-degradation rules. So I'm not sure I understand that.
463
I think perhaps that comment was going to the concerns that
have been raised about a different provision of the act, which is
anti-backsliding, which is a somewhat different provision that ap-
plies directly to effluent limits in a permit. There's been a lot of
concern that maybe that provision was unduly restrictive and
didn't allow any flexibility even when water quality wasn't threat-
ened.
I think that EPA's interpretation of anti-backsliding is not well
understood. We interpret it in such a way that it is not really cre-
ating that kind of a problem, but I have to admit we've been a
little slow in getting that out, so that people can see it in their reg-
ulations and understand how it works. But that is a somewhat dif-
ferent provision of the act.
Senator Graham. Are there any other comments on this issue?
[No response.]
Senator Graham. If not, thank you very much.
Senator Graham. We have two related subjects remaining: pre-
treatment and domestic sewage exclusion. Since those are closely
related and there's an overlap of several of the participants, I'd
like to ask if we could discuss those together. Ms. Landman will
continue, Mr. Hackmann, Ms. Prothro, and Mr. James Batchelder,
Vice President, Environmental Affairs and Technical Services,
Koopers Industries, Pittsburgh, Pennsylvania, representing the
American Wood Preservers Institute.
Senator Graham. Again, I'd like to start with a question of what
is the current problem with the pretreatment law. Under the cur-
rent law, publicly owned treatment works, which are designed to
treat conventional pollutants, nonetheless receive toxic pollutants
that they, in some cases, state they are incapable of treating. As a
result, many toxic substances are released into waters or the air or
into sludge.
The bill attempts to address this problem in two ways. First, it
provides that pretreatment standards for toxic pollutants must be
equal to the standards for dischargers directly into water. The
second allows permit officials to impose pretreatment requirements
on industrial users, even if the source is not otherwise subject to a
pretreatment program. Whether to strengthen pretreatment provi-
sions of the act, there is concern that EPA has not provided ade-
quate monitoring or enforcement of indirect discharges to publicly
owned treatment works and that those works are not designed to
treat some toxics that are being discharged into them.
I wonder if we could again get your assessment of what is the
current problem as it relates to the pretreatment or lack of pre-
treatment of discharges before they are entered into a publicly
owned treatment work.
Mr. Hackmann?
Mr. Hackmann. From the perspective of the Chamber, I'd like to
respond separately to the two key concepts you described — first,
the concept of any discharge of the toxic material to the sewers
should meet the same stemdard as if that discharge were dis-
charged directly to a receiving water. We are totally opposed to
that. We think it's bad policy not only for industry, but it would
also be very bad policy for cities, for the people that run the treat-
ment plante, because as a practical matter, if Congress would pass
464
a law like that and it would survive the challenges that would
come to it, I think that the way companies would try to comply
with that law would be to cease their discharge entirely to the
sewer and that when they did, that would deprive the city of the
revenue stream from running a sewer system.
And it proliferates treatment in very small, decentralized areas
where then, because the second law of thermodynamics still applies
that you have to take the stuff somewhere, you then have to take
it somewhere else. So on that first point, we do not agree with that
concept.
On the second point, we believe that the pretreatment program
in the current law is a very comprehensive program, that there's
ample authority for EPA and the States and the municipalities to
deal with these issues, and at least based on my experience as a
practitioner in the field, they're do so aggressively, setting pretreat-
ment standards to protect pretreatment operators' health and
safety, sewage sludge, and whatnot.
Senator Graham. I wonder, Ms. Prothro, what is your comment
on the statement that existing law gives to publicly owned pre-
treatment works sufficient authority to address the problem of nec-
essary pretreatment?
Ms. Prothro. Well, I think current law is very good, but it could
be strengthened in some ways. One of the things that we'd like to
see is authority specifically for EPA, in those communities where
we have responsibility for running the pretreatment program, to do
what localities and States can do. That is, to issue permits, some-
times called control mechanisms, to individual facilities to make
sure that they have effluent limits that are enforceable.
There are a number of other things that we'd like to see im-
proved in the establishment of the categorical pretreatment stand-
ards. These are related somewhat to the effluent guidelines proc-
ess, and there are a lot of things about the bill that I think will
help us in that regard. For example, we've sometimes had to go
through some complex and almost impossible analyses on pass-
through and interference of pollutants that are going into the
sewers before we can adequately regulate them. We think a better
way would be to allow us to identify pollutants that biodegrade in
the sewage treatment plant and perhaps adjust pretreatment
standards for those, but, otherwise, to apply best available technol-
ogy requirements across the board to industries discharging to
sewers.
We think this is important to protect the infrastructure of the
POTWs, to protect the quality of the sewage sludge, which is a re-
usable resource if the quality is maintained, as well as to protect
water quality and worker health and safety.
So there are a number of improvements we think could be made
in the program, and we're very proud, I have to say, of what we
have been able to achieve in this program, because it is one that
we have implemented on a shoestring over the years. I think an
awful lot has been accomplished, and a lot of credit goes to the
States and local governments that have helped us to implement
this program, especially our local government partners, who often
aren't recognized for the good work that they do in this regard.
Senator Graham. Ms. Landman?
465
Ms. Landman. I believe it was in your opening statement this
morning, Senator, in which you noted that a significant percentage
of toxic substances discharged to waters are actually discharged to
sewage treatment plants, even more in fact than are currently dis-
charged to waters. And the Toxic Release Inventory is especially
deficient in telling us how many toxic substances are going to
sewage treatment plants, because so many of those dischargers are
too small to fall within the reporting requirements of the law.
So from the studies that EPA has done, the evidence is quite
clear that probably the Release Inventory greatly underreports the
quantity of those substances going to sewage treatment plants.
You also noted accurately that sewage treatment plants are de-
signed to treat conventional pollutants, and every time that EPA
has gone back to study how well sewage treatment plants can be
counted upon to deal with the toxic substances that reach them
from the industries as well as commercial and residential users of
those facilities, they find very inconsistent levels of treatment, a
great deal of variability in treatment with respect to those toxic
substances, both among facilities and even within a given sewage
treatment plant from day to day. So it's really not appropriate to
rely on a sewage treatment plant to address toxic pollutante.
In addition, in many respects, the kind of so-called treatment
that a sewage treatment plant is providing for a toxic substance
really only moves it from one medium to another. Specifically,
metals that go to a sewage treatment plant don't get degraded by
the treatment process. Instead, they wind up as sludge contami-
nants. A lot of volatile organic compounds wind up as air pollut-
ants through the very efficient air distribution mechanism that a
sewage treatment plant's aeration basin provides. It's just a really
efficient way to cause an air pollution problem and the illusion of
treatment.
Therefore, we strongly support a focus on allowing the pretreat-
ment standards to differ from standards that would apply to direct
discharges only with respect to those substances that can be dem-
onstrated to be in fact biodegraded at a sewage treatment plant.
That is a very appropriate way to allow the sewage treatment
plants to do the jobs that they are constructed to do, which is to
treat conventional pollutants that may originate with industry,
commercial, or residential users, and then to remove from them
the responsibility for doing something that they really are not
properly designed to do, and that is to deal with toxic pollution
problems.
So we think that that's an important change in the law, and we
support it.
Senator Graham. Well, as I understand it, the current law is
that if a local sewer plant is receiving this typ^ of industrigd dis-
charge, they have the authority to go to the plant and set the
standards that must be met before the plant can put its discharge
into the city system. Is that correct?
Mr. Hackmann. Yes.
Ms. Landman. Yes.
Senator Graham. That would seem to be — since the plant has a
great interest in what they are required to process and, on a site-
specific basis, have an understanding of what their technological
466
capabilities are, it would seem that system would be an adequate
one in terms of allowing the local plant, based on its local condi-
tions, to set standards for discharge. Why isn't that system work-
ing? . . ,
Ms. Landman. I think that there are two prmcipal reasons why
we have problems with the pretreatment program even though
that authority exists. First, and I don't mean to belittle the very
good pretreatment programs that exist in some cities, but in a
sense it is asking the fox to guard the chicken house. The principal
constituency for a sewage treatment plant may be those big indus-
trial dischargers in their community; the pretreatment program,
asks the sewage treatment plant to slap the wrists of and put limi-
tations on their best customers, and no product seller likes to be
the one to tell their customer that they're wrong.
The General Accounting Office has studied the pretreatment pro-
gram's enforcement component and has found this to be a signifi-
cant reason why sewage treatment plants that are responsible for
managing these programs are reluctant to take action when they
have a problem. That's one reason.
The other reason, I think, is parallel to the one that Mr. Baker
alluded to when he described why it's hard for State permit writers
to deal with all the exigencies of permit writing with respect to
direct dischargers. It's a very big job. Their job is made a lot easier
if national standards are set by EPA that establish a really good
floor for those dischargers so that they don't have to, on an individ-
ual facility basis, write the local limits that they would have to set
if those standards weren't good at the national level.
Senator Graham. Mr. Batchelder, do you have any comments on
this? _ , ,
Mr. Batchelder. I'm here mainly to address the domestic sewage
exclusion, but my experience — ^we've recently gone into a number
of POTWs, and my experience is that the permit requirements to
gain access are very stringent, and all cases include treatment and
almost all cases include secondary and tertiary treatment before
they discharge. Therefore, they do not pose a threat and are ame-
nable to further treatment at the POTW.
Ms. Prothro. Senator, if I may, I just wanted to make the com-
ment that even EPA has trouble technically doing the pass-through
and interference analysis that is required. It's very difficult some-
times with the dilution in sewage sludges and effluents to identify
exactly what's happening. . , , ^ xi. ^
I just want to reinforce what Ms. Landman said about the real
challenge that this presents to local communities that would have
to base their limits on this kind of analysis when, even with our
extensive technical resources, we still have difficulty doing it. So I
think the localities do rely on our national standards. In fact,
they've sued us in the past to require us to promulgate more na-
tional standards to help them to protect their sewage treatment
plants, and that's one of the reasons that we do support this ap-
Senator Graham. The second topic, which is really a subset of
the pretreatment issue, is the question of domestic sewage exclu-
sion. The bill attempts to close what some have seen as an omission
in the current law by providing that the domestic sewage exclusion
467
only applies where the pollutant is covered by a pretreatment
standard that is promulgated or is scheduled to be promulgated
within eight years or is covered by a local limit. That is, a hazard-
ous waste substance would not get the benefit of the exclusion from
RCRA unless it was a substance that is covered by a current or
soon-to-be-promulgated pretreatment standard.
Mr. Batchelder, what is your assessment of how the current do-
mestic sewage exclusion provision is operating?
Mr. Batchelder. The current domestic sewage exclusion works
well and gives us or someone with a listed waste water access to
the POTW, which is very critical to our industry, and the proposed
language would basically cut us off from access and the use of the
DSE because of the prohibition for discharging hazardous waste
constituents, which we were recently in 1990 listed as hazardous,
our waste waters.
I do not see the domestic sewage exclusion as a loophole or un-
protective. When we get access, we have to have permits. My expe-
rience has been, because we've just done this in the last couple of
years, we have had to build substantial pretreatment facilities in
order to gain access. There are strict limits imposed upon us, and
they're monitored prior to discharge. They're biotreated down, and
I would submit that the system is protective and that there is fur-
ther treatment at the POTW and monitoring, and it serves as a
back-up system, since you get two shots at these materials.
We're largely in rural communities. There is an economic benefit
to that POTW, and I think our withdrawal or exclusion would be
damaging in these small communities.
Senator Graham. As I understand it, the problem has been
stated that not all hazardous substances that are able to take ad-
vantage of the domestic sewage exclusion are currently covered by
pretreatment requirements under the Clean Water Act, and that
results in the local treatment plant which receives these hazardous
wastes as having to assume the full burden of treatment. That does
not sound the way
Mr. Batchelder. I don't see it as the full burden of treatment.
We accept the burden of treatment to the limits that they set, and
they usually call in third party consultants to deal with their own
system. In fact, sometimes we have sponsored and have paid for
that in order to gain access. So I do not see that as factual. There
may be instances, but in my experience that is not true. We go all
the way — as I said, in some cases, we have actually treated down to
tertiary treatment in meeting their discharge limits.
Senator Graham. Ms. Landman?
Ms. Landman. Senator, I think maybe there is a confusion as to
exactly how your committee's legislation would in fact narrow the
domestic sewage exclusion, because as I understand the bill, what
it says is that if there is no pretreatment standard or no local
limit, essentially a regulatory free ride, then the exclusion is elimi-
nated, and that's entirely appropriate. But it also says that if the
sewage treatment plant has established a local limit, then the ex-
clusion would still be available, because that local limit would pro-
tect the sewage treatment plant and the workers who work there
and the water body to which the sewage treatment plant dis-
charges. That's my understanding of how the provision is crafted.
468
If that's the case, and if facilities that Mr. Batchelder is describ-
ing do in fact have such limits, my read would be that the exclu-
sion would still be available. The problem is not facilities where
somebody has thought through the potential hazard that would be
posed by the substance being discharged to the sewage treatment
plant. It's the ones where that exercise has not been undertaken
and where no national pretreatment standard exists for the sub-
stance of concern. . , ■, -i. j
Senator Graham. I think Ms. Landman has accurately described
what the proposed legislation would require — that is, in order to
benefit by this exclusion, you would either have to meet one of two
tests: either be covered by a local limit, or where there is a pre-
treatment standard that is either in effect or is scheduled to be in
effect within eight years. Do you think those are reasonable
Mr. Batchelder. I read a prohibition on discharge of hazardous
waste, and there's a quirk in the regulation in our industry that
our waste waters are listed as hazardous waste. So regardless of
concentration, that's what I read, and if that's the fact, then that is
a problem. .
Senator Graham. I do not believe that it s intended to set an out-
right prohibition, but rather to be a requirement that you have to
meet one of these two tests — either have a pretreatment standard
or covered by a local limit — in order to take advantage of the do-
mestic sewage exclusion.
Ms. Prothro. Senator, we have some concerns about this provi-
sion, and I think the question you just raised about whether or not
the prohibition on hazardous waste applies across the board is one
of them. We'd like to look at that more carefully. Certainly, we
would endorse the intent behind this, but I think the legal relation-
ship between RCRA and the Clean Water Act is a very complex
I have to admit we're also concerned that when we're regulating
on a risk basis, we don't particularly want to have industries
coming in to us — and I don't think the cities do either— saying,
"Please regulate us just so we can be excluded from RCRA." We'd
like to be able to set our priorities in a way that's based more on
an objective evaluation of what makes sense in terms of protecting
water quality and protecting POTWs. So we'd like to work with
you some more on this particular provision to address that.
A further refinement on Ms. Landman's description of the exclu-
sion, though, I think would be that as I read the bill, we would
have to include in a categorical standard or a local limit the exact
pollutant, not merely provide that industry would be regulated in
other words, the exact pollutant would have to have been regulated
in order for the exclusion to be relieved. A lot of times when we
look at industries and regulate them, we select pollutants for regu-
lation based on the ones that we think are mostly of concern, and
we may not list every single pollutant in a discharge, but we think
we've nevertheless addressed the problems in that effluent. So
that's another concern that we'd like to work with you on.
Mr. Batchelder. That's very, very important to us that, if that
were to come to pass, because we do not have standards for zero
discharge or direct discharge, going back to standards set in 1972,
we would have no alternative. We've built plants, we re into the
469
POTWs, we're pre-treating, and as I read this now, we would be ex-
cluded. So we're talking about — I don't see any alternative, and,
therefore, we're talking about jobs, a number of jobs in a number
of small communities.
Senator Graham. Well, I'm glad that we surfaced this maybe dif-
ferent perception of and interpretation of what the problem is and
what the suggested solution is, and we will direct our attention to
this.
I think it's interesting that we've concluded this hearing on this
subject, which deals with the interrelationship of the Resource Con-
servation and Recovery Act and the Clean Water Act. It somewhat
closes the circle, as we began with some discussions on pollution
prevention and how that might relate to the Clean Water Act and
particularly the Clean Air Act as alternative mediums of disposal.
I think one of the themes that has come throughout this series of
very interesting insights into the Clean Water Act toxic provision
is the interplay between the various environmental laws and the
necessity of setting some standards and ways of looking at the rela-
tive benefits and potential public and environmental threats
caused by these various toxic substances and their method of han-
dling and disposal.
Again, I appreciate, to all of you who have participated in the
hearing today, your very fine contribution to our understanding of
these complex issues. We will be meeting Wednesday, July the
14th, and we will be discussing non-point pollution issues.
Thank you very much, and best wishes for the 4th of July.
[Whereupon, at 12:39 p.m., the subcommittee adjourned, to recon-
vene on Wednesday, July 14, 1993.]
[Statements submitted for the record follow:]
TESTIMONY OF MANIK ROY, POLLUTION PREVENTION SPECIALIST,
ENVIRONMENTAL DEFENSE FUND
Introduction
Chairman Graham and members of the Senate Subcommittee on Clean Water,
Fisheries and WUdlife of the Senate Committee on Environment and Public Works.
My name is Manik Roy, Ph.D. I am a Pollution Prevention Specialist with the Envi-
ronmental Defense Fund in Washington, DC. The Environmental Defense Fund, a
leading, national, New York-based nonprofit organization with over 200,000 mem-
bers, links science, economics, and law to create innovative, economically viable so-
lutions to today's environmental problems.
Thank you for the opportunity to testify on toxic pollution prevention ^ issues ad-
dressed in S. 1114, the Water Pollution Prevention and Control Act of 1993. The pro-
visions of S. 1114 addressing pollution prevention are truly path breaking in build-
ing prevention into the core of one of our nation's most important environmental
laws.
As this nation works to rebuild industrial competitiveness and to provide greater
protection for our water resources and the overall environment, pollution preven-
tion is the one poUcy necessary to achieve both goals. U.S. environmental laws have
traditionally relied on "end of the pipe" technology to control toxic pollution. For
the past twenty years, we have attempted to capture, control or contain poUutants
after producing them.
But it is becoming increasingly clear — ^to the public, to industry, and to govern-
ment— ^that front-end pollution prevention is the most cost-effective way to protect
humein health and the environment. This realization is reflected in the pollution
prevention laws passed by the U.S. Congress and 49 states, and in public statements
fi-om all sectors of society (see Attachment A).
Nevertheless, we still have far to go before prevention is practiced as well as it is
preached. No doubt some companies have taken important steps towards preventing
pollution. However, this apparently remains the exception rather than the rule: the
470
1991 Toxics Release Inventory (TRI) showed that "[e]ven though emissions of chemi-
cals are decreasing, we don t see a similar downward trend in waste generation
[prior to recycling, treatment, and disposal]. The data projected [by industry] for
1992 and 1993 suggest that generated waste will be flat or will even mcrease slight-
ly". 2
While these industry projections show industry not yet embracing prevention,
government attempts to promote prevention are still in their infancy as well. The
U S Environmental Protection Agency (EPA) has certainly taken important steps to
establish a framework for pollution prevention, but only a tiny fraction of the Agen-
cy's budget is specifically linked to prevention— hardly a sign that prevention has
entered the mainstream of EPA life.
A System that Puts Prevention First
Without a doubt, the end-of-pipe Best Available Technology (BAT) approach has
been responsible for tremendous progress in protecting human health and the envi-
ronment. No doubt the BAT approach will remain an essential component of our
environmental protection strategy. But we approach the limit of what BAT can do
alone. Putting prevention first will require a strategy with three important charac-
t^fistics
First, we must foster the use of site-specific pollution prevention technologies and
practices that surpass Best Available Technology in protecting the environment.
The BAT approach bases standards on pollution control technologies (and some-
times pollution prevention technologies) that can be used by every company in an
industry category. By definition, the BAT system can not account for pollution pre-
vention practices that could be used only by a few of the companies m the mdustry
category, even if those practices better protect human health and environment.
Because so many pollution prevention practices are site-specific, rather than uni-
versally applicable, we can not require their use through BAT-based rules and per-
mits. EPA must use other tools to lead companies to investigate and choose for
themselves the available prevention options. , ., »x • u n
Second, we must stop leading or allowing industry to play the toxic shell
game"— shifting pollutants from one environmental medium to another, or by push-
ing human health and environmental impacts to other parts of a product's life
cycl** When EPA sets standards for only one environmental medium it is allow-
ing^^d perhaps inadvertently promoting— the use of pollution control technol-
ogies that may merely shift the point of human health and environment harm,
rather than reduce the harm, and all at great expense to industry. We must stop
the toxic shell game. . ^ , i-
Third we must counteract the tendency to create an environmental compliance
"priesthood" within industry, which blocks industry from distributing the responsi-
bility for environmental protection to all employees.
Industry has responded to the environmental regulations by creatmg an environ-
mental priesthood specialing in environmental requirements, learnmg the special
languages and becoming attuned to the unpredictable events that characterize that
any one firm's regulatory environment. We can sympathize with mdustry s desire to
create environmental specialists and if we are content to allow companies to rest
once they have met the minimum requirement— i.e. installing a universally applica-
ble, end-of-pipe technology— then we can be satisfied with a system that creates
such a priesthood. „ . , , ^,
However, companies are best able to prevent pollution only when they can engage
top management, marketing staff, research and developing staff, production staff,
and all others in the firm in environmental protection. Take, for example, the l-ed-
eral Toxics Release Inventory » (TRI), a community Right-to-Know program some-
times also known as the "CEO Right-to-know Program". Requiring companies to
publish information on their toxic releases broadened awareness of toxic chemicals
to industry employees outside environmental departments, often resulting m dra-
matic voluntary reductions in those releases. ^ „ , , , ^ r- n *u
The pollution prevention-oriented provisions of S. 1114, specifically the sections on
pollution prevention planning (section 205) and point source technology based con-
trols (section 201), take important steps to buUd all three characteristics mto our
environmental protection system.
Pollution Prevention Planning
Because of the great diversity of industrial processes, EPA does not have the abUi-
tv to dictate the exact pollution prevention strategy for each company through the
BAT process. The responsibility for identifying those pollution prevention approach-
es which allow a company to surpass the minimum BAT standards must he with
471
the company itself. A pollution prevention plsinning requirement, such as that in
section 205, essentially formalizes this responsibility.
In developing a pollution prevention plan, a company should evaluate its pollu-
tion prevention options, leading it to do at least three things that most compemies
today do not do (see Attachment B):
— inventory the flow of toxic materials and wastes through its production units;
— estimate the costs associated with the use of toxic chemicals or pollutants, in-
cluding the cost of pollution control, waste management, employee protection,
and insurance; and
— identify pollution prevention options, assess their technical and economic feasi-
bility, and select those appropriate for Implementation.
EDF urges the subcommittee to study Senator Lieberman's Hazardous Pollution
Prevention Act (S. 980) as the subcommittee discusses this issue. There are also a
recent EPA guidance on the elements of a waste minimization program *, and sever-
al state pollution prevention planning laws, particularly in Massachusetts, New
Jersey, Washington, and Oregon, which might provide interesting lessons £is well.
Point Source Technology Based Controls
Current EPA Best Available Technology (BAT) standards are based on the BAT
technology's "best" performance in a single medivun. In developing these standards,
EPA typically neither accounts for environmental impacts in the other media, nor
prohibits use of technologies that impact the environment through other media. As
a result, EPA is allowing — and inadvertently promoting -pollution control technol-
ogies that may merely shift the point of harm to human health and environment,
without reducing that harm, all at great cost to industry.
EPA should instead base BAT standards on candidate technologies' total impact
to human health and environment, regardless of the media of impact, and should
sp)ecify limits to all media in the standards.
In addition. Congress should make it clear that EPA may use pollution prevention
technologies candidates as BAT reference technologies, then EPA finds pollution
prevention technologies available and appropriate for an entire industry segment.
Under the Clean Air Act, EPA has been requiring states to adopt regulations based
on pollution prevention technologies for years.
Several provisions in section 201 of S. 1114 address these issues.
Conclusion: Towards a Whole Facility Approach
Ultimately, we would hope to see the development of a "whole facility" approach
to environmental protection. Such a whole facility approach would include:
— a one-stop multi-media permitting program which includes a facility planning
requirement, provides compsmies with technical assistance upon request, pro-
vides companies and permit writers with the latest information on verified pol-
lution prevention technologies ^ and financial assistance programs, and by
streamlining and accelerating permit reviews and cutting fees makes the ad-
ministrative burden of a, permittee seeking to dramatically exceed the mini-
mum BAT standard dramatically less than that of merely meeting the mini-
mum.
— a reporting requirement which consolidates and rationales the many single-pro-
gram reporting requirements faced by the company into one report, free of re-
dundancy and nonsense, with assistance provided if needed, and with protection
of legitimate trade secrets.
— a multi-media compliance inspection and enforcement program with a bias to-
wards pollution prevention in enforcement actions.
EPA's Source Reduction Review Project takes an important step in the developing
such an approach, as do the efforts of states such as New Jersey and Massachusetts
(see Attachment C). Toxic pollution prevention language of the sort contemplated in
S. 1114 would take us yet a quantum leap closer to a whole facility approach. EDF
applauds the effort of the subcommittee to make the leap and looks forward to
working with the subcommittee to further perfect that effort.
69-677 0-94-16
472
Attachment A
What They Are Saying Aboxjit Pollution Prevention
Here's what a Clinton-Gore Administration will do:
Support effort to mandate public reporting on toxic chemicals used and produced
by companies, and require those companies to develop plans for reducing their
toxic chemical use.
"Putting People First" (1992) ^ . ^^ J^
Governor Bill Clinton and Senator Al Gore (emphasis added)
Designing products and processes (or redesigning existing products and processes)
with a system to identify health, safety and environmental Impacts throughout the
product life cycle is one of the most effective ways of managing the product nsks
One objective of this Practice is attainment of the preferred environmental hi-
erarchy source reduction: reuse; recycling; and disposal. Source reduction includes
equipment or technology modifications, process or procedure changes, product refor-
mulation or design, substitution of raw materials, and improvements m housekeep-
ing, maintenance, training or Inventory control.
Product Stewardship Code of Management Practices
Chemical Manufacturers Association
Turning environmental concern into competitive advantage demands that we estab-
lish the right kind of regulations. They must stress pollution prevention, rather
than merely abatement or cleanup. They must not constrain the technology used to
achieve them.
Properly constructed regulatory standards, which aim at outcomes not methods, will
encourage companies to re-engineer their technology. The result in many cases is a
process that not only pollutes less but lowers cost or unproves quahty.
Michael Porter
Harvard Business School, 1991
EPA should emphasize pollution prevention as the preferred option for reducing
risk By encouraging actions that prevent pollution from bemg generated In the
first place, EPA will help reduce the costs, intermedia transfers of pollution, and
residual risks so often associated with end-of-pipe controls.
Preventing poUution at the source— through the redesign of production processes,
the substitution of less toxic production materials, the screenmg of new chemicals
and technologies before they are introduced into commerce, energy and water con-
servation the development of less pollution transportation systems and farmmg
practices,' etc.— is usually a far cheaper, more effective way to reduce environmental
risk, especially over the long term.
"Reducing Risk"
EPA's Science Advisory Board, 1990
Attachment B
The EPA — ^Amoco Yobktown Refinery Project
EPA and Amoco recently cooperated on a project to examine multi-media and pol-
lution prevention issues at an Amoco oil refinery in Yorktown, Virginia. The two
most important lessons of this often-discussed project are usually overlooked.
The first lesson regards an Amoco blind spot: It Is remarkable how little the com-
pany knew, before the project, about the fate of all the valuable hydrocarbons enter-
ing and exiting their Yorktown refinery. The Yorktown refinery is a unit of one of
the world's largest corporations, one with a large engineermg staff. The moderately-
seed refinery is 35 years old and uses a standard technology. Every hydrocarbon
molecule released as poUution to the air or the Chesapeake Bay is a molecule that
can not be sold by Amoco as a product. In other words, the Yorktown refinery is
exactly the type of facility whose management one hopes would know the tate ot
every pound of potential product/pollutant. ,. , , ^ ^, , r a ^*.
In fact before the project Amoco knew very httle about the releases of product
from the 'refinery to the environment. The monitoring Amoco performed as part of
the proiect greatly advanced general understanding about pollution fi-om refineries.
Amoco's lack of self-knowledge went beyond the question of how much product
was being lost as pollution: Amoco was not structured to prevent that tjiJe of loM at
the source. During the project, process and mechanical engineers from Amoco s Chi-
cago headquarters met with the Yorktown refinery's operators to develop pollution
473
prevention strategies — i.e. changes to the refinery's production process that could
reduce product loss (read "pollution") prior to any end-of-pipe recycling or pollution
control. According to the Amoco employees in attendance, this meeting was the first
of its kind at Amoco (and may even have been a first for the oil refinery business).
In effect, Amoco had previously compartmentalized its design, operation, and envi-
ronmental protection functions as severely as EPA had compartmentalized its air,
water, and waste programs.
None of this necessarily calls into question Amoco business decisions. After a
point, it no longer pays to track down every leak for the sake of selling the other-
wise-leaked product. At some point the marginal cost of controlling le£iks exceeds
the marginal value of the product at the pump. Unfortunately for the environment,
however, an amount of product too small to be worth saving for its own value may
nevertheless have a big impact on the environment.
Which leads to the second lesson of this couplet, one which goes to a blind spot in
our environmental protection system. If it is surprising how little Amoco knew
about its loss of product to the environment, it is alarming that EPA regulation's
did not lead Amoco to learn more. EPA's regulatory programs treat the Yorktown
refinery as a bundle of smokestacks and drain pipes, each with a separable pollution
problem, rather than as a whole connected facility. In taking this one-pipe-at-a-time
view of the refinery. EPA perversely (and inadvertently) led Amoco away from
tracking down and preventing product from becoming pollution.
The EPA-Amoco Yorktown project's true value was in illustrating what many ob-
servers are starting to realize: (1) industry does not always prevent pollution as
much as it could, partly because (2) EPA's one-pipe-at-a-time programs can lead in-
dustry away from prevention.
Attachment C
The Massachusetts Blackstone Project
In 1989, the Massachusetts Department of Environmental Protection (DEP) decided
to do something about the confusing and sometimes conflicting signals sent by the
separate air, water, and waste inspectors that could visit any given Massachusetts
company.
Like EPA and nearly all state environmental agencies, DEP's air, water, and waste
programs were separate and often not closely informed of each other's actions. This
often had unfortunate consequences both for the environment and for the business-
es regulated by these progreuns.
For example, a company could be required by DEP's water program to install a
wastewater treatment system, learning only later of the expense and liability associ-
ated with the hazardous waste generated by the system. A company installing end-
of-pipe control devices to capture waste solvent headed for the air or water might
never learn of safe substitutes for the solvent which would obviate the need for the
control devices.
DEP wanted to change this and, in particular, wanted to transmit the message that
pollution was a problem regardless of media, and that the best way to approach the
pollution problem was to prevent it. To do this, DEP came up with the Blackstone
Project.
In the Blackstone Project's first pilot year, the project tested different methods of:
— coordinating air, water, hazardous waste, and right-to-know inspections;
— issuing enforcement actions that led violators to use toxics use reduction as the
primary means of compliance; and
— coordinating regulatory activities with technical assistance.
At the project's core was an attempt to treat each business like a business, rather
than a bundle of smokestacks, drain pipes, drums of waste.
The project was a success. Among other things:
— Blackstone inspectors were better able to detect hitherto unpermitted wastes-
treams and were able to perform inspections in less time than typically allotted
for those inspections.
— C!ompanies inspected by Blackstone inspectors were found more likely to seek
out technical assistance and subsequently implement pollution prevention.
— Over 80% of the companies inspected said in a later survey that they preferred
Blackstone inspections over standard single-media inspections — even though
most of them were subject to enforcement actions resulting ft-om the Blackstone
inspections.
474
The approach taken by the project has flourished and is being expanded statewide.
ENDNOTES
1. This testimony follows EPA's lead in defining "pollution prevention" as essentially equal to
"source reduction" as defined in the Pollution Prevention Act of 1990:
"source reduction" means any practice which —
(i) reduces the amount of any hazardous substance, pollutant, or contaminant entering any
waste stream or otherwise released into the environment (including fugitive emissions) prior to
recycling, treatment, or disposal; and
(ii) reduces the hazards to public health and the environment associated with the release of
such substances, pollutants, or contaminants.
The term includes equipment or technology modifications, process or procedure modifications,
reformulation or redesign of products, substitution of raw materials, and improvements in
housekeeping, maintenance, training, or inventory control.
(Emphasis added. See EPA Memorandum on "EPA Definition of "Pollution Prevention", from
F. Henry Habicht II, Deputy Administrator, May 28, 1992.)
2. "EPA Releases 1991 Toxics Release Inventory Data", EPA Environmental News (EPA news
release). May 25, 1993.
3. Created by the Emergency Planning and Community Right-to-Know Act of 1986.
4 "Guidemce to Hazardous Waste Generators on the Elements of a Waste Minimization Pro-
gram", EPA, 58 FR 31114 (May 28, 1993).
5. For more on verification of environmental technologies see S. 978, Title FV, Subtitle A.
TESTIMONY OF BRUCE BAKER, DIRECTOR, WATER RESOURCES
MANAGEMENT, WISCONSIN DEPARTMENT OF NATURAL RESOURCES
Mr. Chairman, members of the Subcommittee, my name is Bruce Baker. I am the
Director of the Bureau of Water Resovuces Management of the Wisconsin Depart-
ment of Natural Resources. I am here today representing the Association of State
and Interstate Water Pollution Control Administrators (ASIWPCA), as a member of
the Board. As you know Mr. Chairman, ASIWPCA is the national professional orga-
nization of State officials responsible for implementing water quality ad related pro-
grams in the States.
Let me take this opportunity to thank you, the members of the Subcommittee and
your fine staff, for the continued access you have provided ASIWPCA and the
States. We can identify many areas in S. 1114 where you have taken the States'
concerns to heart. Our testimony today focuses on Water Quality Standards (WQS)
policy, effluent guidelines, toxics, pollution prevention and NPDBS permit and en-
forcement requirements. The ASIWPCA membership is in the process of reviewing
S. 1114 and our Association will compile comments at our August Annual Confer-
ence. Once that review is complete, we will forward our more detailed comments to
you Mr. Chairman.
The 1972 Qean Water Act set specific goals and requirements for enhancing our
nation's waterways under which significant accomplishments have been achieved. It
is time for us to collectively review our prepress and examine outstanding issues
that need to be addressed. "The States' recommendations are premised on the follow-
ing principles:
1. The Clean Water Act is fundamentally sound. Significant refinements should,
however, be made to address program effectiveness including:
• Increased funding for State management.
• Continued Federal capitalization of the State Revolving Loan Fund (SRF).
• Increased State flexibility to operate prc^ams more efficiently and effectively,
to maximize environmental results and undertake comprehensive approaches.
• Elevated USEPA priority on the program's fundamentals — (eg: up-to-date efflu-
ent guidelines and WQS).
• Enhanced nonpoint source msmagement programs in the States.
2. States must continue to have the lead role in program development and manage-
ment. Delegation of NPDES and SRF programs are cost effective, managerially
efficient and institutionally appropriate.
3. Additional time is needed to carry out the 1987 Amendments. Lack of funding,
inadequate technical resources and late issuance of policy and regulatory guid-
ance have created uimecessary delays which must be accommodated in any re-
authorization.
4. Any new mandates must be accompanied by increased funding above the current
baseline.
475
RECOMMENDATIONS SUMMARY
It is our Association's view that:
• While S. 1114 recognizes the need to update and expand Water Quality Stand-
ards and effluent guidelines, significant changes in WQS policy are unnecessary
and disruptive of program momentum.
• The permit and enforcement program is fundamentally sound, though woefully
underfunded. S. 1114 attempts to address this funding issue, but it must be rec-
ognized that NPDES fees envisioned in S. 1114 are only adequate to bring the
existing program up a base level of performance.
• Limiting and eliminating pollution should be a solution of choice, without being
too prescriptive.
• Rather than focus on programs that function well, the Bill should address the
nation's priority problems, particularly nonpoint source management. As with
the 1987 Act, another round of standards and point source requirements will
preclude getting to that important agenda.
ASIWPCA is very concerned that a myriad of new requirements in the Bill
will greatly increase program complexity and administrative burdens, exac-
erbate the extensive backlog of expired permits and contested cases and
have little positive impact on the quality of our environment.
WATER QUALITY STANDARDS
WQS have been the heart of State implementation of the national water quality
laws for almost 30 years. Given the diversity of natural environments throughout
the nation, ASIWPCA 's position has consistently been that States must have flexibil-
ity to develop WQS, tailored to meet individual hydrology, geology, topography, eco-
system and climate considerations. A top down "cookie cutter" approach prevents
such efforts, inhibits innovation and thwarts aggressive and/or creative approaches,
which can result in national improvements. The State adoption process is a efficient
method to expedite implementation with extensive outreach and education. WQS
policy should not inhibit public involvement or limit the States' ability to accommo-
date advEinces in science.
States recognize the importance of maintaining a level of national consistency.
The water program suffers from outdated Federal Section 304 criteria and lack of
clear national policy on their application. This has caused unnecessary challenges in
the development of individual control strategies and pollution prevention. States
have had to resolve USEPA guidance issues, which has resulted in delayed promul-
gation, proliferation of litigation, delayed permits, and unwarranted inconsistencies
across States.
However, the primary responsibility for establishing WQS must remain with
State and Interstate Agencies. The burden of proof for disapproval should always
rest with the USEPA. Presumptive applicability, as described below, is unacceptable
to the States, because it recognizes neither the responsibilities and authorities of the
States, nor actual water quality needs. Approval should remain a State process.
USEPA and appropriate Interstate Agencies should be provided with a opportunity
to review the standards to assure interstate compatibility and compliance with
guidelines. USEPA needs to focus more on its vital role of providing States with
technical information and coordinating Federal interests.
States applaud the Bill's effort to set USEPA on a better course by expediting and
improving criteria development. USEPA needs to develop a strategic plan under
which they are given wide latitude to identify priorities. And, States must be as-
sured of a formal and prominent role in the preparation of this plan in conjunction
with USEPA, because they are at the forefront of standards development and imple-
mentation.
• As the bill recognizes, USEPA should develop national mixing zone policy. How-
ever, the specific criteria on acute toxicity and minimum flows, included in the
Bill, may create an unplementation problem, particularly with the terminology
used.
• States support requiring all Federal Agency progrguns, projects and facilities to
comply with State WQS. Such compliance is critical to achieving the goals of
the Clean Water Act. ASIWPCA is pleased to see the proposal requiring appli-
cants (in proceeding under FIFRA and TSCA) to provide complete data and in-
formation on the toxicity of compounds. We urge the Committee to go several
steps further, specifically:
476
1) Implementation: All new or revised criteria need to include an implemen-
tation component on translating criteria into permit limits, to address basic
issues on which there is commonality (i.e. criteria, alone, are not effective).
2) Intermedia Impacts: The Law needs to address further control of air dep-
osition and specify appUcability to CERCLA and RCRA actions, where it
has been demonstrated that such sources violate WQS.
3) Fish Advisories: A nationally consistent approach to fish advisories is
needed among the various Federal agencies. USEPA should provide guid-
ance and technical assistance.
• We must share with you our concern that, in some areas, the Bill goes too far
interfering with State decision making authority. Complex mandates are not
justified when neither resources nor scientific evidence can support such re-
quirements. If S. 1114 were implemented, as is, the standards process upon
which the entire Act depends would be hopelessly mire down. This would se-
verely curtail watershed plannii^ and other comprehensive management ef-
forts. ^
Presumptive Applicability: States oppose, in the strongest terms, S. 1114 s
presumptive applicability of Federal criteria. The balance between State/
Federal roles and responsibilities must be maintained. Section 304(a) crite-
ria are not perfect and USEPA does not have the ability to second guess
States In most instances States have better information, more innovative
means of developing the data and more efficient and success ways to create
standards that will meet the Act's goals and objectives. Presumptive appli-
cability could result in the loss of these significant State contributions. And
with State adoption, the nation gets firm commitment to monitoring and
attainment of those criteria. Implementation would otherwise be delayed
and the environment would suffer. . , , . , , ,
Biological Criteria: States should be able to adopt numerical chemical and/
or numerical or narrative criteria for toxics, with flexibility to translate
standards into specific numeric permit limitations. S. IIU is too prescrip-
tive—relying on only numeric criteria— which may or may not be protective
of the ecosystem. . •, ..i. ^ 4. r
Uses- All waters should have designated uses, determmed m the context ot
the express goals and objectives stated in Sections 101 and 303 of the Act.
However, States oppose USEPA automatically applying a fishable/swimma-
ble classification. Again, States should be in the leadership role, with
USEPA held to the same justification requirements as States. In some
areas, fishable/swimmable quality is impossible or unreasonable due to nat-
urgil or other conditions. .
Antidegradation Policy: The definition of outstandmg national resource
waters (ONRWs) and waters of ecological significance in S. 1114 can include
such a large number of waters that it can weaken the significance of the
designation. Some waters identified for designation, (eg. recreational areas,
wildlife refuges and waters supporting threatened and endangered species),
simply do not deserve the special level of protection envisioned. These types
of waters should be evaluated to determine their suitability (on a site-specif-
ic basis) for inclusion as ONRWs, etc. Meeting established WQS m these
waters will in most instances, protect these uses without the special desig-
nation. Again, States need flexibility to implement successful, locally tai-
lored programs.
EFFLUENT LIMITATIONS
The Association supports S. 1114's effort to update effluent guidelines Categorical
effluent limitations a the regulatory cornerstone of the Act and primary tool tor
working toward elimination of pollution discharges, includmg pollution prevention,
waste minimization and recycling. These guidelines serve as an equitable program
baseline.
The maiority of existing best available technology economically achievable (BATEA)
guidelines are seriously outdated, thus of Uttle value in the regulatory program.
States are forced to rely on WQS to establish proper effluent limitetions. This proc-
ess is resource intensive, and most States are not in a position to develop the mdus-
trv-by-industry data. Updated national guidelines can avoid the mefficiencies ot ad
hoc best professional judgment and associated inconsistencies, inequities and nega-
tive incentives. States beUeve that the objectives outlined below can be accom-
plished in a manner that is workable for all concerned.
477
States agree with S. 1114 that USEPA must publish and update effluent guidelines
under Section 304(b) of the Act to:
• Establish aggressive deadlines for industrial categories not yet addressed.
• Better define BATEA to assure they, in fact, reflect the best currently avail-
able.
• Update the factors set forth in 304(b) for BATEA and specifically address pollu-
tion prevention and waste reduction measures.
In addition, USEPA should reclassify some nonpoint sources to be point sources (e.g.,
some urban runoff) — as well as the converse — to protect water resources more effi-
ciently.
TOXICS
States need to place priority on and significantly expand their programs in the area
of nonpoint sources. Though States have remaining concerns about toxics USEPA
needs broad flexibility to focus on the most important toxic problems in the most
effective and expeditious manner to minimize substances unacceptable in the envi-
ronment. Dictating particular solutions will not, in our opinion, solve the problem.
We suggest that:
• USEPA needs expanded Clean Water Act authority to revise requirements in
other media programs in order to protect water quality (see also Pollution Pre-
vention).
• A high priority for 304(1) listed pollutants or waters is not always justified.
Other waterbodies and pollutants may well be the major impediment to water
quality goals.
• Toxic reduction program requirements should be based on need.
• While prohibitions on discharges of certain toxics are justified. State and
USEPA discretion must be provided to determine when and where such actions
are appropriate.
POLLUTION PREVENTION
The States commend the Committee for S. 1114's emphasis on prevention of pollu-
tion, which can lessen the burden on the permitting and enforcement programs. We
have learned that "end-of-pipe" regulation is not always the most effective or effi-
cient way to address water quality problems. However, zero discharge literally
means zero availability. Unfortunately persistent chemicals, once in the environ-
ment, are likely never to be zero. Some of the requirements in S. 1114 will place too
great a burden on State resources. Specifically:
More flexibility is needed. The USEPA should be required to take agency-wide
action to assure maximum progress toward the goals of pollution prevention and
zero discharge:
• Implementing prohibition sanctions authorized in the Toxics Substances Control
Act to prevent the production and use, in the market place of specific persist-
ent, bioaccumulative toxic substances. Priority should be placed on substances
exceeding State or Federal action levels in fish flesh. Bans should be an integral
part of such a national strategy.
• Listing toxic substances for which the discharge, emission, and release shall be
minimized in all media programs (air, water, waste management, etc.). States
should be able to have regulatory programs that go beyond traditional technolo-
gy or water quality based programs.
NPDES PERMITTING AND COMPLIANCE
S. 1114 addresses the major problem in the existing permit and compliance pro-
gram— lack of resources — to implement existing requirements. States are concerned
however about other aspects of the proposal because:
• There is no demonstrated need for many of the Bill's NPDES provisions. Some
will undermine State delegation and create complex mandates for which there
are neither resources nor environmental justification. The Bill would further
slow the program, with endless controversy and litigation. What States need is a
streamlined program to achieve more environmental results, not a more complex
burdensome process of paper shuffling.
• Permit fees will only provide enough resources to bring the existing program up
to a basic level of performance. Even then, proposed restrictions on permit fees
may not allow States, which are now 100% funded by State fees, to accommo-
date needed growth.
478
Delegation:
• States strongly oppose S. 1114 's extensive Federal intrusion into the State permit
process, with "helter-skelter" overfilling and second guessing. The program will
not work, unless States maintain their lead role. A well structured and predict-
able process is essential to the program 's success. If States are not performing
adequately, any problems should be addressed through the existing permit and
delegation review procedure.
• States should not be sanctioned by USEPA issuance of backlogged permits— the
problem is:
1) A lack of resources.
2) Incomplete, late or vague national policy.
3) Inadequate USEPA science and public education.
4) Contentious permittees.
If these are overcome, States can and would manage fully efifective permit pro-
grams.
• In order to protect water quality. States should be allowed to regulate vessel
discharges more restrictively than the Act requires. The vessel population in
some States is increasing annually by 10% predominantly in waters classified
for swimming and recreation. More attention is clearly necessary in this area.
• Field citation authority would be beneficial, but should be delegable only to
States— not contractors. States should also be able to file suit, using USEPA's
enforcement authority under Section 309. „«,^ , <.
• USEPA should use its administrative penalty powers under Section 309 only if
a State has failed to take sufficient action. In such situations. States must be
consulted and provided with an opportunity to respond and/or, if necessary,
take additional action. S. 1114 circumvents the current process which was
worked well for many years. ttot^t^*-
• States should not be required to have monetary penalties identical to U^^il,PA s.
States have a host of enforcement tools and mechanisms, in addition to penal-
ties, to achieve compliance. The stipulated amount exceeds the levels imposed
on USEPA and could be particularly onerous for small municipalities and small
• § 106 funds should not be sanctioned (up to 35%) if State agencies, despite good
faith efforts, do not have a $10,000/day administrative penalty or expanded ju-
dicial review. The monitoring, standards and watershed programs will suffer —
along with MPDES, thus demeaning the entire State program. This seems con-
trary to the Senate's intent embodied in S. 1114. It would be more effective, for
example to "deputize" States, giving them authority to apply USEPA penalties.
Requirements:
• Achievement of WQS should be the objective. Adding other requirements, (i.e.
protection and propagation of a balanced population of shellfish, fish and wild-
life), is unnecessary, confusing and extremely difficult to determine or measure.
• Section 403 criteria should not be expanded. The process is already complex and
onerous. The existing law is adequate to protect the resource.
• Permits should not he required prior to construction.
• 10 year permit terms should be authorized (with re-opener clauses to deal with
scientific or water quality changes). States should be able to put permits on a
stable workload cycle. , , mi. • j
• Changes in pretreatment requirements are not needed. The program is ade-
quate and the current municipal workload is already overwhelming. The estab-
lishment of pretreatment standards equivalent to categorical limits may not
achieve desired results, but will increase the already extensive State permit
workloads. ^ c ^ ^■^■
• The expanded judicial reviews in S. 1114 will encourage delay and wasteful liti-
gation. , . 1
• Use of civil penalties for beneficial projects and restoration of natural resources
may be appropriate. However, State consultation should be required in determ-
ing suitable options. .n i .. jvcc- li.
• Requiring courts to consider previously imposed penalties will make it dinicult
for States to secure timely settlements with violators.
• There is no demonstrated need to further encourage citizen suits. They have
been of limited value in addressing priority problems and for past violations
would accomplished little. Often citizen suits duplicate rather than enhance
State action. And, while such suits can be of utility. *^>iey should be used to take
initiative when government is unable to do so.
479
• We question whether USEPA emergency powers need to be expanded to in-
stances when there "may be" an imminent threat. This is an extremely broad
and vague standard. State consultation should be required to minimize incon-
sistency and promote appropriate action.
ANTIBACKSLIDING
The existing law is confusing on application of anti backsliding policy in the NPDES
process. Permittees are reluctant to accept effluent limits if the requirements make
it impossible to relax limits in the future — even for justifiable reasons. This has re-
sulted in endless conflict with the State regulators that significantly delays permit
issuance. The policy has impeded State adoption and implementation of new WQS
and discouraged dischargers from performing better than permits require. Limits
that became unnecessary over time, still require monitoring and compliance. This is
sOv even though the resources could be put to better use in permit oversight. S. 1114
should allow the removal or modification of effluent limits in cases where:
• The limit is determined to be unnecessary because of errors in calculation,
• New scientifically valid information is published, or
• A determination is made that +he substance is not present in the discharge.
In no instance should removal of a limit allow a permittee to reduce the level of
existing treatment technology.
SUMMARY
Mr. Chairman, the Association appreciates your leaderships, and that of Senators'
Baucus and Chafee, in providing a legislative vehicle for national debate on
Clean Water. As you proceed to refine the Bill, ASIWPCA and the States look
forward to working closely with you and your staffs. I am delighted to answer
and questions and thank you again for inviting me to join you today to discuss
Clean Water.
STATEMENT OF ANITA DAWSON, MANAGER, ENVIRONMENTAL AFFAIRS,
AMERICAN CYANAMID COMPANY
Good morning. My name is Anita Dawson. I am Manager of Environmental Af-
fairs for the American Cyanamid Company. I am appearing today on behalf of
American Cyangunid and the Chemical Manufacturers Association (CMA) to discuss
our views on pollution prevention in the context of the toxics controls proposed in S.
1114, the Water Pollution Prevention and Control Act of 1993.
CMA is a nonprofit trade association whose member companies represent more
than 90 percent of the productive capacity of basic industrial chemicals in the
United States. The chemical industry provides 1.1 million high technology, high
wage jobs for American workers and consistently maintains positive trade balances.
CMA's members are directly and significantly affected by the requirements of the
Clean Water Act.
Mr. Chairman, the Clean Water Act is a pollution prevention statute. Its existing
controls on industrial point source discharges have proved very successful. Dramatic
improvements to water quality have resulted and will continue to occur under exist-
ing law as dischargers comply with increasingly more stringent technology-based
and water quality based limits. These controls are challenging companies to look
beyond end-of-pipe treatment towards other pollution prevention practices such as
source reduction and recycling. The results of all these efforts are nothing less than
remarkable. EPA data reveal that less than 10 percent of the remaining water qual-
ity problems of the nation can be attributed to industrial discharges. Reductions in
discharges of toxic pollutants are particularly encouraging. According to informa-
tion supplied to EPA's Toxic Release Inventory, Clean Water Act standards adopted
in 1987 have helped reduce chemical industry discharges to America's waters by 77
percent in just five years.
This committee is considering a bill, however, which does not reflect these posi-
tive trends. Instead, it imposes overly intrusive, extreme and unnecessary require-
ments on industrial point source discharges. These requirements would not promote
pollution prevention; they would discourage it. In particular, the effluent guidelines
and toxic discharge prohibitions sections of this bill would have this negative effect.
I'd like to discuss these provisions today and will elaborate on a number of other
concerns we have with S. 1114 in our more detailed written statement.
This bill requires EPA to establish effluent limitation guidelines on the basis of
changes in production processes, products and raw materials. We believe this is an
480
inefficient, inflexible and improper approach to pollution prevention. It wholly dis-
regards the complex nature of manufacturing and product development. There are
literally thousands of manufacturing processes in use in American industry today.
The chemical industry alone uses hundreds of unique operations. End-of-pipe stand-
ards that require raw material substitution or process modifications cannot ade-
quately reflect these variables. At a minimum, they would inhibit industry's ongo-
ing development of iimovative and cost effective pollution prevention technologies
and techniques. More harmful is the threat that these standards pose to the com-
petitiveness of U.S. manufacturing industries. These standards would result in the
discontinued use of effective manufacturing processes, in the phase-out of many ben-
eficial products, and in the significant impairment of the quality of other products.
The inappropriateness of EPA requiring changes in production processes, products
and raw materials cannot be overstated. The effect would be minimal environmen-
tal protection, at a huge cost and competitive disadvantage to industry generally, as
well as a loss of jobs throughout the economy.
Mr. Chairman, industry already analyzes its processes, raw materials and prod-
ucts to determine how best to prevent pollution in order to meet effluent limits. It
invests much time and money to do so. Incentives to further encourage industry to
perform these analyses would be a better approach to pollution prevention than the
heavy handed command and control approach described in this bill. Pollution pre-
vention is not a "one size fits all" proposition. Flexibility is key. Every company
practicing pollution prevention today knows this. . ^ ^, ^
For example, my own company has developed a pollution prevention project that
involves changing a process from a batch oxidation reaction process into a continu-
ous process step. This change is reducing wastewater pollutant loading by 50% and
volume by 25%. It's also increasing product yield and product quality. It has not
been a simple project, however. It's taken more than 6 months of laboratory devel-
opment, small-scale testing and finally full-scale testing to develop. This testing m-
cluded verifying the reaction would work, lab stress experiments, testmg the im-
pacts on each processing step, analyzing the products and by-products of each step,
refining analytical procedures for new conditions, evaluating scale-up effects and fi-
nally full-scale trials. The project has involved a research chemist, an analytical
chemist, lab personnel, a process chemist and a process engineer. Many ideas were
tested that did not work. ^ . , ^
The point I'm trying to make is that any manufacturmg process, product or raw
material changes— whether to effect poUution prevention, product yield or product
quality— are extremely complex decisions that do not lend themselves to mflexible
regulatory compliance schemes such as best available technology standards under
the Clean Water Act. These types of changes are extraordinarily site specific. Pollu-
tion prevention decisions are constrained by technological feasibility, economics, and
product quality. Even simple changes in the suppliers of raw materials requires d^
tailed evaluations of the material's effects through all the process steps. Process and
product changes also raise the question of the interrelationship with other product
control laws.Many of my company's products are FIFRA registered products. If a
process modification changes minor components of the final products, we must
modify its FIFRA r^istration— a process that takes one to two years— before we
can make the change. This would raise compliance problems under the Clean Water
Act
From a resource perspective, development of end-of-pipe standards on an industry-
by-industry basis that could even moderately reflect^much less require— liest
available" production processes, products and raw materials within mdustnes would
be prohibitively resource intensive given the enormous complexities. The type of
major R&D effort that EPA would have to apply to accomplish this t^k would be
far beyond what EPA has undertaken in past guideline development efforts. An ex-
ample is the recently promulgated effluent guidelines for the orgamc chemicals,
plastics and synthetic fibers point source category. EPA declared that the detailed
study and technical development effort on a product/ process-by product/process
basis" to determine the feasibUity of wastewater recycle was "far b^^d the scope
of what EPA can practicably accomplish." (Final Rule amending 40 CFR 414, signed
May 28 1993, pre-pubUcation draft, p. 28) This comment merely referenced EPA s
review of wastewater recycle within the chemical industry. The detailed review of
industries processes, products and raw materials that would be required by this bill
would be even more impractical. , , . ^ .. ^, ■ • • 4.u- uu
If effluent guidelines were mandated m accordance with the provision m this biU,
the result would be standards that reflected overly broad generalizations about m-
dustries Requiring industries to conform to these generalizations about their proc-
esses products and raw materials would be mandating industry how to manufac-
481
ture. Attempting to achieve pollution prevention through these type of rigid nation-
al standards is an inappropriate approach that would discourage more pollution pre-
vention than it would encourage, stifle innovation, and harm the competitive pos-
ture of U.S. manufacturing industries.
The toxic discharge prohibition section of this bill poses a different, gdthough re-
lated, set of concerns. It would require EPA to apply the most drastic control meas-
ures available under the Clean Water Act discharge bans — simply on the basis of
EPA identification of a substance as highly toxic or toxic and highly bioaccumula-
tive. Merely because a pollutant is toxic and bioaccumulative does not mean that its
discharge in any amount poses a threat to human health and the environment. Fur-
ther, the bill does not require that such identification be peer-reviewed by a quali-
fied panel of scientists. There's also no required demonstration of any adverse ef-
fects/risks posed by substances identified as bioaccumulative. Finally, there's no
review of any economic considerations of such actions. Like the effluent guideline
provision, this discharge prohibition takes an overly simplistic approach to pollution
prevention. It, too, would place U.S. manufacturers at a disadvantage compared to
their foreign competitors.
In short, this provision inappropriately assumes that the only effective way to
control these pollutants is to ban their discharge. To justify such an extreme re-
sponse, EPA, at a minimum, must demonstrate a clear relationship between an
identified chemical and an unreasonable risk to human health or the environment.
Rather than discharge bans. Congress should apply the full range of risk manage-
ment options to any newly identified pollutants, considering their adverse effects
and exposures.
In conclusion, Mr. Chairman, the changes proposed in this bill are not suggested
by the progress achieved to date as a result of the Clean Water Act's controls on
industrial discharges of toxics. The two provisions I've discussed today are not ap-
propriate responses to any remaining threats posed to water quality from industrial
point source discharges. These provisions are drastic responses to emotionally
charged but unsubstantiated claims about industry's contribution to water quality
impairment. We urge this committee to re-think its approach to better take into ac-
count the significant progress industry has already made and will continue to make
under the existing provisions of the Act.
TESTIMONY OF MARTHA G. PROTHRO, ACTING ASSISTANT ADMINISTRA-
TOR, OFFICE OF WATER, ENVIRONMENTAL PROTECTION AGENCY
INTRODUCTION
Grood morning, Mr. Chgiirman and Members of the Subcommittee, I am Martha
Prothro, Acting Assistant Administrator of EPA's Office of Water. Accompanying
me today is Bill Diamond, Director, Standards and Applied Science Division, in the
Office of Water. As Administrator Carol Browner has chscussed with you, we believe
the Clean Water Act (CWA) is fundamentally sound, but requires some adjustments
so that EPA along with our Federal, State, Tribal, local, and private partners can
develop innovative solutions for the water quality problems that remain.
Reauthorization gives us an opportunity to solidify our control of toxic pollutant
discharges, to help improve the scope and timeliness of water quedity standards, and
to focus our water program on the highest priority risks to health and the integrity
of our aquatic ecosystems. This will enhance our ability to meet the goal of restor-
ing and maintaining the chemical, physical, and biological integrity of our Nation's
water.
Under existing statutory authority we have achieved considerable success in sub-
stantially reducing the discharge of toxics to our Nation's waters. TTie Clean Water
Act has already enabled us to control millions of pounds of toxicants through tech-
nology-based controls. We have established ambient water quality criteria for most
toxic pollutants of concerns and we are refining and expanding those criteria as new
risks are identified. To make further progress, our primary challenge is to imple-
ment these criteria through standards, permitting, and enforcement programs, and
to address contaminated fish and sediments that have been polluted by past dis-
charges.
The Act already provides a broad range of tools to EPA and the States, as well as
the flexibility to adapt them to different circumstances. We can improve some of
these tools, but we should avoid the temptation to add new requirements and dead-
lines merely because some toxic hot spot areas still remain in our waters. We can
address most problems with existing authorities. Before adding new mandates, we
should consider whether current law in fact will suffice, whether the remedy pro-
482
posed appropriately addresses the problem at hand, and whether we are responding
proportionately to the range of stresses that impair water quality. Priorities and re-
sources need to be assigned to all remaining risks, including nutrients, pathogens,
habitat loss and other problems as well as toxics.
TECHNOLOGY-BASED APPROACH
The CWA provides technology-based and water quality-based approaches for con-
trolling the discharge of pollutants from point sources into surface waters. If the
technology-based controls are not sufficient to protect the desired uses of the water-
body, then water quality standards provide the basis for further controls.
Under the technology-based program of the Act, EPA requires municipal sewage
treatment plants to achieve secondary treatment at a minimum and requires indus-
tries to meet effluent limitation guidelines, new source performance standards, and
categorical pretreatment standards. Effluent limitation guidelines and standards are
based generally on the best technology available that is economically achievable. In
developing effluent limitation guidelines and standards, EPA currently considers
source reduction and recycle and reuse technologies — not just jend-of-pipe controls —
as the basis for effluent limitations. We also consider the potential transfer of pol-
lutants to other media in setting discharge limits. We have promulgated 51 technol-
ogy-based effluent guidelines covering over 100 different industries. We will promul-
gate another 20 new or revised guidelines over the next 10 years. These guidelines
set numeric limits as appropriate not only for the 126 priority pollutants imder sec-
tion 307(a), but also for any appropriate conventional and nonconventional pollutant
for which analytic methods are available. (Currently, more than 300 such pollutants
can be regulated.) The technologies that industries typically employ to meet effluent
guidelines generally remove many more pollutants than are specifically regulated.
One of the reasons that the effluent guideline program has been successful is that
we base our decisions on simple formula: available technologies (including source re-
duction and process changes) that are economically achievable by industry. Several
provisions of S. 1114, however, will help to improve the technology-based guidelines
program and stimulate a pollution prevention ethic in industrial dischgirgers.
Streamlining Technology Standard Developments for Effluent Guidelines
Current law requires that EPA apply several different thresholds to direct dis-
chargers in setting guidelines. Limits are then set based on best practicable technol-
ogy, best conventional technology, or best available technology, depending on the
type of pollutant. The separate analyses are complex and difficxilt to administer and
can cause significant delays in the guidelines development process, and may not
result in better (or different) control requirements. The Administration supports the
goal of S. 1114 of moving toward a more streamlined set of standards, but has not
yet established a position on appropriate thresholds.
Special consideration should also be given to conventional and other pollutants
that biodegrade in publicly owned treatment works (POTWs) after discharge by in-
dustry. In other words, industry would not be required to treat pollutants that the
receiving POTW adequately treats, although EPA would regulate pollutants dis-
charged to sewers when the POTW cannot provide treatment. Current law also ad-
dresses this issue by establishing a complex system of pass through and interference
analyses, along with removal credits for individual dischargers. This approach has
its limitations for a variety of reason, including technical difficulties, litigation prob-
lems, and resource limitations.
PRETREATMENT
In the last decard, the National Pretreatment Program has evolved into a mature
environmental program with local governments effectively regulating most industri-
al and commercial discharges to POTWs. Over 1,500 POTWs have approved local
pretreatment programs designed to protect against the adverse effects of industrial
and commercial discharges to municipal sewer systems. These local governments
regulate over 30,000 "significant industrial users" of their sewer systems by estab-
lishing "individual control mechanisms." POTWs also conduct routine inspection,
monitor, and take enforcement actions, as appropriate. They control an even greater
number of smaller industrial and commercial users, through less formal means,
where this control is warranted. For example, small commercial sources, such as
photofinishers and service stations on an individual basis may not pose a concern; in
the aggregate, however, they may discharge significant quantities of pollutants that
interfere with the municipality's treatment processes, volatilize into the air or into
the sewer system, persist in wastewater treatment sludges, or go untreated into re-
483
ceiving waters. Municipalities are improving their understanding suid their controls
of all of these sources.
The pretreatment program is a multi-media environmental program designed to
address water quality, land disposal and air emissions problems, as well as the
safety of sewer workers. A POTW with an approved pretreatment program evaluate
whether local controls is needed, in order to: (1) protect the sewer system and
wastewater treatment plant capability, (2) protect water quality and enable the
POTW to comply with its National Pollutant Discharge Elimination System
(NPDES) permit limits, (3) ensure sewage sludge of sufficient quality to comply with
EPA's national sewage sludge regulations, and (4) protect the health and safety of
POTW workers. Industrial pretreatment controls may also provide a vehicle for re-
ducing air emissions of volatile organic pollutants that would otherwise be released
from sewers of POTWs. Many cities have demonstrated impressive improvements in
effluent and sludge quality as a result of effective local pretreatment programs.
Based on our experience in implementing and overseeing this program, we sup-
port the following changes: EPA should have authority to issue individual control
mechanisms to significant industrial users when there is no approved local or State
program, and removal credits should be restructured and reconsidered. We also be-
lieve that the domestic sewage exclusion under the Resource Conservation and Re-
covery Act (RCRA) should be retained.
EPA regulations require POTWs with approved local pretreatment programs to
issue "individual control mechanisms" to all significant industrial users. These indi-
vidual control mechanisms are functionally equivalent to the NPDES permits issued
by EPA and States for direct dischargers. They contain applicable effluent stand-
ards, monitoring requirements, reporting requirements, and other appropriate con-
trols. In most cases, a State or locality runs the pretreatment program locally. How-
ever, in some circumstances, EPA must act as the "control authority" because there
is no approved local pretreatment program or ^^pproved State pretreatment pro-
gram. EPA, however, has no direct authority to issue an individual control mecha-
nism to an indirect discharger. We believe that EPA and approved States should
have the authority to issue appropriate individual control mechanisms to significant
industrial users when they are not subject to an approved local pretreatment pro-
gram.
The removal credits provision was intended to allow an industrial user to increase
the amount of a poUutemt that is discharged to a POTW above the level that would
otherwise be allowed by a national categorical pretreatment standard, provided the
POTW can demonstrate that its treatment works consistently removes those pollut-
ants and does not exceed water quality or sludge limits in its permit. Historically, as
few as thirty POTWs have expressed an interest in obtaining or actually have re-
ceived approval for the authority to issue removal credits. Resource constraints,
equity concerns and a desire to provide a margin of safety for the POTW have all
been cited as reasons for low interest. Another concern with removal credits is that
a POTW may be able to demonstrate that a pollutant is not being identified in tests
of its effluent. In such instances, the pollutant may not actually be removed but is
simply transferred to the sludge or the air, where it contributes to a violation of
standards. Alternatively, the pollutant may be undetectable in the effluent using
current analjdiical techniques, and nevertheless cause significant risks.
Elven if the law is changed so that categorical pretreatment standards set industry
limits for aU but those pollutants that are biodegradable in the POTW, there still is
a need for removal credit authority, because categorical pretreatment standards
might still regulate some pollutants that are not consistently biodegradable at the
tjrpical POTW but may be fully biodegradable at site-specific POTWs. For such pol-
lutants, removal credits would be appropriate but only for those toxic pollutants
shown to be removed through biodegradation in the POTW. Therefore, we generally
support S. 1114's position on removal credits as the best environmental, technical,
and programmatic approach.
The third issue is the appropriateness of retaining the domestic sewage exclusion
or limiting its applicability. The domestic sewage exclusion [specified in section
1004(27) of RCRA] provides that a hazardous waste, when dissolved in domestic
sewage (e.g. sewage from residences), is not a hazardous waste under RCRA. The
rationale for the domestic sewage exclusion is that RCRA management of wastes
within a POTW is unnecessary and redundant because these wastes are regulated
under the Clean Water Act, specifically by the pretreatment program. In the mid-
1980's, EPA conducted a study on the discharge of hazardous wastes to POTWs £ind
submitted a report of the study to Congress in February 1986. The report concluded
that the domestic sewage exclusion should be retained and improvements should be
made in pretreatment regulatory controls rather than creating a new RCRA pro-
484
gram for these wastes. In July 1990, EPA promulgated changes to the General Pre-
treatment Regulations to strengthen controls on nondomestic discharges, with par-
ticular emphasis on wastes that may be covered by the domestic sewage exclusion.
States and cities have implemented those changes and we now have a stronger pre-
treatment program. As a result, we believe that existing pretreatment authorities
are the best vehicle for controlling such wastes and that the domestic sewage exclu-
sion should therefore be retained.
We also believe it is unwise to condition the applicability of the domestic sewage
exclusion on EPA's development of technology-based, categorical pretreatment
standards or on the equivalency of local limits with RCRA Best Demonstrated
Available Technology standards. One reason is that such an exemption is expected
to result in tremendous pressure on EPA and municipalities to issue new regula-
tions under the CWA merely for the purpose of providing exemptions from RCRA.
We believe it is critical to maintain environmental protection and risk reduction as
the criteria for selecting industries for regulation. Additional controls that are ap-
propriate and necessary can be provided under existing authorities.
POLLUTION PREVENTION
As S. 1114 recognizes, existing effluent guidelines provisions in the CTWA should
be clarified to promote pollution prevention practices. Historically, the Agency has
set numeric effluent limitations, compliance with which is measured at the end-of-
pipe. While this has the considerable benefit of allowing dischargers great flexibility
in deciing how to meet the requirements, it does not necessarily foster source re-
duction practices. EPA's experience in over twenty years of effluent guidelines de-
velopment is that facilities typically use end-of-pipe treatment to comply with the
limitations, rather than reduce their source of pollutants or wastewater flows. The
Office of Water has verified this in its recent surveys of the pharmaceutical and
metal products and machinery industries. Allowing EPA to address intermediate
wastewater discharge points should help encourage recycling, reuse and source re-
duction. ^ , . , .
End-of-pipe limits also allow co-mingling of wastewater, which m some cases
means that pollutants are present at levels that can cause significant harm but are
diluted to levels below detection. While the courts have upheld EPA's authority to
set in-plant limits, we believe this authority should be clarified to avoid costly litiga-
tion and controversy. We agree that clarifying language would be helpful in allow-
ing the Agency to consider intermediate discharge points. EPA would like to work
with the Committee to craft language that will address the dilution issue for case
where end-of-pipe concentrations are blow detection limits while preserving a facili-
ty's flexibility to devise innovative solutions and avoiding requiring EPA to regulate
processes.
We also support allowing EPA to address transfers of pollutants to other media.
Although EPA currently considers cross-media effects in deciding whether and how
to regulate, the CWA does not now allow EPA to preclude use of compliance tech-
nologies that simply transfer pollutants from surface water to other media. For ex-
eunple, some chemical plants use air stripping to treat volatile organics in
wastewater, as opposed to steam stripping that allows recovery of solvents and pre-
vents direct emissions to the atmosphere. When developing effluent guidelines, EPA
should be authorized to prohibit or limit the use of certain technologies where other
economically achievable compliance methods are available that would not result in
transferring pollutants to other media, taking into account relative costs and envi-
ronmental benefits. .„ T, », J. r> J.-
Current law explicitly authorizes EPA to specify Best Management Practices
(BMPs) in effluent guidelines to "control plant site runoff, spillage or leaks, sludge
or waste disposal, and drainage from raw material storage . . ." for toxic or hazard-
ous pollutants (section 304(e)). Some industries can generate significant amounts of
waste due to spills and leaks that contain conventional or nonconventional pollut-
ants, but these events are not explicitly addressed in section 304(e). Our authority
for specifying BMPs needs to be explicitly broadened to cover all pollutants and all
sources of pollutants. This will help promote a more comprehensive pollution pre-
vention approach.
WATER QUALITY-BASED APPROACH
To complement these technology-based approaches, the CWA also gives States the
primary responsibility to develop water quality standards for waters within their ju-
risdiction, including rivers, lakes, estuaries, near coastal waters and wetlands.
Water quality standards provide the regulatory basis for pollution control and pro-
vide a measure for evaluating water quality improvement programs.
485
Water quality standards consist of State-designated waterbody uses, criteria to
protect the designated uses, and an antidegradation policy to ensure that existing
uses, high quality waters and Outstanding National Resource Waters are main-
tained and protected. Through the designation of uses for waterbodies within a
State, water quality standards define the goals for the waterbody in terms that we
all can understand — fishing, swimming, protection of aquatic life and so on. Water
quality standards should not and do not focus only on the control of chemical-specif-
ic discharges, but also provide us a way to consider factors affecting the physical
and biological integrity of the waterbody as well.
WATER QUALITY CRITERIA DEVELOPMENT
Section 304(a) of the Act gives the Administrator broad authority to develop the
sound science and issue criteria, guidance and methods to assist States in the adop-
tion and implementation of their water quality standards, In the 1970's and early
1980's, EPA focussed water quality criteria development efforts on a relatively
narrow subset of all water quEility problems. Efforts emphasized chemical-specific
numeric criteria to protect aquatic life or human health because pollutants were as-
sociated with problems perceived as the highest priority at the time, notably prob-
lems associated with discharges from point sources. Reflecting these priorities, the
statute targeted point source discharges and EPA set its scientific priorities accord-
ingly. We continue to work on addressing some remaining individual chemical pol-
lutants that still cause significant water quality problems, but we also need to shift
our attention to give priority to other types of very serious water quality problems.
We need a comprehensive set of criteria, methodologies and guidance to accurately
assess the health of aquatic ecosystems and support efforts to maintain and restore
the physical and biological, as well as chemical integrity of our waterbodies.
Although the Clean Water Act now provides EPA adequate authority to develop a
range of chemical, physical and biological water quality criteria, there is no statuto-
ry provision for setting priorities based on maximum risk reduction potential, pro-
grammatic effectiveness, and other appropriate factors. Both the science and our un-
derstanding of environmental problems is rapidly changing, and it is apparent that
the opportunities to make scientific progress through the criteria development proc-
ess are staggering. The needs clearly exceed the level of resources we can reason-
ably anticipate in the near term. EPA would therefore advise against narrowly fo-
cussed statutory requirements that would drive the criteria development process
without regard to environmental priorities. For example, we have broad authority
and have already developed a powerful arsenal to address chemical-specific pollut-
ants, especigdly toxics, through the criteria program. These criteria are being adopt-
ed into standards and permit limits and will achieve significant water qu^ity im-
provement. While implementation of the toxics criteria is an ongoing priority in the
NPDES permit program, scientific priority must go to the relatively unexplored
areas of biological and sediment criteria.
For these reasons, we support S. 1114's provision to authorize the Agency to pre-
pare a comprehensive priority-setting criteria development plan that balances risk
and programmatic effectiveness. Our State, Tribal, local, Federal and public part-
ners should participate in establishing these priorities. In this way, we will under-
take to ensure that resources will not be diverted away from tomorrow's challenges.
This provision should be the engine that drives our criteria program.
CONTAMINATED FISH CONSUMPTION ADVISORIES
Environmental equity considerations require that we address the high risk that
contaminated fish may pose to sensitive subpopulations, including pregnant women,
native And ethnic subsistence fishers, and those with compromised immune sys-
tems. States are responsible for regulating contaminated fish that are not traded in
interstate commerce and do so through the issuance of fish advisories. Nationwide,
approximately 1200 State fish consumption advisories are in effect, but there is in-
consistency in the way they were developed, the level of information contained in
them, and the way susceptible populations are informed of the risks. This leads to
public confusion about whether recreational or subsistence fishing is a safe way to
supplement an individual's diet. The Clean Water should authorize EPA to provide
factors to be considered in the development and issuance fish advisories.
SEDIMENT CONTAMINATION
Closely related to fish contamination is the environmental risk posed by contami-
nated sediment. The best information we have indicates that hundreds of sites na-
tionwide have sediment contamination at levels harmful to aquatic life and human
health. In accordance with the 1992 Water Resources Development Act, EPA is pre-
486
paring a national inventory of contaminated sites. In addition, EPA, in coordination
with other Federal agencies, the scientific community and the public, has initiated a
broad range of activities to address this priority problem. Because there are no
simple solutions to the control and remediation of sediment contamination, we need
continuing flexibility to address the highest risk reduction priorities in this area in
a cost-effective manner. We are learning more all the time about this critical prob-
lem but the main difficulties we face in this area do not seem amenable to a legisla-
tive solution. We hope to continue working with the Subcommittee in this regard.
STATE WATER QUALITY STANDARDS REVIEWS
Section 303(cXl) of the CWA requires that from time to time, but at least once
every three years. States should hold public hearings to review their water quality
standards and, if appropriate, to modify and adopt new standards. This helps ensure
that (1) waterbody use designations and goals reflect current conditions, (2) criteria
are based on the best current science and address emerging issues, and (3) antide-
gradation and other implementation policies, methods and practices are revised or
modified to fully meet the goals of the Act.
EPA must review and approve or disapprove State water quality standards and
any changes. The Administrator must promulgate standards for a State if a State
fails to make appropriate revisions to meet the requirements of the Act.
In practice. States are not reviewing and updating their water quality standards
every three years, but frequently take many years longer than the statute now re-
quires. States have many other mandates and problems to address, of course. How-
ever, these lengthy delays sometimes amount to serious bottlenecks in developing
pro-ams to restore and maintain our Nation's waters. For example, delays in State
adoption of water quality standards for toxic pollutants inhibited the effective iden-
tification of impaired waterbodies and the establishment of control requirements in
NPDES permits under the 1987 amendments. Even though EPA had published most
of the aquatic life and hmnan health criteria for toxic pollutants in 1980 and the
1987 CWA amendments required States to adopt numeric criteria for toxics, only 6
of 57 States and territories had complied by February 1990— the end of the triennial
review cycle following the 1987 amendments. Most States did not begin to adopt
toxic pollutant standards until after 1990 when the Agency initiated Federal pro-
mulgation actions. EPA ultimately had to establish standards for 14 States through
Federal rulemaking, a process that took two years and eight months to complete.
States were given primacy in water quality standards adoption under the CWA
largely because it was believed that local conditions and State preferences should be
taken into account. EPA continues to support this philosophy, but we note that even
with this lengthy adoption process following the 1987 amendments, most standards
adopted by States were identical to EPA's national water quality criteria guidance.
At the same time. Federal promulgation is not a perfect antidote to these delays.
States deserve to be given deference in adopting water quality standards when they
do act in a timely way. Federal promulgations are resource intensive and time con-
suming for EPA. Moreover, while promulgation of numeric criteria for toxics was
important, we also cannot ignore the fact that both EPA and the States had to
make difficult resource allocation choices in order to comply with the various man-
dates of the 1987 amendments. fO -i-i-iA
In order to address these historical problems, we agree with the authors of b. 1114
that the provisions for timely review, update and adoption of State water quality
standards should be strengthened and streamlined. We need to maintain the oppor-
tunity for State exercise of primacy and substantive flexibility, but we also need to
ensure that standards are established in a timely fashion.
Another issue is how to assure that, as water quality programs move toward a
watershed focus, the review and revision of waterbody use designations and imple-
mentation policies in State standards are coordinated with watershed programs. The
current triennial review cycle inhibit those efforts. Triennial reviews may also be
incompatible with the increasing complexity and site-specific nature of newer forms
of water quality criteria, such as nutrient, sedinity, habitat, biological and toxicity
criteria. Not only are the new forms of criteria more difficult and time-consuming to
adopt than chemical-specific criteria have been, but their application may also need
to be different. For example, it may be appropriate to use biological criteria, at least
initially, primarily as an assessment and evaluation tool rather than as the basis of
a permit limit. Harmonizing the time frames of various complementary water pro-
grams (e.g., standards, permits, nonpoint source, estuaries, etc.) would facilitate inte-
gration, implementation and evaluation of water pollution control programs. We
support adjusting the timeframes to advance the progress of comprehensive water-
shed protection approaches.
487
For chemical-specific pollutants, EPA believes that States should adopt numeric
water quality criteria based on EPA criteria guidance within a fixed time, perhaps
three years, after EPA publishes such guidance. If a State fails to adopt numeric
water quality criteria for these pollutants, EPA's criteria should become the applica-
ble water quality steuidards for all purposes of the Act. For other tjrpes of criteria
{e.g., nutrient and biological), the Clean Water Act should require State adoption,
within four years of the publication of EPA's section 304(a) criteria guidance. (These
criteria may require more site-specific consideration by States.) The Senate bill gen-
erally helps to move us in this direction. In addition, in place of the triennial
review, every five years, States should be required to conduct a comprehensive
review of all uses, criteria and policies in their water quality standards, including
updating use attainability analyses for all waters that are not designated as "fish-
able or swimmable" and reaffirming, if appropriate, that these uses are not unat-
tainable. Such an approach recognizes the changing nature and increased complex-
ity of the water quality program. It also retains State flexibility to address water
quality standards within a realistic, but timely schedule.
Finally, States should be required to implement antidegration reviews that specif-
ically protect high quality waters and specifically designate Outstanding National
Resource Waters within the State's boundary, although State primacy in designing
these waters should be preserved.
TOXIC PROHIBrnONS
Through the Clean Water Act's technology-based and water quality-based permits
approach, there has been significant progress in decreasing the discharge of harmful
toxic pollutants to surface waters. These will continue to be our main tools to con-
trol toxic pollutants. However, the discharge of certain highly toxic and bioaccumu-
lative pollutants can create serious environmental and human health problems.
Some pollutants are extremely harmful quantities or may buUd up in the food
chain to produce adverse, long-term effects on human health and the living ecologi-
cal resources. Some pollutants can be linked not only to cancer, but also to neuro-
logical disorders, and reproductive, developmental and immunological impacts. Such
pollutants can damage aquatic ecosystems directly by eliminating populations of
sensitive species or indirectly by causing increased incidence of d^ease in the re-
maining species. Some pollutants may persist in the environment for decades,
posing a continuing threat to humans, aquatic organisms, birds and other wildlife.
Section 307(aX2) now authorizes EPA to issue an "effluent standard" (which may
include a prohibition) establishing requirements for toxic pollutants. However, the
statute provides an unusually burdensome rulemaking process for setting these
standar(fc, a process that is far more costly and difficult than the Administrative
Procedure Act requirements that govern most of the Federal government's rulemak-
ing. Not surprisingly, this cumbersome process has rarely ^en used. It was used
most recently in 1977 when EPA published effluent standards for aldrin/dieldrin,
DDT, DDD and DDE, endrin, toxaphene, benzidine and polychlorinated biphenyls.
We support a change to the CWA to improve EPA's ability to restrict or prohibit
the discharge of the most highly toxic and bioaecumulative pollutants, where appro-
priate. The Senate bill recognizes the need for this change. Some pollutants are so
harmful to the environment or human health that the l^st approach is to further
restrict or prohibit their discharge entirely. If EPA's Administrator makes this dis-
cretionaiy determination, there should be a fair but reasonably expeditious proce-
dure available to assure timely implementation.
We believe that it is important to preserve the Administrator's discretion in de-
termining whether to restrict or ban the very worst toxic pollutants. The Adminis-
trator should be able to consider many different factors including: (1) the pollutant's
persistence, toxicity, and bioaccumulation potential; (2) the magnitude and extent of
exposure to the pollutant; (3) the relative contribution of point source discharges to
the overall risk; (4) the availability of and risk posed by substitute chemicals or
processes; (5) the beneficial and adverse social and economic effects of any effluent
standard, including the impact on energy resources; (6) the extent to which effective
control is being or may be achieved in an expeditious manner under other regula-
tory authorities; and (7) other factors that Administrator deems appropriate.
CONCLUSION
Reauthorization comes at a critical stage in the evolution of the water program.
We need to improve our programs and move them forward without destroying the
basic structure that allows the CWA work well. Improvements are needed in tech-
nology-based effluent guidelines to cover conventional, nonconventional and toxic
pollutants, as well as to integrate the pollution prevention ethic. The pretreatment
488
program needs some adjustments, but only where we can strengthen the ability of
local communities to carry on their control efforts. The scope and timeliness of
State water quality standards can be improved as we move beyond the chemical-
specific focus on toxic pollutant controls and on toward protecting the biological and
physical integrity of our waters. Detailed, prescriptive requirements could hamper
the Nation's efforts to address the highest priority risks to watershed and human
health protection, and inhibit our ability to rely on the collective experience of our
State, Tribal, local. Federal and public partners in devising creative solutions to
^\\ o^p risks
We look forward to continuing to work with the Committee as we jointly tackle
these difficult and important challenges.
WRITTEN STATEMENT OF JOHN STEIN, THE NATIONAL ENVIRONMENTAL
DEVELOPMENT ASSOCIATION
INTRODUCTION AND SUMMARY
The National Environmental Development Association's Clean Water Project is
pleased to offer its views to the Subcommittee on Clean Water, Fisheries and Wild-
life on issues in the reauthorization of the Clean Water Act. The National Environ-
mental Development Association is a diverse coalition of companies united m the
belief that it is possible to have both economic growth emd a clean environment. It
is in that spirit that we present our suggestions for improving the Clean Water Act
to make it more effective and less costly. ,, , ,^ „, ,„ ^ . . , . , ,
The NEDA Clean Water Project believes that the Clean Water Act has induced
remarkable progress in improving the nation's water quality over the last two dec-
ades The major remaining sources of water pollutants are non-point sources and
the last unregulated industrial discharges that do not have federally established cat-
egorical standards. Both of these are very site specific and neither is very amenable
to controls through the broad-based technology standards that form the foundation
of the current law. , . ^, x i.^ u
The NEDA/Water Project agrees with the conclusion that many others have come
to— that a watershed management approach is the most effective way to address the
remaining pollutant loadings to water. Such an area wide approach also makes the
application of free market approaches to pollution control more feasible.
In reauthorizing the Clean Water Act, Congress should take care to make the Act
more flexible, not more restrictive. Unfortunately, S. 1114 grants unparalleled
power to the Environmental Protection Agency to regulate all phases of product
manufacturing, distribution, use and disposal under the guise of protecting the na-
tion's water resources. , ■ ■ j. ^ j
The NEDA Clean Water Project believes that such an approach is mistaken, and
would be doomed to failure if attempted. Such centralized decision making has pro-
duced both lower living standards and lower levels of environmental protection
where it has been tried in Eastern Europe and the former Soviet Union.
On the other hand, individual initiative undertaken by knowledgeable experts at
each facility, or in management for a particular watershed area, can produce water
quality improvements at the least cost to society. An institutional framework incor-
porating flexibility and market based incentives is needed to allow such initiative to
be undertaken and rewarded. The use of tradable effluent rights within a watershed
is an approach that offers the chance to achieve the nations clean water goals at the
least cost to society. , ., . , , r i. i. -^.i. *
Likewise, Congress should not prohibit the use or release of substances without
carefully considering the consequences of its actions. The decision should consider
the economic impact of such an action, and the technical feasibility of achieving
"zero discharge", along with the environmental effects of such imposing such re-
strictions. ,.„ . . , ^. L- U X
In addition Congress should not modify existing relationships between companies
and publicly owned treatment works (POTWs) without carefully considering the
consequences of its action. The present system is working well, and local authorities
should retain the authority to determine the proper restrictions on discharges to
POTWs. Mechanisms are already in place to ensure that such discharges do not
harm either the POTWs or the environment. , ^ ^ ,
The NEDA Clean Water Project also believes that where the federal government
imposes mandates upon state and local governments, it should also provide financial
support to carry out those mandates. Congress should continue or expand the state
revolving funds or reinstate grant programs and fund them at a level sufficient to
ensure that state and local governments can carry out the programs.
489
In enforcement areas, the NEDA Clean Water Project believes that citizens
should not be given the right to sue companies for violations that occurred entirely
in the past. Such actions are punitive — they do not improve present compliance or
deter future violations — and should be the prerogative of governments. The govern-
ment should preserve its authority over such actions to ensure that eill societal goals
are considered in deciding to pursue any punitive action.
Finally, in reauthorizing the Clean Water Act, the Congress should ensure that
requirements are both economically and technically achievable.
MARKET BASED APPROACHES
Market based approaches to environmental protection offer a way to improve the
quality of the nation's water resources while ensuring that the goal is reached in
the most cost effective manner. In particular, provisions for the trading of effluents
in individual watersheds should be explicitly added to the Clean Water Act. Trading
makes it possible for those who can most easily reduce loadings to bear the cost of
doing so, thereby achieving water quality goals at the least cost to society. More-
over, a market approach offers the opportunity to move more quickly and innova-
tively to achieve the nation's water qusdity goals.
A watershed management system offers an ideal environment in which to conduct
trading. Trades should be restricted to a single watershed to ensure that the trading
sjrstem can be defined and controlled, and that the results can be measured. In this
fashion, we can ensure that the program provides real benefits, and does not create
additional environmental problems.
Trading should be allowable between point sources, between non-point sources,
and also between point sources and non-point sources. Trades among similar types
of loadings, trading oil and grease for oil and grease for instance, or trades involving
similar types of health or environmental concerns, e.g., trading chemical oxygen
demand for biological oxygen demand or carcinogens for carcinogens, do not pose
any conceptual problems. Exchanging effluents in these circumstances should be
permitted as a matter of routine.
Trading in toxics is controversied, but should be allowed for the same reason that
trading in other loadings is allowed — it provides a mechanism for water quality
goals to be met at the least cost. Exchanges could be based on relative toxicity, no
observed effect concentrations (NOECs) for instance, and volumes. Trading in all
loadings should only be limited if it is necessary to prevent "hot spots" which might
exceed water quality standards.
Trading in dissimilar substances, e.g., between suspended solids, oil and grease,
toxics, etc., presents some difficulties. No valid scientific foundation exists for
making comparisons among these substances, or for deciding that watershed loading
from one is more or less harmful than loading from another. Even so, the concept
should not be dismissed out of hand. Situations may arise where the net benefit is
obvious. For instance, it may be beneficial for a watershed to trade a very large re-
duction in oil and grease for a relatively small increase in toxics. We suggest that
the concept be left open for future exploration.
In a tradable permit system, companies should be able to use trading to meet
BAT requirements. In addition, indirect dischargers connected to the same publicly
owned treatment works should be able to trade their effluents, in coordination with
the POTW, to achieve a least cost solution without adding loadings to the POTW.
Language should be inserted into the act to encourage POTWs to accept such ex-
changes rather than relying solely on categorical standards, again with routine var-
iances granted so that POTWs do not have to enforce these standards. In all situa-
tions, the anti-backsliding provisions of the Cleem Water Act would have to be clari-
fied to ensure that facilities bu5dng the ability to discharge more effluents do not
face a legal impediment which calls the entire process into question.
Operating this type of a trading system requires both a clearinghouse for ex-
changes of effluent permits, and an accurate characterization and mcSel of loadings
for each watershed. The characterization and model are necessary to identify load-
ings and their sources so that anticipated changes as a result of trades will reflect
reality. A trading model must accoimt for the potential for modifying loadings from
various point and non-point sources. EPA, the U.S. Greological Survey, the (5)rps of
Engineers and other government agencies should be required in the reauthorized
Clean Water Act to develop these watershed models and databases in conjunction
with the cities, farms and industries that will be affected by them.
A clearinghouse for trades would be responsible for making a market in effluents.
While commodities markets will perform this function for sulfur dioxide under the
clean eiir act, this approach does not seem feasible under a watershed management
490
system. The modeling exercise necessary to ensure accuracy in equivalent loadings
seems beyond the scope of commodities exchanges at this point.
Instead, the experience in trading air emissions in southern California could serve
as a useful model for trading in a watershed. Like a watershed, southern California
is a discrete area with unique characteristics for air. Firms in the airshed were as-
signed an emission baseline, and could then buy permits from others to exceed that
baseline or sell permits to others by doing better than its baseline. Trades are
cleared through a government control agency which ensures that over-all air quality
goals are met. This concept could be expanded to include a futures market so that
companies deciding to improve their pollution control and sell their permits can be
sure that the market will reward their investment. Such a clearinghouse should be
established £is part of the Act.
Importantly, a watershed trading system should be set up to minimize constraints
on exchanges. Excessive cost, paperwork, delays or other transaction costs detract
from the value of trading. Ultimately, such transaction costs could mate trading un-
attractive, as they have in some areas, and the country would be denied the benefit
of using an economically efficient method of achieving environmental goals. A reau-
thorization bill should make it clear that the object of a trading system is to mini-
mize the cost of achieving environmental goals, and should place the burden of
proof on the controlling agency that its requirements are essential. Notification to
EPA or state authorities, with adequate time for review, should be sufficient to
allow a trade, provided that the agencies raise no objection to it.
TOXIC USE REDUCTION
EPA is currently required to establish effluent guidelines for industry that re-
flects the best available technology. Where the best available technology is not suffi-
cient to protect water quality, water quality-based limitations are imposed on dis-
chargers.
S. 1114 adds an additional factor to the determination of BAT: toxic use reduction.
The proposal places EPA in the position of making decisions regarding production
processes in the guise of protecting water quality. Production decisions should be
made by experts — private business — not by the government. Production processes
and raw materials are the heart of business decision making, and opportunities for
manufacturing flexibility and innovative environmental solutions must be encour-
aged, not restricted.
The government should not dictate business decisions ranging from the extraction
and use of raw materials to the desi^ of finished products. Such authority has
great implications for the growth and international competitiveness of the United
States economy, and should not be granted. Full consideration of the possible effects
of such great government control over product decisions will reveal the demger of
this action.
Current law provides sufficient authority to establish best available technology
standards, and more stringent water quality standards. These should be continued
along with market based approaches to provide the maximum opportunity for inno-
vation and manufacturing flexibility to achieve water quality goals.
TOXIC POLLUTION CONTROL
Limitations on releases in the current law are balanced between the desire for a
pristine environment and other goals of society.
Banning the discharge of specific chemicals, as has been proposed, does not con-
sider the tradeoff between the value of a substance to the country aiid the impact of
possibly removing it from use. While it may sometimes be technically feasible to
eliminate the discharge of a substance, it may be prohibitively expensive to do so.
Thus, the economy may be deprived of an important ingredient, or that ingredient
may become much more expensive, for little or no environmental improvement.
In deciding the allowable level of substances in a facility's effluent, the EPA
should balance the impact of limiting the discharge with the technical feasibility of
control and the environmental effects of the effluent.
Congress should not ban the discharge of any substance without balancing the en-
vironmental risks to be lessened against the benefits of that substance for both pro-
ducers and consumers and the costs involved in removing it from the environment.
The law should ensure that the nation will gain from requirements that are im-
posed.
PRETREATMENT
Substantial controls have been placed on indirect dischargers to prevent upsets to
municipal treatment plants, or the pass through of untreated pollutants into receiv-
491
ing waters. This effective control system consists of federal pretreatment, effluent
gruidelines, and general pretreatment regulations, state indirect discharge programs,
and local pretreatment programs and ordinances. The system is workmg well, and
the disruption of municipal treatment plants by industrisil discharges is ^most non-
existent.
Municipal treatment works are often designed to accept local industrial effluent,
and funded by charges placed on local industry. Such arrangements lower the cost
of achieving water quality goals, and provide a strong customer base for the POTW.
Where specific industrial effluents would interfere with a POTWs operation, pre-
treatment agreements mandate that the discharging facility treat those effluents to
prevent environmental damage.
Prohibiting or restricting industrial effluents from being treated in POTWs would
result in a squandering of existing investment in treatment works. It would force
companies to build treatment facilities that duplicate the capacity of an existing fa-
cility, which could no longer be used. New treatment capacity would not be built as
economically as the existing system. Companies would no longer be able to use ex-
isting capacity. Instead, they would be required to build a larger number of smaller
facilities, with a corresponding loss of economic efficiency. Oampanies required to
build treatment works would likely become direct dischargers regulated by NPDES
permits rather than pay POTWs for duplicate treatment costs, which would also in-
crease the government's expense for program management.
The POTWs would also lose. They were buUt and financed on the expectation that
their industrial ciistomer base would provide the revenue to repay their cost. With
that customer base significantly reduced, many POTWs may find themselves in
great financial difficulty.
The existing system of treating industrial wastes at POTWs is working weU, and
there is no need for a radical change.
C!ongress should not restrict the right of a discharger and a POTW to agree on a
mutually beneficial way to achieve standards. Local authorities should retain the
authority to determine the proper restrictions on discharges to POTWs. Mechanisms
are already in place to ensure that such discharges do not harm either the POTWs
or the environment.
FEDERAL FINANCIAL SUPPORT
The federal government should provide financial support at the state and local
level for programs that it mandates. Congress originally established a construction
grants progrsmi to help fund wastewater treatment plants required by the Clean
Water Act. This program was later replaced by a state revolving fund program.
At that time. Congress authorized $18 bUlion for the SRF, but has appropriated
significantly less. The shortfall will amount to about $2 billion by 1994.
In the meantime, new mandates have been increasing the cost of water programs.
New water quality standards and treatment requirements combined with develop-
ment pressures and economic growth have increased costs well beyond those fore-
seen during the last reauthorization of the Clean Water Act.
In addition, pollution prevention programs, stormwater and non-point sources
controls, upgrades of many small treatment plants to meet more stringent stand-
ards, and additional legislative mandates have sent costs skyrocket.
According to the Association of State and Interstate Water Pollution Control Ad-
ministrators, over $137 billion will be necessary through the year 2010 to meet the
nation's need for water quality infrastructure. The Clean Water Council estimates
that needs could amount to as much as $167 billion through the year 2000.
Clearly, states and local communities do not have the resources to meet such ex-
penditures. Attempting to place such costs on local governments will virtually guar-
antee that the nation's water quality goals will not be met.
The federal government should continue the SRF or reinstate grant programs and
fund them at a level sufficient to ensure that state and local governments can carry
out the mandates imposed by government.
ENFORCEMENT
Citizens should not be given the right to sue for violations that occurred in the
past. Such authority would eliminate the distinction between citizen and govern-
ment action to punish past transgressions. Eliminating that distinction carries a
danger in that individual citizens are not bound by the government's need to pursue
many public policy objectives. Citizens may ignore their effect on other societal ob-
jectives in the single-minded pursuit of one goal, and without the government's con-
straint of public accountability.
492
Such actions are entirely punitive — they do not improve present compliance or
deter future violations — and are the prerogative of governments. The government
should preserve its authority over such actions to ensure that all societal goals are
considered in deciding to pursue any punitive action.
Moreover, natural resource damages should not be made a part of CWA enforce-
ment. Environmental remediation is already a part of other laws. CWA enforcement
should contain penalties appropriate to the degree of any violation and should be
sufficient to be a deterrent to future violations. The separation between improve-
ment projects and fines should continue to be maintained.
PERMIT REQUIREMENTS
In developing standards for best available technologies, EPA now considers a
number of factors including the cost of control and the effectiveness of the control
in improving water quality. In mandating a fishable and swimmable designation
"where attainable". Congress has recognized the practical difficulties of reaching
that goal.
In legislating water quality goals. Congress should consider the technical and eco-
nomic feasibility of achieving those goals.
TESTIMONY OF CAROLYN HARTMANN, STAFF ATTORNEY, U.S. PUBLIC
INTEREST RESEARCH GROUP
INTRODUCTION
Chairman Graham and members of the Senate Subcommittee on Clean Water,
Fisheries, and Wildlife of the Senate Committee on Environment and Public Works,
my name is Carolyn Hartmann and I am a staff attorney with the U.S. Public Inter-
est Research Group. PIRGs are nonpartisan, nonprofit environmental and consumer
advocacy organizations with over 1 million members nationwide. U.S. PIRG is the
national lobbying office for PIRGs in over 30 states. PIRGs have been fighting to
clean up our nation's waterways for over 20 years.
I would like to thank you for the opportunity to testify today on pollution preven-
tion opportunities in the Clean Water Act and to provide specific comments on the
pollution prevention strategies contained in the "Clean Water Pollution Prevention
and Control Act of 1993" (S. 1114), introduced by Senators Max Baucus and John
Chafee.
My testimony focuses in on four key sections of S. 1114:
Sec. 201. Point Source and Technology Based Controls;
Sec. 203. Toxic Pollutant Phase-Out;
Sec. 205. Pollution Prevention Planning; and
Sec. 601. Technology Development.
In addition, U.S. PIRG has reviewed the testimony presented by Jessica Landman
on behalf of the Natural Resources Defense Council and Manik Roy on behalf of the
Environmental Defense Fund and generedly supports the positions taken and recom-
mendations made by their organizations.
POINT SOURCE AND TECHNOLOGY BASED CONTROLS
Current point source and technology based controls in the Clean Water Act con-
tinue to focus on single-media solutions to the toxics problem. This single-media
focus allows and even encourages industries to shift toxics from waterways to other
environmental media such as air or land.
Comments on the Clean Water Pollution and Prevention and Control Act of
1993— Section 201. Point Source and Technology Based Controls
We strongly support provisions contained in section 201 of S. 1114 that revise sec-
tions 304, 306, and 307 of the Clean Water Act to make clear that standards shall
take into consideration pollution prevention options and change the focus of stand-
ards to prevent media shifting. These amendments are an essential step for ensur-
ing that reduced toxic discharges are not creating new environmental problems.
TOXIC POLLUTANT PHASE-OUT
The Problem
The Clean Water Act is based on the assumption that our waterways can absorb a
certain eimount of toxic materials. For certain toxic substances that persist and/or
bioaccumulate in the environment, this assumption simply does not hold true. These
substances are extremely resistant to natural degradation processes. They have the
493
potential to cause great heirm, including birth defects, learning and behavior disor-
ders, reproductive failures, immune system failures, and cancer, in very sm£dl quan-
tities. They are not prone to traditional end-of-pipe regulation.
These substances in our waterways increase health risks to humans and other
animals that eat contaminated fish and shellfish.
Findings of the International Joint Commission on Great Lakes Water Qual-
ity
The International Joint Commissions' Sixth Biennial Report on Great Lakes
Water Quality concludes that "persistent toxic substances are too dangerous to the
biosphere and to humans to permit their release in any quantity." The Commission
recognizes the following:
It can never be said that we can totally halt the input of persistent toxic sub-
st£mces into the system, or totally eliminate them. But humans can control
what they do, so we can say that there should be — and shall be— zero discharge,
or input, of persistent toxic substances as a result of human activities. Seen in
this light, the Commission believes that virtual elimination is the necessary and
reasonable goal, and zero discharge, or nil human input, is the necessary and
not unreasonable tactic for achievement of the virtual elimination strategy.
Finally, the International Joint Commissions describes "zero discharge" in the fol-
lowing manner:
Zero discharge means just that: halting all inputs from all human sources and
pathways to prevent any opportunity for persistent toxic substances to enter
the environment as a result of human activity . . . Thus, zero discharge does
not mean less than detectable. It also does not mean the use of controls based
on best available technology, best management practices, or similar means of
treatment hat continue to allow the release of some residual chemicals.
The Effects of Toxic Persistent and/ or Bioaccumulative Chemicals on the En-
docrine, Immune and Nervous Systems.
Several months ago, Dr. Theo Colburn testified before the Senate Environment
and Public Works Committee on the effects of sjmthetic chemicals on the endocrine,
immune and nervous ss^stems of wUdlife and humans.^ Dr. Colbum's testimony
talked about conclusions reached by twenty-one experts who focused on the prob-
lems of maternal transfer of toxic chemicals to offspring. These experts reached
some startling conclusions. These scientists stated with certainty that:
"A large number of man-made chemicals that have been released into the envi-
ronment . . . have the potential to disrupt the endocrine systems of animals,
including humans.
They proceeded to estimate with confidence that:
"Some of the developmental impairments reported in humans today are seen in
adult offspring of parents exi>osed to S3Tithetic hormone disrupters released in
the environment."
And "unless the environmental load of synthetic hormone disruptors is abated and
controlled, large scale dsrsfunction at the ix)pulation level is possible."
Many of the substances Dr. Colbum's colleagues have studied are toxic and per-
sist and/or bioaccumulate in the environment. ^
Comments on the Clean Water Pollution and Prevention and Control Act of
1993 — Section 203. Toxic Pollutant Phase-Out
Although we are pleased that Section 203 of S. 1114 recognizes that there are cer-
tain toxic substances that need special attention, we are very concerned that this
section will not achieve necessary reductions in the use of toxic substances that per-
sist and/or bioaccumulate in the environment. In addition, because this section fails
to take a multi-media approach to the problem, and only focuses on discharges to
waterways, it may even create new environmental problems.
Section 203 limits the Administrator's authority to take action "prohibiting the
discharge of any toxic pollutant listed pursuant to paragraph (4)." By limiting the
Administrator's authority to prohibiting "discharges" only, S. 1114 allows facUities
to shift their toxics from the waterways to other environmental media. This is en-
tirely contrary to the goals of pollution prevention.
Section 203 only allows the Administrator to list those pollutants that the Admin-
istrator determines to be "highly toxic or toxic and highly bioaccumulative; and
occur in surface water predominately as a result of discharges." Some major sources
of highly toxic pollution are non-point sources, including polluted runoff from agri-
494
culture. Other sources of pollution do not discharge to waterways but cause severe
water problems nonetheless, such as mercury emissions from power plants or incin-
erators. Over half of the states have issued fish consumption advisories due to mer-
cury contamination.^
In addition to focusing on toxic substances that bioaccumulate, S. 1114 should
target persistent toxic substances for phase-outs. Persistent toxics are those sub-
stances that are poisonous in infinitesimally small quantities and remain in the en-
vironment for long periods of time. The current National Pollutant Discharge Elimi-
nation System (NPDES) assumes that our waterways' can absorb a certain amount
of the toxic substances being discharged. Because persistent toxic substances do not
easily bresikdown in the environment, this assumption does not hold true.
We strongly support the requirement that the Administrator submit to Congress
a report on the developmental effects of pollutants found in our waterways. This
report should build upon the work already compiled by Dr. Theo Colbum and her
colleagues, and will be critical to our understanding of the effects of persistent
toxics and the steps necessary to protect future generations.
Recommendations for Phase-out
We urge the (Committee to take an approach to toxic substances that persist and/
or bioaccumulate in the environment which goes beyond focusing solely on dis-
charges. We urge the Committee to set up a multi-step process which will identify
highly toxic persistent and/ or bioaccumulative substances that result in pollution of
our waterways and establish a program designed to phase-out or "sunset" either the
production or use of these substances over time and replace them with safer substi-
tutes. We recommend that this process examine changes in production processes
and products that eliminate toxic pollution to waters and other environmental
media from these substances and their byproducts.
This goal might best be achieved if approached in three steps.
1. Phase Out the Use of Chlorine in the Pulp and Paper Industry.
Modern pulp and production technology creates some of the most toxic effluent
that any industry can produce. Even with recent technology advances and reduc-
tions in the dioxins discharged to waterways, these persistent toxics continue to be
discharged. As discussed above, because these toxics persist in the environment, we
recommend a strategy which shifts the focus toward eliminating the use of chlorine
compounds which cause the formation of persistent toxic byproducts rather than
continual efforts to control these byproducts at the end of the pipe.
Safer alternatives to chlorine use in the pulp and paper industry do exist and
mills in this country and abroad have begun to make the switch to these safer alter-
In the late 1980's, European papermakers were coming on-line with alternatives,
chlorine-free technologies for producing high-quality paper without polluting their
already overloaded ecosystems. They were spurred by aggressive regulatory systems
in their countries. In the United States, papermakers were denying that a problem
existed. In 1992, the International Joint Commission recommended that chlorine use
be eliminated not only from the pulp and paper industry but from Great Lakes in-
dustries altogether. i, mi
Canadian regulators have begun to respond to the message as well. The provmces
of British Columbia and Ontario (the two largest paper producing regions in North
America) have now adopted rules to end the use of chlorine by the paper industry
by 2002.
In the United States, Louisiana-Pacific's Samoa, California mill is already produc-
ing 250 tons of "totally chlorine free" (TCF) paper per day and will have converted
the other 750 tons per day by 1995. Louisiana-Pacific has joined the environmental
community in urging the EPA to call for procurement of chlorine-free paper by the
federal government. . , ,
Other facilities making commitments to move to TCF paper production mclude
Lyons Falls in Lyons Falls, New York; Georgia-Pacific in Bellingham, Washington;
Mohawk Paper in Mohawk, New York and Cross Point in Miami, Ohio. Unfortu-
nately, some of the companies, including Georgia-Pacific continue to use chlorine at
other mills around the country.
There are benefits to weaning this industry from chlorine use that go beyond the
environmental benefits. As long as a pulp mill uses chlorine, it has to dump its proc-
ess water, because attempts at recycling would cause corrosion of mill equipment.
Chlorine Free mills that are closing the loop on their processes are reducing their
water use by approximately 80 percent. If the pulp and paper industry had been
495
chlorine free by 1991 the chlorine industry would have saved over 94 billion gallons
of water in 1991 alone.*
If pulp mills close the loop, they can recover and reuse a majority of their process-
ing materials. Industry analysts estimate that chlorine-free closed loop mills can
produce paper products for 30 percent less than their chlorinated counterparts.*
The production of chlorine is an energy-intensive industrial process. By eliminat-
ing the demand for huge amounts of chlorine by the paper industry, we will save
energy. If U.S. pulp and paper industries had shifted to non-chlorine alternatives,
we would have saved an estimated 4.2 billion kilowatt hours of energy in 1992
alone.®
Whether or not one agrees that the use of chlorine in the paper industry is bad
for the environment, the plain fact is that the world market is demanding totally
chlorine free paper. The U.S. and Canada will always be the major paper producing
countries, but each year control of the intellectual property of papermaking — de-
signs, patents, royalties — worth millions of dollars, and the key to competition in
the next century are being lost to European companies.
We urge the Committee to adopt the approach taken by Rep. Bill Richardson in
legislation last Congress (H.R. 4949). Rep. Richardson wUl reintroduce legislation
calling for a chlorine-free paper industry.
2. Expand the Phase-Out Process to a List of "Sunset Candidates."
The Clean Water Act should set forth a list of substances which presumptively
qualify as "sunset candidates." '' Substantial work has been done in the Great Lakes
and in other countries focusing on a relatively short list of substances that are toxic
and persistent and/or bioaccumulative. We would like to work with the Committee
and its staff to develop a list of substances that are appropriate initial sunset candi-
dates. Attached as Appendix I are various lists targeted for sunsetting and a list of
substances we recommend be used to begin the process.
We recommend that EPA set up a two stage process for dealing with these sub-
stances.
First, a "Sunset Chemical Board" should be established by the Environmental
Protection Agency to determine which, if any, of the sunset candidates ought to be
removed from the list by reason of inadequate scientific justification to warrant sim-
setting. The Board would be empowered to recommend that specific uses, rather
them all uses or production, be prohibited for a given substance.
We recommend that the Board be composed of multidisciplinary representatives
from the EPA, National Institute for occupational Seifety and Health, National In-
stitute of Environmental Health Sciences, U.S. Fish and Wildlife Service, National
Marine Fisheries Service and International Joint Commission who are experts in
toxicology, epidemiology, endocrinology, immunology, reproductive physiology, wild-
life biology and other fields, as well as citizen organizations with relevant expertise.
The Board should consider the substances' toxicity, potential to bioaccumulate, per-
sistence or half life, and the amount of the chemical produced and released.
Congress must set forth a timetable to prevent en^ess delay. We recommend that
the maximum timetable for the sunsetting of a candidate be eight years after enact-
ment, with a proviso that the Administrator may extend the deadline by one year if
a proponent demonstrates that the use (as well as discharge) of a sunset candidate
can be eliminated if this additional time is allowed. A provision that addresses es-
sential uses, for example medicsd uses, is needed as well.
Second, the Clean Water Act should direct the Administrator to establish a
second committee or group of committees to recommend timetables and methods for
phase-outs of chemicals on the finalized sunset candidate list, and to confer with the
EPA on potential ssife substitutes and edtemative manufacturing processes avs^able
to facilitate phase-outs.
These committees should be made up of stakeholders, including individuals who
use the sunset candidates and produce their potential safer alternatives and/or
safer alternative production processes, and members of interested federal and state
agencies, labor, and the environmental community. These committees would provide
the EPA Administrator with final recommendations for phase-out timetables for the
final sunset candidate list.
3. Establish a Longer Term Process for Identifying Classes of Chemicals for Phase
Out.
In the instances where Congress has taken action to mandate reductions in the
use of certain substances, it has often been too little, too late, as in the 'case of DDT
and PCBs. Even though uses of these substances have largely been eliminated, we
continue to live with their effects.
496
Attempting to approach the problem of long-term toxic contamination one chemi-
cal at a time can provide us with models for making safer production processes and
products, but it will not solve our most severe toxics problems in the long-run.
The "one-chemical-at-a-time approach" generally fails to address the problems of
unintentional byproducts of certain production processes. For example, dioxins are
the byproduct of numerous different production processes. The "list approach" also
generally fails to address the safety of alternatives. This approach often leaves com-
panies searching for an alternative chemical to drop into place as a substitute for
the listed chemical. The best alternative is often a change in the production process
that eliminates the need for that step in the process.
We must begin to address entire classes of chemicals where that class exhibits
similar troubling characteristics. The assumption has been that chemicals are "in-
nocent until proven guilty." The burden has been on the public and government to
prove that each individual substance causes significant harm rather than on the
manufacturer to prove that it does not. This is not the approach we take with drugs
and this should not be the approach we take for chemicals. Drug manufacturers are
required to prove that the drugs they manufacture are safe and effective before they
are placed on the market. , . , j .,. u j r
We must begin to apply the same tests to chemicals and reverse the burden ot
proof. This is especially true for certain classes of chemicals of concern.
The International Joint Commission has recently begun to focus their attention
on organochlorines as a class of chemicals of concern. Organochlorines are defined
as those compounds in which chlorine is bound to carbon-based organic substances.
Organochlorines are produced intentionally as thousands of chemical products such
as pesticides, plastics and industrial solvents. They are also produced as thousands
of unintentional byproducts of industrial processes that use chlorine or other organ-
ochlorines such as in pulp bleaching, waste incineration or chemical manufa^uring.
Based on the recommendations of the International Joint Commission s Science
Advisory Board and their own deliberations, the International Joint Commission
recommended in their Sixth Biennial report that "it is prudent, sensible, and neces-
sary to treat [organochlorines] as a class rather than as a series of isolated mdmd-
ual chemicals." Because chlorine is the common precursor in the diverse set of m-
dustrial processes that produce this class of substances, the International Joint
Commission concluded that "the use of chlorine and its compounds should be avoid-
ed in the manufacturing process." Specifically, the Commission recommended the
following:
"... that the Parties, in consultation with industry and other affected indus-
tries, develop timetables to sunset the use of chlorine and chlorine-containing
compounds as industrial feedstocks and that the means of reducing or eliminat-
ing other uses be examined."
Other classes of concern include organohalogens, and heavy metals.
We urge the Committee and the Congress to adopt the recommendations made by
the International Joint Commission in their Sixth Biennial Report on Great Lakes
Water Quality and apply those recommendations to the nation as a whole. I have
supplied a copy of this report to the Subcommittee which I request be included in
the record of this hearing. .,,.., j x-
Like the International Joint Commission, we recognize that the recommendation
that Congress begin to develop timetables to sunset classes of substances, including
organochlorines, is not a simple task. It will involve many industrial processes and
some non-industrial ones as well. It may take many years, but the size of the task
must not paralyze us. „, . . , _i. .. * * i
The reauthorization of the Clean Water Act provides an opportunity to take sev-
eral key steps toward tackling this problem. In addition to acting on the use of chlo-
rine in the pulp and paper industry and some other key "sunset candidates, we
recommend that the Committee direct the EPA and other appropriate agencies to
complete a report to Congress with the following items of information:
All of the manufacturers of organochlorines that persist in the environment,
the quantities of each of these substances produced annually, and the location
of the facilities that produce these substances.
All of the industry sectors using organochlorines that persist in the environ-
ment, the purpose of this use, the quantities used annually and the location of
the facilities using these substances. ■■ x • i j
All of the production processes that produce persistent toxic byproducts, includ-
ing but not limited to dioxins, and the estimated quantities of these byproducts
produced by each industry sector.
497
All currently and potentially available alternatives, including a review of safer
alternatives, alternative processes, products or raw materials.
A recommendation for the phase-out in the production and/or use of specific or-
ganochlorines.
Legislation soon to be introduced by Rep. Bill Richardson will direct the EPA to
complete a similar report to Congress. We urge the Committee to follow Rep. Rich-
ardson's lead and include a similar provision in their amendments to the Clean
Water Act.
POLLUTION PREVENTION PLANNING
The Problem:
OTA Findings—
In 1985, Congress' Office of Technology Assessment (OTA) estimated that industry
could cut waste production in half in only 5 years by implementing source reduction
and toxics use reduction modifications to their production processes.^ OTA has also
estimated that industry could save $50 for every $1 spent by government on source
reduction.
Despite these findings, little has been done at the national level to encourage
companies to achieve these pollution prevention goals.
The Inform Reports —
In 1985, the nonprofit research organization, INFORM, released a study of chemi-
cal plants entitled Cutting Chemical Wastes.^ This report documented that all of the
plants that had looked for ways to reduce waste through source reduction found
such opportunities and realized considerable cost savings after relatively short pay-
back periods.
Unfortunately, the majority of companies are not prepared to undertake toxics
use reduction or source reduction because their environmental programs focus ex-
clusively on complying with pollution control requirements rather than on prevent-
ing pollution.
According to the INFORM study, the most important factors limiting source re-
duction were not technological. Nor were they economic or the result of regulatory
impediments. Instead, INFORM found that what most often inhibited source reduc-
tion were a variety of institutional factors such as:
• inertia/ fear of change,
• a belief that the existing process and operations were already maximally effi-
cient,
• lack of knowledge of the sources of wastes within the plant
• lack of a system to account the full dollar costs of ongoing waste generation
going back to its source,
• the lack of a system of rewards or incentives that involve plant employees in
finding source reduction opportunities, and
• no one at the plant was responsible for overseeing their implementation.
Last year, INFORM released an update to Cutting Chemical Wastes. This second
report, entitled Environmental Dividends: Cutting More Chemical Wastes,^° found
the following:
• One-quarter of the source reduction projects required no capital investment and
just tmder half required investments of $100,000 or less.
• Nearly two-thirds of the projects were completed in 6 months or less including
research and development.
• Over 60 percent of the projects had payback periods of six months or less.
Despite these promising findings, INFORM also found that the prevailing corpo-
rate focus continues to be on traditional end-of-pipe controls for toxic pollution.
Pollution Prevention Act Data
The latest data from the U.S. Environmental Protection Agency's Toxics Release
Inventory supports findings in the INFORM report that pollution prevention still
has not found its way inside the gates of the majority of U.S. companies. The EPA
data shows that although emissions of toxic chemicals are generally declining, the
same downward trend may not apply to hazardous waste generation.
This year, for the first time, under the Pollution Prevention Act of 1990, manufac-
turing companies were required to project for 1992 and 1993 their estimated waste
generation. This data suggests that waste generation will not decline and may even
increase in the near future. The EPA referred to this as a "disturbing trend." This
data indicates that although some companies may be reducing their toxic discharges
498
to water, many of them are merely shifting those toxics to other environmental
media, or treating or recycling wastes, rather than preventing the pollution.
State Pollution Prevention Actions
In 1989 the nation's first pollution prevention laws were signed in three states,
Massachusetts, Oregon, and Illinois. In 1990, Indiana, Washington and Maine passed
toxics use reduction oriented laws. In 1991, New Jersey became the seventh state to
pass a toxics use reduction law. To date over two dozen states have passed some
type of pollution prevention law.
The pollution prevention laws in Massachusetts, Oregon and New Jersey were the
result of intensive negotiations between industry, government and environmental-
ists. All parties endorsed these laws upon passage.
When the Massachusetts Toxics Use Reduction law passed in 1989, the president
of Associated Industries of Massachusetts, John Gould, said, "There's economic
pragmatism here." These state programs serve as a basis upon which to build a na-
tional pollution prevention planning program.
Comments on the Clean Water Pollution and Prevention and Control Act of
1993: Sec. 205. Pollution Prevention Planning.
We support many of the concepts contained in the Pollution Prevention Planning
provisions of S. 1114. This section of the bill clearly emphasizes the need to encour-
age and help companies search for pollution prevention strategies as the preferred
approach to addressing toxic water pollution. We strongly support the concept that
a person must complete a pollution prevention plan as a condition of obtaining a
permit under section 402 of the Clean Water Act. If companies are to be allowed to
discharge toxics into our waters, it is entirely reasonable to require them to take
steps to ensure that they have searched for ways to prevent those toxic discharges.
We are concerned, however, that the planning requirements, as currently written,
will not provide companies with the guidance necessary to effectively evaluate the
majority of pollution prevention options available and may needlessly tie up EPA
resources. . , , , ^, , , ■ ^ ^
S. 1114 provides little guidance to companies to help them develop meanmgtul
pollution prevention plans and goals. The purpose of the planning process should be
to help companies fmd ways to prevent pollution at the source. The planning re-
quirements are not meant to make companies needlessly jump through meaningless
hoops, but rather are designed to help companies learn the best pollution preven-
tion options for their individual production processes. Alter completing each step in
the planning process, companies should be able to determine the best prevention op-
tions for their processes, o , r .,.. U 1 i-U
S 1114 requires that pollution prevention plans for the facility as a whole, rather
than for specific production processes at the facility. By definition, pollution preven-
tion takes place at the production process level. Facility-wide plans are not especial-
ly meaningful for the company, or for government or the public.
S. 1114 complicates the pollution prevention planning process by requiring EPA
to develop a list of 20 pollutants for which the Administrator determines discharge
reductions are likely to result in a benefit to human health or the environment and
by then requiring the EPA to determine those facilities that release not less than 80
percent of the volume of the 20 chemicals to waterways. This is a labor intensive
process that can be avoided. j. c, ■,-,■> a
There are provisions in the section 205 of S. 1114 that we do support. S. 1114 re-
quires that plans stay on-site and be made available to the Administrator, State and
local government agencies given authority by the State. We support this provision
provided that plan summaries are made public. Plans are meant to help a company
develop a pollution prevention strategy and are not meant to be public documents.
We also support provisions in S. 1114 that make pollution prevention plan summa-
ries available to the public. However, Congress should specify the contents of these
summaries so that there will be some consistency between plan summaries. In addi-
tion, plan summaries should be made available to the public in a manner that pro-
vides greater access. , , . j j u u j
Pollution prevention planning is an approach that has been endorsed by a broad
coalition of interests ranging from environmental groups to members of industry in-
cluding the Chemical Manufacturers' Association in "Water Quality 2000." Unfortu-
nately, the Pollution Prevention Planning requirements contained in S. 1114 are
less comprehensive than the principals discussed in "Water Quality 2000."
499
Recommendations for Pollution Prevnetion Planning
We recommend that the Committee amend the plemning requirements to provide
greater direction for companies. Specifically, we recommend that plans include the
following:
An inventory flow of the toxic materials and wastes through their production
processes. This inventory is often referred to as an estimated "materials ac-
counting." Companies can not develop pollution prevention plans if they do not
know how chemicals flow through their production processes. EPA should pro-
vide companies with guidance on how to complete a materials accounting.
An estimate of the costs associated with the use of toxic chemicals or byproduct
generation, including the cost of pollution control, waste management, employee
protection, and insurance. Until companies have considered the costs associated
with the use of toxic chemicals or generation of hazardous b3T)roducts, compa-
nies are not in a j>osition to make sound decisions about pollution prevention
options.
An identification of pollution prevention options, assessment their technical and
economic feasibility, selection of those appropriate for implementation and pollu-
tion prevention goals.
We recommend that plan summaries include, at a minimum, the pollution pre-
vention options selected by the company and the pollution prevention goals. In addi-
tion, we recommend that plan summaries be collected by the EPA and be made
available to the public through the computerized database established under the
Emergency Planning and Community Right to bow Act (EPCRA, also known as
Title m of Superfund).
To simplify the process, we recommend that all facilities that meet the criteria for
reporting under EPCRA and that apply for a permit under section 402 of the Clean
Water Act complete a plan for all chemicals on the EPCRA section 313 list and for
all Clean Water Priority poUutemts.
EPCRA serves as a screen by targeting only facilities that manufacture, process
or use large quantities of toxic chemicals and have more than 10 full time employ-
ees. In addition, the EPCRA section 313 list of chemicals is a well established list of
chemicals. By building upon the highly successful EPCRA program. Congress will
not waste valuable EPA resources.
The "Hazardous Pollution Prevention Planning Act" (S. 980), introduced by Sena-
tor Lieberman and cosponsored by Senators Mojmihan, Jeffords, Lautenberg, Fein-
gold, Metzenbaum and Wellstone provides a model for pollution prevention plan-
ning in the Clean Water Act. We urge the Committee to substitute a modified ver-
sion of S. 980 for the pollution prevention planning requirements contained in S.
1114.
Development of Clean Technologies
As companies begin to make the shift toward preventing pollution and away from
merely controlling pollution or shifting pollution from one area of the environment
to another, it is essential that we develop additional mechanisms for promoting
these efforts. Incentives for the development of clean technologies are an important
part of the strategy.
Comments on the Clean Water Pollution and Prevention and Control Act of
1993: Section 601. Technology Development.
We support the inclusion of provisions in section 601 of S. 1114 that are designed
to provide grants to help develop innovative water pollution prevention and prac-
tices. We urge the Committee to ensure, however, that prevention practices are
given preference over control practices where feasible. The end-of-pipe pollution con-
trol sector of the environmental technology industry is very well established. The
story is quite different for the pollution prevention sector. Without specific support
for the pollution prevention technologies, less favorable pollution control teclmol-
ogies might inadvertently be given a competitive advantage over prevention.
Recommendations for Technology Development
We urge the Committee to ensure that pollution prevention technologies are
given preference over pollution control technologies where both options exist.
ENDNOTES
1. Testimony of Dr. Theo Colbum, Senior Fellow, W. Alton Jones Foundation and World WUd-
life Fund before the Senate Ck)mmittee on Environment and Public Works, March 24, 1993.
500
2. Chemicals known to disrupt the endocrine system include DDT, DEHP (di(2-ethylhexyl)
phthalate), dicofol, HCB (hexachlorozene), kelthane, kepone, lindane and other hexachlorocyclo-
hexane congeners, methoxychlor, octachlorostyrene, triasine herbicides, EBDC fungicides, cer-
tain PCB congeners, 2,3,7,8-TCDD and other dioxins, 2,3,7,8-TCDF and other furans, cadmium,
lead, mercury, and tributyltin and other organo-tin compounds.
3. Mercury Warning: The Fish You Catch May be Unsafe to Eat, Clean Water Fund, authored
by Hank Cole, Amy Hitchcock and Robert Collins, August 1992.
4. Figures compile by Mark Floegel from Greenpeace using Pulp and Paper International
Magazine, July 1992.
5. "Technical and Economic Feasibility of the Effluent Free Bleached Eraft Pulp Mill," Rich-
ard J. Albert, Technical Staff Manager, Parsons Main Inc., March 1993.
6. Figures compile by Mark Floegel of Greenpeace using data found in Eurochlor, Data Proc-
ess Center Statistical Investigation: Chlorine Production, January 1993.
7. The term "sunset" as i^ed herein is synonjrmous with phase — out and means the ban on
the use and/or production of a chemical or product over a period of time. A phase-out can either
be conditional or absolute.
8. Serious Reduction of Hazardous Waste, OTA, 1985.
9. Cutting Chemical Wastes, David Sarokin, Warren Muir, Catherine Miller, Sebastian
Sperber, INFORM, 1985.
10. Environmental Dividends: Cutting More Chemical Wastes, authored by Mark Dorfman,
Warren Muir, Catherine Miller, 381 Park Avenue South, New York, NY, 1992.
501
Candidate List for Phaseout
We
propose the foUowing list, which is a composite drawn from four lists of highly suspect substances
already developed in other contexts:'
UST
alkylated lead
anthracene
arsenic
benzo[a]pyrene
3,4-benzoflouranthene
beiuo[b]£louranthene
1 1,12-benzoflouranthene
benzo|1c]£louranthene
benzo[ghi]perylene
1,12-benzopeiylene
benzo[a]pyTene
3,4-benzopyrene
benz[a]anthracene
bix(2-cthylhexyl)phthalate
4-bromopbenyl phenyl ether
4-chlorophenyi phenyl ether
danitol
l,2:5,6-dibenzanthracene
dibenz[a4i]anthracene
dibutyl phthalate
di-n-bu^ phythalate
1,4-dichIorobenzene
33'-dichlorobenzidine
dicofol
etfayi-p-nitropheoylphenyiphosphorothioate (EPN)
hexachloTobutadiene; hexachloro-13-butadiene
hescachlorocyclohexane; BHC
alpha-hexachlorocydoheiane; alpha-BHC
beta-hexachlorocyclohexane; beta-BHC
delta-hexachlorocyclohexane; delta-BHC
alpha-hexachlorocyclobexane (a-HCH)
gamma-hexachlorocyclohexane (y-HCH)
technical-grade hexachlorocyclohexane
hexachlorophene
Indeno[l,23-cd]pyrene
23-0-phenylene pyrene
lindane
mercury
4,4'-methylene bis(Njr-diniethyi)aniIine
methylbenzene
methoxychlor
N-Nitroso-di-n-butylamine
octachlorostyrene
perylene
pentachlorophenol
pentachlorobenzene
phenanthrene
phenol
photomirex
polychlorinated biphenyls (PCBs)
polychlorinated dibenzo-p^oxins and -furans (TCDD/Fs)
lA3,4-tetrachlorobenzene
1,2,44-tetrachlorobenzene
toluene
tributyl tin
1^4-trichlorobenzene
Here are the four lists &om which the above composite was developed:
1. Candidate Substances List for Bans or Phase-Outs, April 1992, prepared by Hazardous
Contammants Branch and Water Resources Branch, Ontario Ministry of the Environment
Primary list of 21 considered inherently hazardous due to their persistence in water or sediment,
potential to bioaccumulate and tCEddty.
Z Great Lalces Water QuaKty Initiative, Tollutants of Initial Focus in the Great Lakes
Water Quahty Initiative,- 58 Fed. Reg. 20801, 2100015 (April 16, 1993). Listed above arc those
known to be bioaccumulative chemicals of concern and those that are potential bioaccumulative
chemicals of concern.
3. VS. EPA "Chemicals of Highest Concern' list From 1991 EPA draft document caUed
Assessment and Control of Bioconcentratable Contaminants in Surface Waters.' List of 33
including 17 pesticides, 7 PCB mixtures and 9 other organics, which pose serious risks to hu^an
health due to high toxicity and high bioconcentration potential. These substances bioconcentrate
m fish and shellfish to levels hazardous to human health, even when present in ambient water at
very low concentrations. However, EPA did not use any specific criteria for deSnine "hieh
bioaccumulation' or 'high toxicity.' *^
4. International Joint Commission: Water Quality Board List of Critical Water
Pollutants.
502
SWEDISH LIST OF CHEMICALS TARGETED FOR PHASE-OUT
1. Arsenic
2. Brominated Flame Retardants
3. Cadmiuin
4. Chloroparaffins
5. Creosote
6. Lead
7. Mercury
8. Methylene Chloride
9. Nonyl-phenol Ethoxylates
10. Organotin Compounds
11. Phthalates
12. Tetrachloroethylene (perchloroethylene)
13. Trichloroethylene
ONTARIO MINISTRY OF ENVIRONMENT'S CANDIDATE
SUBSTANCES PRIMARY LIST FOR BANS OR PHASE-OUTS
1. Anthracene
2. Arsenic 13. Mercury
3. Benzo(a)pyrene 14. Mirex
4. Benzo(ghi)perylene 15. Pentachlorophenol
5. Benzo(a)anthracene 16. Perylene
6. DDT (and DDD and DDE) 17. Phenanthrene
7. 1,4-Dichlorobenzene 18. Polychlorinated Biphenyls (PCBs)
8. 3,3'-Dichlorobenzidine 19. Polychlorinated Dibenzo-pndioxins and
9. Dieldrin -furans (PCDD/Fs)
10. Hexachlorobenzene 20. Toxaphene
11. alpha-Hexachlorocyclohexane 21. Tributyl Tin
12. gamma-Hexachlorocyclohexane
503
CHEMICALS TARGETED FOR VIRTUAL ELIMINATION:
INTERNATIONAL JOINT COMMISSION
1.
2.
3.
Benzo(a)pyrene
DDT and metabolites (DDE and DDD)
Dieldrin
4.
Hexachlorobenzene
5.
6.
7.
Trad, Alkylated
Mercury
Mirex
8.
9.
10.
11.
Polychlorinated Biphenyls (PCBs)
2,3,7,8-TCDD (dioxins)
2,3,7,8-TCDF (ftirans)
Toxaphene
69-677 0-94-17
504
ONTARIO MINISTRY OF ENVIRONMENT'S CANDIDATE
SUBSTANCES SECONDARY LIST FOR BANS OR PHASE-OUTS
Group A
Group B
1.
Benzo<b)fluoranthene
32.
Aluminum
2.
Benzo(e)pyrene
33.
Chlorobenzene
3.
Benzo(i)fluoranthene
34.
Hexachlorobutadiene
4.
Benzo(k)fluoranthene
35.
Hexachloroethane
5.
Beryllium
36.
Pentachlorobenzene
6.
bis(2-ethylhexyl)phthalate
37.
2,4,5-Trichlorophenol
7.
Cadmium
38.
Triphenyl Phosphate
8.
Chloroform
9.
Chromium (Cr**)
Group C
10.
Chrysene
11.
Copper
39.
4-Chlorophenyl Phenyl Ether (1-
12.
Dibenzo(a,i)pyrene
chlon>4-phenoxybenzene)
13.
7H-diben2o(c,g)carbazole
40.
Palustric Acid
14.
Dibenz(a,h)acridine
41.
Selenium
15.
Dibenz(aj)acridine
42.
1 ,2,3,5-Tetrachloroben7ene
16.
7, 12-Dimethylbaiz(a)anthracene
43.
Tetrachloroguaiacol
17.
l.S-Dinitropyrene
44.
2,3,4,5-Tetrachlorophenol
18.
1,4-Dioxane
45.
1 ,2,3-Trichlorobenzene
19.
1 ,2-Diphenylhydrazine
46.
Trixylyl Phosphate
20.
Ethylene Dibromide
21.
Hexachlorocyclopentadiene
22.
Indeno(l ,2,3-cd)pyrene
23.
T.ead
24.
Pyrene
25.
Silver (free ion)
26.
Styrene
27.
2,3,4,6-Tetrachlorophenol
28.
Tetraethyl Lead
29.
Thiourea
30.
Uranium
31.
Zinc
505
. Larga volume tnd/or wideipiud chemicali npoited to hiva
reproductive and ondocriDt dunipcing eflecu.
2,4-D (90),(91)
2.4>T (92)
AlacUoc (90),(93)
Amitnle (94),(95)
AtnziDe (9<),(97),(98)
Meaibuzin (99)
NitrofendD
Triflunlin (100),(10I)
Benomyl (102)
Hexachlorobeuzeiie
(l(a),(104),a05),(106)
Mincozeb (107)
Mtaeb (108),(I09)
-Metumm-Complex (110)
Tri-Butyl-Tm (111),(112)
Zuieb(109)
Zinm(90)
INSECTICIDES
beu-HCH(113)
Cirt»ryl (92)
Chlordaiie(114)
Dicofol (29)
Dieldrin (105)
DDT & Metabotile* (29)
Eodosulfui(113).(lI6)
HepUcbJor <& H-epoxide (105)
Lindane (giainu-HCH) (1 17)
Methomyl (99)
MeUsoxychIor(48>.(118)
MiRX(115)
OxychloidaiieGl'O
Pinduoa(ll9)
Synthetic Pyiethroida (120)
Toxiphei)e(115)
Tnniaouchlor (1 14)
NEMATOCIDES
Aldiurti(99)
DBCP (90),ai)
INDUSTRIAL CHEMICALS
Cidmium (121)
Dioxin (2^,7,8-TCDD)
(7S),(77),(7«)
Le«l (122),(1Z3)
Metcury (124)
PBBs (125)
PCBa (126),(127),(65)
Penuchlorapbenol (PCF)
(128)
Penu- to Nonylphenola (9)
Phthalatea (129),(130)
Styrene»(9),(131),(132)
506
TESTIMONY OF JESSICA C. LANDMAN, SENIOR ATTORNEY, NATURAL
RESOURCES DEFENSE COUNCIL, INC
INTRODUCTION
Mr Chairman and members of the Subcommittee, my name is Jessica Landman. I
am a Senior Attorney with the Natural Resources Defense Council, ^ and have been
with NRDC's Clean Water Program for seven years. Thank you for the opportunity
to testify on the key toxic pollution prevention and control issues addressed m S.
1114 the Water Pollution Prevention and Control Act of 1993.
We welcome the introduction of S. 1114 because it signals the Congress recogni-
tion of the gravity of environmental and human health threats that still face our
nation's waters. The bill's strong focus on toxic pollution, along with such other key
issues as polluted runoff and enforcement, is altogether appropriate. Although much
progress has been made in reducing the release of toxic substances to our waters
since the 1972 Clean Water Act was enacted, a great deal remains to be done.
To put the problem in perspective, it may be helpful to set forth a few facts and
figures about toxics and water quality impairments that NRDC recently h^ assem-
bled in a review of the status of our nation's waters twenty years after the enact-
ment of the 1972 law: ^
SUMMARY: Status of Our Waters
1. Traditional Measures of Progress are Incomplete and Inadequate, but Shx)W Sub-
stantial Ongoing Impairment of Surface Waters
According to EPA's most recent (1990) National Water Quality Inventory, we have
a long way to go in meeting the goals of the Clean Water Act: ^ ,^ . , .
At least a third of our rivers, half of our estuaries and more than half of our lakes
are not meeting designated uses, that is, are not safe for swimming, ftshij^ and other
uses. Considerably fewer waters are reported as meeting these uses in 1988-89 than m
1980-81 (In part, this may reflect better monitoring and reporting.)
But these reports are incomplete. Only 53% of river mUes, 69% of lake acres, and
75% of estuarine area were "assessed" for the report. And even these claims are
misleading, since "assessed" does not mean "monitored" for toxic and other pollut-
ants The 1990 Report was based on actual chemical measurements for less than a
fifth of our rivers, streams, and lakes, and about a quarter of our estuaries.
2. New Controls have Reduced Discharges of Pollution, but We Still have a Long
Way to Go
The percent of the U.S. population served by wastewater treatment plants jumped
from 42% in 1970 to 67% in 1975, 70% by 1980, and 74% by 1985. EPA estunates
that annual release of organic wastes have been reduced by about 46% as a result of
this improved treatment, despite a large increase in the amount of wastes treated.
Industrial pollution controls have eliminated the release of almost a bUlion
pounds of toxic poUutants each year into the Nation's rivers, lakes and coastal
waters. Even higher amounts of conventional pollutants, like organic wastes and
solids, have been controlled. , ^ . • •.
Still we continue to release hundreds of millions of pounds of toxics into our sur-
face waters and sewage treatment plants each year from unregulated or poorly regu-
lated industries, and discharges of raw or partially treated sewage continue unabated
in many areas.
3. Long-term Water Quality Trends Show Inconclusive Results
Despite the existence of thousands of water quality monitoring stations around
the country, very little information collected at these sites is suitable to tell us how
much progress has been made in overall water quality. • r- ,
The little information avaUable to judge long-term progress shows no significant
trends in overall water quality. Where improvements are evident, they are m pollu^
ants such as phosphorus, reflecting investments in sewage treatment plants. Where
deterioration is shown, it is from nitrogen, sediment, and other pollutants character-
istic of polluted runoff from farms and other lands.
» NRDC is a nonprofit environmental organization representing approximately 170,000 mem-
bers nationwide. NRDC has been involved in each major overhaul of the Clean water Act and
has monitored implementation of the law at the Federd regional ^ state levels 8mc«m2.
2 Documentation for the facts presented herem is avaUable fi-om NRDC and is contamed m
NRDC's forthcoming book.
507
4. "Real-World" Measures Show Some Progress but Serious Problems Remain
a. Many Waters Remain Unsafe for Swimming
In 1991, U.S. ocean and bay beaches were closed or advisories issued against
swimming on more than 2000 occasions in coastal states that monitor beach water
quality. High bacteria levels were responsible for the overwhelming majority of clo-
sures. Over 5,000 closures or advisories have occurred since 1988.
State water quality reports confirm that a quarter of our rivers and estuaries, a
fifth of our lakes and ten percent of coastal waters remain unsafe for swimming.
b. Many Drinking Water Supplies Remain Jeopardized
The recent illnesses caused by Milwaukee's drinking water are not isolated. Re-
ports from the Centers for Disease Control identify 525 disease outbreaks related to
public water supplies from 1972-1988, affecting over 131,000 people. These numbers
are conservative; some researchers believe that 25 times as many drinking water-
related illnesses occur than are reported.
Between 27% and 30% of community drinking water systems reported violations
of health-based standards from 1986-91.
c. Many Sources of Fish and Shellfish Remain Contaminated
In 1990, 31 states reported toxic contaminants in fish at levels exceeding action
levels set by the Food and Drug Administration. Forty five states reported almost
1,000 fishing advisories in 1988-89, and another 50 complete fishing bans, due to pol-
lutants such as PCBs, pesticides, dioxin, mercury, other metals, and other orgginic
chemicals. These warnings affected over 7,000 river mUes, almost 2.5 million lake
acres, over 800 square mUes of estuaries, and almost 5,000 miles of shoreline in the
Great Lakes. EPA acknowledges that these reports are incomplete, and that state
criteria for issuing advisories vary widely.
National data bases show some declines in chemical contamination of seafood, but
increases and serious remaining problems for some chemicals, particularly in urban
waters and other heavily-polluted areas. In a report released by EPA last year,
almost half of the chemical forms of dioxins and furans, and a third of the other
chemicals measured, were found at over half of the sampling locations. PCBs, bi-
phenyl, mercury £ind DDE were found at more than 90% of the test sites. And every
pollutant in the study was found in at least one location. EPA calculated that the
levels of pollutants measured in fish around the country posed significant risks of
cancer and other health effects for average fish consumers, and even higher risks to
subsistence and recreational anglers who consume more fish from contaminated
waters. Information is available, however, for only a handful of chemicals.
Sewage contamination of shellfish, however, is getting worse. The National Shell-
fish Register shows a 6% increase in estuarine waters closed to shellfish harvest
from 1985 to 1990. By 1990, less than two thirds of our shellfish waters were uncon-
ditionally approved for shellfish harvest.
d. Aquatic Species are in Serious Jeonardy
Many more aquatic species are threatened and endangered than their terrestrial
cousins: 73% of mussels, 65% of crayfishes, 34% of fishes, and 28% of amphibians
are jeopardized compared to 13% of mammals, 11% of birds, and 14% of reptUes.
Between 1979 and 1989 the American Fisheries Society added 139 and removed 26
categories of fish from their list of threatened and endangered species, producing a
total of 364 fishes that warrant protection due to rarity. Not a single species was
removed from the list due to successful recovery efforts, while 10 were dropped be-
cause they became extinct.
e. Many aquatic and water-dependent populations are plummeting
Between 1970 gmd 1989, harvest of oysters dropped by 44% and landings of spiny
lobster declined by 34%.
Commercial landings of striped bass have declined continuously since 1973, with a
fall of 92% since 1982.
Between 1983-89 landings of bay scallops fell by 88%. Scallop landings also
dropped by 50% from 1975-85, with catch per unit effort in 1985 reaching historic
lows.
Duck breeding populations in North America dropped continually from 1955-1985.
More recent data suggest that this trend has not been reversed. The ten species
with over 97% of North America's breeding populations showed declines of 34%
from 1970 to 1989.
508
According to data from the FWS Breeding Bird Survey, which has recorded flight
records since 1966, a significant number of water-dependent species have declining
population trends.
f. Pollution Continues to Cause Massive Fish Kills and Other Adverse Effects to
Fish and Wildlife
From 1972-1989, EPA estimates that at least 429 million fish were killed in
almost 10,000 incidents. (These data under-represent number of fish kills for several
reasons.) The numbers of fish kills each year do not appear to be declining signifi-
CdJ10V>
From 1980 to 1989, NOAA reports over 3,650 fish-kill events in 533 coastal and
near coastal counties in 22 states. These events involved over 407 million fish killed.
In general, the total number of reported fish kills increased during the 1980s, but
the average numbers of total fish killed per year declined.
Taken together, NRDC estimates that at least 1.35 billion fish have been killed in
inland and coastal waters combined since the Clean Water Act was passed.
Pollutants continue to be released into our aquatic environments at levels that
are toxic to aquatic species and to birds, mammals and other predators that con-
sume contaminated fish. Studies in the Great Lakes indicate that toxic pollutants
cause population declines and reproductive problems, birth defects, behavioral
changes, sexual changes, and increased susceptibility to disease.
In sum, the Clean Water Act has not thus far succeeded in achieving the goals we
established in 1972 for fishable, swimmable waters and an end to the discharge of
toxic pollutants. S. 1114 takes a number of important steps towards closing key loop-
holes in the toxics safety net. Below we provide comments on Title II, "Toxic Pollu-
tion Prevention and Control."
Overview
Over the past two yeeirs as the Congress began the process of reauthorizing the
Clean Water Act NRDC has emphasized in our analyses the urgent need to better
incorporate pollution prevention concepts into the language and implementation of
the law. We have stressed the need to sunset" or phase out the release of the most
harmful toxic chemicals; to streamline and overhaul the effluent guidelines and pre-
treatment program to make them responsive to pollution prevention and cross-
media pollution issues; and the importance of pollution prevention planning in re-
ducing or eliminating toxic pollution. We are pleased that all these issues have re-
ceived attention in the Committee's bill, and look forward to working with the Com-
mittee to refine the legislation still further in the coming months as the bill moves
through the legislative process.
I. Point Source Technology-based Controls
One of the principal means for achieving the Clean Water Act's goals of ending
the discharge of toxic pollutants to surface waters and sewage treatment plants is
the system of national technology-based standards for wastewater treatment and
control: Best Available Technology (BAT) and New Source Performance Standards
(NSPS) for facilities discheu-ging to surface waters, and Pretreatment Standards for
Existing Sources (PSES) and New Sources (PSNS) for those industries discharging
wastewaters to sewage treatment plants. Since 1972 the intent of Congress has been
that these standards would be continuously updated, moving whole categories of in-
dustries ceaselessly forward toward the law's zero-discharge goal through advance-
ments in technology. .. w, . xi.
NRDC has testified before this Committee earlier on the potential that the system
has to work effectively, and the failures of the EPA in the past decade to live up to
the law's technology-forcing mandate. Rather than revisit that testimony here we
include a copy and ask that it be placed in the record. » This testimony will be limi^
ed to a review of the proposals contained in S. 1114.
S. 1114 tackles some key concerns in the technology-based standards program: the
need for a pollution prevention focus for national standards, the importance of cross-
media pollution, and the need for resources to keep the program from becoming ou^
of-date and moribund. In addition, the simplification of standard setting achieved by
treating toxic, conventional and nonconventional pollutants alike, will make EPA's
job far easier and cheaper. We salute each of these proposed reforms.
3 "Testimony of the Natural Resources Defense Council, Inc. before the Subcommittee on En-
vironmental Protection of the Senate Committee on Environment and Public Works," July 9,
1991, submitted by Jessica C. Landman, Senior Attorney, NRDC.
509
Pollution Prevention in National Standari>Setting
We strongly support revision to the language of sections 304, 306, and 307 of the
Act which would clarify EPA's authority to set national standards that advance reli-
ance on pollution prevention rather than a strict end-of-the pipe focus — a focus that
unfortunately has been the hallmark of too many earlier standards. The bill would
make explicit EPA's duty to "rely upon and require, to the maximum extent practi-
cable, source reduction measures and practices including changes in production proc-
esses, products, or raw materials that reduce, avoid, or eliminate the generation of
toxic or hazardous byproducts ..." for national technology-based standards. The
bill would also expressly "require the elimination of the discharge of pollutants"
where technologically and economically achievable, language that is an unmistak-
able mandate to the Agency to stick to the zero discharge focus of the law.
There are some minor areas in which clarification is needed to ensure that the
intent of Congress is clear. For example, additional clarification is needed that new
sources (whether direct or indirect) will continue to be subject to standards that
may go beyond those achievable by existing facilities.
Cross-media Pollution
In the past EPA has declined to exercise its authority over the Clean Water Act
to prohibit industries from selecting technologies that could meet effluent limits
through shifting of pollution impacts to other media — such as use of polluting air
stripping to "remove" volatile organics from wastewater in the organic chemicals
industry. Proposed revisions to sections 304, 306 and 307 would make clear EPA's
responsibility to prevent such waste-shifting. Another welcome addition is the ex-
press mention of ground water and the duty to protect this vital resource against
waste shifting.
The Need for Resources
EPA's ability to keep the standard-setting process on track has been hampered by
a lack of resources. In keeping with the philosophy that the polluter should pay for
the cost of cleanup, we support the provision of S. 1114 that calls for the collection
of fees from direct and indirect dischargers to cover the costs of developing these
national standards. There are some ambiguities in the bill that require clarification,
such as the timing of assessments and the question of who must contribute, but
these issues are not esisily resolvable.
Pretreatment Standards: Time for a Change
Since 1986, two major EPA studies of the effectiveness of Publicly Owned Treat-
ment Works in treating toxic pollutants have cast doubt on the ability of these fa-
cilities to do the job on a consistent basis. * This is not surprising; POTWs are de-
signed to treat conventional rather than toxic pollutants. Treatment of toxics that
they do achieve can be inconsistent, and often is illusory — more a matter of shifting
the substances from water to air or sludge. For these reasons we strongly supjwrt
the proposed revisions to section 307(b) which would make technology bsised pre-
treatment standards for toxic pollutants equivalent to standards for direct discharg-
ers. (Many of the same reasons that argue for stronger pretreatment standards also
argue against a continuation of the "removal credits" program, which allows indus-
tries to increase their discharges of toxic pollutants to POTWs under certain cir-
cumstances. TTie relevant provision of the bUl is discussed below in the context of
the Pretreatment Program revisions.)
A Remaining Gap: The Rulemaking Schedule
A key issue that is not adequately addressed by S. 1114 is the schedule for the
review and revision of all effluent guidelines, pretreatment and new source perform-
ance standards.
Under existing law, a variety of timetables apply: "annual review and, where ap-
propriate, revision" for BAT standards under section 304(b); revision 'from time to
time' for pretreatment standards under the current language of section 307(b). Vari-
ous provisions in the bUl would eliminate these requirements, as well as the provi-
sion calling for "annual" review and revision of existing guidelines that currently is
in sec. 304(m)(lXA). Taken together, these deletions leave the timetables for revision
of existing guidelines completely to Administrator discretion (except that a plan for
* "Report to Congress on the Discharge of Hazardous Wastes to Publicly Owned Treatment
Works,' US EPA, Office of water Regulations and Standards (February 1986); "National Pre-
treatment Program: Report to Congress," US EPA, Office of Water (July 1991).
510
future revisions must be written every 5 years). Given our past experience, ^ we are
concerned that the plans EPA may develop will not be ambitious enough to contin-
ue to advance pollution prevention goals. We therefore recommend that language be
included in section 304(mXlXA) calling for mandatory review of existing guidelines
on a predictable cycle (such as every five to seven years) and, where appropriate,
revision of the guidelines and pretreatment standards.
Triggers for Revising and Updating Standards
The bill would be further strengthened by adding new "teeth" to the provision
requiring the Administrator to revisit guidelines as pollution 'prevention advances
occur. As currently framed, the Administrator has broad discretion to decide wheth-
er there have been "significant changes" warranting a revision of effluent guide-
lines. The bill should include triggers ensuring that certain data sources are re-
viewed that would highlight such changes and bring them to the EPA's attention. It
should require the Administrator to evaluate, at a minimum: (i) innovations that
have resulted from water quality-based permitting pursuant to 301(b), and (ii) TRI
data indicating a trend of significant reductions in releases (to any medium) by a
category of industry. Finally, the bill should include a judicially reviewable petition-
ing process enabling interested parties to seek revisions.
It also would be advisable, throughout sections 304, 306, and 307, to cross-refer-
ence EPA's duties under the Pollution Prevention Act (42 USC sec. 13103(b)) to co-
ordinate Agency-wide activities that promote pollution prevention; this could change
an otherwise applicable schedule in water program rulemaking so that cross-media
impacts could be better addressed (as with the pulp and paper rulemaking cluster).
II. Water Quality Criteria and Standards
Water quality standards for toxic pollutants are the second key component of the
overall Clean Water Act framework: they define healthy ecosystems and establish
targets for permit writers and for those seeking to control polluted runoff. As with
the effluent guidelines program, EPA's water quality standards development process
has been in low gear for a number of years. Congressional action is badly needed to
get the program back on track. For years environmentalists and others have urged
EPA to develop criteria to fill key knowledge gaps, particularly for pollutants that
are of concern in runoff and in contaminated sediment. The bill takes some impor-
tant steps in this direction. ,. , • morr f r
The legislation proposes to use the same technique as was applied in iy»/ tor et-
fluent guidelines: allow EPA to set its own priorities, but require that the agency
develop a plan of action for the drafting of water quality criteria. We agree, up to a
point- a plan clearly is needed, and EPA should have a modicum of discretion in
deciding on the pollutants that will be high priorities for the development of water
and sediment quality criteria. However, a measure of additional Congressional di-
rection still is needed:
Sediment Quality Criteria
We strongly support the addition of explicit mention of sediment in the environ-
mental effects that must be considered in developing criteria documents. This will
lend clear Congressional support to development of sediment quality criteria.
But Congress should give EPA clearer direction as to which criteria to develop
first. In addition to PCBs and dioxins (already cited in the bill), certain metals and
other compounds in sediments are ubiquitous and/or pose a very high risk to
humans and aquatic ecosystems, and thus should be high priorities for EPA's crite-
ria program. The bill should set these substances out explicitly and establish a time-
table for promulgation in the first planning round. After that, discretion can be
given the Agency to set priorities. The mandatory list should include, in addition to
PCBs and dioxins, the following: mercury; PAHs; copper; cadmium; lead; arsenic,
and ammonia.
Nonpoint Source Water Quality Criteria
Similarly, we welcome the requirement that, within 3 years, EPA promulgate
water quality criteria specifically directed at polluted runoff sources. The bill needs
to clarify that this responsibility exists independent of the cyclical planning process,
and requires immediate resource commitments.
" NRDC has on two occasions taken EPA to court to compel the Agency to carry out statutory
mandates for development of effluent guidelines.
511
Wildlife Criteria
Development of water quality criteria to protect wildlife should be incorporated
into the planning process expressly. Particularly for bioaccumulative substances,
raptors and fish-eating mammals are at great risk from contaminated fish consump-
tion.
State Water Quality Standards
The 1987 amendments to the Clean Water Act reflected Congress' frustration with
the States' failure to adopt water quality standards for toxic pollutants and put
them to use in permit-writing and evaluation of water quality. Yet, despite the fact
that Sec. 303(c)(2XB), enacted in 1987, required States to adopt numerical water qual-
ity standards for toxics that impaired or threatened their waters, a dozen States
failed to act by 1992 — and EPA was compelled to step in euid issue Federal stand-
ards in those states. This bill now takes the next logical step to avoid this type of
unacceptable delay in future, by calling for automatic classification of State waters
where States fail to fill remaining classification gaps, and automatic applicability of
Federal water quality criteria in the absence of State objections. We endorse these
concepts, but believe some clarifications are needed.
First, the bill should clarify that a State which chooses to "object" to a Federal
criterion and adopt its own cannot establish an alternative criterion that is less pro-
tective than the Federal 304(a) criterion. Second, the inter-play between State- £md
federally-adopted criteria requires clearer explanation to avoid confusion.
Antidegradation
The mandate to maintain the existing water quality of waterways that are still
pristine has been a part of the Clean Water Act since its inception, and was made
explicit in the 1987 gmiendments to the law. Yet, virtually all States still lack coher-
ent programs to implement EPA's antidegradation regulations. A ringing endorse-
ment of the importance of keeping clean waters clean, and protecting our outstand-
ing natural resource areas from encroachment, is badly needed from the Congress.
Thus, we strongly support inclusion of a clear Congressional mandate for antide-
gradation in the law (as well as the interweaving of sediment quality into the con-
cept of antidegradation). This provision will end all further debate as to the author-
ity and duty of States and EPA to act in this area. We also strongly support the
provision in the bill aimed at protecting outstanding national resource waters in
parks, refuges, etc. — as far as it goes.
But a few changes are needed in the bill to ensure that the law's goals are en-
hanced:
First, the bill must close the loophole of pollutant by pollutant "downgrading."
Some states have tried to declare that a water body was not subject to antidegrada-
tion review if any one pollutant was not meeting or exceeding applicable water qual-
ity standards. The bill should clarify that this is not a correct interpretation of the
law. In other words, antidegradation review should be triggered on a parameter-by-
parameter basis whenever anyone wishes to degrade water quality in a body of
water that is cleaner than the applicable standard for that substance for which the
increased discharge is sought.
Second, the bill should answer the key question: How much reduction in water
quality may be allowed? The bUl should include a sentence spelling out that "any
reduction in water quality or sediment quality must be kept to the lowest level possi-
ble that can accommodate the important economic or social develonment." This will
foreclose the temptation to use an antidegradation review to justify unnecessarily
sweeping degradation.
Finally, antidegradation reviews must be made meaningful tools in the avoidance
of polluted runoff degradation as well as point source degradation in pristine areas.
Antidegradation reviews today typically are triggered (if at all) only by the applica-
tion of a permittee for new or increased discharges. The bUl should call for EPA to
develop, and the States to implement, a policy for triggering such reviews when new
or increased landdisturbing activity is likely to cause increases in polluted runoff to
high quality waters.
Outstanding National Resource Waters
The legislation makes some very important advances in the protection of enact-
ment national resource waters. We strongly support the adoption of a process that
requires States to set aside these waterways for protection, or at least provide a
clear and convincing rationale why this should not occur.
But several important refinements are needed to this section. First, State parks,
refuges, etc. should also be presumptively included in the Outstanding classifica-
512
tions, with the same option for the State to make a case against their inclusion.
Similarly, waters feeding a public water system that has been granted a waiver
from filtration requirements of the Safe Drinking Water Act should be presumptive-
ly included. . , . ^ j • ^ j ttt-u j
On the other side of this coin, presumptive inclusion of designated Wild and
Scenic Rivers should be limited to waters classified as wild or scenic, but not to
those included in the system under the "recreational" rubric; these tend to be less-
pristine urban waterways.
Mixing Zones
We strongly oppose the inclusion in the bill of a provision that authorizes the use
of mixing zones for toxic substances. Inclusion of such a provision actually weakens
current law, which does not specifically recognize the acceptability of mixing zones.
If this provision were revised to refer only to conventional pollutants, we would be
willing to accept it; as currently written, we would prefer that it be deleted altogeth-
er.
III. Toxic Pollutant Phase-Out
The revision of section 307 to facilitate the prohibition of discharges of toxic or
bioaccumulative substances will help to focus attention on this problem, and we wel-
come that focus.
But as written the revisions contain a fatal flaw.
Most important, the bill's new limitation that a substance, to be eligible for a pr(>
hibition, must "occur in surface waters predominantly as a result of discharges"
(new sec. 307(aX4)(B)) must be reconsidered. It would effectively offer dischargers an
invitation to show that someone else— even their own facility's smokestack— was re-
leasing more of the substance to a medium other than water. We cannot accept this
restriction on the availability of effluent prohibitions for the following reasons:
First, the proposed requirement that prohibitions be only for 'predominantly dis-
charged toxics effectively encourages medium shifting from water discharges to
other media. This runs counter to a key goal for revising the Clean Water Act: dis-
courage the toxic shell game. The Clean Water Act revisions should be the first un-
portant step in closing the medium-shifting loophole; this proposal moves in the
«;ron^ direction. . ^, j /• i c
Second, if EPA has to show that it knows the "predommant method of release of
a substance it will have to fight endlessly to prove that 50.1% of releases occur
through point source discharges before it can act.
Third, even if only a fraction of total environmental exposure occurs as a result of
water ischarges, this is not a reason to hamstring EPA's ability to go after that
known, and controllable, fraction— particularly in cases where we know that cur-
rent exposure levels are at or near imminent risk levels for the population at large.
If the concern is that too many resources will go into eliminating too small a frac-
tion of the risk posed by a substance that is highly toxic but is not principally re-
leased through discharges to water, then we should seek to fashion a better mecha-
nism for getting at that problem. After all, releases to other media (air, solid waste/
soil) ultimately can and do become important sources of water contamination. While
it is more difficult to get a such second-hand dischargers' directly through a dis-
charge prohibition under the Clean Water Act, we should use this reauthorization
to move in the direction of multi-media toxic use and release reduction.
This bill should encourage creation of multi-media approaches (like EPA s lead
cluster) including remediation for in situ contamination — as part of the effluent
prohibition process in those instances where direct discharges are not the principal
source of contamination. Perhaps this can be accomplished by creation of a process
for identifying all sources of releases of listed substances, and recommending to the
Congress legislative or regulatory revisions to this or other laws necessary to pre-
vent or remediate releases to other media.
Report on Developmental Effects
We very strongly support the provision in S. 1114 that calls upon EPA to conduct
a study of the effects of toxic pollutants on the development of aquatic species,
humans and wildlife, including impairments to reproduction, endocrme and
immune systems caused by the pollutants. We recommend that it be enhanced by
calling for consultation with other relevant Federal agencies such as the National
Institute for Environmental Health Services, and the Fish and Wildlife and Nation-
al Marine Fisheries Services — and that the report include recommendations on any
needed changes to Federal government risk assessment techniques to better account
for non-cancer health and ecological effects.
513
rV. Pretreatment Program
Pretreatment Standards for Otherwise Non-Participating Facilities
We do not oppose creating explicit authority for the Pretreatment Approval Au-
thority to impose pretreatment requirements on industrial users not otherwise part
of the program, as this bill does in section 204(a). But it should be noted that EPA
has the authority (and the duty) to see to it that all POTWs that need pretreatment
programs do develop them, regardless of size or other factors. ® Along the same
lines, all dischargers in categories for which national pretreatment standards have
been adopted must obey those standards, whether or not the receiving POTW is in
the Pretreatment program — and general discharge prohibitions against corrosive,
explosive and fume-toxic discharges also apply to all industrial users under existing
rules. For these reasons, it is unclear how the new provision would work.
Removal Credits
Removal credits are far simpler in theory than in practice. Theoretically, some
national pretreatment standards might impose "redundant" treatment require-
ments on industrial facilities because the POTWs receiving their wastes are capable
of treating their toxic pollutant discharges. Therefore, in theory, these industries
should be allowed to have "credits" for the pollution treated by the POTW.
In practice, it is not so simple. As noted above in this testimony, POTWs rarely if
ever can provide a documented, consistent level of treatment to toxic pollutants. In
addition, toxics often are not fully treated (biodegraded) but instead are partitioned
to other media (metals to POTW sludge, volatile toxics to the air). ''
The revisions to the removal credits section of the law proposed in S. 1114 ac-
knowledge these difficulties by narrowing the availability of such credits to sub-
stances that are actually biodegraded at the POTW. This is an important improve-
ment over existing law; hov/ever, it leaves many questions unanswered — and leaves
EPA with an extremely resource-intensive job to do in determining whether remov-
al credits should be granted.
For example, it requires EPA to "determine" whether the "treatment by the
treatment works results in the biodegradation of the toxic pollutant." Does this
mean 100% degradation? Who provides the proof? EPA would have to meike a deter-
mination; would it be made via national rule/guidance, or on a case-by-case basis?
Other problems with removal credits would still remedn. What happens if the
POTW is subject to combined sewer overflow problems — so that rainfall results in
no POTW treatment for some time period? In short, the administration of the pro-
gram would remain very cumbersome.
We continue to support the approach taken in earlier draft legislation from this
Subcommittee — simple elimination of removed credits. Apart from its environmental
benefits, this action would allow seven of the most incomprehensible pages of the
Code of Federal Regulations to be deleted.
Domestic Sewage Exclusion
As with the removal credits issue, the Domestic Sewage Exclusion had its roots in
the idea of avoiding redundant regulation: substances regulated adequately under
the Clean Water Act (through the pretreatment program) should not be subject to
dual regulation under the Resources Conservation and Recovery Act. The problem
has been that the scope of the Exclusion has far exceeded the reality of Clean Water
Act regulation. Only a handful of hazardous substances in a handful of specific in-
dustries otherwise subject to RCRA actually have been regulated under the Cleein
Water Act.
For this reason, we agree strongly with the authors of S. 1114 that the exclusion
from RCRA coverage should be narrowed to cover only those hazardous wastes that
are in fact subject to meaningful coverage under the Clean Water Act. Therefore,
we support these revisions. It is appropriate to give a five-year phase-in to this nar-
rowing provision for upcoming effluent guidelines and pretreatment standards, to
avoid short term regulatory confusion.
V. Pollution Prevention Planning
Although the nation remains largely reliant on mediaspecific statutes for the pre-
vention and control of toxic pollution, in the past several years (through such ac-
tions as the adoption and implementation of the Pollution Prevention Act) Congress
8 See 40 CFR § 403.8(a).
^ See "National Pretreatment Program: Report to Congress," U.S. EPA, (July 1991) at Ch. 4.
514
and EPA have begun to move towards a more universal mechanism for encouraging
the generators, users and disposers of toxic materials to avoid problems before they
occur. In reauthorizing the Clean Water Act it is crucial that Congress continue to
move towards a multi-media approach to pollution prevention, even in the context
of what remains largely a single medium bUl. Pollution prevention planning for dis-
chargers to surface waters and POTWs is an appropriate and logical next step along
the way. We strongly support the provision in S. 1114 that requires certain industri-
al facilities to conduct pollution prevention planning, goal-setting and reporting on
achievement of those goals.
We also look forward to a careful evaluation of Senator Lieberman's pollution
prevention planning legislation, for possible integration into the Clean Water Act
package.
The substantive content of the plans spelled out in proposed new subsection
308(fK3) — pollutants covered, establishment of goals, annual reporting, aveiilabUity
of plan summaries, inclusion of water use efficiency — are very positive. We do urge
one essential addition to the bill's mandate: namely, that the plans should be devel-
oped on a production unit basis within the facUity.
There are some additional clarifications and refinements needed, which are
spelled out below:
First, who is covered by the planning requirements? We support a requirement
that pollution prevention planning be undertaken by all 402-permitted facUities and
indirect discharging facilities who are required to report under the Emergency Plan-
ning and Community Right-to-Know Act. This will capture the largest facilities
first, and the numbers of reporting facilities will expand in an orderly fashion as
the EPCRA requirements extend to smaller quantity releasers and additional
chemicals and categories of facilities.
If we understand the bill correctly, EPA will issue regulations specifying who will
be covered by the planning requirements within two years. Also, EPA will publish a
list of at least 20 substances where discharge reductions are likely to be beneficial,
and will have to ensure that 80 by volume of these 20 substances are covered by
plans. What is imclear is whether EPA's rules can capture dischargers of substances
other than the key 20 so identified. Is the "key 20" simply intended to help EPA
target certain facilities should be covered? Can EPA extend its requirements to
other EPCRA-reporting facilities under the bill? We urge that the bill simply spell
out that the EPCRA reporters be covered at a minimum, and as a supplement
impose the "key 20" requirement as an added mechanism for making the planning
effort productive.
Furthermore, the question of which indirect dischargers will be covered requires
clarification. As drafted, the bill refers to parties who "appl[y] for" local limits. In
general, indirect dischargers do not actually apply for such limits but are subject to
their imposition from the pretreatment program authority.
Finally, which pollutants are covered? As we read the bill, all 307(a) substances
reported under EPCRA are the subject of these plans — ^but EPA is to pick the "key
20" substances for planning/reduction on a parallel track of sorts. Must the "key
20" also be 307(a) toxics? It seems logical to ensure this "feedback loop" occurs with
the revisions to 307(a) made in section 202 of this bill.
VI. Innovative Technology
We support inclusion of the provision in section 502(h) that would replace the
law's existing clause allowing compliance deadline extensions for innovative/alter-
native technologies. ^ This bUl would create a special waiver from otherwise applica-
ble permitting requirements to allow experimentation with innovations in technolo-
gy. It should assist facilities that want to conduct experiments but are concerned
with potential permit exceedences. The provision contains appropriate safeguards to
prevent abuse (such as the short duration of the waiver and the requirement that
water quality standards be achieved).
Conclusion
With only a few important exceptions noted herein, we are pleased to see the di-
rection in which S. 1114 advsmces pollution prevention in the effluent guidelines,
pretreatment, planning and standard-setting arenas. We look forward to working
with you further on the legislation over the coming months.
8 Clean Water Act Sec. 301(k).
515
WRITTEN TESTIMONY OF DR. JEFFREY SILLIMAN, AMERICAN TEXTILE
MANUFACTURERS INSTITUTE
Senators, thank you for soliciting the advice of the American Textile Manufacturers
Institute' specifically and those of us in the industrial community regulated by the
Clean Water Act in general. My name is Dr. Jeffrey Silliman, and I chair the ATMI
Environmental Preservation Water Subcommittee as well as manage environmental
affairs for Milliken & Company, headquartered in Spartanburg, South Carolina. I,
like those with me today, feel we can speak to the front-line successes and short-
comings of the Act, and appreciate the opportunity to testify today. Given that tex-
tile facilities are in located in many small to medium-size communities, such as
those found in many of your own states, I'm sure you will be able to relate to many
of my comments.
Generally speaking —
• Don't rewrite the Clean Water Act. Simply reauthorize it and make whatever
minor revisions necessary. EPA already has numerous responsibilities from the
1987 reauthorization on which to act. Moreover, it has plenty of existing author-
ity on which to act to protect the nation's waterways and the health and envi-
ronment of the general public.
In addition, it should be noted that EPA's Office of Water faces significant fund-
ing cuts and staff reductions in the upcoming fiscal year and need not be hin-
dered with new responsibilities. With fewer new responsibilities, EPA's Office of
Water could focus instead on developing criteria and guidance documents based
on sound science that are respected by the environmental and regulated com-
munities alike and that are less likely to be challenged in court.
As you rewrite S. 1114 to make it a more widely accepted reauthorization vehi-
cle, I hope this advice will remain foremost on your minds, particularly given
the major reauthorization and funding battles that lie ahead concerning RCRA,
Superfund, and numerous other federal environmental statutes.
As for specific provisions of the bill, I will be addressing various issues of particular
concern to ATMI and the domestic textile industry and will discuss them in order of
their importance to the industry.
Water-Quality Issues
• Congress should refrain from adopting any new and arbitrary provisions aimed
at reducing toxic substances until the water-quality program that Congress en-
acted in the 1987 Act has been given the opportunity to be fully implemented and
refined — both scientifically and administratively^y EPA and the states, and
results have been given a fair opportunity to be realized.
The success of the effluent guidelines program, intended to clean up point-
source discharges with advanced technology controls, has been acclaimed almost
universally in Congress, EPA, the regulatory communities and elsewhere. Less
than fifteen percent of remaining water-body contamination can be attributed
to point-source pollution, according to EPA.
In 1987, Congress called upon EPA to address remaining toxic water problems
through the creation of a risk-based water-quality program. Under the prograin,
states would asked to identify the various uses of the water bodies within their
boundaries — be they recreational, residential, commercial, agricultural or indus-
trial— as well as to identify the toxic "hot spots" and pollutants of concern.
EPA would develop acceptable risk levels or water-quality criteria for these pol-
lutants. States then could adopt these water-quality criteria as state water-qual-
ity standards and incorporate them as limits into permits for dischargers on
these sensitive water bodies. Compliance with these permit limits came due just
this past year, however, due to delayed program implementation in some states,
the success or failure of the program is, for the most part, stUl outstanding.
Where states haven't acted, EPA recently issued the National Toxics Rule stip-
ulating that EPA's water-quality criteria automatically would become the
water-quality standards in those states. Compliance is due within the year.
All of this has taken place within the last six years. Thus, the llverdict is still
out" on how successfully the water-quality program instituted under the '87 Act
has eliminated toxics. And, to adopt any new, far-reaching provisions to do the
same is premature and cannot be scientifically justified. Let's continue to focus '
the nation's limited resources on refining the existing program to ensure results
before moving ahead and adding another.
516
• Moreover, Congress should refrain from adopting any new toxics provisions that
take a national approach and fail to recognized the site-specific nature of eco-
systems and the much-needed state and local flexibility to address them.
S. 1114 significantly reduces the discretion and flexibility of states to act as
they see appropriate given the community's needs and environmental interests.
Mandatory water-qu^ity numeric standards (versus narrative), national pre-
treatment guidelines, widespread toxics bans and the like advocated in the bill
limit the options states and localities may identify and develop.
Moreover, these provisions convey a very paternalistic message that "Congress,
not States, knows best." One of the fundamental elements of the nation's envi-
ronmental statutes is state autonomy and flexibility, and S. 1114 reduces it to a
pithy political platitude.
• Congress continually focuses on "toxics" — anything can be toxic's at certain
doses. Congress instead should focus on "bioavailable toxic's" and in doing so,
assist EPA in being more resourceful with its limited resources.
Simply stated, by focusing on bioavailable toxics, EPA can focus on toxics that
present a risk to human health and/or the environment versus those that don't.
• Scientific over generalizations can lead to costly economic consequences. Sound
science is needed to justify action.
As previously mentioned, in the '87 Act, Congress instructed EPA to issue water
quality criteria for numerous substances at toxic levels. When issuing these cri-
teria for toxic metals, however, EPA failed to take into account the diverse
forms of various metals and that not every type or form of a metal, say copper
or silver, are bioavailable to present a risk to human health or the environ-
ment. Lacking good scientific data, nevertheless, EPA proceeded in issuing
water-quality criteria for metals by generalizing that all metals are bioavailable
and toxic and by using overly conservative gissumptions, resulting extraordinari-
ly low metal limits being incorporated into permits.
What I am talking about? Corroding pipes, naturally-occurring metals, and the
commercial use of various products containing metals — from copper to chromi-
um, mercury to manganese, and zinc to lead. These metals are present in the
municipal and industrial discharges to our nation's waterways.
There's not a member of this Subcommittee that doesn't have a constituent inter-
est here— he it a copper mine outside of Billings, Montana; a jewelry manufac-
ture in Providence, Rhode Island; a photo-finisher in Utica, New York; a dentist
in St. Paul, Minnesota; a computer manufacturer in San Jose, California, a tex-
tile plant in Hickory, North Carolina; a steel mill outside Pittsburgh, Pennsyl-
vania or a municipal wastewater plant in Newark, New Jersey. Pennsylvania —
they're all subject to extremely low metal limits that are pose extraordinary
costs to meet.
• Because of the prevalence of facilities impacts by EPA's water-quality criteria for
metals and the excessive cost incurred by municipalities and industries nation-
wide for treating metals to these low limits. Congress should amend the Clean
Water Act to address "bioavailable" toxics.
A case in point: One textile company has spent upwards of $300,000 and four
years demonstrating to the State of South Carolina that the metal in textile
dyestuffs, in this case copper, is not bioavailable nor toxic and therefore the
state environmental agency should not use EPA's stringent criteria for copper
in developing discharge permit limits for the form of copper present in this fa-
cility's effluent.
Because the metals exists, however, in all likelihood, the company will see a
metal limit in the fraction of a part per million range in Its permit that will
require treatment and operating costs involving thousands of dollars annually
but will have minimal, if any, environmental benefit because the copper chemi-
cally is not bioavailable to harm human health or the environment.
• Moreover, Congress also should require EPA to undertake its desired scientific
review of its metals criteria within the next 12 months and act upon its findings
within the next 2^ months.
In January, ATMI participated in an EPA metals workshop where experts re-
viewed the Agency's controversial metals criteria and discussed the textile in-
dustry's predicament in particular. The experts recommended to EPA, and the
Agency has concurred, that more research is needed, but due to funding cuts,
may never be initiated or, if so, in the far-distant future — as businesses and
cities go bankrupt trying to comply.
517
To mitigate any further costs from its controversial metals criteria, Congress
should mandate that EPA focus on bioavailable toxics that present a real, scien-
tifically justified risk to human and the environment, and stipulate that the
Agency act on their proposed metals studies in the near, rather than long,
term. U.S. competitiveness and municipal solvency is at stake.
• Finally, Congress also should require EPA to use the rule-making process, and
specifically the Advanced Notice of Proposed Rule-making (ANPRM), to notify
the regulated community that it is investigating and preparing a rule or guid-
ance, particularly the latter, that might affect them and that they can come to
the Agency prior to anything ever being written and demonstrate why the guid-
ance would not apply to them or how the EPA's approach to implementation
might be flawed.
Presently, public notification is required for the proposal and issuemce of only
rules, not guidances, and even then by the time something is in writing, it is
difficult to alter EPA's position. Requiring an ANPRM for every proposed rule
and guidance would reverse the Agency's tendency to regulate first, de-regulate
later, and save the regulated community and EPA much time, effort and money
in correcting its overly-conservative assumptions and past mistakes. The Agen-
cy's water-quality criteria for metals, previously mentioned, provide an example
of how an ANPRM could have prevented the problems that later beset the do-
mestic textile industry.
Effluent Guidelines
• The overlapping interests and requirements of the Clean Water Act, the emer-
gency Planning and Community right-to-know At, the Pollution Prevention Act,
the Oil Pollution Prevention Act and other federal environmental statutes en-
sures that regulated industries and municipalities are continually reviewing
their operations and incorporating pollution prevention concepts and pro-
grams— for environmental as well as financial reasons.
• Similarly, we agree with the bill's provisions to incorporate pollution pre\en-
tion concepts into the development of effluent guidelines, where appropriate,
and to ban the transfer of pollution across media. These are concepts that al-
ready are in practice throughout industry and at EPA.
• ATMI is staunchly opposed to any mandated detailed review and control of in-
dustrial operations, as proposed in S. 1114.
By proposing such requirements, Congress fails to recognize the environmental
progress and pollution prevention progress that companies are making every
day.
Moreover, Congress is assigning EPA an enormous responsibility for which it
has neither the manufacturing expertise, financied resources or manpower to
undertake. Clearly, there is a lack of appreciation for the number and diversity
of products in all industries, including the textUe industry, and the processes
that would have to be identified and controlled.
Genergdly speaking, if a facility is in compliance with all environmental re-
quirements, such intrusions into its normal business operations is not called for.
• Finally, given the widely acclaimed success of the effluent guidelines program
in cleaning up point-source discharges and given the fact that less than 15 per-
cent of remaining water contamination problems can be attributed to point-
source discharges, perhaps the Congress should focus the nation's limited re-
sources on the primary source of remaining water contamination, namely non-
point sources.
Mixing Zones
• Congress should retain mixing zones in order to accurately assess the true
impact of discharges on a water body and to allow nature to act on its innate
capacity to assimilate.
In many instances, for example, with treated textile effluent from a weaving
mUl, nature has as innate capacity to assimilate and handle the discharge from
the facility. In fact, biological wastewater treatment systems — the type most fre-
quently found within the textile industry — are modeled after nature itself To
determine whether or not a discharge impacts a water body, however, industry
and municipalities — more the latter — need mixing zones. Without them, we
must rest on generalizations from tests run in controlled laboratory settings.
Only through the use of mixing zones can industries and municipalities accu-
rately assess the true impacts and address them. For many years, EPA has sup-
518
ported the use of mixing zones to further its holistic approach to water manage-
ment.
Pretreatment
• Federal pretreatment standards are redundant and unnecessary. For the most
part, POTWs already impose local discharge standards on industrial dischargers
across the nation. These standards prevent discharge of smy substance or sub-
stances that could interrupt or overwhelm the treatment system or that could
pass through a cause a compliance problem with the POTW's permit. Develop-
ment of federal pretreatment standards would be redundant and a waste of the
EPA Office of Water's limited financial resources.
• Instead, invest in POTW construction and operator education. Rather than
impose redundant treatment, industrial dischargers and localities would be
better served with construction of POTW systems accompanied by funds to
ensure the proper education and training of POTW operators. To this end, Con-
gress should require that for every dollar loaned from the State Revolving
Fund, X percent should go toward annual operator training to ensure compre-
hension and proper use of EPA's criteria and guidance documents — annual be-
cause of the constant issuance of new or revised EPA criteria and guidances
being adopted by states.
In the textile industry's experience, particular in rural and mid-sized communi-
ties, all too many POTW operators lack the proper education to understand and
apply EPA's mandates as they are adopted and implemented by states — for in-
stance, EPA's water-quedity criteria. This results in sometimes total misapplica-
tion of EPA criteria, inefficient POTW operation, costly, but unnecessary treat-
ment, costly and protracted permit renewals for both permitees and local £md
state agencies, and questionable environmental benefits. I speak from experi-
ence. Nearly 70 percent of textile dischargers are indirect dischargers through
POTWs in mid- and smedl size communities.
A case in point: One textUe company in North Carolina was told by their local
POTW to reduce their discharge of copper and zinc to the level of several parts
per million. Yet, the city was adding copper sulfate to their system to inhibit
algae growth and zinc sulfate to inhibit corrosion — both at levels that made the
plant's in-coming water exceed the very water-quality limits for zinc gmd copper
that they were imposing on the plant. The operators did not recognize the sub-
stemces were being used nor did they comprehend how to properly adjust the
metals limits of dischargers using their system to accommodate for their use. As
a result, they were wreaking havoc and imposing overly-stringent limits on ev-
erybody including themselves.
Domestic Sewage Exclusion
• Congress should retain the Domestic Sewage Exclusion. It is a creation of Con-
gress £md the legislative process that has proven to be an effective and efficient
manner for handling hazardous wastes. EPA and the regulated community can
show that the exclusion, which allows facilities to discharge trace hazardous
wastes to POTWs for treatment, has provided for the proper treatment and safe
discharge of these wastes, minimal though they may be. Were it otherwise, com-
panies could not afford, nor in many urban localities could space be found, for
equivalent treatment. And, given the low detection levels that categorize a
waste as hazardous, the potential for improper treatment, storage and disposal
of hazardous waste would be greatly expanded.
Stormwater Permitting and Management Program
• Allow industrial facilities that can demonstrate to EPA that they have, in
EPA 's terms, "no potential for stormwater contamination " to exit the stormwater
premitting system and be managed under urban stormwater management plans.
ITiis would minimize paper shuffling at both EPA and affected facilities. And, it
woxild allow the Agency to focus on the truly "bad actors," where stormwater
contamination presents real problems and allow affected facilities to focus on
compljdng with other pressing environmental mandates.
A case in point: Mgmy textile companies not only manufacture fabric, but also
cut and sew their fabric products into apparel. These "cut-n-sew' operations use
minimal, if any, chemicals and have minimal potential for stormwater contemii-
nation, but by virtue of being manufacturing operations where industrial activi-
ty takes place, are subject to the stormwater permitting requirements. If no po-
tential for contamination exists, then common sense dictates that these facili-
ties and others should be exempt from the permit requirements and should be
519
managed under larger urban stormwater management programs. Moreover, we
fear that stormwater permits could become the domino triggering other reqiiire-
ments, just as we have seen SARA, Section 313 reports become.
• S. 1114 grants some municipalities a waiver and others a ten-year delayed com-
pliance schedule from the requirement that their stormwater discharges meeting
numeric water-quality limits.
Given the uncertainty about the extent and nature of the stormwater program
and how to effectively manage stormwater discharges. Congress should grant
the same exemption to industry and allow the success or fmlure of the "Best
Management Plans (BMPs) and Stormwater Pollution Prevention Plans re-
quired of permitted facilities to be realized. IS, numeric limits are then called
for, mandate them in the next reauthorization.
Pollution Prevention
• The marketplace already is well ahead of government at all levels at recognizing
the production and cost efficiencies of adopting the pollution prevention philoso-
phy.
A case in point: For several years, the investment firm of Alex Brown & Sons
has consistently overestimated the potential performance of stock prices for en-
vironmental control and clean-up firms. When they went looking to find the
reason why they were consistently overestimating the potential value of these
stocks, they realized they were looking for and found related government devel-
opments that would increase the demand for the services these firms offered,
i.e., "end-of-pipe command-and-controls". What they failed to notice was that
businesses and municipalities that normally would retain their services were in-
stead taking concerted steps to avoid environmental control and clean-up costs
and were adopting waste minimization and pollution prevention prc^rams.
• If Congress wishes to further advance pollution prevention, it should focus on
providing technical assistance to companies and communities.
The biggest hurdle to incorporating pollution prevention practices into any
manufacturing operation is technical comprehension and application. The tex-
tile industry has many resources to draw upon in this area. There are numer-
ous corporate research & development divisions within our industry, various
colleges of textUes at universities throughout the Northeast and Southeast
United States, and also several non-profit research institutions Uke the Insti-
tute for Textile Technology.
In addition, the textile industry can rely upon scientists at the U.S. Department
of Energy National Labs. As a result of a recent joint agreement between the
industry and the labs — the first joint agreement of its kind, which we now com-
monly refer to as "Amtex" — over $15 million will be spent, in part, for research
on waste minimization through technologies that facilitate reuse and recycling
and, more importantly, by fundamental manufacturing process changes. Similar
such funds and technical assistance should be made available nationwide to all
industries and communities.
• Moreover, if Congress wants to further advance pollution prevention, any orga-
nized program should be voluntary.
The success of EPA's "33/50" program is a testament to the success that can be
realized through voluntary programs. Numerous textile companies, including
Springs Industries, Collins & Aikman, and my own employer, MiEiken & Com-
pany, have not only achieved, but svirpassed in many categories the mandated
program goeds.
Were Congress to mandate participation in a pollution prevention program with
complicated annual reporting requirements and the like, it likely would divert
resources from on-going programs that are generating real breakthroughs to
generating more stacks and paperwork.
Fees
• Where fees are required in S. llU—for effluent guideline development, permits
or discharges. Congress should require the input of the regulated community as
to how the funds are to be used arid an accounting of how the funds actually are
used.
In the case of fees assessed by POTWs, industrial and residential surcharges
should be increased at approximately the same rate and be apportioned to re-
flect the existing use of the system.
520
Finally, the fees that are generated from NPDES permit holders, directly or in-
directly, should be appropriated solely for point-source programs.
Risk Assessment
• The nation 's ability to detect pollutants in the parts per million, per billion and
now per trillion level is overwhelming our ability to pay for the protection of
human health and the environment to these same levels.
Therefore, Congress should mandate realistic risk assessments and correspond-
ing cost benefit analyses, and, with EPA's expertise and assistance, prioritize
the risks to human health and the environment that are addressed by existing
federal environmental statutes. This may be an overwhelming, if somewhat un-
defined task. Still, if Congress fails to act, EPA forever will be pursuing to
eliminate parts per million, per billion, per trillion and so on of a substance
that poses relatively minimal risk in one situation while overlooking, or more
appropriately underfunding, the elimination of, perhaps, the same substance, in
another situation where it poses a relatively more serious and widespread risk.
This is a costly chase that few industries or communities have funding to
pursue. Risk assessments accompanied by cost-benefit analyses are needed.
A case in point: Presently, the general public can drink water with more copper
content than textile companies are permitted to discharge in their wastewater.
Which is the greatest risk and where should the limited funds of federal, state
and local governments be allocated?
Senators as I speak, SARA, Section 313 chemical reporting forms are coming due,
companies are notifying EPA of their abUity to properly recycle and reclami refrig-
erants under Title VI of the Clean Air Act Amendments and others are submitting
Spill Prevention, Control and Countermeasure Plans under the Oil Pollution Pre-
vention Act of 1990. Given these numerous and varied requirements, I ask you,
therefore, to recognize the context— the environment, if you will—m which efforts to
comply with environmental mandates are being made. To those of us trying to
comply with federal environmental requirements, we are grappling not just with
Clean Water Act mandates, but also numerous other requirements under various
other federal state and local environmental laws, all simultaneously. In today s eco-
nomic environment, its easier to say, "get it done" than it is to do— particularly
when the problem exists at the several parts per bUhon or trillion level.
Moreover, I ask that you recognize industry's efforts to date to minimize pollution
and assist EPA in enhancing our environment. The success of Clean Water Act m
cleaning up the nation's waterways can be, to great deal, attributed to industry s
joint efforts in developing and complying with EPA's effluent guidelines and in
jointly constructing-^nd in many cases, helping POTW managers operate— the
POTWs in our communities. EPA recognizes this, we hope you do as well.
American Textile Manufacturers Institute (ATMI)
In closing let me put my statements in context and state for the record that the
American Textile Manufacturers Institute is the national trade association rep-
resenting nearly 75 percent of domestic textile manufacturers located m ap-
proximately 30 states. The domestic textile industry is the largest manufactur-
ing sector of non-durable goods in the United States and contributes more than
$53 billion to America's gross domestic prodocut— an amount larger than that
produced by the automotive, petroleum refining and primary metals sectors.
The industry consists of more than 26,000 companies representing over 2 mil-
lion jobs or 12 percent of the American workforce. Textiles are manufactured
into electronic components, medical devices, auto parts, home and office fur-
nishings and, of course, apparel. Presently, the domestic textUe industry faces
an unprecedented threat from foreign imports, many from countries that have
few, if any, environmental concerns or mandates.
Gentlemen, I thank you for your attention and will be happy to entertain any ques-
tions.
521
Sierra
408 C Street. N.E. Washington, D.C, 20002 202 ■ 347 • 1 141
POISON WATER, TOXIC HARBORS: RESTORING
AMERICA'S FAITH IN CLEAN WATER
STATEMENT- OF BRETT D . HULSEY
SIERRA CLOB GREAT LAKES PROGRAM DIRECTOR
JULY 1, 1993
ON THE NEED FOR A. COMPREHENSIVE PROGRAM TO
GLEAN UP CONTAMINATED SEDIMENTS AND
STOP TOXIC DUMPING
-TO RESTORE AMHltCA'S RIVERS, WATERSHEDS AND THE
■ GREAT LAKES
BEFORE THE SUBCOMMITTEE ON CLEAN WATER, ,.
. • . FISHERIES, AND WILDLIFE
SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE
■'.'■. CHAIRED BY THE HONORABLE BOB GRAHAM
ON BEHALF OF THE SIERRA CLUB, CITIZENS FOR A
better: environment, jCOAST ALLIANCE,
CONTAMINATED 5EDIMENTS WORK GROUP,
GREAT LAKES UNITED, ;
U.S. PUBLIC INTEREST RESEARCH CROUPS,
... NATURAL RESOURCES DEFENSE COUNCIL,
' THE LAKE MICHIGAN FEDERATION,
/ . V AND. THE LAKE SUPERIOR ALLIANCE . .
INTRODUCTION
- I would like to thank" the" committeiefliwi the chiairinan for holding this
hearing and for leading the effort to clean \rp the nation's waters .We thank
the conanlttee for your leadership and fot taking the bold steps outlined in
the Baucus-Chafee bill to deal with ' sediments , non- point, Mid toxic pollution.
My name is Brett Hulsey arid i am the Sierra Club's Midwest
Representative and I direct its Great Lakes Prograiti. I ain testifying on
behalf of the Sierra Club, the Lake Michigan Federation, Contaminated
Sediments Working Group, ' Citizens for a Better Environment, Great Lakes
United, Natuiral Resources Defense Council, the Coast Alliance, the Lake
Superior Alliance, and U.S; PIRG to urge you to enact a comprehensive national
program to clean up the toxic sediments that line our harbors and stop
additional toxic pollution from sullying our waters.
••"When we try to pick out anything by itself, we find it hitched to everything else in the universe. "7o^» Muir
National Headquaners: 730 Polk Street, San Francisco, California 94109 (415) 776-2211
PniNTCO ON UNBLEACHED 100% POST<X5NSUMER WASTE
522
Thig is of top importance to all Americans and especially the millions
who belong to these organizations. The Sierra Club's 100 , 000 members in the
Great Lakes region and 600,000 members in U.S. and Canada have made restoring
the country's waters and the Great Lakes -- that is making them safe, for
mothers to drink, and wildlife and fish safe to eat -- a national campaign.
The groups endorsing this testimony represent more than 2 million Americans
who are dedicated to cleaning our waters and hundreds of local groups that
rely on clean water for their jobs and J.ivelihood. •
The need for this is cleiar to those of us living in Wisconsin and
witnessing the. human tragedy in Milwaukee: This spring more . than 200,000
became sick from a water-bom infection spread in the public drinking water.
800,000. people were not able to safely drink the public water. At least six
elderly and AIDS patients have died or are critically ill from the
contaminated water. Schools and businesses were forced to close and the costs
could run in the billions. The public in Wisconsin and much pf the country has
lost faith in the safety of . our water delivery system and we are looking to
Congress to restore the nation's waters. .
We must address water safety Issues in the upcoming Clean Watar Act
reauthorization to insure that America's waters are safe for drinking,
swimming, and fishing.
SUMMARY .; :.: r' ;..^; " ' •
The above groups representing more than 200 environment , labor and
sports groups, have a comprehensive plan to address contaminated sediments .
1. EPA needs statutory authority to develop a strong national program with ''
deadlines and funding to measure and clean up toxic sediments with strong and -
practical sediment quality criteria (SQC) so that communities can identify and
cleanup toxics sediments in- their area'. Federal criteria exist for every
other major form of pollution. SQC are needed to identify the extent of
sediment contamination, to help protect. clean areas and promote pollution
prevention', to identify critical areas for cleanup, and toi determine
appropriate methods to manage dredge materials.
.2. EPA must develop policies to apply SQC to the. states and other programs. ...
-States need EPA guidance to apply the SQC to various programs like the UPDES ,
non-point, ocean and estxiarine diimping criteria, and Superfund.
3. EPA should administer a national sediment program to ^se technologies
■developed by EPA's Great Lakes (ARCS) program arid thfe Superfund SITES programs
to cleanup toxic "sites In the Great, Lakes and marine sites. This program al?o
needs to test new technologies in critical marine sites In addition to New
York/New Jersey harbors which were authorized under section 405 of WRDA of
1992.. EPA has bench tested at least five technologies in the Great Lakes but
full-scale tests are needed to determine costs and effectiveness before
recommendations . can. be made" for full, cleanups. . '
4. Make pollution prevention measures a condition to -receive a permit to
dispose of contaminated sediments and include pollution and sediment
•prevention measures in. other Clean Water Act programs to reduce further
sediment contamination.
523
5. The 'EPA/Corps ocean disposal program should be improved since the ocean
dumping criteria (as mandated by section 103 of the MPRSA) lack appropriate
thresholds to interpret bioaccumulation test results. This program is being
rvin by the EPA regional office and Corps districts and lacks adequate public
review and central management . Clarification of roles are needed.
6. Develop a phase -out period for open water dumping of contaminated sediments
in sensitive areas like Lake Superior as called for by the International Joint
Commission. . ■ . ' . • " . ■. • . ! '
7. Strengthen and enact- tlie HeCzenbauia/Glenn Omnibus Great Lakes Clean Water
^endments to improve sediment management and cleanup in the Great Lakes. We
would like to see miore sites includied for testing of technologies ;
8. Create, a funding mechanism to pay for sediment: nanacgenent. and clean-up
\inder section 115 of the tfPCA or- onotiher appropriate section .
S. 1114, MAKING GOOD PROGRESS .
The. Committee bill, S.1114, takes several important steps in this'
direction. We applaud the conmittee ' s foresight to give EPA clear authority
to release sediment quality criteria (SQC) and set deadlines for 8 chemicals,
including PCBs and Dloxin within five years. The PCB and Dioxin standard are
particularly important given the current controversies in" New York/New Jersey
and Duluth/Superior harbors . But since EPA has five draft criteria pending for
release this summe^^ we feel tiiat they can Include up to elgjit additional
chemicals in that five year period once their protocol .for doing' SQC is
■established; ..■. ."• . ; '- '. ■ ■',. -.' ' ■ ' - ■ . !- •. •
We urg6 the committee to consider our points above. Iti revising, the
legislation; \. ' v . ■" ■•■".;' •■ 'V ?-■ -.■.!:•''. '' ■■'
TOXIC .HARBORS, A NATIONAL PROBLEM ^ ■ ;f ' "" '' \ . "' ' '
' Contaminated sediments --the: toxic Buck' that, settles .-to the bottom of
our elvers, lakes, and harbors -- Is a huge national problem. .EPA has
concluded that it Is likely, that every major water bo<fy in the U.S. has .
moderate to severe sedlbients contaninacion. . This Issue. Is also an economic
one, since the contamination often makes it difficult or impossible to dredge
harbors and maintain shipping as we are seeing In ports -like New. York/ New
-Jersey;'^ ■ ,, ' '. ^ -i ::■'/■:.<:■ .'^--. ',■•'. ■':'-^''' \ ^ ■■ \. ■ ■ ' ■ ■ ' " " "■ •
' '■■. ' The '60 millldn tons of dredge ■atrerial' that are ocean dumped from
-these harbors and rivers .each year pose- a significant challenge to
environmentalists and. port operators. \-;-:
For an id&a.of the extent of isedlment contamination' on the marine coasts,
please see the appendix. Table 6-5 shows a list of these sitds.> Note that
Ohio leads the nation with 193 sites clogged with toxics like arsenic,
cadmium, and lead. Florida experiences these problems in the Miami River' and
harbor area also. .
Contaminated sediments account for 75% of the- PCBs going into Lake
Michigan, according to a recent National Wildlife Federation study. They are
524
also the main source of fish contamination. According to the EPA National
Water Qualitijr Inventbry, 1988 Report to Congress:
"The main reason, for these fishing restrictions is contamination of sediments,
by toxic chemicals such as priority organics that are,' In turn, passed along
to macrolnv'ertebrates arid fish.' (page 35)
In the 1990 Report to Congress, EPA said: ".. .landfills and contaminated
sediments are the leading sources impairing the Great Lakes . " (page 39)
There is no clearer example of the national need for this program than
in the Great Lakes. ToxJLc muck clogs all but one of our areas of concern and
stifles economic: development in many. The Port of Toledo- may be forced to
close if the U.S. Army Corps of Engineers does not cooperate with the Ohio and
U.S. EPA to end the dumping of contaminated dredge spoil in Lake Erie near
Toledo and Oregon, Ohio water intakes . The Corps insists that this sediment is
not polluted, but the Port of Toledo and. all the environmental agencies feel
that it is. .: . ..
. I will use the Great Lakes example to illustrate this need because one
■ in ten Americans drink the water and because these are good examples of
problems seen everywhere. The appendix has a partial listing of contaminated
sites from New Bedford. to Chesapeake Bay, to the Gulf Coast, California to
Puget Sound, sediments are clogging our harbor, poisoning our fish, and
putting maritime Jobs at risk.
JOBS; AT RISK ' _ V
The Sierr'a Cub recently released its Clean Lakes, Clean Jobs study
that docume-ats the jobs and money' at risk if we fall to cleanup the toxic
blobs that rest at the bottom of every Great Lakes harbor. Billions of
dollars and thousands of jobs are at risk if. toxics are not cleaned up (see
•.table), ■■ ■' . _ '';' /■■■■.■ . .'. ■-.,' •.■•'.
GREAT LAKES JOBS AT RISK
HEALTH
FISHING .
SHIPPING
TOURISM
JOBS
" *
89,000
■ '44,000
2.760.000**
COSTS
$18.47 Billion
4.0 Billion
3.5 Billion'
69.0 Bill.ion
TOTAL '■ - 2,891,000 $94. 97, Billion
[♦complete data unavailable; ** assumes $25,000/direct job]
Great Lakes tourism is the moist threatened Industry. Tourism is a $69
billion industry in the Great Lakes Basin and the number two industry in
several states. In Ohio, Lake Erie recreation industry accounts for $8.5
billion and 152,000 jobs. . '
Approximately 89,000 fishing' Jobs and more than $4 billion in
525
commercial and sport fishing proceeds are In jeopardy. There are more
restrictions on fish consumption in the Great Lakes than anywhere in the.
United States, 1,000 of the nation's 1,400 fishing restrictions -- five in
seven --come from Great Lakes states. As the EPA said, these are largely a
result of sediment contamination.' ■, ■ '
Also at risk are more than 44.000 shipping jobs and $3.5 billion in
personal and corporate income, including state and local taxes paid by the.
ports. Contamination and lack of a national program to deal with thi^ toxic
muck prevent safe dredging in S^lf of all. Great Lakes harbors where sediments
cannot safely be dredged. ... .:. . .' '..'•■
Because communities cannot safely dredge this toxic sediment; barges
must llghtload their cargos an average of 480.000 pounds! This means lost
profits and jobs in the millions for the entire Great Lakes Basin.
If you extrapolate these risks to tJie «omitry at- large and three other
coasts, the potential job risk coviid be near 10 million and the commerce "at
risk could be near $400 billion. That justifies an aggressive national
program to Identify and clean these sites. While the price tag for cleaning Up
all Great Lakes seems expensive. - - ^10 billion by some estimates - - the
potential of creating 400,000 jobs in ^depres.sed areas of the ."Great ;Lakes ts
enormous. ; , . ' ' . .-.■■•' ' ' ; .•-.-.■ :.'..■ '-*'
STOP NEW POLL0TION . V :.'.;./■' ;\ -.— .:.. ;. / ^''v.: ■ •
• As other speakers have pointed out; we- must also stopt new
contamination from existing point and non^polht sources. Appendix table 1-2-
shows the perststeht tfoxic levels of PCBs in coho salmon in all the Great
Lakes. These levels are over 70 times EPA' s 1/100,000 cancer risk level and
may cause over 38 thousand cancers cases each year according to EPA estimates.
This shtjws that toxic levels riemain high In Che Great' Lakes despite years of
point Source controls. i >- .-;..•..■'." ' ^-, .^;.l i .; " .'•
According to the EPA. llational Water Quality Inventory, 1990 Report to
Congress, 67.7% or two/thirds of Great Lakes shoreline does not si^port Clean
, Water Act designated uses. . Only 85 miles— less than 1 In 50 -'- fully . ,
supports Clean Water Act designated uses for fishing and swimming.. None of the
shoreline in Wisconsin, Illinois, Indiana, Michigan, and Ohio Supports ■ full
Clean Water Act designations. ^^ • . ... -. •'
The current clean water law allows toxic chemical discharge Into the
nation's waters and the Great LaEbes ecosystem which cause these Impairments.
These laws -- especially the Clean Water Act -- allow polluters to dilute and
mix toxics in the air and water. The only way to make the Great Lakes safe
for drinking, fishing, and swiqaiing is to phas.e but the' Release" of these toxic
substances into the U.S. water and the Great Lakes to achieve .Zero Discharge .. ^
We eticourage the committee to take . tougher measures to eliminate- mixing zones-
• than are in the Biucus-Chafee bill. . ^V
; Current law allows states to dump vasply dif.ferent qtiantitles of toxic
material into their waterways..
526
_ To put this In perspective, the Exxon Valdez illegally dumped 11
million gallons of oil into Alaska waters and was fined about $1 billion.
Each year, U.S. industries dump two -thirds that amount into the Great Lakes
water supply for 25 million Americans.
Uncontrolled toxic dumping is a national problem also. Conservative
estimates taken from the 1990 Toxic Release Inventory (TRI) data (which do not
cover all industrial sources) showed that Industry diimped nearly 200 million
pounds of toxic and hazardous material into U.S. waterways. In addition,
manufacturing industries dumped 448 million pounds of toxic materials in 1990,
and washed another 254. million pounds down the drain.
Scientific evidence shows that widespread, low- level exposure to some
persistent toxic chemicals like PCBs, Dioxin, and mercury will:
-- threaten newborn children with premature birth, low birth weights,
and. impaired learning loss of up to 5 IQ points; .
-- cause 38,255 cancers to fishers and nbn- fishers in the Great Lakes
basin, according to EPA Risk Anailysis of 26 Environmental Problems , Draft
Working Documents, page 4;
'. . .. cause birth defects, sterility, and population decline in fish and
■wildlife like bald eagles, lake trout , cormorants , and mink;
; --make lake trout, salmon, and other species unsafe to eat in all the
Great takes because they can cause, health problems and increase cancer, ti.sks;-
and ; ;■-'...."■:■ ■'• .,.■""■"•
.-- remain in the lake ecosystein, concentrating in ajvd dajnaging humans
.and wlidltfe for decades .
Current U.S. and state environmental laws allow polluters to dump
' toxic chemicals into aquatic ecosystems which poison the food web .• According
to a recent International Joint Commission study i' Great Lakes states now use a
; hodgepodge of regulations that allow dumping of persistent poisotis. For.
example, a plant that could only dump 4 pounds of mercury into Wisconsin
waters would be allowed to dump 55 pounds in Ohio,' 99 pounds of mercury in
Illinois, and 323 pounds in New York.
NEW YORK WISCONSIN ' OHIO ILLINOIS
323 4 * 55 99
MERCURY DUMPED
(IN POUNDS)
The Control of Discharge of Toxic Pollutants into the Great Lakes and their
Tributaries: Development of Benchmarks, Jeffrey. A. Foran, PhD., International-
'joint Commission, page 39.- ■' •
Clearly, this jeopardizes more than the water quality,- fish eaters, ind
wildlife. It puts industries of the clean' states at an unfair competitive
disadvantage. States compete for industry by jeopardizing their water supply
rather than strengthening their workforce. We are promoting uniform, water
527
quality standards that protect Jobs, people, fish, and wildlife.
This is indicated by the ubiquitous fish advisories throughout the
country. As you can see from Figure 6-1 In the appendix, the Great Lakes
states have the greatest number of fish advisories in the nation.
We urge the committee to study the approach taken in EPA' s new Great
Lakes Water Quality Guidanpe to create a level playing field. This Guidance
Is called for in Section il8 of the 1987. amendments to the Waiter Ppllution
Control Act and the 1990 Great Lakes Critical Programs Act. The document
recently released by EPA would require states,, in their next- triennial review,
■tor, '■ :' ':: -.■:/'.■:, I'' '„__,■'■'.'-. _/./■ J, /:■..; ' ./■ v--;
--Establish binlmiim water quality stTandards to prbtiect human, wildlife,, and
fish health; ^ ; ; ;". ■ ' •• ■ ' -
--Target the worst pollutants --those that bibaccomulate the most like. FCBs
and Dipxin -■- -in people » fish, ;and' wildlife; ' '
.--Prohibit the use of mixing zones for /these chemicals of concern; '
-3 Includ[e provisions to keep clean waters; like L^ke Superior, clean by making
Lake Superior' an Outstanding tlatufal Resource Water.' This would create one
place where Zero. Discharge o'f persistent toxics could be demonstrated as
called for in the original Water Pollution Corttrol Act, the Great Lakes' Water
Quality Agreement and recommended by the International Joint, Commission; and
--Protect inland rt vers and lakes , in addition -to : the Great Lakes, if the
state chose . " . " ' -i^ . ' : ' ■ .
..CURRENT EPA EFFbl^TS'..; .'..;V^v' ■; / ;=■
: '; ■. To' help solve this problem, EPA plans to release draft criteria for
five sediment contaminants . this svomner , but clearly the.progress is too slow.
With current staff and funding, the EPA will not have sediment criteria for
all the IJC Critical Pollutants List until the middle of the next century.
The .public will not accept , this slow response to our wdrs,t contamination.,
problem.- ..■..:• ^ ■,-■.'.■■'•; ' .^ ■• \ . ,. .■ •
...■.•• We. have several successful programs to address Great Lakes sediment ;
pollution, like the Assessment' and, Remediation of Cpntamihated Sediments
(ARCS) Program, .set up under Section 118 of the 1987 Clean Water Act
Amendments and the Great Lakes Critical Programs Act. These provide key
diemonstration programs and deadlines to test technologies and complete the
Remedial Act'ipn Plans (RAPs). ' •.■
""■ . As a member of the ARCS Citizen Work Group,. I can report some '
progress on this program --.five pilot treatments were tested last summer wtth
.some promising results. In the laboratory, over 10 technologies" were tested.'. .'
ARCS also did. five in-depth contaminant assessments from Buffalo, Ashtabula,
Saginaw, Indiana Ha;rbor, arid Sheyboygan harbors. But these plans and tests
are only that. We need a concrete program to clean up these 27 toxic Great ,
Lakes hotspots and many others in ports around the country.
528
The Clean Water Act reauthorization presents^ a perfect opportunity to
make additional progress in the Lakes and make the £ish sa£e to eat. Oyer the
past three years, Great Lakes and coastal advocates have worked with the
ports, EPA, and Army Corps of Engineers to draw up a national program to deal
• with, these underwater toxic sites.
CPNCLUSION •
In conclusion, this year's Clean Water Act reauthorization gives us
the opportunity to stop additional persistent toxics from entering the waters
of the United States and to clean up the current toxic hotspots. We 'urge this
committee to be bold and meet the challenge to make, this happen.
We are especidlly concerned that you: '
-rr Protect vromen and children from toxic chemicals that- .appuniulate in fish and
■cause birth defects; . .. ■
--Restore the toxic harbors of the nation and protect the jobs at risk;
■--' Protect people who eat the most Great Lakes fish, like sport anglers,
Native Americans , and others who fish. for their food;
--Protect fish and vildlife from all chemicals that cause birth defects and '
.deformities; and
-- Keep high-quality waters like Lake Superior clean;. '.
Thank you. ';-.• . . v ,
APPENDIX INCLUDES: ; -; r / ; ^ :• .; ; . ' .
PCB Concentration in tJoho Salmon from the Great Lakes , From EPA GLWQG ;
EPA National Water Quality Inventory, 1990 Report to Congress tables;
Table on Sediment . Contamination by State, from same Federal . Water Pollution
Control Act of 1987, section 104 and 118 Examples of Marine Contaminated
Sediment Sites ; Outline of Metzenbaxun/Glenn Omnibus Great Lakes Clean Water
Amendments. '. ;^ ; ', ■ ; ■ " ; " • - ■
529
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530
Thase are taken from the EPA National Hater Oualitv Inventory, 1990 Serort to Congress
Table 6-3. Pollutants Associated with Fishing Restrictions
Fu.lv
Pollutant
Sooooning Tnreaierec
9 Miles Assessed ■ 4 857
Number ol States
Reporting
Source 1990 State Section 30SiDl reoorts
Figure 3-1. Designated Use Support in Assessed Great Lakes
PCBs
Pesticides
OiOJin
Mercury
Organics
Metals
1990 Slate Seaion 305iD
Table S-4. Sources Associated with Fishing Restrictions
Source
Number ol Slates
Reporting
Inousinal
Urtsan flunott/ Storm Sewers
Agriculture
Resource Extraciicn
'2
S
1990 Stale SeCTon 305(Di i
rige 91
Sou-:e -gee Slate iefc 305idi 'eoons
Figure 6-1 Number of Fish Consumption Restrictions Nationwide
npse 91
531
This is taken from EPA National Water Quality Inventory, 1990 Report to Congress, nage 96
TabI* 64 5»dlinwn Contamination Raportad by Slataa
Number
of Sites
Contaminants Identilled
Alaslta
Anzona
California
Connecticut
Aromatic hydrocarOcns
Pesticides. metaJs (boron, chromrum, selenium).
radiocnemicals
Mercury
l^ad. polycnionnated biphanyis (PCBs). organic
chemicaJs. and other metats
Delaware
DC
Ronda
Hawaii
Metals
Laai). cadmium, zinc, cfilordana, DOT
Arsenic
Kentucky
Heavy metals. DDT. PCBs. heptactilor epoxide
Metals, polynudear aromatic hydrocarbons (PAHs).
cyanide, other organics
PCBs
PCBs
Louisiana
Maine
Maryland
Massachusetts
Pnority organics. creosote, metals, oil and grease. PCBs
Dimethyl formamida, toluene, thchloroethane.
chlonnated solvents. ths(2.3-dibromopropyl) phosphate.
PCBs. copper, cadmium
Nickel, zinc. PAHs. non-OOT chlorinated pesticides.
pesticides. DOT. PCBs and other metals
Metals, prionty organics. oil and grease
Michigan
Minnesota
^4evada
NewYoik
Mercury, alkylated lead. PCBs. dioxin, benzo(a)pyrene,
hexachlorobenzene [HCB], DOT, dieldhn, toxaphene.
mirex
Menajry, PCBs, coal tars
Mercury and other metals
Priority organics, metals, pesticides
Ohio
Oklahoma
Oregon
Arsenic, cadmium, chromium, copper, lead, zinc
Mercury, lead, zinc, chkjrdana, hydrocarbons, PCBs
Arsenic cadmium, chromium, copper, laad, nickel,
zinc DOT, PAHs, PCBs, ptrthalates, cyanida, volaiaa
organic compounds, phenanthrene. pemacNofOphenol
South Carolina
South Dakota
Virginia
Virgin Islands
Wisconsin
PCBs, chromium, mercury
Mercury
Selenium, chromium, arsenic iron, manganese, nickel,
cadmium, zinc copper, mercury, laad
Mercury, copper, selenium, cadmium, nickal, zinc
PCBs, dioxin, mercury, pentachlorophenol, arsenic
cadmium, chromium, zinc oil and grease, pesticides,
PAHs
^Not raportKl.
Soum: 1990 SlattSKiian 305(b) f
532
MAJOR PROVISIONS OF THE "GREAT LAKES CLEAN WATER AMENDMENTS
OF 1993"
1 . SEDIMENT MANAGEMENT - PROVIDES EPA WITH CONCURRENCE
AUTHORITY OVER SEDIMENT DREDGING AND DISPOSAL PRACTICES IN THE
GREAT LAKES. IT WILL ALSO REQUIRE MANAGEMENT PLANS FOR THE
REGION' S CONFINED DISPOSAL FACILITIES INCLUDING PLANS FOR
REMEDIATION AND POST-CLOSURE CARE.
2. SEDIMENT REDUCTION - REQUIRES THE CORPS OF ENGINEERS TO
MEASURE SEDIMENT LOADINGS INTO THE MAJOR RIVER SYSTEMS FEEDING
GREAT LAKES HARBORS AND TOXIC HOT SPOTS. IN ADDITION, PROVIDES
STATES GRANT MONEY TO EXPLORE AND DEMONSTRATE BEST MANAGEMENT
PRACTICES TO REDUCE EROSION THAT RESULTS IN SEDIMENTATION OF
HARBORS, CHANNEL MAINTENANCE PROJECT SITES AND TOXIC HOT SPOTS
AROUND THE LAKES.
3. SEDIMENT CLEANUP - REAUTHORIZES THE CLEAN WATER ACT'S
EXPIRED ASSESSMENT AND REMEDIATION OF CONTAMINATED SEDIMENTS
PROGRAM (ARCS) WHICH PROVIDED FOR PILOT SCALE TESTING OF SEDIMENT
CLEANUP TECHNOLOGIES. THIS PROVISION WILL REQUIRE FIVE FULL
SCALE TECHNOLOGY DEMONSTRATIONS, AND REQUIRE ASSESSMENTS OF
SEDIMENT CONTAMINATION AT ALL OTHER TOXIC HOT SPOTS IDENTIFIED IN
THE GREAT LAKES.
4. POLLUTION PREVENTION - PROVIDES INCENTIVES TO INDUSTRY
(WAIVER OF EFFLUENT GUIDELINE FEE AND ONE YEAR COMPLIANCE DELAY
FOR NEW EFFLUENT STANDARDS) FOR INSTALLING POLLUTION PREVENTION
TECHNOLOGIES. ALSO PROVIDES TECHNICAL ASSISTANCE TO
MUNICIPALITIES IN THE GREAT LAKES BASIN TO HELP THEM REDUCE TOXIC
POLLUTANTS IN URBAN RUNOFF.
5. ENVIRONMENTAL RESEARCH - ESTABLISHES A GREAT LAKES RESEARCH
COUNCIL TO INCLUDE EPA, THE FISH AND WILDLIFE SERVICE, NOAA, THE
COAST GUARD, THE INTERNATIONAL JOINT COMMISSION AND EACH GREAT
LAKES STATE TO HELP COORDINATE ON-GOING RESEARCH ACTIVITIES IN
THE REGION.
6. LAKEWIDE MANAGEMENT PLANS - SETS DEADLINES FOR EPA ACTION
ON DEVELOPING FIVE LAKEWIDE PLANS SETTING OUT LONG-TERM,
COMPREHENSIVE STRATEGIES FOR RESTORING, PROTECTING AND
MAINTAINING HIGH QUALITY WATERS.
7. ENFORCEMENT - PENALTIES FROM GREAT LAKES SPECIFIC CLEAN
WATER VIOLATIONS WILL BE DEPOSITED IN A REVOLVING FUND AND MONIES
FROM THE FUND WILL, TO THE EXTENT PRACTICABLE, BE USED TO
SUPPLEMENT AND SUPPORT PLANS, PROGRAMS AND PROJECTS TO BENEFIT
THE WATER QUALITY OF THE GREAT LAKES.
533
STATEMENT BY FRANK H. HACKMANN, » U.S. CHAMBER OF COMMERCE
The U.S. Chamber of Commerce appreciates this opportunity to offer its perspec-
tive on S. 1114, the proposed reauthorization of the Clean Water Act of 1987 (Act).
There has been great progress in cleaning the streams and rivers of the country
over the last twenty years. Because of this progress, the Chamber believes that
major revisions to the Act are not needed. This testimony will, however, encourage
marginal, needed changes in keeping with the history of federal legislation id en-
forcement in this area.
An appropriate historical perspective is invaluable when addressing issues as fun-
damentEd to the environmental, social, and economic future of America as those ad-
dressed in the Act. The extension of federsd regulation to maintaining clean water
is generally considered to have begun with the nearly unanimous passage of the
Federal Water Pollution Control Act of 1972, although the roots reach back to the
1899 Refuse Act.
The 1972 Act set forth some basic principles which remtun the guiding lights
today.
• Any discharge to the waters of the United States is unlawful unless expressly
permitted (or otherwise exempted).
• Permits issued to dischargers shall state with detail the permissible discharge
components and concentrations, with violators being subject to both civil and
criminal prosecution, as well as citizen suits.
• All discharges are generally required to use a specified level of control technolo-
gy, whether or not that technology is necessary to meet receiving water quality.
• Dischargers can also be made to provide tighter levels of treatment in order to
meet applicable receiving water quality standards.
• There is a major federal funding rule to assist municipalities in discharging
their obligations under the law, although the lack of federal funds is itself not a
defense to noncompliance.
• Specified areas of concern, such as nonpoint source pollution and area-wide wa-
tershed issues, are dealt with in a somewhat different fashion — ^but are ad-
dressed in a memner that was acceptable to Congress.
• Different standards are needed for the soKialled conventional pollutants and the
so-called toxic pollutants, with appropriate standards for each.
• Water pollution control laws need to be coordinated with the remainder of the
federal regulatory scheme on issues such as on-land sludge disposal, sludge in-
cineration, etc.
In general, over the years the Chamber has supported these basic concepts, al-
though it has disagreed, sometimes strongly, with specific items or amendments.
Often this disagreement was over the means to reach the goeds, rather than the
goals themselves.
These principles are especially relevant to issues impacting small businesses and
their compliance efforts, and should be used as a guide in developing further
changes to the Clean Water Act. As much as possible, regulatory guidance should be
clear and comprehensible, so that the regulated community understands what is ex-
pected, why it is expected, and how it can be done in the real-world context of a
business operation.
Overall, the Chamber believes the Clean Water Act has worked reasonably well,
especially as compared to some other programs. While the Act is for from perfect, it
does seem to be fairly well understood and well accepted in the business community.
Because of improved measurements, such as the ability to detect parts-per-billion of
contaminants in water, there is a misconception that water quality is deteriorating.
More than 75 percent of the nation's lakes, rivers and streams meet strict water
quality standards based on their intended use. As Congress begins the reauthoriza-
tion process, it should not overlook the considerable improvements in water quality
achieved under existing law. Many of the new water quality requirements under the
1987 amendments have just begim to take effect, while others are still being imple-
mented.
SELECTED SPECIFIC ISSUES WITHIN S. 1114, REAUTHORIZATION OF THE
CLEAN WATER ACT
The major concerns business and industry have about the Act reflect issues such
as effluent guidelines, pretreatment reqviirements, further implementation of water
1 Partner, Sonnenschein, Nath and Rosenthal, and former Chairman, U.S. Chamber of Com-
merce Water Quality Subcommittee.
534
quality standards, and the apparent use in evaluating risks of placing one conserva-
tive assumption upon another resulting in significant overstatements of risks.
As noted, the Act clearly has made our waterways cleaner and our environment
better. However, disruption or drastic changes in the basic framework of the statute
would only cause further delays in the progress being made.
Toxic Control
To control the discharge of toxic substances, S. 1114 would simply ban their dis-
charge. This concept is not wise public policy. While a "no discharge standard" may
have superficial political appeal, it is often technologically or economically impracti-
cal or even unworkable, and even if complied with may not provide a net overall
benefit. A more appropriate and realistic public policy will acknowledge the efficacy
of treatment technologies and the relative eff"ects of various contaminants when dis-
charged into different media, and seek to minimum any negative environmental ef-
fects. This must be done without losing sight of other national goals, including eco-
nomic factors.
Bans or restrictions on the use or production of materials without a determina-
tion of unreasonable risk to health and environment, consideration of the magni-
tude of exposure, societal benefits and economic consequences, are contrary to the
Pollution Prevention Act of 1990. The Industry innovations, voluntary efforts and
market-based incentives are more effective ways to attain environmental protection
and making progress in finding optimal solutions for reducing discharges to our na-
tion's waters.
Pollution Prevention
While the Chamber strongly endorses the overall concept of pollution prevention
and waste minimization as integral parts of industrial operations, it is opposed to
specific statutory mandates proposed by S. 1114. The reason is that our past experi-
ence with a variety of environmental laws has shown the difficulty of translating
specific numericEd statutory goals into reality at the level of em operating plant.
Clearly the statutes should encourage the EPA and industry to move forward in ef-
forts to make sensible, further reductions in pollution. However, the costs, both eco-
nomic and social, associated with such decisions cannot and should not be ignored
by Congress. Industry innovation, voluntary efforts and market-based incentives are
more effective ways to attain environmental improvements and protection than is
legislative prescription.
Pretreatment
The Chamber is concerned about the pretreatment provisions of S. 1114 because
the vast majority of our members send their effluent to POTWs. Adequate mecha-
nisms already exist to provide control over hazardous materials and toxics from in-
dustrial sources and a new round of pretreatment requirements will only result in
regulatory overkill. Additional pretreatment controls and restrictions on the domes-
tic sewage exemption, will have three major adverse consequences with no corre-
sponding environmental benefit:
• proliferation of small on-site "pretreatment" plants, each of which would be
added to the NPDES permit system, at least in some fashion;
• a corresponding increase in the universe of hazardous waste generators, be-
cause any on-site treatment residuals or users affected by loss of the "Domestic
Sewage Exemption" who would therefore become subject to the RCRA system;
and
• dilution of enforcement effort by converting centralized treatment plants which
can be assessed and monitored relatively efficiently, into a larger and much
harder-to-track universe of regulated sources.
Removal Credits
The Chamber supports the continued use of removal credits for chemicals with
categorical pretreatment standards consistent with the current legal framework reg-
ulating a municipality's use emd operation of its sewage system. We recognize there
is a significant potential problem related to sewage sludge disposal; there is an
interrelationship between sewage sludge disposal regulations and removal credits
regarding toxic material levels. However, it is not necessarily more advantageous to
force users away from heavy reliance on large, central publicly owned treatment
works for their treatment needs. Increasing the number of small pretreatment fa-
cilities, particularly at smaller industries, in an effort to meet unreasonably strin-
gent sewage sludge disposal regulations may not represent the best overall environ-
mental outcome. For example, multiplying the number of regulatory sources of con-
535
cems could strain the enforcement mechanism. Thus, while we understand the ten-
sion between the removal credit and sewage sludge disposal issues, we caution
against setting sewage sludge standard so stringent that many types of common and
historically acceptable industrial dischargers would face difficulty with continued
sewer use while providing a traditional level of pretreatment.
Compliance Should Be Made Easier, Not Harder
One major concern of the Chamber is that many portions of the EPA programs,
laws and regulations are nearly incomprehensible to the practicing professionals,
and even more so to the small businessman or small manufacturer where the bulk
of America's jobs, and job growth, reside. In addition, regulations under the differ-
ent statutory authorities are not coordinated, creating conflict and duplication. A
number of the so-called toxic and nonconventional pollutants are ubiquitous materi-
als found nearly everywhere in our society. Therefore, further regulations of these
materials will vastly increase the number of regulated indirect users, diffuse the en-
forcement ease with which significant problems can be identified and handled, and
create the potential for less, not more, environmental protection.
Sound Science
The Chamber supports the use of credible science and economic considerations in
setting, revising, and implementing discharge permits and related standards.
Occasionally, the EPA will determine that a different technology standard or
permit limits should apply when a permit is renewed. If what otherwise appears to
be a "weaker" stjmdard is nonetheless based on sound science and applicable regu-
lations, sound public policy is not served by refusing to acknowledge the new facts,
situations, standards, and regulations.
A National Pollutant Discharge Elimination System (NPDES) permit should be
able to be modified upward, just as it can now be modified downward. There is no
reason to be forever shackled to past understanding, errors, or good-Faith misjudg-
ments in issuing and reviewing permits.
Summary
Government should not make it unnecessarily difficult for the regulated commu-
nity to do what is desired. The Chgunber believes that the basic structure of the
Clean Water Act is working well, and that no radical changes are necessary or ap-
propriate. Progress has been made in cleaning up and managing our water re-
sources, and we do not dispute that more needs to be done to solve the remaining
problems. To meet these challenges in a cost-effective £md equitable way. Congress
should consider the following criteria as part of the reauthorization effort:
• sound science and economic considerations as the basis for discharge limits and
cleanup priorities;
• equitable and flexible regulations, where needed, for all sources;
• recognition, within state and local water-quality standard determinations, of
the need for economic growth; and
• limitation of permit-application costs, monitoring requirements, and paperwork
burdens.
The Chamber looks forward to working with committee steiff as Congress deliber-
ates the reauthorization of the Clean Water Act. A consistent approach, with a view
toward pursuing a broad public policy designed to further a variety of national
goals, both environmental and economic, will greatly contribute to the nation's abil-
ity to compete effectively in the domestic and international marketplace while
making continued improvements in our water resources.
WRITTEN TESTIMONY OF DR. MORGAN REES, DEPUTY ASSISTANT
SECRETARY (PLANNING POLICY AND LEGISLATION)
INTRODUCTION
Due to the short notice of the request to present testimony at the July 1, 1993
hearing on toxic pollutants held as one in a series on the reauthorization of the
Clean Water Act, the Subcommittee agreed that Army could present written testi-
mony subsequent to the hearing. This statement presents Army positions on "ritle n
of S. 1114 concerning the issue of contaminated sediments, which is the topic Army
was requested to address at the hearing. Thank you for the opportunity to present
this written statement for the record.
69-677 0-94-18
536
There are several policy and management concepts embodied in Title 11 of S. 1114
which Army fully supports. They are cross media management of pollutants, man-
agement and regulation of pollutants based on validated science and technology,
prioritization of actions based on relative risk assessment, and pollution prevention.
My testimony will address each of these in turn.
CROSS MEDIA ANALYSIS
The Army civil works program is operated by the Army Corps of Engineers
(Corps). The program involves responsibility for dredging and disposal of dredged
material from Federal navigation channels and harbors which is crucial to the eco-
nomic health of interstate and international commerce. Dredged material occasion-
ally contains contaminants. We have found throughout our years of attempting to
manage this program, that sometimes these contaminants are a result of marine op-
erations such as fuel leaks, overboard discharges, or hull cleanings. But far more
often, the contaminants originate upland and are unrelated to commercial naviga-
tion activities. Nevertheless, when it comes time to dredge and dispose of the mate-
rial, the Corps and port and shipping interests are faced with the very difficult task
of solving the pollution problem caused by others.
Potential solutions to the problem are made all the more difficult by fragmenta-
tion and sub-optimization of existing regulatory schemes. For example, in following
the requirements of the National Environmental Policy Act (NEPA), the Corps eval-
uates all reasonable alternatives. Upon completion of that analysis, a disposal
method is selected and approval sought from the regulatory agency responsible for
that particular medium. Separate agencies and separate programs exist for land,
air, and water disposal options. We frequently find that one agency will say, "not in
our medium, go look somewhere else." The next agency will say the same, and the
one after that will have the same response. The bottom line is that no disposal
option is acceptable, yet the alternative of closing down the major ports and harbors
by not dredging is equally unacceptable. One way to break out of this circle is to
require regulatory agencies to look at all media on an equal footing, as required by
NEPA, and to require the regulatory agencies to organize themselves along lines
which allow and promote this cross media analysis philosophy.
Two points addressed in S. 1114 which also bear on this concept are that measures
must be economically achievable and criteria for one medium must reflect criteria
for other media. For example, we have situations where discharges from upland
dredged material containment facilities into water were allowed and dredging the
same material from that water body and placing it elsewhere in the water was dis-
allowed. This makes no sense scientifically and is singularly inequitable to the party
who has to do the dredging. , , „ . . , r^ . .- *
Over the past several years the Corps and the Environmental Protection Agency
(EPA) have been developing a technical framework for determining the environmen-
tal acceptability of dredged material disposal alternatives. That framework was pub-
lished jointly by the Corps and EPA in November of 1992 as a technical framework
manual entitled "Evaluating Environmental Effects of Dredged Material Manage-
ment Alternatives." That manual addresses full consideration of all practicable al-
ternatives on an equal basis for both clean and contaminated sediments and fully
incorporates the cross media concept. Any legislation which directs how contaminat-
ed sediments are to be managed must be consistent with the cross media approach.
SCIENTIFIC BASIS
The proposed statute should build on a risk based approach to environmental
management to include effects based testing and cross media assessment. It should
include the notion that we do not know everything about everything and we must
operate within the science and technology we have today. Two regulatory tech-
niques of Title II of S. 1114 bear directly on this point: sediment quality criteria mid
mixing zone limitations. Both techniques seem to be based on an assumption that
the water would be off limits for certain material and the material would have to be
disposed of elsewhere. In one sense, this runs counter to the cross media analytic
approach discussed earlier. More significantly, the Corps believes either technique
has a limited scientific basis in the context of this bill. We believe strongly that any
management or regulatory techniques must have valid scientific bases for adoption.
Listed below are discussions on sediment quality criteria and mixing zones. In addi-
tion there are discussions on the Corps dredged material research and development
and beneficial uses programs. • j i •
Sediment quality criteria. Recently, there has been some mterest in developmg
chemical-specific numeric sediment quality criteria for sediments. These numeric
criteria would serve a number of purposes. Potentially they could be used to direct
537
how dredged material would be tested and managed and would possibly serve as
state standards. Adopting numerical criteria would appear to simplify the testing
and decision making process and afford an acceptable level of environmental protec-
tion. Unfortunately, the chemical-specific approach to sediment quality criteria
should not be the only tool in evaluating contaminated sediments that the Corps
would dredge or regulate. The sediments the Corps deals with and the ecological
evaluation of the disposal alternatives are far too complex to rely totally on this
approach. Because of the environmental situations we face in the disposal of
dredged material (e.g. confined and nonconfined land disposal, wetlands placement,
and dispersed aquatic placement), the Corps believes that it is beyond current tech-
nical capability to develop chemical specific numeric sediment quality criteria
which accurately and consistently predict the effects of contaminated sediments.
Simply, knowing the concentration of a chemical in a contaminated sediment does
not measure its mobility, toxicity, and bioavailability in a complex sediment matrix.
Furthermore, it will not allow prediction of its effects on human health and the en-
vironment under the remge of conditions found in navigation channels and disposal
alternatives. The presence of other contaminemts, the particular sediment matrix,
and the various environmental receptors all interact to affect the pollutant's bioa-
vaUabUity and impact. Many of these interactions cannot be quantified by a simple
chemical-specific numeric approach. Consequently, the Corps and EPA developed an
effects-based testing approach for the national dredging program, using a broad
array of tests and a preponderance of evidence to reach management decisions. This
is a demonstrated and scientifically defensible approach that can effectively be ap-
plied in regulatory and Federal project decision-making. This effects based approach
was initiated in 1974 and has evolved and improved over two decades through im-
plementation in the Marine Protection, Research, and Sanctuaries Acts and Clean
Water Act programs. This effects based testing protocol has been subjected to nu-
merous refinements over the years. The current effects based testing program is ad-
vancing the state-of-the-science with research into chronic/sublethal and genotoxic
effects of contaminated sediments and continues to progress as our analytical proce-
dures are refined and detection limits are lowered.
Development of a new proposed sediment quality criteria testing and regulatory
protocol must continue to be subjected to appropriate peer review, scrutiny and sci-
entific validation as was effects based testing. We must also clearly articulate what
role sediment quedity criteria will have in the overall regulatory scheme. Will sedi-
ment quality criteria become pass/fail standards, as some have advocated, or will
they replace the existing effects based testing program that has been developed
jointly by the Corps and the EPA over the past twenty years? The Corps and the
EPA £igree that sediment criteria should not be thus used. On numerous occasions
the Corps hgis stated its support for development of sediment quality criteria if those
criteria would be used as a screen for effects based testing. Because dredged materi-
al is a complex substance with many potential contaminants, the few criteria cur-
rently proposed (8) would stUl require the effects-based toxicity testing approach.
In a November 5, 1992, review of sediment quality criteria by the EPA's Science
Advisory Board, a number of recommendations were made. The Corps supports
those recommendations, including the need for research into uncertainties associat-
ed with the equilibrium partitioning based predictions, verification of field effects
and the recommendation that the criteria not be used as stand alone pass/fail
values for all applications. The Corps also supports the Board's recommendation
that EPA prepare a users manual for derivation and application of sediment quality
criteria.
Our technical expertise in evaluating and managing sediments from navigation
channels, including highly contaminated sediments, parallels development of much
of the environmental legislation of the 1970's to the present. We believe that the
Corps can provide valuable experience and expertise in the evaluation and imple-
mentation of sediment quality criteria. We seek formal recognition of a Corps role
in the development and implementation of sediment quality criteria, much as we
have had in the development of the currently used effects-based approach. I might
add that the Corps and EPA currently share technical guidance development and
implementation responsibilities under the Clean Water and Marine Protection, Re-
search, and Sanctuaries Acts.
Mixing zones. Research and field monitoring have shown that aquatic disposal
sites have a significant assimilative capacity for dredged material discharges. Since
dredged material is predominately natural sedimentary soil material that presently
exists in any water body, aquatic alternatives are not only an environmentally safe
form of disposal, but preferred alternatives in many cases. An important manage-
ment tool at aquatic disposal sites is the use of a mixing zone that will allow for
538
some minor impact within the zone and no impact outside the zone within a given
water body. The mixing zone is designed and located to protect sensitive aquatic
areas emd recognizes that there are locations within a water body that can assimi-
late the discharge with minimal short term and no long term impact. The use of a
mixing zone emphasizes water column protection; where proper disposal site selec-
tion places major emphasis on bottom impacts but includes the water column. Con-
sequently, use of an appropriate mixing zone and proper site selection must be re-
tained as a regulatory tool that will result in minimal impact to aquatic resources
and an acceptable disposal decision.
Research and development. Over the past twenty years, research has played a
vital role in the identification of environmentally appropriate dredged material dis-
posal edtematives. Research has involved all facets of sediment management from
beneficial uses such as wetlands establishment, design of contained disposal facili-
ties to toxicology of contaminated sediments. The Corps Congressionally mandated
research provides the scientific basis of our work with the EPA to classify sediments
according to contamination potential and to regulate dredged material in a cost-ef-
fective and environmentally responsible manner. Research is plajdng an important
role in determining the effects of low doses of contaminants from dredged material
disposal on organisms over a long period of time. Research is also helping us to
reduce the cost of evaluating dredged materied contaminant characteristics by iden-
tifying less expensive yet equally sensitive tests. Our research on the use of bio-
markers to determine the presence of dioxin in sediments could reduce the cost of
the analysis from over $2,000 per sample to less than $200. Research has also played
important roles in determining potential contaminant pathways, bioaccumulation
potential, leachate pathways from upland disposal areas, and potential impacts to
endangered species, to name just a few examples. The ultimate objective of our re-
search is to provide sound scientific information to help decision makers make more
informed and scientifically based decisions.
Beneficial uses of dredged material. Army has informally employed the concept of
beneficial uses of dredged material within its dredging program for many years, and
as formal policy since at least 1968. A recent Office of Technology Assessment study
reported that about 95 percent of the sediments dredged from coastal waters each
year (about 150 million cubic yards) are considered suitable under Federal environ-
mental criteria for a wide range of beneficial disposal options.
Army authority for beneficial uses of dredged material was originally limited to
projects incidental to maintenance or construction and where there was no increase
in cost to the Federal project or where the local sponsor would pay the incremental
increased cost. The Corps received further authority for beneficial uses of dredged
materisd for placement of material on beaches under Section 145 of the Water Re-
sources Development Act of 1976, as amended. This authority, justified primarily as
hurricEme and storm damage reduction, requires 50-50 cost-sharing of incremental
costs, and that the beach be public. Section 1135 of the Water Resources Develop-
ment Act of 1986 provides further authority for dredged material beneficial uses.
Finally, based on an initiative from Army, Section 204 was included in the Water
Resources Development Act of 1992. It allows the Army to participate in projects to
use dredged material for aquatic habitat and wetland creation, restoration, emd pro-
tection. The initial project cost must be shared 75% Federal and 25% nonFederal.
Any operation, maintenance, replacement and rehabilitetion costs are 100% non-
Federal. The authority is applicable to the construction, operation, or maintenance
of an authorized Federal navigation project. There is a $15 million annual appro-
priation limit on the authority, and the President's budget includes $3 million for
the program in Fiscal Year 1994. The Army and EPA have been working with inter-
ested states and others to address some of the issues associated with beneficial uses
of dredged material.
Traditioned beneficied uses would include habitat development (wetland and
upland); beach nourishment; strip mine reclamation and solid waste landfill cover;
shoreline stabilization and erosion control; smd construction aggregate and industri-
al use. More recent efforts have expanded the beneficial use concept to include cap-
ping of contaminated material outside the navigation channel with clean material
dredged in a nearby Federal or permitted project.
Presently, research activities concerned with the beneficial use concept are exam-
ining the possibility of using at least marginally contaminated dredged material for
wetlands habitat development. This effort is being carried out in the Times Beach
confined disposal facility at Buffalo, NY and at the Corps/EPA field verification site
at Bridgeport, CT. Both sites are currently being evaluated to document migration
of contaminants into biota. While wetland plants do not appear to be contaminated
on these sites, the animals do. This use appears to be a viable technology. However,
539
the level and type of contamination need to be defined. Further demonstration
should be conducted prior to widespread application.
PRIORITIES SET BASED ON RELATIVE RISK ASSESSMENT
All activities surrounding disposal of dredged material testing and impact evalua-
tion are costly and time consuming. That is not to imply we should do any less or be
any less vigilant than we now are. But in our experience, we continue to examine
impacts at a level of detail that does not contribute to improvement of the environ-
ment or enhance our decision-making ability. We believe strongly that testing and
evaluation practices and disposal management practices must be geared to the level
of risk involved. The less time and money we spend chasing insignificant details is
that much more time and money available to examine memy of the remaining sig-
nificant environmental problems of project activities.
POLLUTION PREVENTION
As alluded to in the discussion of cross media anal5rsis, the maritime industry is
saddled with the problem of resolving many pollution issues caused by others. It is
indeed difficult to understand how such an inequity exists. If pollutants discharged
from upland sources are so imdesirable in the water and aquatic sediments, they
should be stopped at the source. Alternatively, if the discharge from a permitted
upland source is meeting the applicable standards, but special handling is required
for disposal of dredged material rendered undesirable by this permitted source, it
seems the originator of the pollution has some continuing responsibility to pay spe-
cial handling costs to dispose of the dredged material. Army supports the provision
in S. 1114 on pollution prevention planning.
CONCLUSION
In conclusion, I would like to reemphasize that Army supports the management
and policy concepts of cross media management of polluteints, management and reg-
ulation of pollutants based on validated science and technology, prioritization of ac-
tions based on relative risk assessment, and pollution prevention, all of which are
embodied in Title 11 of S. 1114. Enactment of these measures will assist Army to
fulfill its mission of maintaining the economically important Federal navigation
channels and harbors in an environmentally responsible manner.
STATEMENT OF JAMES R. BATCHELDER, VICE PRESIDENT, ENVIRONMEN-
TAL AFFAIRS AND TECHNICAL SERVICES, KOPPERS INDUSTRIES, INC.
Mr. Chairman and members of the Subcommittee, thank you for the opportunity
to present the views of the American Wood Preservers Institute (AWPI) on S. 1114,
the Water Pollution Prevention and Control Act of 1993.
I am James R. Batchelder, Vice President of Environmental Affairs and Technical
Services for Koppers Industries, Inc. Koppers Industries owns and operates 13 wood
preserving plants in the United States. I am a past chairman of AWPI and remain
active in that organization. I am familiar with the Clean Water Act and its regula-
tions. I am accompanied today by John C. Chambers of McKenna & Cimeo, AWPI's
legal coimsel and Sherri G. Zedd of Neece, Cator, Bamicle & Associates, our legisla-
tive consultant.
The Institute is the national trade association representing the wood-preserving
industry. Its members include manufacturers of treated-wood products; registrants
of wood-preserving pesticides regulated under the Federal Insecticide, Fungicide and
Rodenticide Act (FIFRA); suppliers of raw materials and equipment; and providers
of allied services (e.g., environmental engineering and consulting firms). AWPI
member employ creosote, pentachlorophenol, copper-based preservatives, and inor-
ganic arsenic-chromium formulations in the preservation of wood for consumer
goods and for such industrial uses as railway ties, utility poles, and marine piling.
AWPI's comments primarily will address the wood-preserving industry's interest
in maintaining the domestic-sewage exclusion (DSE) and recommended improve-
ments to the effluent limitations and pretreatment standards process. We wish to
stress four important points.
First, Congress should retain the domestic-sewage exclusion in Section 1004 of
the Resource Conservation and Recovery Act (RCRA) to protect American in-
dustry's ability to continue to safely and efficiently discharge all wastewaters
that have been pretreated to meet Clean Water Act and permit standards.
A critical issue for the wood-preserving industry involves the retention of the do-
mestic-sewage exclusion under Section 1004(27) of RCRA for industrial effluents
540
that are discharged to publicly owned treatment works (POTWs). The industry is
particularly concerned about Section 203(c) of S. 1114 which would we believe would
jeopardize our use of the DSE. ^ ^ ^i. . • /m- . j
Like many other industries, wood preservers produce wastewater that is: (i) listed
as a hazardous waste under RCRA or (ii) contains hazardous waste. Where dis-
charged to a POTW, this wastewater is subject to regulation under the Clean Water
Act (CWA). The CWA requires pre-treatment of the wastewater and imposes rigid
monitoring and discharge limitations on the wastewater generator.
AWPI opposes any ban on the discharge of wastewater to a treatment works that
already is subject to permitting and pretreatment under the Clean Water Act and
local authority. Unlike most other wastes, wastewater cannot be effectively land-
filled or incinerated. The wastewater must eventually be released to the environ-
ment as a liquid or vapor. ..,.,* X. ^ i.
Discharge to POTWs— in full compliance with the Acts pre-treatment require-
ments—assures that wastewaters are (i) properly and safely pre-treated by the gen-
erator (ii) treated by the POTW, and (iii) discharged in accordance with a state or
feder^ permit issued under the National Pollutant Discharge Elimination System
fNPDF'S)
Additionally, under current federal rules i, generators already are required to
notify POTWs in writing that their discharge contains hazardous waste and to list
the hazardous constituents in it. •. i
We should emphasize this point: Discharge under the DSE does not avoid regula-
tion- it simply transfers control of the discharge from RCRA to the Clean Water Act
The' exclusion provides a cost-effective management alternative for industry and
protects the environment. , , ,. . ^ i. n
Repeal of the domestic-sewage exclusion would elimmate an environmentally pro-
tective disposal outlet for industrial effluent meeting a Clean Water Act treatment
Section 203(c) of S. 1114 would place wood-preserving wastewaters in the unusual
position of being disposable at a RCRA Subtitle C facility, but being barred from
discharge to a POTW after these waters have been properly treated, using appropriate
technology, to allow for safe discharge. If implemented, this provision would create
an unnecessary conflict between the two laws, produce confusion among regulated
industries, and provide no additional environmental benefit.
Second, problems related to the DSE can and should be solved by proper imple-
mentation and enforcement of existing regulation of POTWs.
POTWs are already required to have pretreatment programs that regulate indus-
trial discharges to their systems. The pretreatment requirement covers discharges
that are or that contain hazardous waste. Congress should insist that EPA fully im-
plement these requirements through enforcement and by providing help m develop-
ing standardized pretreatment standards. . , ■, ^ • i j-
NPDES permits for POTWs should properly account for connected mdustnal dis-
chargers as well as for specific local conditions. Thus, by meeting NPDES require-
ments and enforcing their own pretreatment requirements, POTWs wUl assure that
industrial dischargers, including those taking advantage of the DSE, do not cause
environmental harm or public hazard.
Third pretreatment standards and effluent limitation guidelines (ELGs) do not
provide the timeliness or flexibility needed. A more streamlined, efficient proc-
ess should be implemented.
We believe that consideration of problems with the existing system is important
because the Section 203(c) of S. 1114 makes use of the DSE dependent of the exist-
ence on— and compliance with— pretreatment standards. We have found the system
of setting and updating pretreatment standards unworkable.
Pretreatment standards and effluent limitation guidelmes (ELGs) must allow dis-
chargers to apply these strictures with flexibility in relation to location specific situ-
ations and to changing regulatory and technical conditions. . CC ^
The standards and guidelines for the wood preservmg mdustry have been m effect
for the wood-preserving industry since 1972 and they have not been substantially
changed since then. When these standards and guidelines were promulgated, they
represented the then-current state of the art in wood-preserving wastewater treat-
ment The wood preserving industry's effluent limitation guidelmes prohibited dis-
charge to surface waters. Similarly, the pretreatment standard for new sources
(PSNS) also barred any discharge to POTWs. Nevertheless, the pretreatment stand-
40 CFR § 403.12(pXl).
541
ard for existing sources (PSES) allowed discharges while limiting levels of oil and
grease, copper, chromium, and arsenic.
The no-discharge requirement was accomplished by means that generally included
primary oil-water separation, collection of wastewater in soil-lined surface impound-
ments, and treatment or disposal by evaporation in lined surface impoundments, or
by treatment or disposal by evaporation or by spray application to land.
In 1980, bottom sediment sludge from the treatment of wastewaters from process-
es that use creosote and pentachlorophenol were listed as hazardous wastes under
RCRA.
The Environmental Protection Agency (EPA) indicated that the accumulated sedi-
ment in surface impoundments was "storage" of a hazardous waste under RCRA.
EPA's action made the continued use of surface impoundments impossible. Thus,
many wood preservers closed their impoundments and installed treatment systems
that discharged wastewater to spray irrigation fields because the effluent limitation
guidelines prohibited direct discharges.
In 1991, EPA added "process wastewater" to the list of hazardous wastes from
wood-preserving operations. EPA's action meant that the irrigation fields would re-
quire a RCRA permit for land disposed. RCRA permitting is not required for a dis-
charge to a POTW or in accordance with an NPDES permit, however.
Most wood preservers who employ oUborne preservatives, including most Koppers
facilities, now discharge pretreated wastewater to POTWs. But some plants, includ-
ing three Koppers plants, are not served by sewer systems. Consequently, discharge
to a POTW is not an option.
Because the effluent limitation guidelines require "no discharge," NPDES permits
cannot be obtained for surface discharge. Thus, due to RCRA and effluent limitation
guidelines, there is now no viable option for discharge of wood-preserving
wastewater where a POTW is not available, no matter how well the water is treat-
ed.
The guidelines need to allow individual permit writers the flexibility to consider
varigmces to the ELGs where changing technology and regulations make their appli-
cation impractical for specific situations.
In addition, the process for reviewing and updating existing pretreatment stand-
ards and effluent limitations needs to be made workable. Due to changes in regula-
tion and environmental standards, we in the wood-preserving industry have made
substantial progress in our wastewater collection and treatment in the last 20 years.
But the pretreatment standards and effluent limitations have not changed to keep
pace. They are now out of date and do not provide appropriate standar<£ for either
surface discharge or pretreatment. Therefore, these standards and guidelines are
generally of no use to permit writers. Many within EPA may recognize this prob-
lem, but the Agency is too busy developing new standards and guidelines to proper-
ly consider updating the existing ones.
With new industries springing up every day, it is not practical to expect EPA to
write and keep current standards for every industry. In many cases, permit writers
must comply with basin plans, toxics criteria, and other local concerns to the point
the standards are of no use at all.
Guidelines should be promulgated only to address specific and widely applicable
national needs. The guidelines should be reviewed periodically, such as every five
years. Periodic reviews would allow EPA to evaluate and reaffirm the need for and
the appropriateness of these standards.
Finsdly, the time limitation for appealing an ELG should be eliminated.
The Clean Water Act and EPA regulations provide a method for dischargers to
appeal effluent limitation guidelines based on "fundamentally different factors"
than were considered in developing the guidelines. Nevertheless, the statute and the
regulations also require that a request for a variance based on fundamentally differ-
ent factors be filed within 180 days of the date the effluent limitation was pub-
lished.
No provision is made for factors that change after the effluent limitation has been
promulgated. RCRA was substantially amended in 1984, land-disposal restrictions
were imposed, and wood-preserving wastewater has been listed as a hazardous
waste. Moreover, the state of the art of wastewater treatment technology has
changed radically. Yet the effluent limitations reflect none of the these changes.
EPA should be allowed to consider fundamentally different factors when issuing
permits, whenever they become different, rather than being prohibited from such
consideration. The time limitation for a variance based on fundamentally different
factors should be rescinded.
AWPI and Koppers support responsible legislation and regulation. We encourage
you, as you reauthorize the Clean Water Act, to consider our concerns. We also wel-
542
come any chance to work with you as the Act is considered by your Subcommittee
and the full Environment and Public Works Committee. Mr. Chairman, this con-
cludes AWPI's prepared testimony. I will be happy to answer any questions.
543
|%^^f f £ l%S Koppers Industries, Inc.
INDUSTR I ES ^^ Seventh Avenue
m^^^am^^^^^^^mK Pittsburgti, pa 15219-1800
James R. Batchelder
October 28, 1 993
SENT VIA FACSIMILE - ORIGINAL SENT VIA MAIL
Mr. Bill Leary
Senate Environment and Public Works Committee
505 Hart Senate Office Building
Washington, D.C. 20510
Dear Mr. Leary:
I considered it an honor to have the opportunity to participate in the Senate
Subcommittee on Clean Water, Fisheries and Wildlife hearings and, therefore, I
welcome the chance to respond further by replying to Senator Graham's specific
questions contained in his letter of October 12, 1993. As I understand it, the
questions actually came frohn Senator Kempthorne.
My answers are as follows:
Question 1 .
What do you see happening if the language regarding the domestic sewage exclusion
In 8.1114 Is enacted into law:
Answer
The proposed domestic sewage exclusion (DSE) language contains overly
broad terminology that introduces potentially prohibitive interpretation to
the DSE which could defeat its original and intended purpose. That
purpose is to provide for regulatory transfer of wastewater from RCRA
solid waste to wastewater regulated under the Clean Water Act (CWA).
In the case of the wood preserving industry, all wastewaters are RCRA
Listed hazardous waste unless they are "delisted" or discharged to a
POTW through application of the DSE. If the DSE is eliminated or
restricted as contemplated by S.1 114 the wood preserving industry
would be left with no viable economic discharge option, regardless of the ' "
level of pretreatment. '
544
Mr. Bill Leary
October 28, 1993
Page 2
Answer to Question 1 (Cont'd)
Moreover, by introducing the term "pollutant" and in a context where
"the pollutant and source are subject to a pretreatment standard
promulgated by the Administrator ....", the proposed amendment creates
an impossible burden on EPA and subsequent unfair and unnecessary
prohibition on legitimate industrial dischargers. "Pollutant" as defined in
the CWA is extremely broad. EPA could not possibly promulgate
standards for all pollutants nor is it necessary from an environmental
standpoint. Pretreatment standards under the CWA need only to be set
for significant pollutants and discharges.
Question 2.
What types of industries depend on the domestic sewage exclusion?
Answer
The wood preserving industry has a critical dependence on the DSE to
enable discharge because of the RCRA wastewater Listing, as explained
previously in question No. 1 . It is my understanding that other industries
that depend on the DSE include chemical and specialty chemical
manufacturers, textile manufacturers, metal finishers, flat glass industry,
electronic interconnectors and food processors.
Question 3.
Would you comment on your industry's experience with the EPA's pretreatment
standard setting process?
Answer
The existing EPA pretreatment Standards for wood preserving date back
to 1 972. They have not been updated and are consequently outmoded
and unreflective of current technology or other regulatory changes that
encroach. The standards do not allow direct or indirect discharges of
process water pollutants from any new sources. A variance from
categorical pretreatment standards for fundamentally different factors
exists in the regulations under Subchapter N 403.13 but is unworkable
to address changing factors over time due to a 180 day limitation
following publication. Koppers has petitioned EPA for an exception to
the 180 day limit with no success.
545
Mr. Bill Leary
October 28, 1993
Page 3
Answer to Question 3 (Cont'd)
The industry approached EPA and requested re-promulgation of its'
categorical standards but was denied on the basis of agency priorities
and inadequate resources. The process could work if allowed, but
Congress or EPA management has to-date failed to provide for
satisfactory implementation and maintenance of existing laws. One
hates to see unnecessary changes embodied in the amendments Imposed
on an already belabored system at EPA.
Question 4.
Would you provide background on how you discharge your wastes before you began
using the domestic sewage exclusion?
Answer
Prior to the Listing of wood treating wastewaters under RCRA in 1 990
the DSE was not an issue. The regulatory history is interesting and
revealing about the system.
Prior to 1972 most oil type wood preserving wastewaters received
primary treatment, consisting of separation and product recovery, and
direct discharged, generally through a detention pond. The 1972
effluent limits prescribed "no direct discharge" of process wastewater
pollutants into navigable waters. This dictated an industry response to
comply by constructing large surface impoundments to capture and
preclude discharge of process wastewaters. Aeration treatment and
spray irrigation were also often employed. In 1 984 RCRA banned the
use of these surface impoundments and required costly closure. This
constituted the first regulatory push toward the Publicly Owned
Treatment Works (POTW). The final push came in 1990 when EPA
listed industry wastewaters therefore eliminating spray irrigation as it
would constitute land disposal. With a "no discharge" standard for
direct discharges the only viable option was to pretreat and discharge to
a POTW under permit as enabled by the DSE.
Regulations have reduced this industry's discharge options to one; the
POTW. To compromise the DSE jeopardizes the industry's remaining
discharge option.
546
Bill Leary
October 28, 1993
Page 4
Question 5.
If you could not discharge your wastewater to POTWs using the DSE, what disposal
options would you have? How would you rate these remaining discharge options in
so far as their affect on the environment, compared to your current use of the DSE
to discharge pretreated wastewater to POTWs?
Answer
Loss of POTW discharges, coupled with current categorical standards
that allow no direct discharges, would leave no discharge options.
Evaporation on site is an option, albeit unattractive. It is excessively
costly and wasteful of energy. In the case of wood treating, evaporation
could constitute RCRA hazardous waste treatment bringing with it the
unacceptable regulatory T.S.D.F. baggage, air emissions, and likely Clean
Air Act ramifications. It is even possible that listed wastewaters could
be incinerated in an off-site RCRA T.S.D.F. facility but employing this
option seems inconceivable.
Simply stated, wastewaters should be handled and regulated under
Clean Water.
Question 6.
What kind of capital improvements to your facilities did you undertake in order to be
able to use the DSE?
Answer
When forced to close surface impoundments the industry embarked on
a program to investigate technologies, then design and install state-of-
the-art, tank type pretreatment facilities. These varied depending on
volume and specific requirements of the receiving POTWs. I can only
speak for Koppers Industries, Inc. where the costs ranged between
$500,000 and $3,000,000 per plant and we have 14 plants.
Question 7.
Would you describe the types of pretreatment that you perform before you discharge
your wastewater to POTWs?
547
Mr. Bill Leary
October 28, 1993
Page 5
Answer
All of our plants perform primary treatment which consists of oil water
separation aided by chemical flocculation which provides for recovery of
reusable product from the wastewater. Generally, primary separation is
followed by secondary treatment consisting of biological treatment in an
activated sludge, an extended aeration system, or, in one case,
U.V. /ozone treatment. In all cases the wastewater discharges are
monitored regularly by Koppers and tfic POTW.
I would be happy to answer any further questions you might have. Please feel free
to call on me. As you can see, retention of workable domestic sewage exclusion is
paramount to Koppers and the wood preserving industry, and numerous other
industries.
I thank you for your interest and consideration of our answers and concerns.
Sincerely,
^G/R. Batcnelder
Vice President and Manager
Environmental Affairs and Technical Services
KOPPERS INDUSTRIES, INC.
JRB:avd
The Honorable Senator Dirk Kempthorne
SD 367 Dirksen Senate Office Building
Washington, D.C. 20510-1204
548
STATEMENT OF RICHARD L. HEMBRA, DIRECTOR, ENVIRONMENTAL PRO-
TECTION ISSUES, RESOURCES, COMMUNITY, AND ECONOMIC DEVELOP-
MENT DIVISION, GENERAL ACCOUNTING OFFICE
Mr. Chairman and Members of the Subcommittee:
Despite efforts under the Clean Water Act to protect our nation's waters, states
continue to issue health advisory warnings banning fishing and swimming in local
waters, and environmentalists argue that limits on pollutants from discharging fa-
cilities are not stringent enough to protect the public. On the other hand, industry
groups and other dischargers claim that pollutant limitations in discharge permits
are often overly protective, based on insufficient scientific evidence, and unnecessar-
ily costly.
Concerned about how the Environmental Protection Agency (EPA) and states are
performing the tasks essential to developing sound discharge permit limitations, the
full Committee asked us in December 1992 to assess (1) EPA's efforts to develop the
technical information ('criteria") that states need to develop water quality stand-
ards which, in turn, are used to set facilities' discharge limits; (2) whether pollute
ants that pose serious threats to health and the environment are being discharged
into waters but are not included on EPA's "priority pollutant list" for criteria devel-
opment; and (3) how states have implemented the Clean Water Act's requirement to
adopt water quality standards for pollutants for which EPA has prepared criteria
documents. Our statement today presents information collected to date on the first
of these issues, along with our preliminary observations and/or plans for addressing
the second and third issues.
—Faced with limited funds and competing demands, EPA has made limited
progress in developing and issuing the criteria that states need to develop water
quality standards for the 126 priority pollutants. To date, EPA has issued
human health criteria for 72 priority pollutants and aquatic life criteria for 27
pollutants. Nearly all of these criteria were developed in the early and mid-
1980s, and few have been updated, as the Clean Water Act requires. Moreover,
few are complete enough to allow states to set standards that would protect
their waters against all of a pollutant's harmful effects. In particular, only 9 of
the priority pollutants have criteria for the full range of possible effects on
human health and aquatic life.
—Notwithstanding EPA's problems in addressing the 126 pollutants on it priority
list, the agency concedes that recent scientific information indicates that other
pollutants may seriously affect surface waters and may also warrant attention.
However, the agency currently has no plans to modify or expand the list, ex-
plaining that such an expansion would not make the best use of the agency's
limited resources. During the remainder of our review, we plan to examine
EPA's basis for not incluiSng other pollutants on the priority pollutant list.
Our preliminary review of state water quality standards suggests that the
number and content of water quality standards varies significantly among the
states. Some states have uniformly adopted the limits suggested by EPA's crite-
ria, and others have modified them to be either more or less stringent than
these criteria. Our fieldwork at selected EPA regions and states will help us to
determine the full extent, causes, and appropriateness of this variation.
BACKGROUND
To help achieve its goal of restoring and maintaining the chemical, physical, and
biological integrity of the nation's waters, the Clean Water Act requires EPA to de-
velop and periodically review water quality criteria that states use as guidance in
setting water quality stemdards. Water quality criteria consist of the technical infor-
mation (such as the effects of various concentrations of pollutants on human health
or aquatic life) that regulators need to place limitations on the amount of a pollut-
ant that should be allowed in a waterbody, and on individual facilities' discharges
into U.S. waters. Under a 1976 consent decree, EPA was required to develop criteria
for aquatic life and human health for 65 pollutants and classes of pollutants desig-
nated as toxic under section 307(a) of the Clean Water Act. Because these toxic pol-
lutants represented thousands of specific chemicals, developed a list of priority pol-
lutants in 1977 that it would focus on for criteria development, that now consists of
126 such pollutants. ^
1 The priority pollutant list developed in 1977 originally contained 129 pollutants; it currently
contains 126 pollutants.
549
The 1987 amendments to the Clean Water Act mandated that in the case of each
priority pollutant for which EPA criteria have been developed, each state must
adopt criteria in their corresponding "water quality standar(k" that set sdlowable
pollution limits on each of its waterbodies. Based on EPA guidance, individual
states may modify its standards to include limitations that dSfer from those sug-
gested by the EPA criteria documents, but all standards must be approved by EPA.
Water quality standards are eventually used by state permit writers to set indi-
vidual dischargers' permit limits in such a way that the standards will be achieved.
As we have reported in the past, in the absence of credible, scientifically based
water quality standards, permit discharge limits may be over- or under protective,
and become more susceptible to legal ch^lenge. ^
EPA HAS MADE LIMITED PROGRESS IN CRITERIA DEVELOPMENT
EPA has made limited progress in developing and issuing the criteria documents
needed by states to develop water quality standards for the 126 priority pollutants.
Our preliminary work indicates that EPA has published criteria for 86 priority pol-
lutants. However, few of the criteria are complete enough to allow states to set
standards that would protect their waters against all of a pollutant's harmful ef-
fects. For example, (1) human health criteria exist for 72 pollutants, while aquatic
life criteria exist for 27 poUutante, and (2) and some of the criteria address acute
effects but not long-term, chronic effects. Altogether, only nine of the priority pol-
lutants have criteria for the full range of possible effects on human health and
aquatic life.
Moreover, nearly all of these criteria were developed in the early and mid-1980s,
and few have been updated to reflect new scientific information, as the Clean Water
Act requires. ^ In particular, all but 1 of the 72 human health criteria have been in
effect since their formal publication in November 1980. EPA officials concede that
new science may indeed justify changes to many of its published criteria.
EPA officials attribute the limited progress in criteria development to shortages
of staffing and funds — the same the explanation we reported in our July 1991
report. During that review, EPA officials told us that, because of limited reFX)urc«is
to develop data and perform analyses, they had to rely heavily on data published in
various scientific journals.
In addition to resource limitations, we will explore at least two other reasons that
may contribute to delays in EPA's future effort to develop water quality criteria:
— According to officials in EPA's Office of Science and Technology, the agency's
process for developing chemical-specific criteria is time-consuming and costly.
The development of proposed EPA criteria involves a detailed literature search,
a peer review process and extensive laboratory testing, proposed criteria are
then drafted and go out for public comment. "The process of crafting and pub-
lishing proposed criteria and deceiving and responding to public comments can
take up to 9 months. From start to finish, the criteria development process can
cost hundreds of thousands of dollars per pollutant and take up to 6 years.
— In addition to developing chemical-specific criteria for priority pollutants, EPA
officials have cited the need to make more progress in developing other water
quality criteria, such £is biological criteria. * We will examine the cledms by
these officials that chemical-specific criteria will have to compete for limited re-
sources with these other criteria development responsibilities.
POTENTIALLY SERIOUS TOXIC POLLUTANTS NOT ON EPA'S PRIORITY LIST
EPA and other agencies have generated considerable data suggesting that poUut-
gmts other than those on EPA's 16-year-old priority pollutant list may pose a serious
threat to water quality. Some of these data sources, which include information on
pollutants entering surface waters, were generated under the authority of statutes
other than the Clean Water Act. Foremost among these sources is EPA's Toxic Re-
lease Inventory (TRI), authorized under the Emergency Planning and Community
Right-to-Know Act of 1986. TRI contains information on over 300 toxic chemicals
released into the environment by industrial facilities. Pollutants potentially affect-
ing surface waters have also been identified imder programs authorized by the Safe
2 Water Pollution: Stronger Efforts Needed by EPA to Control Toxic Water Pollution (GAO/
RCED-91-154, July 19, 1991).
^ According to Section 304(aXl) of the Clean Water Act, EPA's Administrator shall develop
and publish criteria for water quality "accurately reflecting the latest scientific knowledge . . .
and shall "from time to time" revise these criteria.
* Biological criteria gauge the heedth of the ecosystem by measuring the diversity of aquatic
and plant life.
550
Drinking Water Act, the Federal Insecticide, Fungicide, and Rodenticide Act, and
other statutes.
Officials in EPA's Office of Science and Technology acknowledge that many toxic
pollutants identified through the Toxic Release Inventory, and other data bases
compiled since the priority pollutant list was completed, may be causing serious sur-
face water quality problems although they do not appear on the priority pollutant
list. Nevertheless, EPA never expanded its priority pollutant list beyond the 126
previously identified, and officials have told us that they do not plan to do so in the
future.
EPA officials explained, in part, that expansion of the list would not make the
best use of the agency's limited resources, given its perceived need to focus more
effort on developing biological, habitat, and other criteria. However, we believe this
claim warrants examination because a more complete and ui>-to-date priority list
could help ensure that EPA targets the limited resources it does devote to pollutant-
specific criteria toward the most serious pollutants. EPA also argues that it has the
flexibility to develop criteria for serious nonpriority pollutants and that it can
ensure that a state will adopt a corresponding standard. Yet we foimd that regions
and states typically focus on priority pollutants in adopting standards. For these
reasons, during our ongoing review, we plan to examine more closely EPA's position
of not including other pollutants on the priority pollutant list.
STATES' WATER QUALITY STANDARDS VARY
The Clean Water Act amendments of 1987 required states to adopt water quality
standards, including numeric limitations (i.e., concentrations of chemicals present in
water), in the case of priority pollutants that are expected to impair the designated
uses of receiving waters, and for which EPA had published criteria. ^ As we noted in
our July 1991 report, many states were reluctant to adopt EPA's criteria as part of
their water quality standards. EPA and state officials noted that (1) some states
questioned the validity of scientific data, the methodology underlying some toxic cri-
teria, and/or laboratory analyses EPA used to develop its criteria documents; (2)
some believed that permit limits based on EPA's criteria were overly protective and
too costly; and (3) some said that incorporating numeric toxic criteria into their
water quality standards involved burdensome state rulemaking procedures. Ulti-
mately, however, the required standards were adopted in all states. ®
We are presently gathering information from each of EPA's regional offices on
the content of states' standards. Our preliminary review of the information gath-
ered to date reveals a good deal of variation in both the stringency and complete-
ness of states' standards. For example:
In adopting human health criteria for carcinogenic pollutants, some states use a
risk factor of 1 in 1 million, whereas others use a less stringent standard of 1 in
100,000. Among the more controversial issues in states' adoption of standards is
the' case of dioxin: some states adopted EPA's recommended dioxin criteria,
while others adopted a less stringent standard.
—Some states adopted standards for all priority and nonpriority pollutants for
which EPA had developed criteria (whether or not they were being discharged),
while others adopted standards only for priority pollutants, and only if they be-
lieved the pollutants were being discharged.
Our preliminary work suggests that many of the variations between the limita-
tions in state standards and EPA's published criteria are consistent with the flexi-
bility provided by EPA guidance. In particular, such diversity is often driven by site-
specific variations from one geographic area to another. State, EPA, environmental,
and industry officials, however, suggest that there may be cases for which such vari-
ations are not warranted and place certain dischargers at a competitive advantage
or disadvantage. „ . j • • i
During the remainder of our review, we will contact all regions and visit several
states to ascertain the extent of variation among states' standards adoption prac-
tices and the reasons for such variations. We will also examine the consistency with
which different EPA regions evaluate and approve state standards and the extent to
» Section 303(cX2XB) of the Qean Water Act requires states to adopt numeric criteria imless
such criteria are not available. If numeric criteria are not available, states shall adopt criteria
based on biological monitoring or other specified assessment methods.
6 Fourteen states did not adopt all required standards. As a result, EPA issued a rule, effec-
tive February 5, 1993, promulgating standards for these states. 57 Fed. Reg. 60848 (Dec. 22,
1992).
551
which EPA headquarters encourages consistency of such oversight from one region
to another.
SUMMARY
The nation's current system of controlling toxic discharges from industrial, mu-
nicipal, and other sources relies on the use of defensible and scientifically based
permit limits. Permit limits are based, in part, on states' water quality standards
which, in turn, depend largely on EPA water quality criteria. Without sound crite-
ria and standards, discharge permits may be either over- or under-protective of the
environment, and may be more open to legal challenges.
EPA has made limited progress in developing and issuing the criteria needed by
states to develop water quality standards for the 126 priority pollutants. Specifical-
ly, (1) criteria for some pollutants have not been developed, (2) most of the criteria
that have been developed date back to the early to mid-1980s, and (3) few criteria
documents are complete enough to allow states to set standards that would fully ad-
dress a priority pollutant's harmful effects.
Our preliminary findings also suggest that a number of pollutants that seriously
affect water quality are not on EPA's list and that the agency currently has no
plans to modify or expand the list to include them. EPA has offered several explana-
tions for this approach, which we plan to examine during the remsiinder of our
review.
Similarly, our preliminary review of state water quality standards suggests that
the number and content of water quality standards varies significantly among the
states, although we have not yet determined the extent to which such diversity is
justified. Our fieldwork at selected EPA regions and states will help us to determine
the full extent and causes of these variations.
Mr. Chairman, this concludes our statement for the record. We appreciate the op-
portunity to present our preliminary findings on these issues.
REAUTHORIZATION OF THE CLEAN WATER ACT
WEDNESDAY, JULY 14, 1993
U.S. Senate,
Committee on Environment and Public Works,
Subcommittee on Clean Water, Fisheries, and Wildufe,
Washington, DC.
NON-POINT SOURCE POLLUTION CONTROL
The subcommittee met, pursuant to recess, at 9:37 a.m. in room
406, Dirksen Senate Office Building, Hon. Bob Graham [chairman
of the subcommittee] presiding.
Present: Senators Graham, Chafee, Lieberman, Durenberger,
Faircloth, Kempthorne, and Baucus.
OPENING STATEMENT OF HON. BOB GRAHAM, U.S. SENATOR
FROM THE STATE OF FLORIDA
Senator Graham. This meeting will come to order.
This is the fourth in a series of hearings of the subcommittee on
reauthorization of the Clean Water Act. Today our focus will be on
non-point source pollution.
Despite the fact that much was known about non-point source
pollution in 1972, the Clean Water Act, as originally enacted, pri-
marily focused on point-source, industrial and municipal sources
that discharged waste water from discrete pipes and ditches. The
Act has been successful in bringing point sources into compliance.
In fact, the Environmental Protection Agency believes that 87 per-
cent of industrial, and 85 percent of municipal sources are in sub-
stantial compliance with permit requirements as a result of the
Clean Water Act requirements.
However, as these sources achieve compliance, run-off from dif-
fuse urban and rural sources, termed non-point source pollution,
represents the largest portion of the Nation's remaining surface
water problem. EPA estimates that non-point pollution represents
over one-half of our remaining water quality problem.
I am very familiar with the impact of non-point source pollution
on our Nation's water. Just yesterday, I participated in an impor-
tant event in the restoration of the Florida Everglades, which has
suffered in large part from non-point source pollution arising from
a variety of sources, including the Everglades agricultural area. I
have seen the harm that comes to an ecosystem from pollution run-
off, and the difficulties in attempting to deal with it.
On June the 16th, this subcommittee heard from a panel of sci-
entists who told us that non-point source pollution and aquatic
habit degradation from non-point sources are two of the most im-
(553)
554
portant remaining problems facing America's waters. Non-point
source pollution prevents full use of more than 75 percent of the
rivers' miles assessed by States. About 20 percent of the Nation's
lake acreage is affected by non-point source pollution.
In 1987 Congress created section 319 of the Act, the first compre-
hensive non-point pollution program. Nonetheless, little has been
done to control this major source of pollution. Several concerns
have been raised about implementation of section 319. Mostly, it
has been criticized for inadequate funding and for a lack of vision.
One of our witnesses today said that we have been running the pro-
gram for six years like a demonstration project, rather than a seri-
ous, long-term commitment.
But the quality of assessments by the States of their non-point
pollution problems has also been suspect. So, too, is the fact that
there is no real consequence if a State fails to properly address its
non-point problems. ,,,,•, .lu j r
Today one of the issues we should address is the adequacy ot
funding of the section 319 program. The Baucus-Chafee Bill sub-
stantially increases funding. The bill also requires States to reas-
sess their waters and to identify impaired waters and provide fi-
nancial consequences if they fail to do so. , , .
We will also address how best to help agricultural and other in-
terests reduce their pollution and the appropriate role of EPA,
other Federal agencies, and the States in providing that assistance.
While next week's hearing will focus on watershed planning, it is
impossible to discuss non-point pollution without reference to wa-
tershed planning. This is true both because most people believe it
to be the best mechanism to address the problem, and because it is
the approach which is taken in the bill before us.
For this reason, we will start today with the New York State
Commissioner of Agriculture, Mr. Richard McGuire, and the New
York City Environmental Commissioner, Mr. Albert Appleton, who
can tell us briefly about the innovative approach they took to ad-
dress non-point source pollution that was threatening the drinking
water supply of New York City.
We will also explore the concerns of a variety of witnesses today
as to how we can best improve the Clean Water Act so that we can
achieve the same level of success with this form of pollution as we
have achieved with others.
I am pleased to see that in our second panel today we have
number of witnesses who actually earn their living on the farm,
and thus can provide us a perspective that is not often heard in
these discussions. j. j.-, .
As can be seen, we will begin using the informal format that we
tried at our last hearing. Because we wish to use this format to fa-
cilitate discussion, I'll ask our witnesses to make a brief opening
statement, and then we will proceed to questions from members of
the committee, as well as a discussion among the panelists. The
full written statements, and any additional materials, will be made
a part of the record. u r
I am pleased that we are joined today by the ranking member ot
the committee, and of this subcommittee, and one of the co-authors
of the bill that we are using as the basis of our hearing. Senator
John Chafee.
555
Senator Chafee?
OPENING STATEMENT OF HON. JOHN H. CHAFEE, U.S. SENATOR
FROM THE STATE OF RHODE ISLAND
Senator Chafee. Thank you very much, Mr. Chairman.
I want to subscribe to what you said in your opening statement. I
also want to join in welcoming the witnesses here today. I think
this is one of the more important hearings we have in connection
with the reauthorization of the Clean Water Act.
It seems to me quite clear, as you pointed out, Mr. Chairman,
that our best opportunity to improve water quality is to address
these non-point sources of pollution; run-off from farms, and city
streets, and forests and construction sites. As you pointed out, so
much has been accomplished under the point source provisions of
the Clean Water Act, that now non-point pollution is our number
one water quality problem.
I might say this, Mr. Chairman: If the only thing we accomplish
in the 1993 reauthorization of the Clean Water Act is to establish
an effective, workable program to address non-point source pollu-
tion, I think this bill could be considered a big success. I think we
should keep clearly in our minds that non-point source pollution is
our highest priority.
As you mentioned, the bill that Senator Baucus and I introduced,
S. 1114, has one element that I would like to stress. That is this:
Based on our past experience, I'm convinced that regulations from
EPA cannot be effective in solving these non-point source pollution
problems. EPA can grind out all the regulations and we can have
them working nights over there, but it won't do the trick.
What we really have to do is to have the landowners, farmers, or
the forest owners, or the construction site owners, or the mayors of
the cities, participate directly in the plans that are made to protect
our lakes, and rivers, and streams, and bays in their own communi-
ties. We have to get this attachment of the belonging aspect, that
these waters are their waters, the farmers' waters, and the mayors'
waters.
This bill that we have before us does include incentives for, as
you say, comprehensive watershed planning, for site-specific non-
point control plans that give people at the local level a chance to
shape the program. We are taking this approach because we be-
lieve that farmers and developers and small towns will happily
agree to do more as authors of a local plan for their waters than
EPA could ever do by issuing regulations from here in Washington.
So I look forward to this hearing. As you say, you have some
really hands-on people, farmers who are farmers, and others here. I
look forward to hearing their testimony.
Thank you.
Senator Graham. Thank you very much, Senator Chafee.
I'd like to ask the members of the first panel if they would please
come forward. I will briefly introduce them as they do so.
Mr. Geoffrey Grubbs, Director, Assessment and Watershed Pro-
tection Division, U.S. Environmental Protection Agency. Thank
you.
Ms. Diane Cameron, of the Natural Resources Defense Council.
556
Mr. Gerald Vap, Vice-President of the National Association of
Conservation Districts.
Mr. George Olszewski, of the Georgia Pacific Company. Mr. Ols-
zewski is representing the American Forest Paper Institute.
Mr. Richard T. McGuire, New York Commissioner of Agriculture
and Markets, and Mr. Albert Appleton, New Your City Environ-
mental Commissioner. Both of these are representing the National
Association of State Departments of Agriculture.
I would like to ask each of the members of the panel to make a
short statement. I would request you limit it to five minutes. We
have a timing device. Your full statements and any other materials
that you would like to provide will be incorporated as part of the
record. After your statements we will move to questions and discus-
sion.
It is my understanding that we are going to have a vote at ap-
proximately 10:30 a.m. I would hope that we might be able to com-
plete our discussion prior to when Senator Chafee and I will have
to leave for a vote, so that there will not be an interruption in the
discussion of the first panel.
As I indicated in my opening statement, I would like to call on
Mr. McGuire and Mr. Appleton. If they would kick this off with
their statement as to what is being done in New York State in
order to protect the water supply of New York City, then we will
call on the other members of the panel in the order in which they
were introduced.
Mr. McGuire?
STATEMENT OF RICHARD T. McGUIRE, NEW YORK STATE
COMMISSIONER OF AGRICULTURE AND MARKETS
Mr McGuire. Senator Graham and Senator Chafee, I am pleased
to be here this morning with my colleague, Albert Appleton from
New York City. I think we have a real story to tell you. I will pro-
ceed as rapidly as possible.
My principal purpose is to describe to you the unique approach
that has been adopted between the farm community and New York
City in addressing its drinking water protection needs in its water-
shed, and its importance to the development of National non-point
source pollution control policy. My remarks before you will be con-
fined to the watershed program. I believe there are some important
principles embodied in the New York City watershed agricultural
arrangement that the committee may want to consider in reauthor-
izing the Clean Water Act.
The New York City watershed is rather unique. The successful
effort that we have embarked on is based upon the prospective vol-
untary adaption of best management practices to control non-point
source pollution by the more than 550 dairy farms and other farms
in the New York City watershed area.
Farming has been practiced in the New York City watershed
area of Delaware, Schoharie, Sullivan and Green Counties since
long before New York City came to rely on the watershed for most
of its water supply. The City has preserved its water quality in the
midst of agricultural production for decades. So we approach from
a point of strength, rather than a point of a problem. Our total
557
effort is focused on preserving that good quality, not having to cor-
rect a bad situation.
Efforts to improve farming practices, especially through the
adoption of soil and water conservation techniques with the leader-
ship of USDA Soil Conservation Service, delivered to the local soil
and water conservation districts and ASCS offices have allowed
farmers to maintain the economic viability of their farms by keep-
ing their top soil on the land. This voluntary, locally based effort
by farmers has a proved record of success, not just in New York
State, but in most parts of the United States.
Let me say that because of the topography of New York — very
hilly land, a lot of water systems, a lot of lakes and streams — soil
conservation practices were initiated and were practiced probably
ahead of most of other areas of the Country, some 50 years ago,
with the focus being on keeping the soil on the farm, rather than
the focus being on improving the water system.
So it is very applicable why this has happened already. Agricul-
ture in the watershed has been changing. The pressures of the eco-
nomics of dairy farming have led to larger herds of dairy cows, in-
tensification of land use for crop production, and greater concentra-
tions of animal waste. New measures based upon the proven path
of voluntary and locally based approaches need to be implemented
to cope with the increased requirements for drinking water protec-
tion and raw water quality maintenance for the New York City wa-
tershed area.
The Whole Farm Planning Approach Program is being imple-
mented to meet the needs of farms in the watershed as well as the
metropolitan area of the urban public, which is dependent upon
this surface water supply. This approach is a result of a lot of hard
work by all who were concerned about long-term protection of the
City's water quality, while maintaining the agricultural economy
as well.
In mid-1990. New York City circulated a draft of mandatory re-
strictive agricultural land use regulations that they thought were
necessary to meet their goal of drinking water source protection
without resorting to a full filtration system. Uniform and inflexible
regulations were seen as unworkable and undesirable by the local
agriculture community due to their negative impact upon the farm
economy of the region.
In December of 1990, the New York City Department of Environ-
mental Protection and the New York State Department of Agricul-
ture and Markets cooperated in convening an ad hoc task force on
agriculture and New York City watershed regulations. This group
was composed of local farmers, local agricultural and environmen-
tal and government organizations of leaders. State representatives,
and technical advisers. The Task Force was comprised of a policy
group and a technical support group. Over a period of time they
worked out a compromise position that was advantageous to every-
one.
Farming in the New York City water supply watershed presents
a complicated environmental management problem. Farming
methods and practices are a potential source of non-point pollution.
A locally developed and administered program of best management
practices on a farm-by-farm basis was tailored, and is now being
558
implemented. The City, after consulting with appropriate bodies
and after full review of Federal and State regulations, was satisfied
that such a program would meet the avoidance criteria for effective
watershed regulation. It represents the best strategy for dealing
with concerns of both the city and farm community.
The whole farm planning and best management practices is now
being put in place on farms in that area. Over a period of time we
are sure they will be successful.
So I think my time is used up, Senator. May I continue a little
bit?
Senator Graham. You might take another minute or so to sum-
marize.
Mr McGuiRE. I appreciate it.
The Whole Farm Approach to drinking water quality source pro-
tection integrates selected management practices intended to pro-
vide short and long term protection of water quality, with a farm
business plan designed to sustain a profitable agricultural enter-
prise, given the mix of physical, capital, and management re-
sources available to, and consistent with, the objectives of the farm
operation.
I want to stress that we need this on a farm-by-farm basis. The
thing we must avoid is mandatory regulations that are mandated
on every farm, because no two farms are alike. Their soils are not
alike; their geography is not alike; their type of agriculture that
they may be conducting are not alike. So it is necessary, if we are
going to have the result we desire, and also maintain a viable agri-
culture, which I am convinced is possible, we have to approach this
on a one-on-one, individual farm basis.
This may be timely, but I am confident that the results will be
satisfactory to everyone concerned.
I will be happy to answer any further questions.
Senator Graham. Thank you very much, Mr. McGuire.
I would like to ask some questions, but I will hold those until
after we have heard from all of the members of the panel with
their opening statements.
Mr. Appleton?
STATEMENT OF ALBERT F. APPLETON, COMMISSIONER, NEW
YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION
Mr. Appleton. Senator Graham, Senator Chafee, I am pleased to
be here today to talk about watershed protection and non-point
source pollution.
The Dinkins administration in its environmental programs, both
in the watershed, but also in the estuary, has made these programs
a center-piece of our environmental strategy. I think it is very im-
portant to note some lessons from that experience.
One is pollution prevention is essential to effective non-point
source pollution control. The difficulties in implementing best man-
agement practices and others give an enormous premium to keep-
ing pollution out of the waste stream to begin with.
Technically, I personally feel the failure of non-point source pol-
lution programs in the past has been a failure to address the messy
politics of land use, and environmentally appropriate land use in
559
all its dimensions. A non-point source pollution strategy that fails
to do that is doomed to failure.
This is why new institutional arrangements, particularly the wa-
tershed protection approach that S. 1114 is talking about, are enor-
mously important to us. It is the kind of thing we have been trying
to do in our programs.
As Commissioner McGuire laid out, we had a very difficult prob-
lem to face in the New York City watershed. There are some les-
sons to be learned from it. One thing that made our approach work
is that we came up determined to meet an environmental goal, not
to run a regulatory system.
In a sense, a r^ulatory system set a benchmark for us, but when
the farm community came to us and said, "We can give you your
water quality, but let us do this our way," we spent enough time
testing their bona fides. Once it was clear that they would be seri-
ously committed to our goal of water quality, then we were in a
position to seriously commit to and to try out, their option of a
non-regulatory, farm-by-farm, individual approach.
Another lesson is that local leadership is essential. I cannot
speak highly enough of the assistance we got from the State De-
partment of Agriculture, not only Commissioner McGuire, but
Deputy Commissioner Dennis Rapp, who served as facilitator, and
members of the local farm community, some of whom are identi-
fied in my written remarks.
A third thing is it is very important that we all learn a new lan-
guage if we are going to make these deals work. Environmentalists,
environmental r^ulators, environmental institutions have their
own language. It is an insider's language. Environmental conflict
has created a language. Voluntary, for example, is an enormous
buzzword.
Senator Chafee. What was that word again?
Mr, Appleton. Voluntary. The issue of whether this would be a
voluntary program. Senator, was an enormously explosive issue po-
litically. Farmers were determined to have a program that was vol-
untary for each farm. We, on the other hand, had seen many non-
point source programs in the past fail, because the conscientious
people are already doing it, or would participate in it and everyone
else wouldn't.
The ultimate way we got around this problem was to take a new
approach. That is, we established that the-program would be volun-
tary as to any individual farm, but that the lla^ership of the agri-
cultural community committed to work with us. It is their commit-
ment to provide 85 percent participation within five years of this
program or the City would be free to go back to a more traditional
regulatory approach.
The City in turn agreed to fund the cost of this program as an
alternative to the cost of running a regulatory system. So while we
were able to satisfy the desire of the individual farmers for a vol-
untary program, we were able to meet our own need for a reliable
critical mass of pollution reduction, which we estimate will be by
at least two-thirds by the end of the decade.
We all took some political risks doing that. I must tell you, the
first article in the New York Times quoted several of my environ-
mental friends who had not read the fine print denouncing the pro-
560
gram because it was, quote, voluntary, not realizing how it had
been structured. That there are political risks in these kinds of pro-
grams, regulatory systems, is certain. We have people in the water-
shed who want us to do all of the collaborative programs, but at
the same time want us to have very specific, numerical standards
for every single thing we do.
Now, the success of Whole Farm Planning has led us to a larger
series of conversations throughout the watersheds — our watersheds
are 2,000 square miles, the size of the State of Delaware nearly—
with local towns, communities, forestry, and other business associa-
tions over what is now called the Whole Community Planning ap-
proach, in which we are offering to waive all or part of our regula-
tion in exchange for community-based plans that will give us at
least the same water quality protection and improvement that we
would get from a regulatory baseline.
We are proceeding with the regulatory baseline. Our final new
regulations will be out in November of this year. At the same time,
the Mayor set $120 million aside in a watershed protection and
partnership program to fund these collaborative pollution clean-up
programs on a town-by-town basis. We have six model towns we
are working with.
Could I have one more minute to sum up?
Senator Graham. Please do.
Mr. Appleton. I think it is very important that we see these pro-
grams from an overall context. At the same time the City has been
doing this collaboration, it has issued more clean water suits than
any other jurisdiction in the country against polluters, and set
aside over $200 million for acquisition of core land areas around
reservoirs, stream border protection, and other institutions.
A watershed program to be successful must be truly comprehen-
sive to deal with non-point sources. It must be truly comprehen-
sive.
My great worry is that watershed protection, the watershed pro-
tection approach will become just another bureaucratic layer, that
we will look for a one-size-fits-all approach, but we will not pro-
mote the kind of local entrepreneurial environmental leadership
that the farm community came forward with. I hope when we draft
S. 1114, we have the courage to walk away from some of our own
bureaucratic assurances to take the more risky, entrepreneurial,
but I believe the only course that will be successful.
Senator Graham. Thank you very much, Mr. Appleton.
I appreciate you and Mr. McGuire's background on what has
been a very much watched National effort at non-point pollution
control. I look forward to asking some questions in a moment.
Mr. Grubbs?
STATEMENT OF GEOFFREY H. GRUBBS, DIRECTOR, ASSESSMENT
AND WATERSHED PROTECTION DIVISION, ENVIRONMENTAL
PROTECTION AGENCY
Mr. Grubbs. Thank you for this opportunity.
I am here today in two capacities: One is EPA's National Pro-
gram Manager for the non-point source program, and in that
regard I am looking forward to the discussion period so that we can
561
talk about how to make these programs really work. The other is
to speak for the administration more broadly on non-point sources,
in particular S. 1114 and many of the concepts you have advanced
here.
Without reciting my testimony, I would just point that in the tes-
timony there are 15 or 16 specific places where we support S. 1114.
We think it is genersdly the right direction with regard to non-
point sources and agree wholeheartedly with your initial state-
ments here, that if we accomplish something really meaningful in
the Clean Water Act reauthorization process it will be real change
for non-point sources.
I also say in that regard we talked at some length with the Ad-
ministrator, who is in Chicago today, and with persons at senior po-
litical levels at OMB and elsewhere, as well as a number of other
Federal agencies to arrive at these positions.
I won't repeat your very thorough summary at the beginning,
Senator, on the extent of the non-point source pollution problem,
except to say we agree with it. We think this water quantity prob-
lem needs to be recognized and we think that your Eissessment of
the importance of it is correct.
Moving beyond that, though, we do think in the administration
that State-led programs are the best approach here. We also Eigree
that section 319 is the best approach to take. It provides a good
framework for us. We shouldn't be throwing it out and starting all
over again with a new set of Federal and very different kinds of
requirements. We want to rely upon States and local organizations
and private landowners as this moves forward.
But, having administered this program for the last five years, my
personal observation is that the differences we see among State
programs are far more than can really be justified by the differ-
ences in local conditions. We are having some problems in some
States getting programs up to a basic level of performance. I think
that in moving towards new Clean Water Act, we need to take a
hard look at what our bottom lines really are in section 319, and
make sure we are getting the kind of performance from these State
and local programs nationally that we need in order to solve the
problems that you talked about.
Specifically, we very much support the notion in S. 1114 that we
need to update State non-point source assessments. We, by that, I
mean States, need to go through and update their non-point source
assessments. EPA should retain the authority we now have under
section 319 to act where States fail. But this is a central part of
using our resources wisely and targeting programs to the places
that have the greatest problems.
We do think that we need clear technical baselines for controls
and practices that are needed. We support S. 1114's approach for
EPA to establish guidance, not regulations, but guidance, for non-
point source management measures. This guidance would lay out
broad expectations for performance for these non-point source man-
agement systems that are general enough that they make sense
when from Alaska to Puerto Rico, and are flexible enough that
they can be tailored and adapted to site-specific conditions. We
think that is an important baseline to establish.
562
We agree that these baseline management resource need to be
develop together with other Federal agencies, as we did once in the
past with the Coastal Zone Guidance, which has been discussed
here previously. We support the approach in S. 1114 of putting the
greatest weight of these best available management measures upon
existing non-point sources in impaired areas where you have antici-
pate water quantity problem. This strategy is something we would
specifically support, as well as extending that some level of non-
point source control to significant new land disturbances in areas
that are currently clean. This is a very sensible and practical ap-
proach.
We also support the use of site-specific plans adopted locally, and
taking local circumstances into account. But we would like to make
sure that as site-specific plans go forward there is some level of pol-
lution reduction that is achieved by these site-specific plans that is
commensurate with what the state of the art can yield.
We very much support the idea in S. 1114 of a 12 1/2-year time
frame. This isn't going to be done overnight. You proposed in your
bill two five-year cycles that would lead to full implementation of
these management measures, but we would like to see this directed
in the end toward water quality objectives, and think that we need
to specifically recognize State water quality standards and desig-
nated uses as our main water quality objectives as the endpoint of
our second cycle.
I won't talk at length today about watershed management and
protection plans, since that is the subject of next week's hearing,
but I will say that we generally do support the idea of deferring to
show watershed programs crafted by States and responsible organi-
zations. 'These water shed programs may be scientific but must be
capable of meeting those environmental endpoints so that we can
get to where we need to be in some reasonable time frame.
I'd like to make two more points, if I can.
The first is with regard to implementation, we do support a vol-
untary and consensu — ^based approach as a strategy of first choice.
This is not going to be done overnight, and it is not going to be
done through compulsion by EPA, that is for sure.
At the same time, as these programs are moved forward, and
Soil Conservation Service and the many able State assistance agen-
cies move forward with their programs, we do think it is impor-
tant, up front, that States establish enforceable mechanisms in
these improved non-point source programs that can brought into
play after a reasonable time if voluntary means fail. They would be
triggered as a last resort after the voluntary means fail. We think
this is important.
We also support the notion that EPA should be empowered to act
in the cases where those hopefully very few State and territories
decline to take on the non-point source problems they have in front
of them.
I'd just like to just say in closing that we do think we will be able
to reap substantial benefits out of the approach that both of you
have proposed and we are supporting here. With the delivery
power of other Federal agencies, of States, of local and county orga-
nizations, and the individuals who decide to do non-point source
controls because that is the right thing to do, not because someone
563
compelled them to do it, we think we will get to where we need to
be in a reasonable time and in fashion, that we at EPA can admin-
ister.
Thank you.
Senator Graham. Thank you, Mr. Grubbs.
Since we have started, we have been joined by Senators Duren-
berger and Lieberman. If either of you have an opening statement
that you would like to make at this time, we would be pleased to
hear you.
OPENING STATEMENT OF HON. DAVE DURENBERGER, U.S.
SENATOR FROM THE STATE OF MINNESOTA
Senator Durenberger. Mr. Chairman, I thank you very much.
Let me just say that as I walked in the door, and saw your hear-
ing format, Jimmy Powell, my staffer, said, doesn't this remind you
of the old days when there was an Intergovernmental Relations
Subcommittee, and we would invite witnesses to come and sit up
on the dais to help us examine other witnesses? We actually made
progress inside that little room.
Since then they have dissolved the Intergovernmental Relations
Subcommittee. Nobody but you, and some of the folks at this table
seem to think in those terms an5rmore.
I just wanted you to know that two of us recalled that there was
a day here 10 years ago when people thought in the kinds of terms
that you do now. I want to urge you to continue to think in those
terms.
It isn't just the style of approach, but it is your commitment. I
know Joe Lieberman and John Chafee feel the same way about
this. We can find a better way to get this done. Using the intergov-
ernmental system more appropriately is a key to doing it.
Jim Oberstar is doing it on that side, and it reflects Minnesota's
deep and traditional concern for the problems of non-point source
pollution.
But, in Minnesota, like in the rest of the country, the problem is
getting greater. Section 319, for a variety of reasons — we still think
it is a great piece of work — ^but for a variety of reasons that we
have pointed out here, we can't demonstrate great results.
I'm just here, number one, to compliment you and our ranking
member for your commitment to take on the very, very difficult
task. I pledge to you, as an original author of this, and person who
comes from a place that thinks in these terms, I will do everything
I can to help make this process a success. I certainly welcome all of
the many people in this room who have been at this since 1987,
some maybe longer than that, but at least since I got deeply in-
volved in it in 1987. I see people in this room who have been at it
that long. I appreciate your reaching out today.
Senator Graham. Thank you very much. Senator. I appreciate
those kind remarks.
Senator Lieberman?
564
OPENING STATEMENT OF HON. JOSEPH I. LIEBERMAN, U.S.
SENATOR FROM THE STATE OF CONNECTICUT
Senator Lieberman. Mr. Chairman, I associate myself with what
David has just said. I come to the Senate from having been a State
Attorney General, and in that sense, a State enforcer of some of
the laws that were passed here.
With that perspective, and which I appreciate seeing represented
on the other side of the table, I agree that we are all in this togeth-
er. It is this kind of intergovernmental dialog that will produce
real and practical solutions, or at least amelioratives.
I would also like to compliment you again on this process, and to
say that in Connecticut, as everywhere else around the country, we
are coming to appreciate what a growing role non-point source pol-
lution plays in water pollution problems, and how it is the next
great objective that we all have if we want to truly make our Na-
tion's waters clean, flshable, swimmable.
I look forward to the conversation.
Senator Graham. Thank you very much, Senators.
Ms. Diane Cameron?
STATEMENT OF DIANE CAMERON, NATURAL RESOURCES
DEFENSE COUNCIL
Ms. Cameron. Thank you. Senator.
I am giving my testimony on behalf of the Natural Resources De-
fense Council. We are working on many of the aspects of the Clean
Water Act reauthorization through the 420-member Clean Water
Network.
Senator, you gave some statistics already on the magnitude of
the problem of polluted run-off, non-point source pollution. I would
like to give a few more statistics that I think are particularly vivid,
that help us to paint the picture about the magnitude of the prob-
lem, particularly in agriculture.
We are learning more and more around the country as scientists
continue to study water pollution problems from agriculture. As
one example relating to endangered species, about 37 percent of
the 436 species listed in the Endangered Species Information
System Data Base, which I believe is from the Department of the
Interior, are imperiled at least in part by irrigation and the use of
pesticides.
Fish kills are a significant impact that is attributed to agricul-
tural run-off. In EPA's 1986 and 1987 summary of State reports on
fish kills, animal feediot and waste operations were blamed for one
million fish killed. Most of that was estimated to have been caused
by oxygen starvation from manure pollution.
To give another vivid example of that kind of a fish kill, I have
an article from the May 29, 1993 Des Moines Register. Of course
Des Moines is now dealing with another kind of run-off problem,
which is of grave seriousness. There was a run-off problem in May.
Liquid cattle manure flowed off of one farm and is believed to have
been responsible for killing more than 178,000 fish in a very popu-
lar trout stream that is stocked regularly by the State.
That is one vivid example of what can happen if we don't have
adequate controls.
565
Of course, soil erosion is huge, even though we do have a very
strong program, at least in its construction. We have a strong con-
servation compliance program under the Farm Bill, without get-
ting into details on its implementation. Nonetheless, we still have
1.6 billion tons estimated to have been eroded in 1987 from crop
land. We still have a massive soil erosion problem that is serious.
A couple more brief statistics: The United States Geological
Survey has found significant surface water pollution throughout
the mid-western States of the Mississippi basin system attributed
to herbicide run-off from current-use herbicides. For example, 52
percent of the sites examined by the USGS exceeded the primary
drinking water stsmdard for atrazine. 32 percent of the sites ex-
ceeded the primary drinking water standard for alachlor, and 7
percent for the herbicide, simazine.
This is a very significant study. It looked at 149 sites, and 122
river basins in 10 mid-western States. One of the reasons this is so
significant is that these herbicides do not tend to be removed sig-
nificantly by typical drinking water treatment plants. Thus, if they
get into drinking water and the communities are not wealthy and
do not have advanced drinking water treatment, and they are ex-
ceeding drinking water standards, it is a potential health concern.
I think I have given a few statistics that illustrate that this is a
very serious problem. Earlier speakers have highlighted the fact
that we need to move into a new era of run-off control, and run-off
management.
In a nutshell, our view on Title III of S. 1114 is that it does move
us into this new era of run-off management. We support many of
the basic concepts in the run-off control portions of S. 1114. Nota-
bly there are six key elements in Title III that we particularly like.
They are: Whole watershed planning as the preferred approach
for restoring water quality; number two, required management
measures for new sources — we feel this is critical; number three,
further coordination between water quality related Farm Bill pro-
grams and Clean Water Act programs; number four, encourage-
ment of volunteer citizen water quality monitoring — although we
feel that volunteer monitoring is so critical that States should be
required to review and use such data; number five, significantly in-
creased funding levels for non-point source programs; and number
six, provisions for run-off controls for activities on Federal lands.
For example, there is widespread acknowledgement that over-
grazing is a significant problem on our Federal lands, and there
are some simple solutions to the water quality problems that it
causes. We feel that the Federal lands provision in S. 1114 will
help to move us forward in controlling that kind of a problem.
Just to wrap up, we support these basic elements of the run-off
control policy in S. 1114. There are some strengthening changes
that we would like to see made to it, but overall we think that it is
on the right track.
Senator Graham, Thank you very much.
Mr. Gerald Vap?
566
STATEMENT OF GERALD VAP, VICE PRESIDENT, NATIONAL AS-
SOCIATION OF CONSERVATION DISTRICTS, McCOOK,
NEBRASKA
Mr. Vap. Mr. Chairman, members of the committee, my name is
Gerald Vap. I am from a small community of 8,000 people called
McCook, Nebraska in the Southwest corner of the State.
I represent the National Association of Conservation Districts as
their vice president. We speak for the 3,000 soil and water conser-
vation districts around the Nation. Possibly more significant than
that is that I am the chairman of our local conservation district.
We in the past three years have instituted in Nebraska what is
known as a special protection area for non-point source pollution.
Through several years of testing, data gathering, we determined
that our groundwater was becoming degraded by nitrate and nitro-
gen. We brought to bear the programs of the EPA 319 program,
ASCS's WQIP program. We use the Soil Conservation Service, use
the Extension Service, our State and local agencies, all to institute
this program.
We have an area that we have designated as endangered, 450
square miles within our district. We are in the process of stopping
any further pollution from nitrate and nitrogen. We are doing it
with incentive driven, voluntary programs, education, things that
the 319 program does best. We are doing it with locally conceived
programs, and with great cooperation of the farmers and the com-
munities in that area.
We would, as a national association, agree with Mr. McGuire,
and we are pleased to hear him give credit to the Soil Conservation
Service and our local conservation districts for helping them per-
form a great service to the people of New York in developing their
programs. I think they are to be commended. It is a good example
of how site-specific planning, which we support, and State controls
of the program, State development along with the local conserva-
tion district and local people cooperating as to what NACD stands
for in this particular program.
We do like several things in the new reauthorization law. We go
for the site-specific planning, the State roles in continuing to
expand on their non-point source problems, identify those prob-
lems, and develop programs that will take care of those on a site-
specific basis rather than trying to come up with a one T-shirt fits
everybody type of thing. It doesn't work in any particular situation.
Soil types, watersheds, they all are different. They all need to be
looked differently and planned for differently.
Having gone through applying for 319 funds for our local district,
we find that it is an excellent program. It perhaps needs some
streamlining. It takes longer to get those funds than we had antici-
pated, but they are coming forth. They are doing a good job now,
but perhaps there is some streamlining that could be done there.
We would agree that as a national association that funding is ex-
tremely important. If the Congress of the United States is to pass
this legislation, asking the States of this Country to come up with a
better method of handling non-point source pollution, they also
need to come up with the financial and technical resources to do
567
that job. Financial support for the States and local entities, but
also the technical support needed.
We feel that is best supplied by the Soil Conservation Service of
the USDA. They are experts in that field. They probably will do
the best job, we think, but we need to be serious about funding and
technical support to make this work.
We have a few concerns about the time-frame. We think the 180
days is a little to short for the EPA to come up with their portion
of it, and six months for the States to respond is a little bit short.
We would like to see you expand that.
In general, we agree with the bill. There are just a few things
that we would like to see change. I would be happy to expand on
our local program, or an5^hing NACD stands for.
Thank you.
Senator Graham. Thank you very much, Mr. Vap.
Mr. Olszewski?
STATEMENT OF ROBERT OLSZEWSKI, REPRESENTING AMERICAN
FOREST AND PAPER ASSOCIATION
Mr. Olszewski. Thank you. Senator Graham and members of the
subcommittee.
My name is Rob Olszewski. I am manager of forest hydrology for
Georgia Pacific. I have been in that position since March, but I
come to you more as a Floridian. The last six years I have been
down there working with the State Forestry Association, and the
six years before that I, in fact, was the key employee with the
State Division of Forestry, involved directly with the implementa-
tion of BMPs on forest lands across that part of the world.
I am speaking today on the part of AFPA, the American Forest
and Paper Association, which is the national trade association for
the forest products industry. I am also a small landowner. I own
three small tracts of land in the Tallahassee and South Georgia
area, and I have some streams on it. So I guess I can speak from
that prospective to some extent also.
Senator Graham. I thought you were a person who looked un-
usually, healthy, happy, and prosperous.
[Laughter.]
Mr. Olszewski. I knew we could talk today. Senator.
[Laughter.]
Mr. Olszewski. Although this hearing is confined to issues affect-
ing non-point source run-off, we would request, with your permis-
sion, Mr. Chairman, to submit a longer statement for the hearing
record which details some serious concerns our industry has with a
number of, especially, point source issues contained in the bill. We
will do that at a later appropriate date.
The forest industry, which includes about seven million small,
private woodlot owners like myself, has been implementing non-
point source BMPS, what is in effect called management measures
in S. 1114, for a number of years since passage of the 1972 Clean
Water Act. All States with significant forest management activities
have either passed forest practice laws or developed BMPs ap-
proved by EPA, we might add, to minimize the impact of timber
harvesting on water quality.
(^Q—e.T! r\
568
Consequently, forestry activities contribute relatively little to
water quality impairment as opposed to other land use activities.
According to even EPA, forestry contributes on average only six
percent of the loadings attributed to non-point source pollution.
Beyond the quantity issues there is also the question of quality.
Run-off from forests has been demonstrated to be much cleaner
than that from other t5rpes of land uses, as well.
With regard to forestry, we ask you to move forward with ex-
treme caution on any non-point source pollution legislation, to con-
sider the approaches that we think are working well today.
First we'd urge you recognize highly successful efforts already
being made now implementing management measures, particularly
in silvicultural management. State reporting requirements under
Section 305B, State BMP, and auditing programs, EPA section 319
reports, and various studies by the industry's national council of
paper industry for air and stream improvement confirm that forest
management activities represent, really, a de minimis contribution
of non-point source water quality impairment.
Many audits have been conducted by individual States to indi-
cate the effectiveness of State forestry non-point source programs.
The audit conducted by the Division of Forestry in Florida indi-
cates approximately 94 percent compliance today with BMPs. In
Virginia, the figure is roughly 90 percent, in South Carolina, 85
percent. These numbers have been achieved through existing pro-
grams and the existing outreach efforts on the part of the industry
and the States. We want to do anything we can to expand and in-
tensify those efforts.
Not withstanding those efforts, the industry is committed to im-
plementing BMPs on all lands across the country. It is very impor-
tant that BMPs should continue to be developed on the basis of
State-specific characteristics. Each State has its own special,
unique circumstances of land ownership types, land uses. State re-
sources, program costs, existing State statutes, social institutional
characteristics.
Because all the State programs reflect those characteristics,
AFPA would oppose the concept of allowing EPA to establish a pro-
gram implementation criteria in Section 304 of the bill for all
States based on the demonstrated success in only one State. We
would worry in Florida, Senator, what kind of impact that might
have on things like this that we have done in our State down
there.
We have recently completed a pretty detailed effort — I'll leave
this for you — to develop a revised BMP approach with a 22-member
task force that met intensely for a 15 month period, consisting of
folks from the environmental community, like Bernie Yokel, Judy
Hancock — I know you know — ^folks from the forestry, academic
types, agency types to complete that effort for a Florida-specific ex-
ample.
Although the bill gives discretion to the administrator through
the EPA Regents to modify management measures to reflect condi-
tions in the regions, we are concerned that this authority might be
unworkable, since even the geographical features within the States
of the various regions differ greatly. States, not EPA, must have
569
the flexibility to devise management measures to address their own
special circumstances.
Any non-point source program should avoid having a prescriptive
approach to land use planning. We are deeply concerned over the
application of water quality criteria and standards provisions to
non-point sources.
The anti-degradation section in particular requires designation of
any water body within a National forest or water of exceptional
recreational, cultural, or ecological significance, including any that
supports a population of threatened or endangered species, and
would drsistically affect our ability, we feel, to harvest timber on
millions of acres of Federal and private lands.
We think the bill needs some work at this point. Senator. There
may be some things, some references in the bill that may not be
intended, but we see some potential problems out there from an
implementation standpoint, and how it might affect us directly, the
anti-degradation on RWs, to give one example.
I'll be glad to answer any questions in relation to these state-
ments.
Senator Graham. Thank you very much, Mr. Olszewski.
As I indicated earlier, we may be interrupted shortly by a vote.
I'd like to start the questioning. Then we will take a round, with
each Senator having five minutes to ask questions. Again, I would
encourage dialog among members of the panel.
As Senator Durenberger said, one of the key issues here is the
intergovernmental issue. As I read through the legislation that is
before us, one of the principal areas of alteration is the increase of
the Federal role. For instance, there is the provision of National
program guidelines that a State would have to meet in its submis-
sion of a non-point source pollution program.
I would be interested, in your comments, starting with the experi-
ence from New York State, as to what do you see as the most ap-
propriate role of the Federal Government in terms of standard set-
ting, and direction to State and local communities in development
of their non-point source pollution strategy?
Mr. McGuiRE. Senator, I think we have already outlined one ap-
proach. I want to make a very distinct point. I am also a farmer. I
not only represent NASD A — one that — I represent New York State
as Commissioner of Agriculture.
I have been a farmer all my life. I am a third generation farmer.
I have had first hand experience with soil conservation and all the
things that go with it. I know of no farmer that intends to pollute.
That is one of the problems we are talking about.
There are primarily two or three things. One is the use of fertil-
izer, pesticides, handling of livestock manure. The thing that hap-
pens is that we have the possibility, and in fact have examples of,
overuse of any of those commodities beyond the point that the soil
on that particular farm can adequately handle it, or that the crop
growing from it adequately. So we have something left that can,
and is potentially, a pollutant. It may stay there, but in a rain
storm or a unique situation, it can be washed off into the streams,
and there is where the work is needed to be done to prevent that
happening.
570
Primarily, that is why the whole farm approach is necessary.
One, to change whatever practices need to be changed on the farm
itself; and two, to construct berms, concrete waterways, grass wa-
terways, concrete barnyards, whatever, other things if necessary, to
minimize the potential for run-off under heavy rain conditions, for
example.
I want to make one other point though. The food supply for all of
us is dependent on less than two percent of the population. I would
remind that these people are volunteers. They are not slaves, and
they are not government employees. They are individuals. They
can choose to farm, or choose not to. We are threatened more in
our future food supply by these people choosing not to, than they
are from the loss of land, or the resources they use to turn into
food.
When they become extremely unhappy with their situation, so
that they feel rules and regulations are burdening them to the
point where they can't handle it, they are going to do something
else. So it is necessary that we work with them, as we have been
doing in New York, on a voluntary basis.
They can't be ordered to stay on the farm. They can be ordered
to do a lot of things to a point. At that point, I guess they say, "I'll
do something else."
My real concern is the next generation. They are already making
that decision. We see it all over New York State; we see it all over
agriculture across this Country, that they say, "Dad, I don't want
to be a farmer." That concerns me greatly.
Let me say that we are doing things — and I think probably be-
cause of our population, probably because of our extensive water
systems, and lakes and streams, probably of the type of agriculture
we have — we have instigated IPM programs to control the use of
pesticides, reduce the use of pesticides. We are doing much more in
our soil testing, much more in our use of fertilizers. We are doing
much more in the continuation of conservation. Now we have a
task force, which you will about a little later this morning, on the
handling of manure.
I think those things are things that farmers are very willing to
do. I think we are going to find that they are going to control the
problem to the extent that it can be controlled. I want those to con-
tinue.
I think it is necessary that the public is involved in it, not only
in a quality water supply, but also in quality food supply. There-
fore, the cost of doing some of these things may be beyond that
farmer's ability to pay for them. Because of his location next to a
stream or a lake, because of the type of operation he has, he has an
expense that exceeds other farmers who he is competing with pro-
ducing that same commodity.
In those kinds of situations, I am very pleased with what we are
doing in New York City, where they are sharing the costs of doing
those things that are necessary in the public interest. I think it is
not in the public interest as far water supply goes; it is in the pub-
lic's interest as far as the food supply goes.
Senator Graham. Thank you very much, Mr. McGuire.
My five minutes has expired. At this point we will adjourn.
571
Senator Chafee. Mr. Chairman, I just want to say, I think Mr.
McGuire has given a very, very powerful speech on behalf of the
farmers and this two percent of the population that does such a
wonderful job for us. The point that he has made that they can't be
ordered around or they might just leave, is one which we all must
bear in mind.
I think it is a good statement, Mr. McGuire. I am reminded of a
bumper sticker I saw the other day, "If you like to eat, you should
hug a farmer today."
[Laughter.]
Senator Chafee. I thought it was a good statement. It brought
some points home to all of us.
Senator Graham. We will adjourn until we complete this vote.
Then we will pick up with Senator Chafee being the next question-
er.
[Recess.]
Senator Graham. We will reconvene.
Senator Chafee is called upon for his insightful questions.
Senator Chafee. Well, I am not sure I qualify in that, Mr. Chair-
man, but thank you.
First, I would like to say that both we on the committee, in our
opening statements, and most of the witnesses have said that the
principal cause of the remaining pollution in our lakes, rivers, and
streams is from non-point sources. It is peculiar that currently we
provide $2.4 billion for point-source control, and something like $50
to $100 million for non-point source. I am not sure that cur actions
are meeting our rhetoric around here.
I suppose that one of the reasons that the point source funding is
so popular is that it creates jobs. You see something very visible.
You see a sewage plant built in a small town that doesn't have one
and is suddenly going to get one. Whereas, non-point source con-
trols doesn't seem to create jobs. It is not visible, tangible.
It seems to me one of the problems that has come up through the
testimony here is manure management, and just what to do. I
know that in my State you are seeing the dairy farms operate with
far less acre£ige than they formerly did. They are buying their hay,
in rrany instances, from around the State. Once upon a time they
would take the manure and just put it in the spreader and go out
in the fields, and that was the way you disposed of it.
But that isn't true to the extent it once was. Are there any inge-
nious steps being taken? I noticed in the testimony of one of the
witnesses — I think you, Ms. Cameron — didn't you talk about some
steps that they are taking in Cornell and elsewhere to do some-
thing about that?
Ms. Cameron. I did talk about the problem of manure manage-
ment.
Senator Chafee. It doesn't quite operate up there on the level
with the high culture, but it is a problem.
Mr. Appleton. Senator, I think it is my statement.
Senator Chafee. I think the more subtle way that I think Mr.
McGuire termed it was waste management, didn't he? Farm waste,
but anyway it gets right down to manure.
Mr. Appleton. If I could talk a little about that?
572
Manure is kind of the same thing as sludge. It is bio-solvent.
People have the same aversion in talking about animal manure
that often you find when you have to talk about sludge that comes
from human manure.
I think it is clear from our experience, and it is one of the recom-
mendations in our testimony, that 319 programs are going to have
to be brought in to provide for region-wide facilities. We are going
to have to take, at least in the dairy industry, some of this manure
off the farms and give an environmentally useful kind of product,
either by composing or turning it into another product for benefi-
cial use. There is a lot of experience in sludge management that I
think could be very applicable here.
The other thing in terms of manure is we are sponsoring some
research at Cornell into pathogens. One of the interesting things
that so far is emerging from this research is that young animal
manure, calf manure, may actually provide a majority of source
cysts and other water borne pathogens into the water system. We
are looking at maybe setting up as part of this whole farm commu-
nity plan, because one of the things we have had to do is develop a
whole protocol of BMPs for pathogens, maybe requiring calf
manure and baby animal manure different treatments, including
some kind of thermal process.
I think you need to think about these issues in terms of regions
and system-wide areas.
Senator Chafee. What do you say, Mr. McGuire? You are a
hands-on man.
Mr. McGuiRE. I think it would be worthwhile.
Because you mentioned it Senator, the evolution of handling
manure obviously has followed to some degree the evolution in the
size of dairy farms. But you are right, historically, we used to
handle it every day, spread it fresh on the land every day. As the
size of farms increased, this became a little bit more of a problem.
Also, there were some other things related to it.
One is the area that you put it. We used to draw it out and put it
in piles, too, which caused a lot of pollution potential from that
particular spot. So the evolution has involved handling large quan-
tities in a very short period of time, doing that for labor manage-
ment purposes, really. That brought around some new problems.
New problems being there is a lot of focus of attention on a lot of
manure spread in a short period of time, odor problems, potential
pollution problems. A lot of things that had to be done couldn't be
done on frozen land, which half of our Country experiences. So
they did it in the Spring. Also that is when they plant their crops.
They had a short window between when the frost went out of the
ground, and they could put it on the land and plow it under when
they planted the crop. After they planted the crop, the window was
closed. What do you do with the manure until the next season rolls
around? They developed large storage systems.
They have referred to fish kills and so forth. All of those hap-
pened from either failure of a storage system, or sabotage of one,
which is always potential, and the fact that when you store large
volumes of it, and you do have an accident, or something happen to
it, you have a sudden flooding situation that results in great
damage to the environment, great damage to the wildlife.
573
The evolution to accomplish one purpose, also causes some new
problems. That is why a very speeded up and active group of people
in New York State went college and are working intensively on ac-
commodating this and solving these problems. I think there is a lot
of research going on.
Senator Chafee. My time is up, Mr. Chairman, but I spent a lot
of time as a child on my grandfather's farm, and I just want to con-
firm what Mr. McGuire said, that winters they'd take that manure
and put it right out on the fields, and I suppose it was violating
best management practices of these days, but in those days it was
just the way you got rid of the manure. You took it out and spread
it in a very timely fashion.
Your testimony touches on doing some more research, I might
have some questions later, Mr. Chairman.
Thank you.
Senator Graham. Thank you very much. Senator.
We have been joined by our chairman. Senator Baucus, and also
by Senator Faircloth. If you have an opening statement that you
would like to make, please do so.
OPENING STATEMENT OF HON. MAX BAUCUS, U.S. SENATOR
FROM THE STATE OF MONTANA
Senator Baucus. Thank you very much, Mr. Chairman.
I first want to congratulate you on your efforts in the subcom-
mittee to address the problems of Clean Water.
It is clear this will be the major environmental bill passed by
this Congress this year. You are to be commended, Mr. Chairman,
for your very diligent work in helping to put this together. All of
us in the Congress, certainly more importantly the people, particu-
larly the groups interested want to express great gratitude.
Mr. Chairman, as we turn our attention to the complex problems
of diffuse, or non-point source pollution, it is important to recognize
that the causes of the non-point source pollution come from run-off
of rain water from urban areas, a wide variety of areas; construc-
tion projects, forest harvesting, agricultural lands. It is very dif-
fuse. It is very complicated. It has been a very illusive goal of the
Clean Water Act which since 1972 has tried to control it.
While we have made substantial progress in reducing water pol-
lution from point sources, we have not yet in any way solved the
problems with respect to non-point source pollution. In developing
an effective non-point control policy has been difficult for several
reasons.
Non-point source pollution results first from actions of tens of
thousands of individuals, making decisions about land manage-
ment. Many times individual decisions by themselves do not cause
pollution. The cumulative effect of these decisions do create signifi-
cant pollution problems.
Even when the problem sources are clearly identified, Federal,
State, and local governments have all been very cautious in the
past about asking or requiring change in land management prac-
tices. It gets at the very root of land management, which is some-
thing that is very difficult to remedy.
574
In the past several years, however, I think there has been consid-
erable and sometimes angry debate over the extent of the problem
and the best solutions. I believe we have a much better chance of
developing an effective and workable non-point control program
than ever before.
Why do I say that? I am optimistic basically for three reasons.
First the recent debates over non-point source pollution have
helped all parties gain a better understanding of the issue, and a
much better appreciation of the perspectives of others. This was a
difficult process. It is one that has been on-going for the last year
or two, but it may well have been essential to an eventual solution.
Second, I believe that the bill we have before us is a good start-
ing place. It is a good starting place for our legislative discussions.
It builds on existing State programs, and gives States the lead role
in addressing the problem. It targets pollution control efforts on
impaired waters identified by States. It provides for the develop-
ment of tailored, site-specific responses to identified problems. It
will help prevent the development of new problems from new
projects and activities. And it includes substantially increased
funding, including cost sharing, implementation of management
practices, which on a level comparable to the problem.
Finally, I am optimistic about our chances of finally solving the
non-point source pollution problem because those on both sides of
the debate are turning from rhetoric to constructive solutions. The
environmental community has recognized the complexity of the
problem and the time needed to solve it. The agriculture communi-
ty has recognized that more can be done to prevent water pollu-
tion, while reserving the balance between conservation and produc-
tion.
The legislation we are considering today will help bring the con-
siderable energy and inventiveness of the agriculture community
to the difficult problem of protecting the quality of our rivers,
streams, and lakes. Working together, government, environmental-
ists, the agriculture community can fix the non-point source pollu-
tion problem.
Thank you very much, Mr. Chairman.
Senator Graham. Thank you very much, Mr. Chairman.
Senator Faircloth?
OPENING STATEMENT OF HON. LAUGH FAIRGLOTH, U.S.
SENATOR FROM THE STATE OF NORTH CAROLINA
Senator Faircloth. Thank you. Chairman Graham.
I am in the unique position of having spent, and am still spend-
ing, my entire life in the farming business. It has been a central
core of the business life that I have been in for 47 years. I am well
familiar with management practices regarding water pollution. I
know they have come a long way since I first got into business in
Immokalee, Florida, Senator Graham, in 1947.
I want to see a cooperation and not a coercion on the way this
operates. I have heard the conversation here today about the han-
dling of manure, and I want to point out that North Carolina has
probably come farther in dealing with this problem than any other
State. The North Carolina water quality mj ^ger is scheduled to
575
testify at our next hearing. I look forward to hearing to what he
has to say.
I read very briefly some of the things Ms. Cameron had to say on
waste. I heard Mr. McGuire talking about storage.
As I say, I come from a unique part of the country. We have seen
big farms sprout up in that immediate area. Farms that do $100 to
$300 million in annual sales.
Some of the methods discussed by Ms. Cameron in her statement
about how to handle these things sound pretty much like amateur
night to me compared to what we have been doing for many, many
years. It is inconceivable not to soil test a field for every possible
nutrient before you even think about row cropping. We are not in
the row crop business, particularly, but some are.
We have spent, on our farms, millions of dollars just getting rid
of waste from hog operations, and doing it in a very sophisticated
way, on to grass lands. It in turn forced us into the cattle business.
The immediate area that I am in produces something like 35,000
hogs on a daily basis, and somewhere in the neighborhood of
350,000 turkeys on a daily basis. Our handling of the waste is very
sophisticated, and comes far ahead of some of the amateurish
things we are talking about here.
Ms. Cameron, if I may ask one quick question, has anybody in
your organization ever been in farming?
Senator Graham. Senator Faircloth, we are going to proceed
through on questions on a normal basis. Then you will have an op-
portunity ask Ms. Cameron whatever question you'd like to pursue.
Senator Faircloth. Thank you.
Senator Baucus. Mr. Chairman, I have one question.
Senator Graham. I'm sorry, we have been joined by another
member of our committee. I am very pleased to see the participa-
tion of the subcommittee members on this topic. Again, emphasis
on how important the non-point source pollution is.
Senator Kempthorne, do you have an opening statement?
OPENING STATEMENT OF HON. DIRK KEMPTHORNE, U.S.
SENATOR FROM THE STATE OF IDAHO
Senator Kempthorne. Yes, Mr. Chairman, I do, and I thank you.
Mr. Chairman, few sections of this clean water reauthorization
bill has a more profound effect than those governing non-point
source pollution. Timber, mining, ranching, agriculture are the
most often named sources for non-point source pollution, and have
been the backbone for Idaho's economy for generations.
Each of these industries are under considerable stress right now,
in the most part because of decisions made or actions taken by the
Federal Government. I am therefore particularly concerned that
those steps taken in the area of non-point source pollution control
or prevention are realistic and, very important, flexible. They must
provide substantial benefit for the cost involved. The requirements
must be minimally burdensome.
Additionally, Idaho has moved forward in developing an increas-
ingly effective program to deal with non-point source pollution. The
hallmark of Idaho's program is local control, and substantially,
flexibility in the development and application of best management
576
practices because of variations in soil, climate, hydrology, and
other factors. I believe that Idaho's best interest in improving
water quality requires protection of these strengths in Idaho's pro-
gram, and the preservation of similar characteristics for non-point
source pollution programs in other States.
I have numerous concerns about the non-point source pollution
provisions in both title II and title III. We probably won't have an
opportunity to address all of them today, but I hope that we can
get a start on them.
I appreciate, Mr. Chairman, your efforts on this very important
issue, with reference to when now Administrator Browner was
before this committee for her confirmation hearings, and we dis-
cussed this possibility of building into the system flexibility so that
local conditions can be taken into account in order to achieve the
standards that have been set.
I appreciated her approach on that, and I look forward to partici-
pating with the panel.
Senator Graham. Thank you very much. Senator.
Senator Baucus?
Senator Baucus. Thank you, Mr. Chairman.
I'd like to ask a couple of questions of Ms. Cameron, and also Mr.
Grubbs. I have two questions.
Bsisically, first, the enforcement question. NRDC is concerned
that as the bill is written that the State does not have the author-
ity to bring injunctions and other similar judicial action with re-
spect to an operator or somebody who is not complying with the
best management practices, or if that is applicable, or the State
site-specific plan, if that is applicable, or the conservation, or what-
ever it is.
Would you give us again your concerns of why you think that
there should be enforcement included? When you answer that
question, I wish you would also address the other side of that coin,
namely that we are trying to develop a plan that is going to work
here, that is going to have some acceptance by people generally.
I am thinking a bit of the Clean Air Act. Years ago this Congress
passed a Clean Air Act that was just too ambitious. It moved too
quickly. We had to, in 1990, reauthorize and pass amendments to
the Clean Air Act extending time tables and so forth that were
more realistic, because States just were not adopting their imple-
mentation plans, and communities were not meeting the standards
set at an earlier date.
I guess the argument is, wouldn't it be better to set in place a
plan or a scheme that people that begins to get acceptance in the
State, and among the operators, and so forth, then kick in enforce-
ment at a later date, rather than trying to pile everything on oper-
ators all at once in the earlier time-frame?
Ms. Cameron. OK. I guess I will take a crack at responding.
First on the enforcement part of your question, the bill, S. 1114,
does make a distinction between new sources that are required to
undertake management measures that are in some way envisioned
in the bill to be more of a proscriptive set of measures than for ex-
isting sources.
First of all, for new sources, ground that is now pristine in some
way, that is going to be broken under new farms, or new logging —
577
under the bill particularly new logging sites, construction sites —
this ground, when it is broken, we feel should be required to have
management measures that are not dictating the exact nature of
the enterprise, or the exact nature of the land-use, but that are re-
quiring that run-off be prevented as much as possible, to the maxi-
mum extent possible. We believe that for every land-use category
there are prevention techniques that are known to that industry.
The problem is not so much lack of technology, lack of knowledge,
as it is lack of consistent, enforceable requirements that are on the
books of every State.
For example, local zoning are needed to be upgraded to have pre-
vention based site design for new urban development. That is just
one example.
That is one example where that a very strong, enforceable meas-
ures and mechanisms need to be in place right away.
Senator Baucus. Why isn't the State enforcement sufficient?
Ms. Cameron. Why isn't State enforcement sufficient?
Senator Baucus. Why aren't the State development of site-specif-
ic plans sufficient? That is progress.
Ms. Cameron. We feel that State development of whole water-
shed plans is very crucial. Then for individual site plans, we like
the idea of very flexible site plans. On the site of existing sources
we feel that whether there is a required management measure —
that is a more proscriptive management measure from EPA — or
whether there is an owner-created site level plan, in either case
there does need to be a sense that the plan is backed up by enforce-
ment.
Senator Baucus. Thank you very much. I see my time is expir-
ing.
Mr. Grubbs, very briefly, please respond.
Mr. Grubbs. I have a couple of points here. First, it is important
to keep in mind that we are not just talking about agriculture in
this conversation, but very broad numbers of different kinds of
sources, including retail and commercial establishments, foregoing,
and so on.
To us, in the administration, the bottom line is environmental
improvement here. We are out to see those problems we have been
talking about here today disappear over some reasonable period of
time.
Where we are coming from is that we want to make sure that
what State programs do, and as we approve them at EPA, that
they are truly credible. In my tenure as manager of the non-point
source pollution program I have seen quite a number of very good
and commendable State and local non-point source pollution pro-
grams including the one here that was discussed this morning.
But, frankly, there is a lot of cheap talk in this business. Often-
times, education programs are very broad proposals put together
by State and locals that don't really hold water when you get down
to it. So what we are really supporting is the approach of S. 1114,
where the States would need to have a credible approach to back
up the voluntary means where they fail.
Senator Baucus. Thank you.
Thank you, Mr. Chairman.
Senator Graham. Thank you. Senator.
578
Senator Durenberger?
Senator Durenberger. Mr. Chairman, thanks.
I am glad you made the observation that broadens it, but I am
also grateful that we talked a lot about farms this morning. In no
place around here do we ever do that. I appreciate that, and in par-
ticular Mr. McGuire's comments.
You can add to the list of the things we don't do anymore throw-
ing waste out on the gravel roads, and keeping our wells uncapped,
and so forth. But I had a variety of these experiences in the last
week or two, going around flooded areas.
There are a couple of things I discovered. Despite what we are
trjdng to do in groundwater and things like that, farmers in my
State are afraid to cap their wells, because they have to get a
permit. Once they apply for the permit, then somebody is going to
come out there and find this, this, this, this, and all the rest of that
sort of thing.
The reality is that we are like all the rest of these States. We
brag up how much we care about the environment, but the reality
is the way these programs seem to be implemented, there is a lot of
deep concern on the part of farmers, whether it is feed-lot run-off,
or it is a guy who told me, "I am afraid to go and ask them for
permission. I have a bunch of uncapped wells. I have three of
them. I am afraid of the consequences of what might happen."
I also happen to be reading Jane Smiley's "Thousand Acres." For
some reason or other, everybody goes to Iowa these days. The
President is going, Grassley is there all day today, so he can't vote.
Water covers the State. It is sort of an interesting commentary on
how people make decisions in agriculture, but it also says some-
thing about what Max said earlier about if there is a problem here
you have 10,000 decision makers. When you get into the cities, you
have hundreds of thousands decision makers.
Minneapolis is drowning, this beautiful city of lakes. The prob-
lem is as serious today as it was 20 years ago, when the then
mayor decided to appoint a committee to do something about urban
run-off. The problem just keeps getting worse.
One of my observations, and maybe one of your reactions I could
ask you for, is the role of the States. It has appeared — at least it is
my reaction as I go around listening to people — I think things are
broken. Comment on this yourself. Are they broke, and not just in
a financial sense. I don't think they work very well. I don't why it
is.
I hear more concern; I see better qualified people, if you will, as
township supervisors, with all due respect, today than ever before.
People are into these programs. They are studjdng them, and they
try to understand them. They go to the conferences and all that
sort of stuff. They seem to know what they are talking about. The
same is true in these small cities.
So if our concern in going to Washington 25 years ago is that the
folks are too busy farming and too dumb to understand how to
handle their problems, or something that, it ain't the case any-
more. Folks seem to be on top of this stuff at the local level.
But between us here, and them, this mechanism that we are pro-
posing in here to make things work better just strikes as isn't
working very well anjnnore. Maybe one of the other could comment
579
on what are States doing? What is their role? What should we do
to reflect reality?
Mr. Appleton. Well, as head of the water and sewer authority of
the jurisdiction that would be the largest State in the Country, and
someone who has worked very extensively in nine upstate counties,
I think the real problem you have when you talk about enforce-
ment is you are enforcing the wrong things.
That is, enforcement systems are designed to be uniform, predict-
able, and that they are based, frankly, — and this goes to Senator
Chafee's observation — on a model that you build facilities to meet
SPDS requirements. That is a very, simple, easy thing to manage.
You have a construction schedule. You meet it our you don't. You
have water chemistry. You throw it in a tube. They meet it or they
don't.
We are now getting into much more complicated, immediate, and
difficult decisions. I see this, frankly, as a problem for all the tradi-
tional water quality regulators. Indeed, I am concerned that much
of what is talked about in water protection is just old wine new
bottles. That is, what you have to enforce is an overall environmen-
tal strategy, because if you are going to talk about this best man-
agement practice, or this management practice, you are going to be
right back in two, three, or four years and with the same model
that everyone is increasingly unhappy with.
The other thing is, and I come back to this, people are afraid to
deal with the land use issue. They are afraid to make individual
site-specific decisions.
Our bureaucrats — and I run a 6,500 person bureaucracy that is a
regulator, as well as being regulated — ^get a lot of comfort out of
being able to say the same thing about every single situation. But
if 80 percent of your environmental problem is coming of 15 per-
cent of your environmental sources, you have to free those regula-
tors, politically, bureaucratically, and financially, to make individ-
ual decisions.
As I said in my testimony, what made our deal work is that we
were up there to get clean water, not to run a regulatory system.
You have to enforce the right things. States and EPA, I think, are
going to all have to go through a cultural change. It is almost like
re-inventing government, entrepreneurial government, renaissance
in government, where we learn to use local initiatives, but we en-
force standards, not methods. It is in my testimony. We have a
huge enforcement program. We enforce for objectives, not what
this bureaucrat or that bureaucrat has decided is today's orthodoxy
about technique.
Senator Graham. Anybody else?
Mr. Grubbs. Yes. I'd like to add something.
Senator Graham. Mr. Grubbs, Mr. Vap, and then Senator Fair-
cloth.
Mr. Grubbs. OK. Thank you. Senators.
What we are supporting in this Administration is a State-led
structure in section 319. We think that was well conceived to begin
with. What we are looking for is a stronger, fuller bottom line here
to work with.
One thing to keep in mind is that as the Federal Government,
not just EPA, but the Forest Service, the Soil Conservation Service,
580
and others move forward, that movement needs to be m a way in
which States can succeed. A lot of what S. 1114 embodies is the
notion of technical expectations for non-point sources, which we
think are reasonable.
Just to give you an example of the kind of thing we are talking
about, consider site development: We would think in terms of ex-
pectations for States to plan, and design, and develop sites that
would limit increases of impervious surfaces, and limit disturb-
ances of natural drainages, without specifjdng to the States exactly
how. The point is that States and local organizations need to make
site-specific decisions; S. 1114 acknowledges that. To us, anyway,
this flexibility is a workable structure.
Senator Durenberger. Mr. Chairman, if I don't get back from
the OSHA hearing, I'd like to leave a question with you the way in
which you get the reactions from the locals to the Federal plan. It
is the way you integrate all these Federal agencies that are dealing
in a particular area.
Mr. Vap. In response to what are States doing with their envi-
ronmental protection programs that have been handed to them:
The State of Nebraska has statutorily given the responsibility for
non-point source pollution to the conservation districts. We ceQI
them Natural Resources Districts in Nebraska.
They have given us the responsibility for controlling non-point
source pollution. They given us the statutory authority to imple-
ment programs, and to actually become regulators. We are doing
that in many ceises.
So some States are out there accepting their responsibilities and
doing the job.
Senator Graham. Senator Faircloth?
Senator Faircloth. Mr. Vap, you are with the Soil Conservation
Service?
Mr. Vap. No, I am with the National Association of Conservation
Districts.
Senator Faircloth. Which represents the SoU Conservation?
Mr. Vap. No. No. We don't represent Soil Conservation Service.
We represent the 3,000 Soil and Water Conservation Districts
across this Nation.
Senator Faircloth. OK. The Conservation Districts in every
county. Usually they are broken down by counties.
Mr. Vap. Yes.
Senator Faircloth. All right. Are the soil conservation people
into this non-point source pollution question? Isn't that one of their
jobs?
Mr. Vap. Very much so. Over the last 40 or 50 years of the exist-
ence of soil conservation districts, and the Soil Conservation Serv-
ice for that matter, it may have started out as an erosion and sedi-
ment control program, but basically, if you really look at it, it has
been a water quality program for the last 50 years also. Every time
you reduce sediment and erosion in the Nation's streams and you
reduce the amount of run-off, you are actually protecting the Na-
tion's water quality at the same time.
Senator Faircloth. Well, that is what I always thought was the
purpose of the SoU Conservation, erosion of all types. If fact, it was
started in 1934 by Mr. Bennett. Isn't that the man who started it?
581
Mr. Vap. Hugh Hammond Bennett, yes.
Senator Faircloth. The Soil Conservation Service was started
for erosion and pollution control. Are we talking about somebody to
handle this now?
Mr. Vap. This is a point I was hoping I could make. We have the
319 program with EPA. We have had the 1985 and the 1990 Farm
Bill, which requires conservation compliance on the part of all
farmers in the Nation that receive farm program benefits. We have
the coastal zone management program. We have State and local
programs for a lot of this type of thing.
We would hope that, whether it is EPA as the lead agency with
Soil Conservation Service as the technical provider across the
Country, this Committee and the Congress as a whole would take a
hard look at how you could integrate all of these programs so that
we don't come up with six or seven duplicative sets of paperwork
and programs for the cities and farmers across this Nation to
comply with.
Let's get it all under one program of some sort so that it will be
easy for the landowner, the conservation district, the State agency,
and all these people to find out who is going to tell them what they
have to do and when, and get these programs together so that we
are not in total confusion most of the time as to who is responsible
for what.
Senator Faircloth. Does not Senator Bond have a bill in this di-
rection?
Mr. Vap. I am not sure. I couldn't answer that.
Senator Faircloth. I thought he did.
I have worked with the Soil Conservation Service for many,
many years, and am well aware of what it does and how they do it.
They have, like so many of us, been misguided at times. I guess the
greatest drainage in this Country, the demolition of wetlands was
paid for by the Soil Conservation Service. Canals by the hundreds
of miles — I dug them — with drainage of wetlands by the Soil Con-
servation Service.
But, still it is there. It is functioning. It is in contact with the
farmers in most counties. It is associated with the ASC offices,
where the money comes from. It looks as if, without creating a new
bureaucracy or more people, it would be absolutely simplistic to tie
the Soil Conservation Service with the ASC, where the money
comes from — the support programs are handled through ASC — and
work them together. If you were not getting the cooperation with
the Soil Conservation Service in run-off, manure, over-fertilization,
or whatever the problem was, then you simply cut off the support
pajnnent or whatever might be.
Is that an overly simplistic approach to how to handle it?
Mr. Vap. It may be possibly, but we look at the Soil Conservation
Service basically as the provider of technical services and advice to
the land operator and farmer out there. They are not just dealing
with agriculture these days. They also deal with cities and urban
conservation. So they really are the technical provider for non-
point source throughout the entire Country.
We would hope that in re-organization of the Department of Ag-
riculture that we don't just throw SCS and ASCS together, so that
technical expertise is diluted. We would like to see SCS still remain
582
the technical provider; ASCS the financial entity for that farm pro-
gram at least.
Senator Faircloth. Why would it dilute it if you put it together?
I mean are they going to forget how to run an instrument, or why
would it dilute it?
Mr. Vap. There has been some talk about cross-training of all
employees so that they are experts in handling the financial end of
it, and the financial people know how to run a transit, and lay out
a set of terraces, and that type of thing, and answer all the ques-
tions involved from both entities. That is why we wouldn't like to
see them put together.
Senator Faircloth. That sounds like a bad idea whose time
hasn't come.
Mr. Vap. OK.
Senator Faircloth. Ms. Cameron, there is just one thing.
I noticed that in your paper, you talk about kilograms and hec-
tares. Why? How many farmers do think deal in hectares and kilo-
grams out side of Australia?
Ms. Cameron. I'm sorry. Which particular part of the testimony?
I don't have my copy.
Senator Faircloth. Here it is.
Ms. Cameron. Which particular part, if you could just refresh
my memory. OK. OK. Hectares.
Very often, in USDA technical reports, and so forth, or of USGS
or other kinds of Government reports, we are simply quoting from
those government reports here. They use those units.
Senator Faircloth. Well, that is what I was talking about. They
usually write them so nobody can understand them.
[Laughter.]
Ms. Cameron. Mr. Faircloth, if I could respond to a question you
posed to me earlier about do we have farmers in the Natural Re-
sources Defense Council. I do not know of any farmers on our staff,
however, I myself have visited several farms over the past year in
Maryland, in Ohio, and I have been very impressed with the work
that conscientious farmers are doing to protect water quality. Our
basic policy on the question of non-point source pollution is that we
would like to have the work of these conscientious farmers come to
its best effect by having whole watershed programs where their
neighbors all start to pull their weight.
Senator Faircloth. I think you will find that most of the agricul-
ture community in this Nation is conscientious, and very sensitive
to the pollution problems, and are working very diligently to
handle them and do something about them. From my standpoint, I
don't feel that we need any further rules, regulations, or inspec-
tions.
Senator Graham. Senator Kempthorne?
Senator Kempthorne. Thank you, Mr. Chairman.
Mr. Olszewski?
Mr. Olszewski. Pretty good, Senator. Olshefski.
Senator Kempthorne. Olshefski? May I call you Robert?
[Laughter.]
Senator Kempthorne. You may call me Dirk.
Under S. 1114's provisions covering the anti-degradation policies,
each State is required to designate, "the outstanding National re-
583
source waters." The definition in the bill includes waters within,
and I quote, "a National park, wildlife refuge, wild and scenic river
systems, wilderness areas. National seashores, and lake shores, or
National monuments." Then the designation also extends to waters
of "exceptional recreational, cultural, or ecological significance," or
those that either supporting or are threatened by endangered spe-
cies, with regard to water systems.
How does this speak to the reach of this provision? Does it also
reach waters outside of these designated areas by virtue of the fact
that the waters flow through a National forest or wilderness area?
Mr. Olszewski. We are not sure. We suspect that it is fairly
broad based in nature. Senator, from the language you just de-
scribed. We really don't know what it would mean in terms of im-
plementation when we state in the bill that ONRWs would include
any water that supports a population of threatened or endangered
species. That could be pretty broad based. Everyone needs to under-
stand what it means when you do have a water designated in an
ONRW status. That leads you to have these anti-degradation provi-
sions apply to those waters.
Now, in the past, when ONRWs have been designated, and the
EPA regs today, allow for some temporary impacts to occur in
ONRWs to the point where we have been able to conduct forestry
operations to some extent in ONRWs. The way the language is
right now, we don't see that opening for us at all to conduct forest-
ry operations.
Although BMPs are great, and they do a good job, certainly there
are certain really intensive storm events, certain events that could
have some temporary minor impact on a water body, or water
course. We are concerned that the way this section is crafted in the
language of the bill right now, it might really restrain any kind of
activities from occurring. I am not sure that is the intent, but
when we look at the language right now, that is how it looks to us.
In addition, we are not sure how this ONRW designation would
impact land outside the public lands you described; upstream,
downstream of National forest and of other public lands. Would
they be included in the ONRW designations? We are not sure.
Even without that, the potential impacts just as far as the Na-
tional forest system are concerned could be pretty extensive.
Senator Kempthorne. Yes?
Mr. Grubbs. I would like to add that at EPA we have some con-
cerns in this area as well, as we testified two weeks ago in a toxics
hearing. This is in an area where we think we do need to do some
more work to think through the implications of these require-
ments, and would very much like to continue to work with the sub-
committee staff as you move forward on this one.
Senator Kempthorne. Good. I appreciate that.
Mr. Appleton?
Mr. Appleton. Two things. One, I think we have some concerns
about the concept of the ONRWs, that it will not be available for
the protection of water sources, particularly an unfiltered water
supplies like New York City, that provides water to one out of
every 30 Americans. This raises the larger issue of coordination of
the Safe Drinking Water Act goals, or the Clean Water Act. The
584
Clean Water Act administration in the past has not paid enough
attention to the implications for drinking water.
The only other concept I would add to the ONRW debate at this
point, going back to my testimony, is not every non-point source
pollution problem can be dealt with by best management practices.
There are some areas where we are going to have to accept the fact
that they will need to be left alone. It is one of the reasons the City
of New York is committing so much money to land acquisition and
core basins around reservoirs and stream corridors in our water-
shed. If we are going to be serious about non-point source pollution
control, we need a full plate. Any degradation should be part of
that plate. .
Senator Kempthorne. Mr. Chairman, I am about out of time.
One other issue that I wish to just touch on was provisions of
this bill substantially expand the use of citizens' suits. I was just
interested in any panelist's response as to the merits of this ap-
proach in trjdng to reach enforcement.
Senator Graham. Are there any members of the panel who wish
to comment on that?
Mr. McGuire?
Mr. McGuiRE. I am not sure I can comment directly to what you
said, but I will just tell you that farmers, and particularly livestock
farmers, feel very vulnerable to this kind of a situation. They do
because oftentimes the concern of neighbors is focused on some-
thing different than water quality, and have decided that either
they don't like the looks of the farm; they don't like the smell of
the farm; they don't like the noise of the farm; and not having any
specific regulations that those three things are violating, they then
look for how can he be shut down, or moved, or closed up or what-
ever, and end up with the water quality standards which are more
specific and more available to them for citizens' suits.
So I think it provides a convenience, and a conveyance of them
to get into the action to control the problem that they don't like
with a law that gives them that opportunity. Farmers feel very vul-
nerable to that.
Senator Kempthorne. Thank you.
Ms. Cameron?
Ms. Cameron. I have not analyzed the citizen suit provision of
the bill, but I just would like to have your permission to make sure
that we do provide comment to the committee, either from my or-
ganization, or through one of our fellow members of the Clean
Water Network on that particular issue.
Senator Kempthorne. Good.
Senator Graham. I might say. Senator, that we are going to have
a separate hearing on the issue of enforcement. It is at that time
that we anticipate a major focus on the issue of citizen suits as one
of the means of enforcement.
Senator Kempthorne. All right. Good. I will look forward to
that. I would welcome your comments, Ms. Cameron.
Ms. Cameron. Thank you.
Senator Kempthorne. Thank you, Mr. Chairman.
Senator Graham. I'd like to go back to the question that I asked
initially, which was does this bill Federalize, that is move to the
National level, too many decisions that currently are at the State
585
level? I would like to pick up on the comment that Mr. Appleton
made as illustrative of my concern.
I happen to be a strong believer in land acquisition as a strategic
way to deal with non-point source pollution problems. In our State
of Florida we have had for many years what is called the Save Our
Rivers Program, under which literally thousands of acres have
been purchased to provide a natural system buffer for our principal
river systems.
This legislation provides a restriction on the amount of the funds
that flow to a State which can be used for land acquisition, includ-
ing the purchase of conservation easements as well as fee-simple
titles. I point to that as illustrative of the kinds of additional re-
strictions that this proposal would impose on States,
I'd like to ask the generic question, what should be the level of
Federal proscription in terms of standards, State procedures. State
utilization of Federal funds that are made available through this
Act? I would like, as the basis of that comment, what our past ex-
perience has been? Have States been levels of government in which
we cannot rely on a high level of responsibility, and are these addi-
tional restrictions therefore required to accomplish the National
objective of water quality?
Mr. Grubbs?
Mr. Grubbs. I wasn't sure if you wanted to hear from a Federal
bureaucrat on this one.
My view is that we need to recognize successful State programs
where they have succeeded. There are quite a number. You don't
want to do anything in this process that takes away what States
have been able to accomplish.
At the same time, 57 States and territories is a huge land area.
There are a lot differences in those areas in how things move for-
ward. My own experience is that there needs to be more to the Fed-
eral role than just providing freedom and Federal funding.
Carol Browner, as you know, formerly headed the environmental
agency in Florida, and is fond of talking about the difficulties she
had in pollution problems coming from other States across State
borders and that she needed Federal support to help her move for-
ward toward more uniform programs to deal with those kinds of
problems. That is one example that you might think about.
The trick on this is going to be, as we move forward, not at the
State level, but at the county, the conservation district, and the
local level, to make sure that you don't take anything away from
the successes and the commitment of people trying to succeed vol-
untary because it is the right to do. Rather, what you are doing is
you are firming up your bottom lines. You are taking care of the
places where the system has failed. I think that is what EPA can
and has added.
Mr. Appleton. Senator, may I add to that?
It makes me nervous when I hear in Mr. Grubbs' and others' lan-
guage the imposition of standard technological bases. I want to cau-
tion this committee against what is a reculturalization that all of
us who are in the clean water business have to go through. What is
important about S. 1114 is that in its watershed provisions it is
trjdng to grapple with the issue of what are the appropriate insti-
tutional arrangements for the future.
586
What I would be concerned with is Federalizing, essentially, a
non-point source approach that is based on essentially NPDES-type
administration and technological standards that are uniformly re-
quired. The right Federal role is very tough goals. The right Feder-
al role is funding support, including for land acquisition. We have
not discussed research here, but there is an enormous need in
these billions-of-doUars decisions to have them guided by the right
research. The right Federal role is in interstate areas and harbors,
like those shared with New York and New Jersey, and intervening
when it is clear that is the only other choice.
States have experienced a similar weaning from top down man-
agement of these areas. We go back to our experience with Dick. It
was the farmers who came to us, not we who came to the farmers.
That is not possible, or at least it would be very difficult without
an enlightened governor, under the current S. 1114 watershed ap-
proach. Those enlightened farmers, those enlightened forest compa-
nies are going to have a very difficult time making their case in
this system that still flows top down.
I think it is less a question of Federal and State, as it is of what
we ask them to do. Are we going to be entrepreneurial about this?
Are we going to gamble on being successful? Are we going to have
the measured approach Senator Baucus was talking about? Or are
we going to recreate SPDES for the non-point source area? It seems
to me that is the critical issue we have to discuss here.
Senator Graham. Yes, Mr. McGuire?
Mr. McGuiRE. Because of my background, I may get more basic
in the approach here than I do technical, but so be it.
Let me say that this whole discussion boils down to money. Man-
dates on the Federal level. State level down to the county local-
ities— ^who is going to pay for it?
I do not think that anything ought to be used to avoid the issue.
On the other hand, I perceive that we are in grave danger of first
misidentifying the problem, and then misidentifying the solution to
it. History has said we have spent a tremendous amount of money
by governments of all levels and not accomplished anything.
As far as the purchase of land — we have a lot of discussion in
New York State about protecting land either by buying develop-
ment rights — we have a long history of it on Long Island — or by
buying land for protection of water supplies, buying land for scenic
beauty. The problem always boils down to who appropriates the
money, and is it in the public interest, and does it accomplish what
we are after?
I am confident that in the land purchases around the reservoirs
in the Catskills this is an appropriate expenditure, particularly be-
cause of the development in those areas. I am not sure that appro-
priations of money at any level of government that take land out of
production, to land out of private use, to take land off the tax rolls,
is an appropriate expenditure of public money, unless it is abso-
lutely verified as to what it accomplishes whether it is pollution or
something else, whether it accomplishes the purpose.
So in that whole area of mandates, it comes to the forefront that
we have budget problems in New York State. Historically in the
last decade our legislature has passed laws that say, we haven't got
587
any money to pay for it, but we are going to have the counties pay
for it. The Federal Government does the same thing.
The senator who isn't here now is absolutely right. The whole
system is broke, because we have spent money on things that did
not accomplish the purpose that they were intended for, maybe be-
cause of misidentification of the problem in the beginning. I think
that this is a very appropriate discussion by your committee in this
area on non-point source pollution, because it is not as identifiable
as point source pollution is.
It is a gray area all the way through. I think that is why we
have to have people involved such as this approach we have made
in New York State. Those closest to the problems are going to come
up with the best solutions. They even may make mistakes, but I
think we will have minimized the problem.
Senator Graham. My time is up.
Mr. Grubbs, if you would like to make a final comment, then
Senator Baucus will take a turn.
Mr. Grubbs. Thank you.
I just want to try to correct one misimpression that may be left
here at the table. That is that neither I, nor anybody at EPA, is
advocating a State permit, NPDES-style program for controlling
non-point source pollution. That is not what we are talking about
here. We are talking about much broader guidance, a lot of flexibil-
ity for States to adopt it, backed by funding. Specifically, we do
support watershed approaches with a lot of freedom that States
and local areas can concoct to achieve water quality. I don't think
the analogy to a State permit program is correct.
Senator Graham. Senator Baucus?
Senator Baucus. Thank you, Mr. Chairman.
Mr. McGuire, does this bill misidentify the non-point source pol-
lution problem? Does it identify correctly or incorrectly in your
view?
Mr. McGuiRE. In its breadth, it obviously misidentifies some
problems.
Senator Baucus. First of all, what does identify correctly, and
what in your view does it identify incorrectly? That is the bottom
line.
Mr. McGuiRE. For example, in almost any pollution problem or
residue problem or any thing else, it is very easy to attack the
major obvious positions. I think it has already been said that the
point source pollution things did that.
Senator Baucus. We are not talking about point source. We are
talking about non-point now.
Mr. McGuiRE. In this one it is going to be extremely difficult,
and not advisable on a risk-management basis, to control all of it. I
think that voluntary compliance and the best practice management
is going to control more than regulation.
Senator Baucus. There are some who say this bill doesn't go far
enough because it doesn't control all of it. We have some witnesses
here who would make that point.
Mr. McGuiRE. Who is ready to pay for that?
Senator Baucus. So we are attempting to get a balance here, to
some degree, not entirely, but to some degree, between those who
think it doesn't and should control all of it, and those who think
588
that maybe we shouldn't control very much of it. That is why I
asked the question whether the approach in this bill is in your
view correct.
Mr. McGuiRE. Senator, excessive controls without the money to
carry them out is not in the public interest. As I said, perhaps
before you arrived, we have less than two million volunteers out
here producing food. Voluntarily they will decide not to, if the ex-
cessive cost puts them out of business, or the excessive regulations.
I don't think that they are going to be able to keep up.
Senator Baucus. This is to Mr. Vap, and also you, Mr. McGuire.
Some claim that the conservation compliance plans are insuffi-
cient. That is they control only run-off and soil erosion and not
other water quality matters. Your response?
As you know the bill provides conservation compliance plans in
some instances a sufficient. That is, in waters that it identifies as
impaired, an operator who has a conservation compliance plan,
then he has complied. Others though, say that is only part of the
problem. It is insufficient. Your response?
Mr. Vap. That could be partially true. When we look at, for ex-
ample, nitrate contamination of either surface or groundwater, the
easiest place to control the application of nitrate fertilizer is con-
trolling the amount the farmer puts on. But a good thunder storm
will produce more nitrogen than most farmers put on in a year.
Mother Nature provides a lot of nitrogen through the decaying
vegetation. In many areas of the country there are natural nitrate
levels underground that have been there for centuries, and they
also degrade.
So the compliance plans may not necessarily control all of that
tjT)e of degradation.
Senator Baucus. My question, though, is should the requirement
in the bill go beyond conservation compliance plans, or not?
Mr. Vap. On a site-specific basis?
Senator Baucus. Yes, site-specific.
Mr. Vap. Yes.
Senator Baucus. What would you add? How would go about
adding for that?
Mr. Vap. Well, you are looking at non-point source pollution.
Senator Baucus. Yes, non-point source pollution.
Mr. Vap. Are you strictly looking at the farm community?
Senator Baucus. Looking at an operator who is on a stream iden-
tified as impaired. He has his conservation compliance plan, but I
am asking you should that be sufficient, or should that plan also go
beyond that, because that is addressing essentially solid erosion.
Mr. Vap. If we are looking at soil erosion, and that compliance
plan is working the way it is supposed to, then I don't think you
need to go any further. But if that stream runs through a city, are
you going to totally blame the farmer for degradation of that
stream?
Senator Baucus. So you are thinking if it is living up to the
terms of the plan, that should do it.
Mr. Vap. I think so, if he is controlling the run-off off of his land
with a good solid conservation compliance plan, I think that is suf-
ficient.
589
Senator Baucus. What is your response to those who say that it
doesn't address other water quality matters?
Mr. Vap. What are the other water quality matters?
Senator Baucus. It isn't just soil erosion. Let's say it gets into
nitrates, which is a non-erosion issue.
Mr. Vap. It is to a certain extent.
Mr. McGuiRE. Nutrients don't leave the soil unless they attach
to particles that leave with it.
Mr. Vap. That is right.
Senator Baucus. OK.
Mr. Vap. You have to have run-off to degradate a stream with
nitrates. That doesn't mean that nitrates can't get into the ground-
water supply.
Senator Baucus. I'm asking Ms. Cameron that, because I am
sure she has a little different view.
Ms. Cameron. Yes. In our view, the conservation compliance
plans are useful, and we have a conditional support for the provi-
sion in S. 1114. That is we believe that giving exception to farmers
who have a conservation compliance plan is a good idea to the
extent that sediment erosion is the problem in the watershed. As
you were alluding to, Senator, there are other potential problems,
or existing problems in many watersheds.
We believe that on a watershed, or at least on a water segment
limited basis, although we believe that the proper management
unit is the whole watershed, the process should begin with identify-
ing the problems. The problems are, for example, nitrate contami-
nation of groundwater, and if the States and the local authorities
have identified farming management of manure as one of the sig-
nificant nitrate sources, then that there needs to be more done
than the conservation compliance plan.
Perhaps that plan could be the basis for revision. In other words,
perhaps that plan could be the vehicle for a conservation district
person, or a State person, to help the farmer come up with an addi-
tional component to address that manure management issue, or
the fertilizer use issue.
Senator Baucus. I appreciate that. My time has expired.
I just think it is important in this entire discussion, as we are
attempting to achieve perfection. That is a conservation compliance
plan satisfaction might be perfect, but I think it is good.
Mr. McGuiRE. Senator, I think your balanced approach is good.
Senator Baucus. What we are trying to do here is trying to find
something that is very, very good, moving as close as we can to per-
fection, but still getting something passed that does advance the
ball substantially forward.
Again, we must remember that sometimes the cause of perfec-
tion is the enemy of the good. We can't all have everything at once.
Ms. Cameron. If I may respond that we realize that this is a long
journey that we just now really beginning, with the Senate bill,
and also with the Oberstar bill, that we are supporting on the
House side, H.R. 2543. In both cases, we are contemplating very
long time-frames on the order of close to a decade, or more than a
decade for the undertaking of the plans.
Senator Baucus. Thank you.
Thank you, Mr. Chairman.
590
Senator Graham. Senator Chafee?
Senator Chafee. No questions. I think the part of Mr. Appleton's
statement, where he goes through these three points are worth-
while for us to bear in mind.
We have some other witnesses coming up I look forward to
seeing and hearing from.
Senator Graham. Senator Faircloth?
Senator Faircloth. I just have one brief question.
Mr. Vap, isn't a comprehensive soil conservation plan required
for every farm now coming up in 1992 or sometime very quickly to
continue in ASC programs? Don't you have to have one?
Mr. Vap. That is the basis of the conservation compliance plans,
that by 1995 they are to have that plan up and running and work-
ing properly to be eligible for any farm benefits, not just ASCS,
that is also FMHA.
Senator Faircloth. What is FMHA?
Mr. Vap. The Farmer's Home Administration loans.
That also keeps them eligible for Federal Crop Insurance and
programs of that type. If they don't comply they can be totally put
out of all farm programs and benefits.
Senator Faircloth. That is what I thought, that we had this
coming up. That sounds to me like a pretty tight rein on run-off
and other things. As for the amount of nitrogen a farmer puts on
his land, I don't how we could ever control that.
Mr. Vap. We are doing it on a local basis.
Senator Faircloth. How do you do it?
Mr. Vap. Our district has statutory authority to do that.
Right now in our district they have to report to our local district
the amount of nitrate that is being put on there.
Senator Faircloth. It is an honor situation.
Mr. Vap. It is basically an honor situation in the beginning, yes.
Senator Faircloth. Mr. McGuire, you are talking about the ni-
trogen in the water, and we talk about run-off, but the difference
between the amount of absorption of land, the ability of it to leach
nitrogen is just astronomically different from Sulfur County, in Ri-
verhead. Long Island to the clay of Duchess County.
Mr. McGuiRE. The same difference in crops being raised out
here. , , ^ i j
Mr. Appleton. If I could also make one point where a watershed
approach could really be helpful here. We really need to look at
nitrogen loading as a totality. In the watershed, phosphorus is ac-
tually the nutrient of concern for us.
Then start looking at where you can take nitrogen loading out,
or phosphorus loading out, of the waste stream in the most cost ef-
fective fashion. One of the concerns, again, I have is that if you just
apply these standards source by source, and you are taking an
overall approach, you will not get to the question of where is it
most cost-effective for us as regulators and managers to intervene.
In our Cannonsville Reservoir, which is our most phosphorus
stressed, we have set up a task force of State agencies and the local
community to look at where we can get phosphorus reductions in
the most cost effective and most locally acceptable way. We are al-
ready at the eutrophication limit.
591
By creating an overall watershed phosphorus plan we can then
reduce phosphorus below the loading limits. Then we don't have to
be Draconian in a way that treats each farm or each source in iso-
lation.
Senator Faircloth. Thank you.
Senator Graham. Thank you very much, Senator.
Thank you members of this panel for a very excellent and in-
sightful discussion.
Incidentally, there may be some questions that members of the
subcommittee would like to submit subsequent to this hearing. We
would appreciate your consideration and response. Those responses
will also be incorporated as part of the record.
Mr. Appleton. Also, Senator, if I might? We would like to submit
comments on the watershed hearing. We believe, in our experience,
that some testimony directed toward that might be helpful.
Senator Graham. We would be very pleased to receive that.
If the members of the second panel would please come forward, I
will introduce them.
Mr. Willard De Golyer, dairy farmer from Wyoming County,
New York; and Dr. Stanley Weeks, Director of Farm Systems Re-
search Product and Development, of Syracuse, New York; both rep-
resenting the National Council of Farm Cooperatives.
Ms. Judy Olson, Vice President of the National Association of
Wheat Growers, from Garfield, Washington.
Mr. Paul Genho, Chairman of the Private Lands and Environ-
mental Management Committee, representing the National Cattle-
men's Association.
Mr. L. Scott Tucker, Chairman of the Stormwater Committee,
National Association of Flood and Stormwater Management Agen-
cies.
Mr. Robert Warrick, a farmer from Nebraska, who is chairmsm
of the Sierra Club Committee on Agriculture, affiliated with the
Sustainable Agriculture Working Group was not able to be with us
today. I would like to ask Ms. Cameron if she would join this panel
as well, in order to respond to any questions from the aspect of the
environmental community.
Ladies and gentlemen, we are going to have to conclude this
hearing in 55 minutes, at 1:00 p.m. I would like to call on you for
an opening statement. We would like both comprehensiveness and
brevity, so that we can move on to the questions.
First, Mr. William De Golyer and Dr. Weeks.
STATEMENT OF WILLARD De GOLYER, DAIRY FARMER,
NATIONAL COUNCIL OF FARMER COOPERATIVES
Mr. De Golyer. Thank you, Mr. Chairman and members of the
subcommittee.
My name is Willard De Golyer, and I am a third generation
dairy farmer on Table Rock Farm. The fourth generation, my
daughter Megan, is sitting behind me.
Senator Chafee. Where's Megan? Let's see her.
Mr. De Golyer. My uncle and I, and our families, have a milking
herd of 650 cows, and plant 800 acres of corn and alfalfa on our
592
farm located south of Rochester, New York. I'll pass around a copy
of my farm's mission statement.
I am an active member of Agway, our regional farm cooperative.
Agway, which is headquartered in Syracuse, New York, is owned
by 91,000 farmer members in 12 northeastern States. I frequently
turn to my cooperative for information and technical assistance on
environmental concerns.
Accompanying me is Dr. Stanley Weeks, who is director of
Agway's farm research systems and product development. Dr.
Weeks is an internationally recognized expert in the science of
manure management, not a glamorous topic, but one critical to
making water quality progress. Among his many notable contribu-
tions is development of a biogas system approach to dairy manure
management.
We pleased to testify today on behalf of the National Council of
Farmer Cooperatives, which represents farmer-owned cooperatives
across the United States, and to share our views on the reauthor-
ization of the Federal Water Pollution Control Act.
Farmers and their cooperatives have a great deal at stake in the
water quality policy debate. We are committed to playing a positive
role in the search for effective solutions. I would like to submit our
prepared statement for the record, and then touch on a few points.
First, successful policies will achieve management of non-point
source pollution from agriculture, while at the same time allowing
farmers to stay in business. Second, I keep hearing this talk about
bad actors, while the farmers I know are generally trying to be
good actors. Our families, animals, and farms are among the first
to be affected by poor water quality. We work to use the best man-
agement techniques to ensure good water for everyone.
Third, we are going to need help in getting there. Farmers' basic
needs include sound information on what works; technical assist-
ance; and finance assistance to achieve site-specific best manage-
ment practices. We get this kind of help from people like Stan. We
also rely on the Land Grant universities for information. However,
funds for this type of non-profit based research have been drying
up.
S. 1114 goes a long way in responding to the special needs and
concerns of American agriculture. It seeks to establish a good actor
partnership between agriculture and government in targeting im-
paired watersheds, and it places states in a lead planning and im-
plementing role. Farmers would be given the flexibility to imple-
ment site-specific best management practices.
The bill also gives credit to farmers if they have a conservation
compliance plan. Additional requirements will not be imposed on
Farmers where the water supplies meet water quality standards.
In general, we believe S. 1114 is a good foundation on which the
subcommittee can build toward final legislation, allowing farmers
like me to work with experts like Dr. Weeks to get the job done.
Now, as we stated in the written testimony, we do have a few
concerns and suggestions to improve S. 1114. These include in-
creased funding, allow time for voluntary programs to work before
conducting evaluations, link agricultural accountability to perform-
ance on part of states and funding levels, ensure flex guidelines in
Section 304 programs, make sure biological monitoring refines and
593
does not increase existing water quality standards, and allow Soil
Conservation Service to be the lead Federal agency in dealing with
agriculture in this area.
I'd like to emphasize one point particularly. If you are looking
for reinforcements to help get this job done, cooperatives like
Agway are uniquely positioned to be part of that solution. Coopera-
tives work in partnership with farmers and ranchers who are their
member-owners, as they strive to address non-point source pollu-
tion and other environmental challenges.
We in the Agway system are particularly excited about advances
in animal manure management at our research facility. I hope Dr.
Weeks will have the opportunity to offer some highlights during
discussion.
Cooperatives by definition are self-help organizations. Today four
out five farmers belong to one or more cooperatives. In the search
for water quality solutions, we hope you will look for ways of bring-
ing the cooperative community in as part of the solution.
Senator Graham. Dr. Weeks?
STATEMENT OF STANLEY WEEKS, DIRECTOR, FARM RESEARCH
SYSTEMS AND PRODUCT DEVELOPMENT, AGWAY, INC., SYRA-
CUSE, NEW YORK
Dr. Weeks. Thank you, Senator Graham and members of the
subcommittee.
Just briefly, let me talk for a few minutes about our friend, the
dairy cow. Our research farm, located in Central New York, is ac-
tually a cooperative research farm. The animal nutrition work that
goes on at that research farm is supported by 12 farmer-owner co-
operatives in the U.S., Canada, and one in France. That informa-
tion is shared with the other 11 cooperatives.
We milk 250 cows a day there. So we are a real farm, and we test
equipment systems prior to sales to our farmer members.
Our approach to manure management is a systems approach. It
clearly is a major materials handling issue. Let me briefly describe
our approach.
First of all, we recognize that manure is a resource worth about
$100 per dairy cow per year as a fertilizer source. So let's begin
with the cow.
Our cows lie on mattresses. They are stuffed either with sawdust
or shredded rubber. That gives the cow comfort, and that reduces
the amount of bedding required to be purchased.
We use automatic scrapper systems to remove manure from the
barn. That gives us clean cows to be milked, and it is a very energy
efficient system.
We use liquid-solid separators. They are German-made units. The
Europeans are a little bit ahead of us in these environmental con-
cerns. This German-made unit separates the manure fibers from
the liquid.
We compost the solids, all those solid fibers for bedding. We can
use it as a soil amendment product. It is also a potential cash crop
from the dairy operation.
The separated liquid then goes to a long-term liquid storage.
That is our fertilizer source. That can be remote from the barns
594
and central to the fields. That reduces transportation time and
cost, and we like to have a six-month storage in our part of the
Country, so that we don't have to spread on frozen land. We can
spread in the Spring and Fall, and incorporate especially to save
the majority of the nitrogen portion of that fertilizer.
Since 1981 we have operated an anaerobic digester, our informa-
tion for building that digester came from three Land Grant univer-
sities; Cornell University, Penn State, and the University of Mis-
souri.
That is an odor control system, basically, but it also is an energy
production system. We know how many kilowatt hours each dairy
cow will produce, as well as how she will eat, and how much milk
she will produce. It is probably the most effective method of odor
control. A lot of our neighbors equate odor with pollution. So that
is one of the major reasons that we work with digesters. It also pro-
duces methane from that manure, which we then utilize so we
burn the methane instead of letting it go in the air. The overall
systems economics still need to be evaluated farm by farm;
In the end result, proper land application is the key for adequate
manure handling. In our area, the Soil Conservation Service and
Land Grant colleges are very important allies in designing and in
providing information on manure handling systems. I would
strongly encourage more support for both of those organizations.
To summarize, animal manure is an important fertilizer re-
source, but we must store and apply it properly.
Senator Graham. Thank you very much. Doctor.
Ms. Olson?
STATEMENT OF JUDY OLSON, VICE-PRESIDENT, NATIONAL
ASSOCIATION OF WHEAT GROWERS, GARFIELD, WASHINGTON
Ms. Olson. Thank you.
I am a wheat farmer from Garfield, Washington, as you said in
my introduction. My husband and I farm there, have for the past
20 years. I am speaking today on behalf of five additional commodi-
ty groups. I appreciate the opportunity to comment on the non-
point source title of S. 1114.
We are pleased that the legislation emphasizes the importance of
watershed planning, local ownership of watershed projects, and the
site-specific approach, which we think is very, very important. But,
this philosophy must be made practical from a farmer's point of
view, if we are going to make substantial improvements in the
quality of our natural resource.
They must also include realistic time-frames. One of the points
that I make in my written testimony and I would like to highlight
is the fact that voluntary programs do work within agriculture. We
have had many comments today on many examples. There are four
additional examples in my written testimony about how voluntary
programs are implemented on farms by farmers.
A big component of voluntary programs by farmers on farms has
to do with technical assistance, education, and research. I feel very
strongly, as do the groups that I represent, that farmers when they
are aware of a problem in their local area, watershed in this in-
595
stance, buy into that, or accept local ownership of problems. They
are problem solvers inherently.
So we need education to identify the problems. We need techni-
cal assistance and research to identify cost-effective, workable solu-
tions within the region that has a problem and to address those
problems. That is where technical assistance fits in to the volun-
tary component. Those things go together very, very closely.
After we have the technical assistance, the research, the educa-
tion, then we need some additional assistance, or education, to
make that transfer back to the farmers through demonstration
projects. We have cooperative extension service; we have local soil
conservation districts; both play a very important role in that tech-
nology transfer back to the individual farmers.
It has been my experience in my own county that most farmers,
once they see a better way to do something, they readily adopt the
new practice. I live in a very highly erodible county I farm in the
Palouse region where virtually every acre is classified as HEL. We
have been working for probably 40 years to reduce erosion of those
highly productive soils. Farmers voluntarily have done that be-
cause it is in their own best interest. We continue to adopt new
technologies. This is an on-going process; it is not something that
you can say; "This is the answer". It is an on-going process as we
become more familiar with the causes, the effects, and new equip-
ment and techniques are developed.
The other point I'd like to make is that we believe very strongly
in local solutions to local problems. Water quality is a local prob-
lem, especially where non-point sources occur. We believe that the
stake-holders in that watershed have a vested interest in protecting
the quality of those waters and improving it, and will be voluntari-
ly involved in that solution, given an opportunity to do so.
We believe that the solution should come, basically, from the
bottom up.
Realistically, farming cannot be done by a National environmen-
tal protection agency handling it. We have learned some very valu-
able lessons with conservation compliance in the 1990 Farm Bill.
Many of those lessons were good. Some of those should be a guid-
ance to this committee as to what works effectively, and where
some things could be improved.
One-size-fits-all does not apply to agriculture. We have different
soils throughout the Country. We have different weather condi-
tions, climatic conditions, and different needs. The local unit,
again, is best able to identify the needs and the most effective prac-
tices. Therefore, we feel that EPA guidance on this matter is prob-
ably very inappropriate.
We also believe that five years is not long enough to have the
value and the merit of the conservation plans, which actually are
coming into effect but aren't required to be into effect until 1995,
to be thoroughly analyzed, evaluated, and the results known. We
would like to commend the committee for drawing the correlation
between conservation compliance plans and water quality. We
think that will be a valuable tool to help us address water quality,
but we feel that those plans need a little longer to work, that the
results need to be made known to farmers before they are required
to add additional management practices.
596
With that, Mr. Chairman, I would like to thank you for your con-
sideration, and would welcome any questions at the appropriate
time.
Senator Graham. Very good. Thank you, Ms. Olson.
Mr. Genho?
STATEMENT OF PAUL GENHO, CHAIRMAN, PRIVATE LANDS AND
ENVIRONMENTAL MANAGEMENT COMMITTEE, NATIONAL
CATTLEMEN'S ASSOCIATION
Mr. Genho. My name is Paul Genho. I am a rancher from Flori-
da, and also chairman of the Private Lands and Environmental
Management Committee of the National Cattlemen's Association.
The National Cattlemen's Association is the voice of cattle pro-
ducers nationwide. We represent 230,000 cattle producers across
the Country through 76 affiliated organizations.
We appreciate very much the leadership shown by Senator
Baucus and Senator Chafee in introducing S. 1114, as well as your
leadership, Senator Graham, in these hearings.
We have reviewed this legislation and have submitted extensive
comments on S. 1114. We would welcome the opportunity to contin-
ue working with the committee to refine S. 1114.
During our review we found a number of provisions which we es-
pecially support. I'd like to focus my comments on these four areas
that we feel are excellent. We would like to voice our support for
them.
The first area is that we support increased efforts to ascertain
the water quality by testing of all waters in the United States. We
think this is one of the most important provisions of S. 1114. Test-
ing will provide the road map necessary for protection of America's
waters by identifying specific sites with genuine non-point source
pollution problems. This will avoid needless Federal, State, and pri-
vate expenditures of funds spent in an effort to solve nonexistent
problems.
If I could, in a personal note by way of an illustration: In 1979, a
State environmental regulatory agency filed legal proceedings
against our ranch after a fish kill in a river that is close to us, al-
leging that we were pumping storm water discharges which, among
other things, violated the following water quality standards: DO
levels (dissolved oxygen levels), biological oxygen demand levels,
turbidity, phosphorus levels, conductivity, chlorides; and suggested
a number of other problems, including a statement that nutrient
enrichment, because of the activity of cattle, occurred. All the alle-
gations were supported by pages of expert witnesses, the majority
of which were regulators from various agencies.
Subsequent to this, after 10 years of testing of our water dis-
charges, versus an individual operation, and five years in combina-
tion with State agencies and other producers, it has been clearly
documented that we had virtually no biological oxygen demand
problems, no nitrogen problems, no phosphorus problems, no con-
ductivity, no turbidity, no chlorides, no sulfate, or no pesticide vio-
lations. There were hundreds of tests.
While occasional problems of dissolved oxygen levels do occur in
our discharge, the incidents and scopes of these violations are
597
much lower than suggested by the allegations. In addition, it was
found that DO levels and discharges from the ranch were very fre-
quently superior to those found in the naturally occurring receiv-
ing water. As a result of recognizing the impossibility of obtaining
the State's standard, application for a site-specific alternative crite-
ria seeking a lower DO level standard has been applied for by the
regulatory agency.
Extensive long-range testing that accurately ascertain water
quality problems will provide a scientific basis which will allow us
to target real non-point source pollution problems, rather than to
respond to every false allegation, faulty conclusion, and pseudo-sci-
entific assumption.
Point two: We also support the provision of S. 1114 which targets
water bodies with a demonstrated water quality impairment. Exist-
ing Federal budgetary constraints, and just plain good sense, re-
quire that limited that limited resources be directed toward those
areas with real water quality impairment. Successful programs
must include locally crafted and cost-effective solutions.
Point three: Additionally, we support voluntary site-specific
plans for landowners which recognize current, on-going State and
locally developed water quality programs across the Country. We
also urge you to recognize the ability of landowners to craft viable
solutions to demonstrated water quality problems. Positive incen-
tives to improve water quality should be implemented.
Again, by way of illustration, when I became aware of the reality
of the low dissolved oxygen levels in both our discharge and in the
whole river system, I approached the agency to discuss the possibil-
ity of building retention ponds to provide treatment. I had been in-
formed that such treatment if properly designed would raise dis-
solved oxygen levels by one part per million. As a result, we have
completed two such treatment systems on our ranch at consider-
able financial expense to ourselves. Two more systems are in the
process of being constructed, and several more are designed and
are permitted.
In addition to the large expense required of us to engineer,
permit, and construct these facilities, we have also dedicated con-
siderable acreage for the treatment ponds. We will lose all produc-
tive use of this acreage. The largest of these ponds will be 505
acres. I want to emphasize that this was a voluntary action on our
part.
The State obtained treated water, and will obtain much scientific
information through our on-going monitoring program. We obtain
the presumption of compliance with the State water quality stand-
ards, some dry season irrigation benefit, wetland mitigation credit
because of the wetlands we created, and some public goodwill.
The project was voluntary. It helped to solve a problem, and it
carries with it some non-cash incentives.
Cattle producers are willing and able to make management deci-
sions which will protect water quality. NCA is involved currently
in research to determine and ascertain the level of involvement in
a number of States across the Country. When this study is complet-
ed, we will be pleased to provide you with copies of it.
Cattle producers are going to be a key component to water qual-
ity protection efforts. We are a major land use throughout the
598
Nation. We have the interest; we have the desire to improve water
quality.
Senator, I will conclude my remarks with that, and once again
expressing appreciation for the opportunity to be here to partici-
pate in this hearing.
Senator Graham. Thank you very much, Mr. Genho.
I'd like to say I have been trying to encourage some of my col-
leagues to spend some time seeing some of the situations in Flori-
da. I'd like to add your ranch as one of the places for visiting if we
could do that.
Mr. Genho. I'd be glad to do that.
Senator Graham. Thank you.
Mr. Tucker?
STATEMENT OF L. SCOTT TUCKER, CHAIRMAN, STORMWATER
COMMITTEE, NATIONAL ASSOCIATION OF FLOOD AND STORM-
WATER MANAGEMENT AGENCIES
Mr. Tucker. Thank you, Mr. Chairman and members of the com-
mittee.
I'll admit up-front I am not a farmer. I am the executive director
of the Urban Drainage and Flood Control District of the Denver,
Colorado, metropolitan area. The District is a multi-county agency
that covers six counties and 30 municipalities.
Today I am appearing on behalf of the National Association of
Flood and Stormwater Management Agencies. We call it NASMA.
We appreciate the opportunity to present our views to the commit-
tee on the stormwater management section of S. 1114. That is Sec-
tion 402.
It is appropriate, I think, that urban stormwater is in fact a non-
point source, and so it does fit with this discussion. Mr. Chairman,
we believe that S. 1114 establishes an excellent framework for new
amendments to a Clean Water Act dealing with municipal storm-
water systems.
Pursuant to the Water Quality Act of 1987, some 200 of the
larger cities and counties submitted their applications for NPDS
permits for their stormwater systems. Despite considerable uncer-
tainty and local resource constraints, the commitment of local re-
sources to respond to this mandate has been significant.
By NASMA's estimate, these 200 cities and counties have spent
over $130 million just to prepare applications. For example, it costs
over $2 million to prepare simple applications for Denver, Aurora,
and Lakewood, Colorado; which included the pooling of our efforts
to reduce costs.
Preliminary results from a survey now being conducted by
NASMA indicates that many of the 200 cities and counties are pro-
jecting to spend over 10 times the amount they spent on their ap-
plications during the first five year permit period. We are in the
NPDS program now, I might add.
The programs that municipalities must develop to control pollut-
ants in stormwater will be new programs. Unfortunately, to a large
extent, we do not know how to predict their performance or effec-
tiveness on receiving waters. In short, the Nation's larger cities
and counties are not embarking on a large demonstration program.
599
We bring this to your attention to assure you that a considerable
effort has been made, and will continue to be made to reduce pol-
lutants in stormwater in spite of some doubts and concerns that
have been expressed.
Mr. Chairman, in reviewing of S. 1114 within the context of
NASMA's principal issues, we find it addresses most of our con-
cerns. Our most critical issue is clarification of the use of water
quality standards and objectives as applied to municipal storm-
water. In reality there are fundamental differences between munic-
ipal stormwater and traditional waste water in industrial effluent
point sources.
Consequently, water quality base limits, including numerical and
pipe limits, should not be used in the municipal stormwater permit
program to measure permit compliance. S. 1114 addresses this
major concern by placing a 10-year moratorium on the use of nu-
merical effluent limits for compliance purposes.
However, it is essential that this 10-year period be used to ad-
vance the urban stormwater science to enable the development of
appropriate standards for wet weather conditions. This is impera-
tive lest we find ourselves 10 years from now in the same position
we are today.
We support the bill's provision to clarify the meaning of maxi-
mum extent practicable. A CZMA guidance document is a valid
place to start, but it was developed for use in coastal areas.
NASMA recommends that provisions be included to review and
revise the CZMA guidance as necessary to achieve an acceptable
degree of Nation-wide applicability.
S. 1114 recognizes the fact that municipal stormwater systems
convey, not create, pollutants that are generated by many widely
dispersed sources. As such, municipal systems are more like non-
point than traditional point sources. The bill's provision to consider
the reduction in use of pollutants that are found to be significant
contributors to water quality impairment is a sound and wise re-
sponse to this problem.
If there are any questions, I would be happy to respond. Our full
statement has been submitted.
Senator Graham. Thank you very much, Mr. Tucker.
As with the first panel, the full statements of each panelist will
be included in the record.
Ms. Cameron, do you have any additional opening statements for
the Panel II?
Ms. Cameron. In a way, I guess I am a stand-in for Mr. Warrick,
who is chairman of the Sierra Club Agriculture Committee, and a
Nebraska farmer. If I may, I would like to read a brief selection
from Mr. Warrick's testimony, because it further underscores our
own view on the issue.
In general, Mr. Warrick supports title III of S. 1114 as an effec-
tive first step toward meeting water quality goals for non-point pro-
gramming. Mr. Warrick goes on to state that.
However, my experience in sharing a county soU and water conservation board
and a natural resources district tells me that the success of any watershed polluted
run-off program would be determined by how effectively site-level plans are imple-
mented throughout the watershed. My experience as a farmer suggests that land
owner cooperation in implementing site-level plans can only be obtained where
there is the perception that mandated management measures were determined as
69-677 0-94-20
600
;he result of a fair process, uniformly applied to £ill land owners in the watershed,
ind based on problems identified by application of specific objective criteria.
I believe he is talking there primarily about objective water qual-
ty criteria in the stream that gives farmers a target to shoot for
vhen they are designing their flexible plans.
I therefore urge that any non-point pollution program ultimately enacted include
;he following components: A watershed based comprehensive approach that protects
lurface water, ground water, wetlands, lakes, and all land uses; a process to deter-
nine what pollution sources in an impaired watershed are most critical to water
luality improvement; mandatory site-level planned development and management
evel implementation for targeted pollution sources; management measures based
>n specific water quality objectives and criteria to protect human, fish, and wildlife
lealth; comprehensive training for all government officials involved in site-level
)lanning or in providing technical assistance in the implementation of management
neasures; and a unified approach that builds on and incorporates existing conserva-
ion and water quality plans from the Food Security Act and other laws.
Thank you.
Senator Graham. We have had since 1972 a Clean Water Act,
md for the last five, almost six years a specific Federal commit-
nent to non-point source pollution control. I would be interested in
''our diagnosis of what has happened in the past, in terms of the
federal efforts at non-point source pollution control. What is your
liagnosis of the current Federal efforts, and from that, what do
'^ou think should be our priorities, particularly as it relates to agri-
:ulture for this re-authorization?
Mr. Genho?
Mr. Genho. Yes. I mentioned the 1972 enactment of the Clean
Vater Act. I grew up on the St. Johns River. I recall well the in-
lustrial WEiste and raw sewerage in that river during my childhood
ind early adulthood, and recognize the real progress that has been
nade in the point source problems, just from sitting there and
vatching that river over these years.
I think non-point source has had less of an emphasis, and less of
lomething that we have all focused on, and as was mentioned earli-
er, years ago we were all told that the solution to pollution was di-
ution. In agriculture, it was to spread everything out, and then
here was no need in worrying about it. But that consciousness has
:hanged rapidly, both on the State and Federal level and in the
egulatory agencies, and those managers of the farms of this
Nation.
In 1987, as I understand it, there was created the amendments
vhich began the section 319 program and limited funding. The first
noney from that was allocated, I believe, in 1989. So in some cases
t was a year and a half later before it actually began to hit the
ground, which would put it in the mid-1990's. So we really have
itarted this voluntary program to move forward. I think the con-
iciousness is being raised out in the country.
I don't think at this time we can say there has been a horren-
lous amount of change, because there hasn't been the time. Biolog-
cal things take time to change. We are really looking at two years
>r so of programs that have been funded. Obviously, the funding
las been grossly inadequate. In order to have the kinds of pro-
n*ams we need we are going to need more funds.
We also, right now, have a lot of information that may or may
lot be valid, and that we are trying to make conclusions from. The
esting program, I know, is extremely critical. We must have a
601
solid baseline of good information so we can target these real prob-
lems, then spend private, Federal and State money to clean them
up. We know there are non-point source pollution problems; and
we know agriculture contributes to it. Agriculture wants to be part
of the solution.
We need to continue in the general area that we have been going
in, refined by the additional funding.
Senator Graham. Do you have a comment, Ms. Olson?
Ms. Olson. Yes. I would to add a couple of comments that I
agree with Mr. Genho in general that non-point source pollution,
especially for agriculture, has been a secondary thought in the first
20 years of Clean Water, primarily because the focus has been on
point sources.
However, from my own personal experience, I would not say that
non-point source pollution from agriculture has gone totally over-
looked in the area of the Country that I come from. We have de-
signed at our county level best management practices for water
quality. Those were designed by our local county extension agent,
our local Soil Conservation Service and local farmers, and in the
mid-1970's were adopted by our State Department of Ecology,
EPA's counterpart within our State. Since that time, every farmer
in our State has adopted one or more of those practices. I think the
average is about seven.
Senator Graham. Any further comments on the question of the
diagnosis of the status quo?
Ms. Cameron?
Ms. Cameron. Mr. Graham, this morning we have heard from
two of the witnesses with respect to the magnitude of the forestry
industry impact on water quality, and also the range land and
grazing impact on water quality. I think that we would like to have
the opportunity to submit further information on those two issues
in particular.
I believe that the whole story has not yet been told here this
morning. I don't have particular data in front of me, but we believe
that there needs to be much more serious monitoring on the part
of the States for those two land use categories in particular.
There is a good start in S. 1114 addressing the monitoring for
those two land use categories in the general sense that there is
more direction for monitoring given to the States in S. 1114, but we
would like to see, for example, the State of Maine implementing a
systematic approach to monitoring for the effects of logging, since
the logging industry is very important to Maine.
Likewise, there are many parameters that reflect the effect of
grazing on water quality that not every State right now uses, or is
not required to use. For example, Oregon uses temperature as an
indicator of the effect of overgrazing on the streams of Oregon.
That is a parameter that could be used more widespread in other
States.
Senator Graham. Mr. Tucker, then Senator Chafee.
Mr. Tucker. I would like to take this opportunity to point out
again the difference between the non-point approach of 319, and
then the approach to the non-point problem of urban stormwater.
We have been working under Section 402. Part of our concern has
been trying to deal with a really non-point problem within a point
602
irce program. I think the S. 1114 attempts to deal with this and
)vide mechanisms to deal with urban stormwater as more of a
n-point problem, as it is. But I'd like to make that linkage.
Senator Graham. Senator Chafee?
Senator Chafee. Thank you, Mr. Chairman.
rhis has been very interesting. I want to thank you for getting
3se witnesses, and thank all the witnesses, many of whom have
ne a good distance. You have come all the way from the State of
ashington, Ms. Olson.
[ think your comments were good; everybody's comments were
3d. Ms. Olson said education is better than a police force. It
jms to me what we should strive to do here is to try to show that
is is a worthwhile effort so that the people participating feel that
3re is something in it. That comes through education.
[ must say, Mr. Tucker, I was appalled at the amounts that are
ing spent by larger cities to obtain the NPDS permits. I think
u indicated that in Denver alone you have spent $23 million to
tain your permits.
Mr. Tucker. $2 million for the permit applications.
Senator Chafee. To prepare for the permit applications? That
ist be a cottage industry out there, isn't it, preparing these per-
ts?
Mr. Tucker. It is quite a cottage industry all over the United
ates for those 200 and some communities. To give you an exam-
3 of the cost, it was the monitoring cost alone. We were required
obtain wet weather stormwater data from eight sites. It ended
I costing $40,000 per site to obtain that data. We worked with the
S. Geologicsd Survey to obtain that information. We are now
Lving to go back to even collect some additional data because
me of the data that was initially collected wasn't adequate.
Senator Chafee. Thank you.
Dr. Weeks, you work for Agway, do you?
Dr. Weeks. Yes, I work for Agway in research and development.
Senator Chafee. It seems me the information that you have ob-
ined dealing with our favorite subject, manure, is something that
)pefully would be shared in a widespread fashion throughout our
untry. In other words, what you are doing over there is very ben-
icial. How do you get the results of your activities out?
Dr. Weeks. We have a number of publications, Senator, that go
our farmer members, plus we are involved in this cooperative re-
arch farm organization which takes information to 11 other coop-
atives around the U.S., Canada, and France. So we do that.
We go to some technical meetings and present some reports on
)w the system is operating. We think in the next 90 days we have
very interesting opportunity because we are constructing the
^stem at USDA Beltsville. We would encourage all of you to go
se that when the system completed done and in operation.
Senator Chafee. Where is that, right out here?
Dr. Weeks. In Beltsville.
Senator Baucus. Is that inside or outside the Beltway?
[Laughter.}
Dr. Weeks. I don't know.
Senator Chafee. Just outside the Beltway, not very far.
[Laughter.]
603
Senator Baucus. Then, we'll go visit it.
[Laughter.]
Senator Chafee. Mr. De Golyer, you have quite an operation up
there. You have 650 milkers?
Mr. De Golyer. Yes.
Senator Chafee. And you are going to 850?
Mr. De Golyer. Yes, within the next couple of years.
Senator Chafee. Just out of curiosity, I come from a small State,
so this is big action for us, to see 850 milkers. How many people do
you have helping you?
Mr. De Golyer. V/e have about 12 employees. By farming stand-
ards, it is a good sized farm, but compared to other businesses it is
still a small business.
Senator Chafee. So it is a good sized farm up our way, I'll tell
you.
Thank you all. Thank you, Mr. Chairman. ThLs has been very
helpful.
Senator Graham. Senator Baucus?
Senator Baucus. Thank you.
I want to thank everybody, too, for not only coming a great dis-
tance, but also working hard to help find a combination here, a bal-
anced approach to non-point source pollution control. It means a
lot to all of us.
I'd like to change gears a little bit, though. Addressing the prob-
lem I think we have in this country, where if people are not losing
confidence and faith in Government, they certainly are beginning
to question it a bit more, particularly the membership organiza-
tions.
Each of you have spent a lot of time thinking about these issues.
I believe you understand of this democratic process of ours, of com-
promise with small c, and in the best sense of the word, to try to
reach a result. We all know, and certainly all of us who represent
States, you know as people who represent your constituents, that
often the people we represent have very strongly held views, and
they are not altogether complimentary about the process.
So I am just curious about how you can help us, how we can help
each other in addressing that. Because whether it is stockmen,
dairymen, or cattle growers, or beef growers, or who ever, do you
think your membership is going to like or not what we are doing
here?
If they don't like it, assuming you think that basically, what can
you do about addressing their outrage, very strongly held views
that this is a bunch of baloney? What do we do about that? I am
just curious about your comments here.
We are all sitting in this room. We are talking about this, and
we have read the bill, and we know about it. But the people we
represent haven't.
Ms. Olson. I'd like to respond.
Senator Graham. Ms. Olson?
Ms. Olson. I think that we in agriculture, and I'll speak first
broadly, and then specifically for my group.
We in agriculture have invested in clean water. That has been
reiterated time and time again by numerous panelists today. I
think that our group, the members that I represent, the farmers
604
back home on the farm, have a very difficult time with paper work,
additional paperwork.
We are all small business people. We don't have the benefits of
an accounting department and someone to keep track of the new
changes in laws, etc. That falls upon generally a husband and a
wife. In my case, it falls upon me. I have a family to take of. I have
other responsibilities as well.
Farmers in general rebel against paperwork, not against the
goal, but against spending a lot of additional time to document and
prove what they have been doing. They feel that they are not given
credit for the substantial hands-on actual accomplishments that
they have made.
Senator Baucus. I agree with that. So what do we do about that?
Ms. Olson. I think one of the things that we can do is the target-
ed site-specific idea that you have come up with in your bill. I
think that if we could spend more time doing hands-on stuff, which
site-specific gets at, involve those people in their watershed locally,
I think that is a very positive way to bring out the best, and to
show them that the intent is to do something, rather fill out
papers.
Senator Baucus. I agree with that.
Your people have even more strongly held views.
Mr. Genho. Yes, that is generally true of cattlemen. They do
have strong views.
In the whole agricultural community there is a level of appre-
hension about what is happening to them, rapid changes and tur-
bulence that is being caused in their industry by the regulatory
process, a rapid increase in the regulatory process. It is very
threatening to the agricultural community, to agriculture individ-
uals. Part of that is the cost; part of that is the uncertainty about
the future; part of that is the idea that we are responding to the
perception instead of to the facts, to science.
Our operation, for the last several years, has spent about six
cents per pound, for each pound of calf produced, either in manda-
tory complying, or voluntary compliance, or legal defense. We are a
fairly large ranch, but as I have visited other ranchers who are
looking at this — and six cents a pound is a lot per rancher — so,
they feel threatened by this. I don't know of any rancher, and I
know a lot of them across this Nation, who doesn't want to, genu-
inely want to, contribute to a solution. There is a genuine fear of
the regulatory process.
There is a genuine fear that we are having to respond to percep-
tion instead of science, and that in most cases if we can be at the
table participating, and if we are educated to the real necessity of
the solution, I think that you will see that the strong-willed ranch-
ers will be just as strong-willed on solutions as they are in their
opinions.
Senator Baucus. I believe they will. You can see that happening.
Senator Graham. Dr. Weeks?
Dr. Weeks. I have just a couple of comments.
I think the first one would be that communications as usual is
the key. We should turn around an old joke and say, "Hi. We are
from the country and we are here in Washington to help you."
[Laughter.]
605
Dr. Weeks. But communications is clearly the key. I think the
concern of our farmer members is what are you folks doing down
here which is going increase our costs of operating? Farming is not
a high profit margin business. When we compare the dollars that
have been spent in human waste handling — and I make that analo-
gy between human and animal waste handling; I think there is a
strong analogy there — as we have more intensive agricultural oper-
ations, I really believe we need some dollar support. That is the
key question that I think our farmer members have. What are you
doing down there that is going to increase our costs of operating,
and how are we going to be able to continually operate and make a
profit?
Senator Baucus. Ms. Cameron, I'd like your perspective.
Ms. Cameron. Well, certainly I also represent a constituency,
particularly the 170,000 members and supporters of the Natural
Resource Defense Council around the country, and then more
loosely, I work with the members of the Clean Water Network,
which are not only environmental groups, but also commercial fish-
ing organizations, trade unions, and other groups. We collectively
are very concerned that we need to fill the gap that we see in the
Clean Water Act.
Senator Baucus. But are they going to be outraged about what
we are doing here?
Ms. Cameron. Pardon, I'm sorry.
Senator Baucus. Is your membership going to be outraged with,
happy with, content with what we are doing? What is their view,
and how do we get them to the degree that they are isolated and
separate from this, to become part of the process working toward a
common solution?
Ms. Cameron. In terms of the overall framework of Title III, and
the non-point source pollution provision in the bill, I feel that the
framework is basically sound, particularly the emphasis on a wa-
tershed basis. We would like to see that watershed focus be
strengthened even more, so that for example it is not entirely up to
State discretion as to the scope of targeting.
For example, we support the approach in the Oberstar bill, H.R.
2543, that requires that all watersheds of waters that are already
on a sick list, if you will, impaired or threatened list, that all of
those watersheds be targeted by each State. Again, those are the
States on listing, so it is not a Federal imposition of a target list,
but it would be a Federal requirement that would say for you, Flor-
ida, all the waters that you have identified as being impaired or
threatened we are now going to give you a required duty to restore
and protect those waters.
Senator Baucus. I agree with you. I think Ms. Olson made a very
good point.
We found on this Committee, backing up, this year I decided not
rush pell-mell to reauthorize the environmental statutes, but
rather hold a series of taking stock hearings to find out what works
and doesn't work before we begin to reauthorize.
One development we discovered is the importance of regulators,
if you will, working with businesses they regulate. That is the EPA
for example, or a State regulatory agency for example, ought to go
on site, visiting a firm, and not slapping violations on the firm, but
606
rather say here is a problem. Then the firm's environmental people
could work with, for example, with the agency people, and they
could find a solution.
Part of the solution could be, again, no fines, maybe a delay; but
still a date by which the firm does meet the air quality, or the
water quality standards, or what-not. It is much more cooperative.
It is on-site in the sense that people are working together and they
are finding the solution. They feel part of the process.
I think that we should try to, and not only with the Clean Water
Act and non-point, but generally, pursue that approach, because I
think it tends to build people's confidence so that they can see that
this process really is working, it really is for everyone's mutual
benefit, rather than having someone on high insensitively dictating
a result that is often not really close to the solution, because the
dictator hasn't considered other points that need to be considered.
Mr. De Golyer. I would like to comment. Senator.
I was intimidated coming down here. I have been very pleasantly
surprised with the tone of this hearing, and the knowledge that
you people have with the problems in agriculture. So it has been
very pleasant for me.
My suggestion in helping agriculture to get behind this program
is to work with the people who we are used to working with. That
would be our local Soil Conservation Service people. We are used to
having them help us solve problems.
Senator Baucus. They are highly regarded around the Country,
too.
Mr. De Golyer. Yes. We are also used to working with the
people from the Extension Service. We do feel a real strong need as
my grandfather used to say that agriculture changed more in his
lifetime than it changed from the time of the birth of Christ. I
think it has changed more since my grandfather died.
We do need to have this research done by our Land Grant uni-
versities to give us the technology and the ways to solve these prob-
lems.
One final thing: You are talking about the perception of your
bill. We have a real problem in our home community with the per-
ception of our non-farm neighbors of how agriculture is run. We
have had a citizen suit with our next door neighbor that went for
$4.1 million that they were asking for. My neighbor could have
very easily bought his way out of this. I think Mr. McGuire kind of
referred to this, as my neighbor has very high principles and knew
what this meant to agriculture if the suit was successful.
The four families that brought this ended up, instead of $4.1 mil-
lion, they ended up with $4,001. It might be said that while this
suit is still on-going under the Clean Water Act, but you might say
my neighbor won this battle. But it has cost him $400,000 in legal
fees. Part of the problem is that the Clean Water Act does not have
the real good definitions for what is and what isn't compliance.
Senator Baucus. There was a comment this morning about citi-
zens' suits. I could clarify that. There are no provisions in this bill
which would allow someone to sue a farmer for his failure to
comply with the plan. There is nothing in this that will so provide.
I thank you very much, Mr. Chairman.
Senator Graham. Mr. Faircloth?
607
Senator Faircloth. Thank you, Senator Graham.
You all are involved with agriculture, and very much so am I. In
fact, as I said earlier, some of the Senators were bringing some-
what of an analogy to the chicken and the hog to the breakfast.
The chicken brings a days work, but the hog brings his life to it.
That is pretty much what I am bringing here.
I think overall what we are saying here, as I tried to listen and
to observe, there isn't any way to hire enough regulators, inspec-
tors, supervisors, checkers to do the job. If it is done — and it will be
done — it's going to have to be done because the people in agricul-
ture, the non-point sources, are going to have to want to do it.
As Mr. Genho said, the people in the cattle industry do not want
pollution. I am in this business, too. We have 16,000 acres of cattle
land in North Carolina. I think the farm communities are doing a
lot more than many people from the environmental section think.
We test hay for nitrates. We have many, many wells in the hog
operations, too. We check it constantly, and monitor it. It can be
done. It has to be a voluntary effort. We do not need more rules,
more regulations, as Ms. Olson said, more paperwork, more re-
ports, more filing, and more checkers.
We have had the Soil Conservation Service, which has been en-
acted in this country since 1933, for the sole purpose of what we
are talking about, soil conservation. If you pollute it, you aren't
conserving it. Soil and water conservation, that is what it was set
up for in 1933 or 1934. Soil and water conservation, that was its
purpose.
It is still in effect today. As far as I know, every county in the
United States must have one. There must an infinitesimal number
of counties that do not. What county are you from, Mr. Genho.
Mr. Genho. Osceola County.
Senator Faircloth. What?
Mr. Genho. Osceola County.
Senator Faircloth. Oh, you are from Osceola. But you have Soil
and Water, of course. And this is the answer, and the reasonable
answer to it. The agriculture community in this Nation is used to
working with these people. We have worked with them — I was in
produce farming at one time, and we worked from Collier County
all the way up to Suffolk County, New York at Riverhead. We
worked with the Soil Conservation people and the local agricultur-
al people. We handled problems.
I do not think we need to come forth with an entire new set of
rules, regulation, and checking. I think we have in the SCS the
management group there to handle the problem. If they need fur-
ther instructions, if we need to change something, we can change
it. But we don't need to come with a whole new organization to im-
plement the program.
I say we spend our lives with it everyday. We test wells by the
dozens, and monitor what we are doing. Farmers are beginning to
come to that. But I don't see new regulation and new rules.
What would you have to say to that? You work in the cattle in-
dustry.
Mr. Genho. I agree. Again, my feeling is that agriculture in
total, when we know the real problem, when we see scientific solu-
tions, we will move forward to solve them. Working with organiza-
608
tions such as the SCS and the Extension Service, agriculture will
solve those problems that are voluntarily organized on a local
basis. You will find compliance much greater than you would real-
ize.
Senator Faircloth, Also, you can put a monetary penalty to
compliance, because as I said earlier, SCS and ASC are in the same
building in the majority of the counties. I am sure they work close-
ly with the cattlemen.
Mr. Genho. There can be positive incentives, like I said earlier,
they don't have to be cash, but they can be positive incentives
which will encourage compliance also.
Senator Faircloth, Fifty cents a pound on cows is kind of high,
but it is not as bad at 87 cents as it was at 52, is it?
Mr. Genho. That is right. The market has been good to us this
year.
Ms. Cameron. Mr. Chairman, if I could respond to two key un-
derl3dng themes that have been brought out today?
One of them is the idea of voluntary versus mandatory approach-
es. The other one being the paperwork burden on farmers.
The testimony of ^b-. Warrick, as well as my own, has touched
on those issues. On the paperwork burden issue, Mr. Warrick's tes-
timony I think is very instructive. We tend to agree with what he
says here.
He says.
If farms are targeted in impaired watersheds, as they are in S. 1114, a polluted
run-off program should require each farm to develop an integrated whole-farm plan,
which incorporates sustainable practices through a systems approach. Farm plans
should empheisis cost-effective practices.
The plans should incorporate and give the farmer credit for all other conservation
programs, including conservation compliance, the int^rated farm management pro-
gram option, the water quality incentive program, the wetlands reserve program,
and the coastal zone management program, so that each farmer is required to do
only one plan for the entire farming operation.
Tlie planning process should provide flexibility so that the farmer can design op-
tions which are practicable and reasonable for that particular farming operation.
Ultimately, however, the implementation of the plans components should be manda-
tory. Reasonable time lines should be provided to develop and implement plans.
This approach is consistent with the recommendations for farm level planning con-
tained in the Water Quality 2000 report.
So the idea in that excerpt is that we need to try to have one-
plan-does-it-all, because recognize that farmers have very little
time. They don't want to be in the office doing paperwork, if they
can help it. We understand that. But it also underscores the sup-
port for a mandatory approach.
I have a brief list of reasons why we do not think that the volun-
tary approach, at least in impaired and threatened watersheds, is
sufficient. We find that it tends to be costly. It traditionally relies
on very cost-sharing ratios to get farmers to buy into the voluntary
system. There often are ironic^y inadequate participation rates in
many of the watersheds despite the pumping in of sometimes mil-
lions of dollars.
Decisions about who needs to get involved are made in a strate-
gic manner, but they are often arbitrary, or just simply haphazard
in terms of individuals stepping forth sajdng I want to do more,
which is good, but it is not a systematic way of getting full partici-
pation in a watershed.
609
Also, there is fairness, as Mr. Warrick's testimony generally
brings out. The farmer wants to know that his or her investments
in water quality are being matched and are being fully successful
because all of their neighbors in the watershed are pulling in the
same direction. So there is a fairness element.
Basically, we need to have accountability for results. One of the
reasons that we support requirements for whole watershed plan-
ning, whole watershed restoration, and also individual landowner
responsibility in those watersheds is that by having requirements
for environmental goals to be met, and for landowners to under-
take either flexible site level plans or the mandatory management
measures, that there is a greater infrastructure that is on the part
of the Soil Conservation Districts, the State monitoring infrastruc-
ture, that all of those components will be more strategically target-
ed and established when everyone has a clear set of defined goals.
Even if some of the goals don't kick in until a decade down the
road, everyone knows what direction they are pulling in, and what
needs to happen to reach those goals.
We find that all of those elements are there when we set up a
system with some required action to be taken. They do not tend to
be there when we have a purely voluntary program. In the recent
law passed by Pennsylvania with mandatory nutrient management
planning underscores that.
I'll just wrap up by quoting Representative Jeffrey Coy, who was
the Pennsylvania legislator who led the effort for the recent man-
datory manure management law there. Mr. Coy said he pushed his
legislation because, "it was obvious to me that the voluntary ap-
proach was not working. We needed to turn the corner toward a
mandatory program."
Senator Graham. Senator Faircloth?
Senator Faircloth. Thank you, Mr. Chairman.
I'll ask this to anyone. If a voluntary program won't work, con-
sidering the size and the expanse of the agricultural community,
and the thousands of problems there, if a voluntary approach to it
won't work, how would we get enough people to supervise every
farm and field in the United States? What would that take?
Mr. Genho. Again, I am convinced that if there is adequate in-
formation, scientific solutions, good educational procedure, positive
incentives, and the participation of agriculture it will work. So I
guess I hadn't considered what would happen if it didn't.
Senator Faircloth. I haven't either. I just was raising the ques-
tion.
Senator Graham. Ladies and gentlemen, I want to echo the com-
ments that have made earlier about how much we appreciate the
effort that you have extended, particularly when have people who
come almost every corner of the Country to educate us today. This
has been a very exceptional hearing. I want to thank both who par-
ticipated in the first panel, and you folks on the second. Your
words have been well heard and recorded. I hope you will see the
results of your insights as we move to the next stage of shaping
this legislation.
I want to particularly thank my fellow Floridian. Everybody has
talked about their agricultural background. I might say that my
father came to Florida about 70 years ago to be a sugarcane
610
farmer, and we stayed to be dairy fanners. Maybe we could talk
about milking some cows.
Thank you very much.
[Whereupon, at 1:12 p.m., the subconamittee adjourned to recon-
vene at the call of the Chair.]
[Statements submitted for the record follow:]
TESTIMONY OF RICHARD T. McGUIRE, COMMISSIONER OF AGRICULTURE
AND MARKETS FOR THE STATE OF NEW YORK
Good morning Mr. Chairman, members of the Subcommittee. I emi Richard T.
McGuire the Commissioner of Agriculture and Markets for the State of New York,
and pleased to be here this morning with my colleague, the New York City Commis-
sioner of Environmental Protection, Albert Appleton.
Our principal purpose is to describe to the Subcommittee the unique approach
that has been adopted between the farm community and New York City to address
New York City's drinking water protection needs in its watershed, and the pro-
gram's importance for the development of national nonpoint source (NPS) pollution
control policy. I believe there are some important principles embodied in the New
York City watershed agriculturgd arrangement that the Subcommittee may want to
consider in reauthorizing the Clean Water Act (CWA).
I also appear before you today on behalf of the National Association of State De-
partments of Agricultiu-e (NASDA). NASDA is nonprofit association of public offi-
cios representing the Commissioners, Secretaries and Directors of Agriculture in
the fifty states and the territories of American Samoa, Guam, Puerto Rico, and the
Virgin Islands. As the chief state agriculture officials, NASDA's members are
keenly aware of the importance of baJancing agricultural production and natural
resource conservation on their state's and the nation's economy.
NASDA's broader position on the CWA does not necessarily reflect the views of
New York State on that law or its administration. I am not here to testify for New
York State on the CWA.
New York City Watershed Program
Today I -will discuss the efforts which the farm conmiunity, New York City, local
government, and New York State have taken to preserve water quality in the New
York City Watershed area. This successful effort is based upon the prospective vol-
untary adoption of best management practices to control nonpoint source pollution
by the more than 550 dairy farmers in the New York City Watershed area.
Farming has been practiced in the New York City Watershed area of Delaware,
Schoharie, Sullivan, and Greene counties since long before New York City came to
rely on the watershed for most of its water supply. The City has preserved its water
quality in the midst of agricultural production for decades. Efforts to improve farm-
ing practices, especially through the adoption of soil and water conservation tech-
niques, with the leadership of the Soil Conservation Service delivered through the
local SoU and Water Conservation Districts and the Agricultural Stabilization and
Conservation Service, have allowed farmers to maintain the economic viability of
their farms by keeping their topsoil on the land. This voluntary, locally based effort
by farmers has a proven record of success, not just in New York State but in most
parts of the United States.
Agriculture in the Watershed has been changing. The pressures of the economics
of dairy farming have led to larger herds of dmry cows, intensification of land use
for crop production, and greater concentrations of animal waste. New measures,
based upon the proven path of voluntary and locally based approaches, need to be
implemented to cope with the increased requirements for drinking water protection
and raw water quality maintenance in the New York City Watershed area. The
Whole Farm Planning Approach Program is being implemented to meet the needs
of farmers in the watersh^, as well as the metropolitan-area urban public, which is
dependent upon this surface water supply. This approach was the result of a lot of
hard work by all who were concerned about long-term protection of the City's water
quality, whUe maintaining the agricultural economy of the area.
In mid-1990, New York City circulated draft mandatory restrictive agricultural
land use regulations in order to meet their goal of drinking water source protection
without resorting to a costly filtration system. Uniform and inflexible regulations
were seen as unworkable and imdesirable by the local agricultural community due
to their negative impact upon the farm economy of the region.
611
In December 1990, the New York City Department of Environmental Protection
and the New York State Department of Agriculture and Markets cooperated in con-
vening an Ad Hoc Task Force on Agriculture and New York City Watershed Regu-
lations. This group was composed of local farmers, local agricultural, environmental
and government organizations, state representatives, and technical advisors. The
Task Force was comprised of a Policy Group and a Technical Support Group. Mem-
bers of the Policy Group represented agencies that are directly involved in issuing
and administering the proposed watershed regulations, groups that are affected by
the regulations, and organizations that may contribute to facilitating them.
I have attached a copy of the Task Force final report with the Committee, so you
may have the opportunity to study its membership and the program scheme as it
emerged from these negotiations. The goal of the group was to find an alternative to
a mandatory set of rules and regulations which would still achieve the desired level
of water quality protection. Over the course of a year the Whole Farm Planning/
Best Management Practices approach for the New York City Watershed concept
was developed and evolved.
Farming in the New York City water supply watersheds presents a complicated
environmental management problem. Farming methods and practices are a poten-
tial source of nonpoint source pollution and present a risk of pathogen introduction,
siltation, toxics, and nutrients introduction to the City's reservoirs. Farm practice
pollution control is critical for meeting the City's anti-degradation objectives, as well
as the avoidance criteria of the Federal Source Water Treatment Rule and the State
Filtration Rule. On the other hand, arming is a preferred land use as compared
with more intensive uses like second homes, which pose even greater threats to the
City's drinking water quality, with significant long-term environmental benefits,
and the City wants to take all appropriate steps to keep farming economically
viable and in control of the land.
A locally developed and administered program ^f best management practices, tai-
lored farm by farm, with the voluntary cooperation of the farm operator, would con-
tribute far more to achieving the avoidance criteria, as well as enhancing the viabil-
ity of the farm enterprise and the agricultural economy. Discussions in the Ad Hoc
Task Force convinced members of the Task Force representing the City and the
farm community that the regulatory proposal took a purely water quality perspec-
tive and set absolute technological standards for all farm practices, to be applied
uniformly in all farm situations (uniform setbacks from streams, berming pastures,
control of all pesticide use, etc.).
The City, after consulting with appropriate regulatory bodies and after full review
of federal and state regulations, was satisfied that such a program would meet the
avoidance criteria for effective watershed regulation, and represents the best strate-
gy for dealing with concerns of both the City and the farm community.
Whole Farm Planning/ Best Management Practice Program Option
Guiding Principles — In place of the agricultural regulations, farmers have the
option of participating in a voluntary Whole Farm Planning/Best Management
Practice Program. These are the guiding principles for the program:
• The objective of the program is to protect the sources of the New York City
water supply, while keeping farms in operation. Agriculture should be contin-
ued and promoted as a preferred land use in the New York City watersheds.
Except for a general prohibition to safeguard against individual farm operators
who exhibit a willful and irresponsible intent to pollute in a manner that
threatens to significantly increase pollution levels and degrades the source
waters of the City's water supply, the program will be entirely voluntary.
• The preferred approach to source protection for farms is the use of Best Man-
agement Practices (BMPs) developed to meet water pollution control policies
under the 1989 NYS Nonpoint Source Water Pollution Control Act and Section
319 of the Federal Clean Water Act amendments of 1987.
• The mechanism of choice for selecting agricultural BMPs is preparation of a
Whole Farm Plan for each farm. A collateral objective for each Whole Farm
Plan is to sustain and improve the economic viability of the farm. Whole Farm
Plans will be prepared by a local county project team, including personnel from
the County SoU and Water Conservation District, Cornell Cooperative Exten-
sion, and the SoU Conservation Service.
Whole Farm Plans will involve these components: soil erosion control, animal
waste management, plant nutrient management, domestic animal pathogen
management, and chemical and pesticide management. Whole Farm Plans will
address these agricultural contaminants: nutrients, pathogens, sediments, toxi-
612
cants, and organic matter. The level of control required for each Whole Farm
Plan should depend on the presence of hydrologically sensitive areas.
• Incentives, including cost-shguing, will be made available by the City to partici-
pating farmers, supplemented by a reasonable mix of state, federal and local
funding sources, if available.
• Continuing education, professional training, and local involvement are essential
components of the Whole Farm Program.
The Whole Farm approach to drinking water quality source protection integrates
selected management practices intended to provide short- and long-term protection
of water quality, with a farm business plan designed to sustain a profitable agricul-
tural enterprise, given the mix of physical, capital, and management resources
available to and consistent with the objectives of the farm operator. Development of
a farm plan to meet these twin goals requires a comprehensive assessment of all
elements of the farm property, as weU as the business strategies and practices that
affect both.
The evaluation of current farming conditions and practices and the development
of options for both the farm business enterprise and water quality protection will be
a collaborative venture between the farm operator and the Cooperative Extension/
Sou and Water District County Project Team, supported by the Soil Conservation
Service, Cornell University faculty and staff, New York State SoU and Water Con-
servation Committee, and the New York City Department of Environmental Protec-
tion.
The systematic use of the Whole Farm Planning approach to accomplish pollution
prevention in a large watershed ss^stem has not been previously attempted any-
where. The Whole Farm Plan is a new concept which requires the integration, and
some modification, of the diverse views and convictions of the agencies involved.
The purpose of Phase I of the Agricultural Watershed Protection Progreun is to per-
fect, test, and demonstrate the Whole Farm Planning approach on selected farms,
and to strengthen the New York City/local partnership in the process.
Locally-Administered Whole Farm Planning/Best Management Practice Pro-
gram— The City has established a locally administered program for the planning
and implementation of Whole Farm Plans, in conjunction with watershed farm op-
erators, with assistance from the New York State SoU and Water Conservation
Committee, the SoU and Water Conservation Districts, ComeU Cooperative Exten-
sion, the New York State Water Resources Institute, the New York State Depart-
ment of Environmental Conservation, the New York State Department of Agricul-
ture £ind Markets, the SoU Conservation Service, and other appropriate institutions.
This program is responsible for:
• Reviewing existing BMPs for their applicability to watershed pollution control
objectives.
• Developing and implementing a series of immediate demonstration programs
with local farm operators to test the feasibUity and define the methodologies of
the Whole Farm Planning approach to source protection.
• Working with farmers to prepare Whole Farm Plans, and implementing those
plans.
• Establishing a voluntary Whole Farm Planning/Best Management Practices
Program for the entire farm community.
Voluntary Participation — UntU December 31, 1996, the City is offering farm oper-
ators the opportunity to voluntarUy participate in the Whole Farm Planning/Best
Management Practice Program. A goal of 85 percent participation in this program
by farmers throughout the watershed has been established.
Farm operators who choose to participate wiU be given untU December 31, 1996,
to work with their County Project Team to develop a Whole Farm Plan and agree to
install practices according to the schedtUe outlined in the plan. Farm operators vol-
untarily participating in the Whole Farm Planning/Best Management Practices
Program will be held harmless and not required to amend the farm practices agreed
to in their whole Farm Plan even if, after the evaluation of the entire program in
1997, the City, in consultation with the Watershed Agricultural council, determines
there are changes needed in the watershed regulations or agricultural program.
Participating farm operators would stUl remain responsible for violations of existing
federal, state, and local standards pertaining to water quality.
Cost-sharing — Participating farm operators wUl receive City cost-sharing for both
the planning and implementation of the Whole Farm Planning/Best Management
Practices Program, to the full extent of any cost incurred, adjusted for whatever
funding is otherwise made avaUable under existing or future federal and state agri-
culture water quality and other cost-sharing programs. The City wUl pay the cost
613
to the farmer of participating in development of the Whole Farm Plan. C!osts in-
curred shall include BMP operation and maintenance costs identified in the Whole
Farm Plan, to the extent they represent new and additional farm operating costs
considered necessary to the pollution prevention objectives of the plgm.
Review of Progress in 1997— During 1997, the City, with the assistance of the Wa-
tershed Agricultural Council and other appropriate public and private parties, will
engage in a review of the results of the voluntary agricultural best management
program. This review will assess the extent to which the practices and facilities
called for by the Whole Farm Plans have been, or are being, adopted on schedule
and are being properly maintained. Also needed is an evaluation of whether the re-
sults are consistent with the requirements of the avoidance criteria and the City's
anti-degradation water quality objectives. If the review does not justify a continu-
ation of the program in its adopted form, the City will submit to the New York
State Department of Health such revisions to the watershed regulations as it deems
necessary to continue to meet its obligations and responsibilities.
The City will work with the Watershed Agricultural Council on developing pa-
rameters and criteria for evaluating the agricultural program in 1997, including a
variety of program and regulatory options to consider in the event that changes
may be needed.
Implementation of Principles and Standards — ^Agricultural BMPs, as developed by
New York State in support of the nonpoint source water pollution control policies of
State Law and Section 319 of the Federal CWA Amendments of 1987, are the pre-
ferred methodologies and techniques for implementing these principles and stand-
ards on farms in the New York City watershed system. The Whole Farm Planning
approach will be employed to tailor the applicability of relevant BMPs to conditions
peculiar to each farm, while providing for a farm management plan that sustains or
enhances the efficiency, productivity, and economic profitability of the farm enter-
prise.
Scientific uncertainty exists when relating agricultural practices to their effects
on raw water compliance with drinking water standards. Drinking water standards
for raw water at its source covering some of the agricultural contaminants of Con-
cern are not defined. Therefore, as a general rule. Whole Farm Plans should call for
the design, installation, management, and maintenance of any combination of BMPs
necessary to limit the release of nutrients, organic matter, domestic animal-borne
pathogens, toxic chemicals, and soil to any surface or ground water body, consistent
with applicable state and federal laws and regulations, as well as with the water
quality goals established for the watershed. In those cases where it can be shown
that an activity on a specific farm leads to an actual violation of a legally adopted
water quality standard, the farm shall be required to alter the activity to the extent
necessary to meet the water quality standards.
While it may be possible to achieve zero discharge of some contaminants during
some periods (i.e., avoiding winter land application of manure or relying wholly on
biocontrols or cultural practices to control some pests) universal attainment of zero
discharge for all agricultural contaminants at their source is not practically achiev-
able.
BMP Implementation — The implementation of Whole Farm Plans may be viewed
as a two-level process. First, the "installation" of physical structures prescribed by
the farm plan will need to be arranged. These structures may include grass water-
ways, manure storage facilities, barnyard improvements, diversions, etc. Engineer-
ing expertise is needed from the design through final certification of construction.
Engineering technical assistance needed includes: gathering of site-specific data on
soil type, drainage characteristics, and topography; preparing construction draw-
ings, specifications, and contract documents; reviewing design with the landowner;
assisting the landowner in securing a contractor; surveying and staking out the
project site; inspecting ongoing installations/constructions; and certifying that
projects meet contract standards.
The second level of implementing Whole Farm Plans requires the integration of a
farm's physical, humem, and time resources so that prescribed changes can be incor-
porated into the operational routine of the farm. This level of implementation in-
volves an array of educational activities targeted at changing perceptions, attitudes,
practices, and beliefs of farm managers.
Summary of New York Watershed Program.— Additionally, in New York we have
taken a similar approach to our statewide non-point source program. In accordance
with guidance provided by state agencies, individual counties have formed County
Water Quality Coordinating committees, which in turn have developed County
Water Quality Strategies. These strategies identify water quality problems and out-
line programs to address these problems. The strategies focus on the use of educa-
6X4
tion and technical assistance to prevent and remediate water quality issues at the
local level. Because these prt^rams eind actions originate at the local level, the op-
portunity for success is greatly enhanced. When citizens have ownership of solutions
to problems, action occurs and pr(^ress follows. The farm commimity has responded
positively on this issue, as they have in the past, to prc^rams which recognize their
needs while pursuing water quality objectives.
While we are still in Phase I of the process and much has yet to be accomplished
to prove that the process ultimately works, I believe this farm-by-farm approach is
tentatively accepted by the farm community in the watershed as a much preferred
alternative to a traditional top-down, standard-setting, enforcement, penalty system
of regulation. In tact, I am persuaded that the latter approach cannot be made to
work for farms, each of which is somewhat difference from the other.
Before moving on to NASDA's overall position on (JWA reauthorization, I would
like to summarize the important principles embodied in this approach to non-point
pollution prevention that has been adopted as the alternative to a imiform regula-
tory system for the farm sector of New York City's watershed.
• The system for pursuing the City's water quality objectives, as they are affected
by the agricultural s^ment of the watershed community, was arrived at by ne-
gotiation and consensus — ^not by fiat.
• The program is locally delivered and administered by an existing — ^not a new —
group of institutions with whom farmers are familiar; who understand farming
science, methods and techniques, and farm business operations; and whom
farmers trust.
• The responsible r^ulatory institution — in this case, New York Citys Depart-
ment of Environmental Protection — ^has created contractual relationships with
these locally based delivery entities to serve its public policy objectives, and has
established a collaborative mechanism with the farm conunimity generally to
assure continued communication, momentum, £md support.
• The cost of both the farm planning process and the installation of practices
called for by each pleui to achieve the pollution prevention goals of the responsi-
ble agency is financed by the responsible agency — or, in any case, not by the
farmer. Once the front-end costs are overcome, these improvements will benefit
the economic operation of the farm.
• 'The program is voluntary, but there is sufficient unchallengeable legal author-
ity in the backgroimd, coupled with a time threshold for a high rate of sign-up,
to spur participation.
• Improved and sustainable (unsubsidized) farm profitability, combined with 100
percent cost-sharing for planning and the installation of water-quality-related
capital improvements and practices, creates strong incentives for farm partici-
pation.
NASDA Position
Reauthorization of the Federal Water Pollution Control Act (commonly known as
the Clean Water Act) is an opportunity to review the quality of our nation's water
resources, assess our efforts to clean-up impaired waters and prevent potential pol-
lution, and set a course to protect this vital resource. Today my testimony will con-
centrate on the area of nonpoint source (NPS) pollution and agriculture's efforts to
prevent such pollution. NASDA recognizes the need to address agricultural non-
point source pollution which may have adverse effects on the environment and
human health. Agricultural operations, along with urban, construction, septic and
natural sources, require a comprehensive and coordinated management strategy,
much of which is already in place, but in many cases inadequately funded.
In order to reduce complex and diverse nonpoint source (NPS) pollution, a com-
mitment of time and resources is necessary, similar to the 20-year commitment our
country has made to eliminating point source pollution. However, management of
this problem will require a different approach than that of point source pollution
because, unlike point sovuxe pollution, NPS pollution is primiily a weather-related
phenomenon that can be managed, but not feasibly eliminated. NPS pollution is
caused by the inadvertent discharge of pollutants from a wide variety of society's
most essential activities.
The Clean Water Act (CWA) is not alone in protecting America's waters from
NPS pollution. Other ongoing programs at the federal, state and local levels must
be funded fully, and coordinated with, not superseded by, the CWA. In particular,
this includes the soU conservation and water quality provisions of the 1985 and 1990
farm bills and the state grovmdwater and source water protection programs of the
Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). The CWA reauthoriza-
tion should not directly or indirectly create a federal water quality law or program
615
which supersedes, abrogates or impairs state water allocation systems and water
rights.
Principles op the Clean Water Act
The reauthorized CWA's central focus for NPS management solutions should be
reasonable, voluntary, and based on incentives, education and techniceil assistance.
NPS pollution management programs should emphasize the protection of water re-
sources and state-designated water uses, including state-designated agricultural
uses, recognizing the importance and needs of individual agricultural producers and
other landowners giffected by the CWA. This approach emphasizes the use of loceilly
designed and applied, economically feasible, site-specific best management practices
which do not infringe on private property rights.
The CWA contains valuable provisions for NPS management embodied in Section
319. Although Section 319 has been historically underfunded and has been ham-
pered by bureaucratic roadblocks, all states now have approved Section 319 assess-
ments and management programs. Amendments to the CWA should continue to
focus on the 319 program as the means for states to identify nonpoint sources in
critical areas, and to develop management programs to control discharge. Reauthor-
ization of the CWA should provide increased funding and technical support for state
management programs and local implementation. Management efforts funded by
Section 319 should be directed to priority areas based on scientific assessments that
identify water bodies with impaired or threatened uses. Priority, as determined by
states, should be based on the magnitude of risk to human health, the protection of
designated uses, and likelihood of further significant and unreasonable water qual-
ity degradation if no action is taken.
The proper management of NPS pollution lies in state and local efforts. As such,
states should continue to identify and resolve their priority NPS water problems
through administration of Section 319 funds. With state oversight and approval,
local entities should continue to carry out these NPS progrgims. State and local pro-
grams should provide for a mix of research, development, education and technical
and financial assistance for both planning and implementing actions aimed at
achieving state designated uses. Agencies at the federal and state levels should har-
monize objectives and coordinate funding for national and regional NPS manage-
ment programs.
Strategies should be developed on a hydrologic unit, watershed-wide basis using
an approach that includes the consideration of both surface and ground water qual-
ity. Programs should focus on cost-effective, site specific practices for individual op-
erations with flexibility for implementation. Section 319 management programs on
federal lands should be developed and implemented by the specific agency statutori-
ly charged with management of the lands in question, rather than by regulatory
authorities independent of that agency.
In order for Section 319 to work effectively for agriculture, the U.S. Department
of Agriculture must play a lead role in the formulation and communication of tech-
nology-based best management practices in agriculture. USDA should assist in co-
ordinating Section 319 programs with technology-based conservation measures
adopted in the 1985 and 1990 farm acts, FIFRA pesticide regulations, wetlemds pro-
tection, public lands management, and EPA groundwater policies.
An effective and cost-efficient response to water quality problems requires accu-
rate and reliable information on the source, extent and impact of NPS pollution, as
well as the effectiveness, utility and economic feasibility of conservation measures
and best management practices. CWA reauthorization should include a strong fi-
nancial commitment to further research, monitoring and assessment projects. Moni-
toring should include before and after sampling as well as frequent sampling during
storm events and assessment of natural and historic loadings. Scientrfic research
and monitoring projects should follow protocols developed by the U.S. (Geological
Survey and should be concluded on a watershed basis with local and state input.
Representative pilot projects aimed at achieving market based incentives on a wa-
tershed or regional level should be encouraged. It is, however, inappropriate to pro-
vide the authority for citizen suits against individuals participating in NPS manage-
ment programs. Moreover, a more prudent use of scarce resources is to provide mon-
etary assistance to states for monitoring activities rather than to volunt£u:y monitor-
ing programs.
CtTRRENT Efforts to Prevent NPS
The existence of programs at all levels of government to protect water from po-
tential NPS contaminants necessitates development of an effective coordination
strategy to avoid conflicts and duplication of efforts. Fgiilure to recognize this need
616
can lead to squandering of limited resources and may result in conflicting programs
that may even increase the potential for pollution of ground water while trying to
reduce the potential for pollution of surface water (or vice versa).
Approaches to protect water quality can be categorized as nonregulatory/volun-
tary regulatory, liability, or comprehensive protection. Many farmers have volun-
tarily adopted best management practices and other measures that will help protect
water from potential pollution. Continued research, education by public and private
entities, technical assistance on developing or implementing water quality protec-
tion programs, economic incentives, and product stewardship are necessary to in-
crease water resource protection. , , ,. ^ r
Numerous efforts are underway to protect ground and surface water from poten-
tial NPS pollution. Among these are programs and legislation at all levels of gov-
ernment that vary in type and structure. For the record, allow me to highlight a
few of the federal, state and local regulatory and voluntary programs which cur-
"^^TTie Coastal Zone Management Act— The original Coastal Zone Management Act
(CZMA) was passed in 1972, amended in 1980, and reauthorized in 1990. The lead
agencies for implementation of the latest CZMA programs are the Environmental
^otection Agency (EPA) and the National Oceanic and Atmospheric Administra-
tion (NOAA). . ,_ . .. ...I. r J 11 A
Section 6217 of the 1990 legislation requires each state with a federally approved
CZMA program to develop a "coastal nonpoint pollution control protection pr(>
gram" to implement coastal land use management measures for controlling NPS
pollution The states are able to provide maximum flexibility in establishing the
state and local institutional arrangements to accomplish the control of NPS pollu-
tion. State programs, however, must be developed and implemented in conformity
with national guidelines. . . , , . tt j t^tt^tja i^i. ii^da i
Federal Insecticide, Fungicide, and Rodenticide Act— Under FIFRA, the EPA col-
lects environmental fate data that are used, among other things, to indicate wheth-
er a pesticide poses a threat to ground or source water. Based on such data, the
agency may require label directions and precautions to inform the applicator that
the pesticide must be used in a manner that prevents water supply contamination.
Also under FIFRA, the EPA may restrict, cancel, or temporarily suspend all or
some pesticide uses that pose unreasonable risks to human health or the environ-
ment through contamination of water supplies. , xv . J U *l-
The agency has proposed a Ground Water Restricted-Use rule that describes the
criteria (i e , a pesticide's tendency to leach) for identifying pesticides for possible
restricted-use classification because of ground water concern. After the final rule is
promulgated, EPA will initiate reviews to classic up to 30 pesticides as restricted-use
chemicals because of their tendencies to leach to ground water. Restrictions may m-
clude limiting use to certified applicators. ^ ^ . ,. „. ^ a ^. r> ui- w *
Safe Drinking Water Act— Under the Safe Dnnkmg Water Act s Public Water
Systems Program (PWSP), the EPA regulated six pesticides and nitrate/nitrite m
addition to other chemicals and biological contaminants. Under the drinking water
regulations announced in January 1991, effective in July 1992, states must adopt
new drinking water standards for 33 potential drinking water contaminants includ-
ing 18 pesticides. The EPA has also developed Health Advisories for about 70 pesti-
cides that are actual or potential ground water contaminants. In addition, EPA im-
plemented new standards of 1 ppm for nitrite and 10 ppm for nitrate/nitrite as ni-
trogen (N) combined in July 1992.
EPA has established requirements for regular monitoring, public notitication ot
contamination, and specific timeframes for removal of the contammation. Monitor-
ing for the 18 pesticides covered under the new drinking water standards were
phased in after July 1992. Such an approach gives states the opportunity to mstitute
watershed and ground water protection measures to keep pesticides out of drmking
water. EPA also conducts and enforces drinking water programs m states that do
not have primacy or are not enforcing their programs adequately.
Comprehensive Environmental Response, Compensation and Liability Act— buper-
fund created in 1980, is an important tool in EPA's response to the nation s hazard-
ous waste problem. Approximately 31,000 hazardous waste sites have been identi-
fied Some of these sites are in rural areas, and sometimes involve contammation ot
ground and surface water due to improper disposal of septic tank wastes and sludge
containing hazardous substances such as PCBs, benzene, and toluene, or wastes
from pesticides and fertilizer manufacturers. Estimated costs for cleanmg up some
of the Superfund sites are very high, running in the mUlions of dollm^. . . ^,
Toxic Substances Control Act— EPA has broad authority under Section 6 of the
Toxic Substances Control Act (TSCA) to control manufacturing, processing, distribu-
617
tion in commerce, use or disposal of a chemical substance or mixture if it "presents
or wUl present an unreasonable risk of injury to health or the environment." Under
Section 4, EPA may require industry to test a chemical substance or mixture if the
agency finds it "may present an unreasonable risk of injury to health or the envi-
ronment". If the EPA decides that it lacks important information about toxicity or
exposure, it can specify what information the industry must provide through addi-
tional testing if necessary.
Research on Transport and Transformation of Contaminants — In order to predict
the movement of contaminants in the subsurface, and thereby predict potential
human and ecological exposure, EPA's Office of Research Development (ORD) main-
tains a research program in transport and transformation of contaminants. Some of
this research is done to predict the leaching behavior of agriculturgd chemicals. This
includes advances in integrating process level information into predictive tools such
as the pesticide soils leaching model PRZM, the pesticide ground water leaching
model RUSTIC, and the development and application of the comprehensive environ-
mental mansigement model CEEPES to agricultural chemicals. In addition, a new
effort is underway to support the Office of Water in determining the sorptive prop-
erties of soU as a factor in protecting wellheads from contaminant migration.
EPA has joined with the United States Department of Agriculture (USDA) and
the U.S. Geological Service (USGS) in the Midwest Initiative on atrazine. Under a
coordinated plan of study drafted in 1989, the three agencies selected the mid-conti-
nent soybean and corn-growing region to determine the regional factors affecting
the distribution of atrazine, a herbicide of long-standing use, through the environ-
ment.
Information System for Preventing Ground Water Contamination from Pesticides —
Tools exist to locate pesticide problem areas, emd develop strategies for use of pesti-
cides on a local level. These tools include models that have been developed to pre-
dict the leaching of pesticides to ground water, data that have been collected on soil
properties and other relevant environmental factors, and geographical information
systems for displaying and analyzing spatial information. These tj^pes of tools, how-
ever, have not been systematically integrated into a workstation framework of state
and local risk management. ORD has initiated research to provide such a fremie-
work for states upon which they can develop locally meaningful pesticide manage-
ment plans. The work will also include field evaluation and modeling schemes. Tlie
project is coordinated with related research on the effects of agricultural chemicals
on water quality at USGS and USDA, in order to ensure integration of information
and dissemination of results.
Methods for Assessing Aquifer Sensitivity to Pesticides — To assist states in assess-
ing ground water vulnerabUitv to pesticides as part of their efforts to develop pesti-
cide maneigement plans, EPA s Office of Ground Water and Drinking Water is pre-
paring a technical assistance document on methods for assessing the natural sensi-
tivity of aquifers to pesticide contamination.
President's Water Quality Initiative — The President's Water Quality Initiative
(WQI), established during the Bush Administration, called for a vigorous effort to
protect ground and surface water from contamination by agricultural chemicals,
commercial fertilizers, and wastes, especially pesticides and nutrients. The WQI is
using the combined expertise of USDA, USGS, EPA, and NOAA, to promote the use
of environmentally and economically sound farm production practices, and to devel-
op improved chemical and biological pest controls.
Under the WQI, USDA has established the USDA Water Quality Program to de-
termine the precise nature of the relationship between agricultural activities and
ground water quality; and develop and induce the adoption of agrichemical manage-
ment and agricultural production strategies that protect ground and surface water
quality.
Technical and financial Assistance Programs — USDA provides a number of tech-
nical and financial assistance programs to assist in protecting water resources.
• The Agricultural Conservation Program (ACP), initiated in 1936, provides finan-
cial assistance to farmers for implementing approved soil and water conserva-
tion and pollution abatement practices. Cost-share payments may not exceed
$3,500 per year for 1-year agreements, or an average of $3,500 for multi-year
agreements. Except for Water Quality Special Projects, conservation priorities
are set by states and counties based on local soil and water quality problems.
• The Conservation Technical Assistance (CTA), initiated in 1936, provides Soil
Conservation Service (SCS) technical assistance through conservation districts
to farmers for planning and implementing soil and water conservation and
water quality improvement practices.
618
• The Rural Clean Water Program, initiated in 1980 and ending in 1995, is an
experimental program implemented in 21 selected projects under the authority
of the Clean Wat«r Act. It provides cost-sharing and technical assistance to
farmers voluntarily implementing BMPs to improve water quality. Cost-sharing
is limited to $50,000 per farm.
• The Extension Service provides information and recommendations, in coopera-
tion with SCS and conservation districts, on soil and water quality practices to
landowners and operators.
• The Farmers Home Administration (FmHA) provides loans to farmers and asso-
ciations of farmers for soil and water conservation, pollution abatement, and
building or improving water systems that serve several farms.
• The Rural Conservation and Development Program, initiated in 1962, eissists
multicounty areas to enhance conservation, water quality, wildlife habitat nnd
recreation, and rural development.
• The Great Plains Conservation Program, initiated in 1957, provides technical
and financial assistance in Great Plains states to farmers and ranchers who im-
plement total conservation treatment of their entire operation. Cost-sharing as-
sistance is limited to $35,000 per contract.
• The Small Watershed Program, initiated in 1954, provides technical and finan-
cial assistance to local organizations for flood prevention, watershed protection,
and water management.
• The Water Bank Program, initiated in 1970, provides annual payments for pre-
serving wetlands in important migratory waterfowl nesting, breeding, or feed-
ing areas.
• The National Agriculture Library collects and distributes information on all as-
pects of U.S. agriculture, and has received special funding to develop a new in-
formation program on agriculture and water quality.
USDA Research Programs — One of the objectives of USDA's Research Plan for
Water Qugdity is to improve existing and develop new cost-effective agricultural sys-
tems to address water quality problems. USDA's Agricultural Research Service
(ARS), Cooperative State Research Service (CSRS), and Economic Research Service
(ERS) conducts research on agriculture and water quality. ARS conducts research
on new and alternative crops and agricultural technology to reduce the impacts of
agricultural production on soil and water. CSRS coordinates soil conservation and
water quality research conducted by State Agricultural Experiment Stations and
land grant universities. CSRS allocates funds appropriated by Congress for special
and competitive grants for water quality research. ERS estimates the economic im-
pacts of existing and alternative policies, programs, and technology for preserving
and improving soil and water quality. Along with the National Agricultural Statis-
tics Service, ERS collects data on agrichemical use, agricultural practices, and costs
and returns.
Farm Bill Programs — The Food Security Act of 1985 has four major provisions
that contribute to meeting water quality protection objectives; the Food, Agricul-
ture, Conservation, and Trade Act of 1990 adds four additional programs.
• Conservation Reserve Program — The Conservation Reserve Program (CRP), au-
thorized in the 1985 Farm Bill and expanded in size and scope to cover water
qusdity concerns, allows USDA to make annual rental payments to landowners
who voluntarily retire highly erodible cropland and other environmentally criti-
cal lands from production for 10 years. It pays up to 50 percent of the cost for
establishing a soil-conserving cover crop on the retired lands.
• Conservation Compliance— The Conservation Compliance provisions require
farmers who produce on highly erodible cropland to develop and implement a
conservation compliance plan by January 1, 1995. The requirement affects 40
percent of U.S. farmers, 135 million acres of highly erodible land, and involves
1.3 million plans. Less than 2 percent of highly erodible land will be uncovered
once the plans are implemented. A combination of the conservation reserve and
conservation compliance program is projected by USDA to reduced erosion by
1.5 billion tons per year, half of all erosion on all cropland.
• Sodbuster & Swampbuster Provisions — Sodbuster provisions prevent farmers
from new production on highly erodible land unless it is done under an ap-
proved conservation plan. Swampbuster provisions prevent farmers who convert
wetlands to crop production from collecting farm program benefits, unless
USDA determines that conversion would minimally affect wetland hydrology or
biology.
• Wetlands Reserve Program^— The Wetlands Reserve Program (WRP) is a volun-
tary program offering landowners a chance to receive payments for restoring
and protecting wetlands on their property. Authorized by the 1990 Farm Bill,
619
the WRP provides a unique opportunity for farmers to retire marg^al cropland
and reap the many benefits of having wetlands on their property. WRP obtains
30-year or permanent conservation easements from participating landowners
and provides cost share payments for wetland restoration. Currently, 50,000
acres are under easement to restore previously converted wetlands, reducing
NFS pollution potential, and enhancing wildlife habitat, flood control, and
ground water recharge.
• Water Quality Incentive Program — The goal of the Water Quality Incentive Pro-
gram (WQIP) is to achieve source reduction of agriculture pollutants by imple-
menting management practices (BMPs) in an environmentally and economically
sound manner on 10 million acres of farmland by thee end of 1995. USDA pro-
vides agricultural producers with the necessary financial, educational, and tech-
nical assistance required to make changes in management systems to:
1) restore or enhance the impaired water resources where agricultural NPS
pollution has a detrimental effect; and
2) prevent future impairments.
Producers must submit applications for enrollment, and a long-term agreement
is developed, generally for three years. The WQIP incentive payment limitation
is $3,500 per person per year for up to 5 years. Eligible acres for WQIP has ex-
panded to include areas identified in state NPS management plans (Section
319), areas with shallow karst topography, and other environmentally sensitive
areas.
• Conservation Environmental Easement Program — The Conservation Environ-
mental Easement Program provides for permanent easements on lands that
pose a significant environmental threat. The exact eligibility for these lands is
yet to be determined, and funding is not yet available.
• Integrated Farm Management Program Option — The Integrated Farm Memage-
ment Program Option adds planting flexibility to federal farm programs, and
encourages farmers to adopt resource conserving crop rotations to help prevent
soil erosion and protect water quality on 5 million acres. The program requires
farmers to carry out an approved farm management plan to promote the use of
soil conserving crops and rotations on at least 20 percent of their crop base
qualified for federal programs.
National Water Quality Assessment Program — The National Water Quality As-
sessment Program is a major nationed assessment designed to describe the status
and trends of U.S. waters and identify the factors that affect water quality. In the
pilot phase of the project, the USGS is investigating the extent and location of
ground water pollution by agrichemicals in several regions of the U.S.
Mid-Continent Herbicide Initiative — In cooperation with USDA's Midwest Initia-
tive, USGS is conducting the Mid-Continent Herbicide Initiative, a five- to ten-year
research program on the impact of the agricultural herbicide atrazine on ground
and surface water.
USGS Federal-State Cooperative Program — This program is a partnership for
water-resources investigations involving 50-50 cost-sharing between the USGS and
more than 1,000 cooperating state or local government agencies. The USGS per-
forms most of the work on behalf of the cooperators. A variety of hydrologic data
collection activities £md water-resources investigations are included in the program.
Examples include providing support for mapping aquifers, for monitoring pesticide
contamination, and assisting in developing wellhead protection programs.
State Water Resources Research Institutes Program — Under this program, USGS
provides grants to 54 state and U.S. territory Water Research Institutes at land-
grant colleges or universities. The grants support research, information dissemina-
tion, and training for students in water resources fields.
USGS Information Dissemination Programs — Through its annual National Water
Summary report, USGS provides water quantity and quality information on a state-
by-state and national basis to aid policymakers in the smalysis and development of
water policies, legislation and management actions. The report also includes case
studies of NPS contamination and summaries of studies on managing and coordinat-
ing federal and state water protection efforts.
USGS' Hydrologic Data Collection Program provides information on the quantity,
quality, location, and use of the nation's surface and ground water. Data collection
stations eu"e maintained at selected locations to provide records on streamflow, res-
ervoir and lake storage, groimd water levels, and the quality of surface and ground
water. These data form an information base that support national and regional
water-resource assessments.
620
Maine's Pesticide Control Regulations— The Maine Pesticide Ck)ntrol Act of 1975 is
the primary legislative authority to regulate the labeling, distribution, storage,
transportation, use, and disposal of pesticides in Maine. Under this Act the state
may cancel the registration of a pesticide, restrict its use, or suspend its use if it
poses an imminent hazard. Part of the state's pesticide registration fee is deposited
mto a fund to cover the costs of Maine's Integrated Pest Management (IPM) pro-
gram The state is adding training in ground water protection to its restricted-use
pesticide certification program. The state's Pesticide Control Board has the author-
ity to designate critical areas where pesticide use would present an unreasonable
threat to water quality. .^ .. n ^
Iowa's Restrictions on Atrazine— Prior to EPA's classification of atrazme as a re-
stricted-use pesticide in 1991, Iowa classified atrazine as a restricted-use pesticide,
limiting its use to certified applicators. Iowa reduced the maximum allowable appli-
cation from 4 to 3 Ib/acre/year, and restricted maximum application to 1.5 lb/acre/
year in contaminated or vulnerable ground water areas. Additionally, Iowa now pro-
hibits atrazine application within 50 feet of a sinkhole, well, cistern, lake, or surface
water impoundment, and mixing, loading and repackaging within 100 feet of the
California's Pesticide Control Measures— Proposition 65 prohibits a person in busi-
ness with 10 or more employees from knowingly discharging a chemical known to
cause cancer or reproductive toxicity into water or onto or into land where the
chemical may pass into a source or potential source of drinking water. The Pesticide
Contamination Prevention Act was passed specifically to try to prevent or minimize
future ground water contamination by pesticides.
Nebraska's Restrictions on Fertilizer Use— The Central Platte Natural Resource
District (a multi-county regional political subdivision) has established restrictions on
nitrogen fertilizer use in a designated Groundwater Management Area. The pro-
gram has three phases depending on the concentration of nitrates found in wells.
All phases include requirements for education, collection of soil and water samples,
and efficient fertilizer use. The most severe phase totally bans applications.
Fillmore County, Minnesota's Erosion Control Ordinance— Fillmore County is lo-
cated in a karst area of Minnesota and has identified agricultural runoff and ero-
sion as sources of both surface and ground water contamination. The County s Ero-
sion Control Ordinance considers any occupiers of farmland to be in compliance if:
(1) they are using soil conservation practices approved by the County Soil and Water
Conservation District Board; (2) they do not have rills, gullies, or sediment deposits
in their fields; and (3) their farming methods do not create sediment problems on
adjoining properties. Violators of the ordinance have 30 days to work with the
County Soil and Water Conservation District to develop a plan that must mclude:
(1) specific practices to stop the sedimentation; and (2) a timetable for completing
the practices. , ,. ., ■ i. • tu
Maryland Critical Area Program^The goal of the program is to improve the
water quality of the Chesapeake Bay. The Maryland Conservation Reserve Program
will pay farmers $20 per acre annually to enroll cropland within critical areas and
along stream boarders in the Federal CRP. _ ^, , t, * x r-
Chesapeake Bay Nutrient Reduction Program^The Chesapeake Bay Agreement ot
1987 calls for a 40 percent reduction of nitrogen and phosphotus entering the mam-
stream of the bay by the year 2000. Maryland, Pennsylvania, and Virginia have ini-
tiated nutrient management programs to assist in reducing agricultural NPS pollu-
tion to the Bay. After over five years of significant cooperation on the part of the
landowners, experts now believe that agriculture may not be the source of nutrient
loadings to the Chesapeake Bay. In fact, the Environmental Defense Fund released
a 1988 report which considers septic systems, high density development, sewage
treatment plants, and atmospheric deposition as the dominant sources of nitrogen
in the Bay.
• Maryland's Cooperative Extension Service assists farmers in the development of
nutrient management plans under Maryland's Nutrient Management Prograrn.
Since 1989, farmers have prepared 748 plans, covering 49,966 acres of cropland.
Nutrient management plans include manure tests for nutrient content, soil
tests, documentation of crop histories and manure management, documentation
for a statewide nutrient management data base, and personalized service from
consultants. First priority for preparation of the plans is given to farmers apply-
ing for state cost-share funds for all animal waste storage BMPs.
• Pennsylvania's Nutrient Management cost share program is funded m part by
the Chesapeake Bay Program. Cost sharing for installation of BMPs is available
to farmers within priority watersheds where they must adopt nutrient manage-
ment plans. Such plans include manure tests, soil tests, summaries of recom-
621
mended nutrient applications, and provisions for verifying nutrient and pollu-
tion reduction. Conservation districts provide technical assistance in developing
the plans, and a mobile nutrient laboratory assists with rapid analyses of soUs,
water, and manure.
• Virginia's Chesapeake Bay Preservation Act requires farmers in the 13 coastal
counties to develop water qusdity management plans that include integrated
pest management plans, soil conservation plans, and nutrient management
plans. Since 1989, the state has required farmers statewide to develop nutrient
management plans to receive cost share funds for animal waste BMPs. A new
law allows tax credits for purchases of manure and pesticide spreaders for farm-
ers with nutrient management plans approved by their local conservation dis-
trict.
Kansas' Cost-Share Efforts under the State Water Plan — In 1989, Kansas estab-
lished the State Water Plan Fund to serve as a dedicated source of funding for state
water planning activities. The economic incentives are available both for practices
to treat highly erodible land and practices to protect water quality by limiting run-
off of agricultural contaminants.
North Carolina's Cost-Sharing to Reduce Nutrients — The voluntary North Caroli-
na Agricultural Cost-share Program was established to protect surface water from
contamination by sediments, nutrients, animal wastes, and pesticides. The program
pays farmers 75 percent of the average cost to implement appropriate BMPs.
Jefferson County, Washington's Water Quality Improvement Fund — Washington
state provides $200,000 to Jefferson County for loan to county residents in a low-
interest loan program — the Jefferson County Water Quality Improvement Pro-
gram— ^which finances major NPS pollution control projects. The funds for the state
loan are from the state's Revolving Loan P\md, capitalized by an EPA grant and a
20 percent state matching grant. The Fund is designed to encourage and assist
county residents in repairing or upgrading existing septic systems under the direc-
tion of the County Health Department and in designing and implementing farm
plans and agricultural BMPs under the direction of the County Conservation Dis-
trict.
Iowa's Education and Technical Assistance Efforts — Iowa's 1987 Groundwater
Protection Act establishes a program for research education, and demonstration
projects to address ground water problems caused by agricultural contaminants and
other sources. The law requires the state Department of Agriculture and Land Stew-
ardship (DALS) to promote the adoption of BMPs for soil conservation and for re-
ducing ground water contamination from agricultural chemicals. As part of this
effort, DALS is helping finance the Private Pesticide Applicator Training Program
conducted by Iowa State University Cooperative Extension Service, which is educat-
ing over 60,000 farmers on environmental and personal safety when applying fertil-
izers and restricted-use pesticides. The progreim also covers nonchemical methods to
control weeds and pests.
Wisconsin's and Minnesota's Farmstead Assessment Worksheets — Wisconsin and
Minnesota have prepared pilot versions of worksheets to assist farmers in assessing
the effectiveness of farmstead practices in protecting drinking water. Practices for
assessment include well condition, pesticide storage and handling, fertilizer storage
and handling, household wastewater treatment, and livestock waste storage. Accom-
panying each worksheet is a separate publication with recommendations on modify-
ing practices to minimize pollution risks, and suggested sources for additional infor-
mation.
Maine's BMP Manual — Maine collaborated with SCS, the Extension Service, and
farmers to produce a BMP manual that educates farmers on the characteristics of
agricultural chemicals and offers practical tips on protecting water from contamina-
tion.
Virgina's Outreach Efforta — The Virginia Water Resources Center has developed
instructional materials, exhibits, and publications on water quaHty protection. "The
Virginia Extension Service conducts water quality related outreach activities for the
gigricultural community as well as local citizens, local government staff, and stu-
dents.
State Research and Data Management — Basic and applied research that supports
water quality protection efforts is being carried out by the states, mostly at state
Agricultural Experiment Stations, landgrant universities, and Water Resources Re-
search Institutes. Much of this research is at least partially funded by federal
grants. States are also developing data management systems to store and maintain
the information they need to implement their water quality protection efforts.
• Connecticut — The CoUege of Natural Resources of the University of Connecticut
conducts research on pesticide usage issues and on IPM, while the state Agricul-
622
tural Experiment Stations study the fate of pesticides in the environment. Con-
necticut has an extensive data base on the hydrogeological conditions of the
state. In cooperation with USGS, the state Department of Environmental Pro-
tection has collected information on all watersheds, the properties and distribu-
tion of aquifers, depth to water tables, water quality in vulnerable or sensitive
areas, locations of public water supply wells, locations of pollution sources, etc.
• New York— The state Water Resources Research Institute at Cornell University
conducts research on the water quality effects of agricultural chemicals. Re-
searchers are evaluating the relationship between pesticide application prac-
tices, crop production, and ground water quality for potato crops. In addition,
the Institute is interested in studying the effects of soil organisms on chemical
transport, microbiological degradation of chemicals, transport of microbes
within the soil, and the toxic effects of ground water contamination on ecologi-
cal systems. Faculty at Cornell, Oregon State University, Michigan State Uni-
versity and the University of California at Davis have been developing a toxico-
logical'information system called EXTOXNET. The system will be used by Ex-
tension agents to answer questions about current or potential contamination by
agricultural contaminants.
• Pen/isy/yaraic— Pennsylvania State University is involved m several research ef-
forts. First, Penn State and three other U.S. universities are studying the envi-
ronmental fate of pesticides under minimum and conventional tillage. Second,
Penn State is involved in a cooperative venture to reduce NPS pollution in the
Chesapeake Bay watershed. Third, the university participates in a well-funded
program to develop expert systems for pest management on all crops. Fourth,
Penn State is interested in developing insect and disease forecasting and moni-
toring techniques; these include counting insects and the use of weather-based
data to predict the occurrence of plant pathogens in food crops. Finally, Penn
State is studying pest resistance in apples in a cooperative project with the Uni-
versity of Vermont and four or five other states to study how to increase resist-
ance in host or crop plants through selective breeding.
Comprehensive State Ground Water Protection Program^Since 1984, EPA has en-
couraged states to develop state ground water protection strategies and programs,
and supported the states efforts with technical and financial assistance. In 1989,
EPA established a high-level Ground-Water Task Force to "develop a strategy for
the direction EPA will take in ground-water protection." The task force released its
final report that sets forth a new strategy to ensure comprehensive protection of the
nation's ground water resources. A key component of this strategy is to actively in-
volve state officials in developing and implementing Comprehensive State Ground
Water Protection Programs (CSGWPPs). EPA will promote the development of
CSGWPPs through technical and financial assistance to the states. To the extent
authorized by federal statute and consistent with federal program objectives, EPA
will defer to state policies, priorities, and standards once the agency recognizes that
a state has developed a comprehensive protection program.
Wellhead Protection Programs— The Safe Drinking Water Act requires each state
to prepare a Wellhead Protection (WHP) Progi-am to protect public water supply
wells from all potential sources of contamination. In many instances, regional agen-
cies and local governments have taken the initiative in pursuing WHP. As of Sep-
tember 30, 1992, EPA has approved 25 state WHP programs. Some states are devel-
oping measures to deal with agricultural sources within WHP areas. In Florida, reg-
ulation of pesticide use within WHP areas is awaiting modeling of pesticide behav-
ior in soil and water for selected restricted-use pesticides. Also, efforts to develop
policy or regulations for governing nutrient discharges to ground water have begun.
The 1990 Farm Bill includes a provision to make cropland within WHP areas eligi-
ble for inclusion in the WQIP and the CRP. „. ^.,. „, . * . J. .
Drinking Water Program Implementation— The Safe Drinking Water Act directs
EPA to establish minimum national drmking water standards which set legally en-
forceable limits on the amounts of potentially harmful substances, including some
pesticides and nitrate, in drinking water. Under Congress' direction, EPA has grant-
ed, since 1974, primary enforcement authority to fifty states and four territories.
Pesticide Management Plans— Because of site-specific differences in ground water
sensitivity and pesticide usage, EPA believes that states are in the best position to
tailor pesticide prevention management measures to local conditions. Under the
Agency's pesticide and Ground Water Strategy released in 1991, states unplement
State Pesticide Management Plans (SMPs). In line with this approach, EPA ^pro-
viding funding and guidance to states to assist them in developing generic SMPs,
and in building the state's capacity to evaluate such factors as ground water vulner-
ability, monitoring data, and how and where the pesticide of concern may be used.
623
The ground water strat^y explains that under FIFRA, EPA may require states to
develop chemical-specific SMPs for a particular pesticide of concern as a condition
of continued use of that pesticide. The SMPs may vary widely from state to state,
depending on a state's ground water sensitivity assessments, the level of pesticide
usage in the state, and the state's ground water protection philosophy. The SMPs
must include several components, including discussion of roles and responsibilities,
legal authorities, prevention actions, available resources, monitoring, enforcement,
and response detections.
Underground Injection Control Program — A provision of the Safe Drinking Water
Act mandates the development of an EPA-approved underground injection control
(UIC) program for each state, U.S. possession, or territory. The purpose of the pro-
gram is to prevent contamination of underground sources of drinking water by in-
jection wells, classified into five categories by the EPA. Class V wells include agri-
cultural drainage wells, which may ix)se a high potential for ground water contami-
nation. Agricultural drainage wells may receive field drainage from precipitation
and flood waters, irrigation return flow, and animal yard, feedlot, or dry runoff. Po-
tential contaminants include suspended solids, pesticides, nutrients, salts, organics,
metals, and microbes including pathogens. Current EPA regulations authorize Class
V wells to operate by rule if: (1) their existence was reported to the states or EPA
within the specified time; and (2) they do not contaminate an underground source of
drinking water to the extent that it would violate a maximum contaminant level
(MCL) or otherwise endanger public health.
S. 1114, THE Water Pollution Prevention and Control Act of 1993
The Water Pollution Prevention and Control Act of 1993, S. 1114, is a comprehen-
sive reauthorization of the CWA. The bill would extend £ind enlarge the scope of the
state revolving funds, strengthen the state watershed planning process and the NPS
control program, and address the problem of combined storm water overflows. It
also makes significant chemges to provisions related to toxic discharges, permits,
and enforcement.
Environment and Public Works Committee Chairman Max Baucus and Ranking
Minority Member John Chafee are to be commended for developing this legislation
which is currently serving as the major focus of the reauthorization debate in the
Senate. The bill is markedly improved from S. 1081, legislation which was intro-
duced in the 102nd Congress. The Senators revised S. 1081 to incorporate many of
the principles I've outlined today; concepts like flexibility, watershed-wide protec-
tion, and site-level planning.
At this point I would Uke to address a few specifics in S. 1114.
Water Quality Standards — S. 1114 modifies the water quality standard goals of
the CWA. As opposed to the current "fishable and swimmable" standard of the Act,
the bUl adds a "wildlife" and "social development" criteria to the standard. NASDA
cautions the committee against going too far in creating the new standard which
becomes the bright line measurement for the watershed management plans in the
out years. Bio-assessments tend to be acceptable indicators of potential problems,
but they are not appropriate for regulatory purposes. We must not overburden eco-
nomic production with costly practices simply for an arbitrary "social" standard,
and we must remember that the Endangered Species Act is designed to protect such
species. While wildlife habitat provides some indication of water quality. Congress
should not move too far in that direction.
Monitoring and State Reports — It is vital that an improved system for monitoring
nonpoint source pollution is developed. While it is appropriate to use current infor-
mation in the two year start-up period of S. 1114, we must do a better job of moni-
toring pollution contribution gmd improvement during phase one of the planning
process. Current Section 305(b) reports do not provide EPA with information in a
standard form which allows for accurate reporting. Current reports, which compare
apples to oranges, are incomplete and inaccurate. Since S. 1114 increases the moni-
toring responsibilities of the states, emd uses that information to determine future
requirements, the system must be improved and standardized so that the informa-
tion is accurate and usable by the states and EPA. The Water Quality Council estab-
lished in S. 1114 should be a positive step forward to improving the system.
The citizens monitoring provisions of the bill should be completely deleted. Statu-
tory language is not necessary for the public to make comments to states about
water quality. In times of scarce economic resources at both the federal and state
levels, funds for monitoring training gind education should be provided to the states
to improve their monitoring abilities, not used to fund or educate a band of vigilan-
tes who lack the scientific expertise to assess water quality or to properly monitor
624
change. The citizens monitoring provisions of S. 1114 do not help the states. In fact,
in many cases, the provisions will harm the states abilities to perform their moni-
toring duties.
Site-Specific Plans — In general, S. 1114 has provided the flexibility and site-specif-
ic planning opportunities that have proven workable in a number of areas, includ-
ing the New York program we are explaining today. NASDA is an active partici-
pant in the Agriculture Clean Water Working Group, and that group is eager to
work with this Subcommittee to address specifics about the phase one emd phase
two planning periods so that necessary modifications can be made to the bill that
are workable at the state and local levels.
The final CWA product must stress the need for site-specific plans to remain flexi-
ble and be based on sound technical and financial assistance. A mandatory hammer
approach does not work because the Agencies cannot enforce them properly, and
mandatory programs create an atmosphere of animosity rather than one of coopera-
tion. As you will see with the New York experience, technical and financial assist-
ance in a cooperative fashion is successful, whereas mandatory hammers are not.
Specifically in phase one, S. 1114 provides an automatic exemption for producers
with conservation compliance plans. NASDA recommends that Congress expand
that provision to include producers with Water Quality Incentive program plans, In-
tegrated Farm Management Option plans, a whole-farm management plan under a
state or regional program (like the Chesapeake Bay program), and other similarly
strong programs which provide as much pollution prevention management as the
conservation compliance plem or that required by S. 1114.
The Subcommittee may want to also review the Rural Clean Water Program
(RCWP). Section 208 of the CWA provided that states prepare statewide and region-
al plans, based on watersheds, for the prevention of both point and nonpoint source
pollution. Rural NPS pollution was addressed through the establishment of the
RCWP as a parallel effort complementing the funding of municipal sewage districts.
This program was very successful in the pilot areas where it was implemented.
Watershed Definitiori— Phase two of S. 1114 establishes the concept of watershed-
wide planning, an approach which allows for targeting of scarce resources to im-
paired areas. It is important that watersheds be defined as subwatersheds for the
purposes of these provisions rather than one of the 21 watersheds in the country.
States, as appropriate, have no authority to control NPS outside of the state
boundaries. However, in many cases watersheds will cross state lines and some type
of accommodation needs to be made for these circumstances. The legislation pro-
vides EPA the authority to mediate after a problem is created. NASDA recommends
that language be include provide an opportunity for governors to work cooperatively
to address the situation before problems occur.
Funding and Time Table— S. 1114 basically provides 10 to 12 years and Imiited
federal funds to manage NPS. The federal government has dedicated over 20 years
and a tremendous level of federal funding to control point source pollution. Con-
gress should not expect agriculture and other nonpoint sources to achieve the more
complex pollution prevention in a relatively short period of time with few federal
dollars. Congress has not funded Section 319 at levels necessary to implement pro-
grams fully, and with the current budget atmosphere, there is no reason to believe
that additional appropriations are forthcoming. S. 1114 can authorize spending (and
its authorization levels are too low), but the appropriations process tends not to
fully fund these programs. Further, all indications from the Administration are that
funding at the levels in S. 1114 will not be available. When that occurs, the states
are left holding the bag. Unfunded federal mandates have put an economic strain
on states which they can no longer absorb. And when both the federal and state
governments fail to provide the funding necessary, it's the producer who suffers.
NASDA believes that phase one should be ten years in length rather than five.
Five years simply is too short a period to properly develop and implement site-level
plans, and then monitor the results. We must remember there is a lag time between
implementation of practices and a corresponding water quality benefit.
Conclusion
Mr. Chairman, thank you for the opportunity to participate in this very impor-
tant hearing on nonpoint source pollution and reauthorization of the Clean Water
Act. I would encourage the Subcommittee to review in detail the New York City
Watershed Program. Many of the principles embodied in the New York City water-
shed agricultural arrangement should be strongly considered when Congress reau-
thorizes the Clean Water Act (CWA). In order to reduce complex and diverse non-
point source pollution, a commitment of time and resources is necessary, similar to
the 20-year commitment our country has made to eliminating point source poUu-
625
tion. However, management of this problem will require a different approach than
that of point source pollution because, unlike point source pollution, NPS pollution
is primarily a weather-related phenomenon that can be managed, but not feasibly
eliminated. NPS pollution is caused by the inadvertent discharge of pollutants from
a wide variety of society's most essentied activities. Agricultural operations, along
with urban, construction, septic and natural sources, require a comprehensive and
coordinated management strategy, much of which is edready in place, but in many
cases inadequately funded. As has been the case in New York, the NPS m£mage-
ment programs in the CWA should be reasonable, voluntary, and based on incen-
tives, education and technical assistance.
I'll be happy to answer any questions you may have.
STATEMENT OF ALBERT F. APPLETON, COMMISSIONER, NEW YORK CITY
DEPARTMENT OF ENVIRONMENTAL PROTECTION
Mr. Chairman, members of the Subcommittee, I am Albert F. Appleton, Commis-
sioner of Environmental Protection for the City of New York. In addition to setting
environmental policy, the Department of Environmental Protection is the City's
water and sewer authority. I am here today to express New York City's support for
the swift reauthorization of the Clean Water Act and for strong nonpoint source pol-
lution control provisions. I am particularly pleased to be testifying with Commis-
sioner McGuire, my colleague from the New York State Department of Agriculture
and Markets. "The Department of Agriculture and Markets and the City's Depart-
ment of Environmental Protection, along with communities and citizens in the
City's upstate watershed, are joining together in ground breaking nonregulatory,
goal-oriented partnerships that, through nonpoint source pollution control and wa-
tershed protection, will preserve New York City's unparalleled drinking water
supply.
Great improvements to water quality have been realized since the Clean Water
Act's enactment. At the same time, it is widely recognized that new clean water
strategies are now required. Recent studies, both federal and others, have consist-
ently concluded that, as industrial wastewater and municipal sewage discharges
come under increasing control, pollution from nonpoint sources is now the most sig-
nificant cause of water quality degradation. If the Congress does aothing else in re-
authorizing the Clean Water Act, it must commit program and financial resources
proportionate to the scope of the nonpoint source problem. Nonpoint pollution
sources must be attacked today as aggressively as point sources have been since the
enactment of the Act.
The two keys to controlling nonpoint source pollution are pollution prevention
and environmentally-appropriate land use management. One of the clearest lessons
of the Dinkins Administration's aggressive watershed protection, harbor-estuary,
and other environmental protection programs is that it is significantly more cost
effective to prevent pollution that it is to clean it up. Another lesson is that the lack
of proper land use safeguards and the misuse of environmentally-sensitive areas are
principal causes of nonpoint source pollution. No nonpoint source pollution control
programs will be successful without addressing these problems. Pollution prevention
and environmentally-appropriate land use must be integrated with point source con-
trols. This will require the flexibility to apply a broad array of strategies. Compre-
hensive, ecosystem-wide programs that address all sources of pollution and reflect
the site-specific water quality needs of diverse aquatic ecosystems will achieve our
water quality goals. If the main emphasis is mechanically placed on technological
approaches or one-size-fits-all planning sjrstems and best management practices, we
will not only fail, but we will have misspent bUlions of dollars in the process.
WATERSHED PLANNING
As S.1114 recognizes in its provisions for watershed planning, these objectives re-
quire new institutional arrangements, ones that recognize that nonpoint source pol-
lution control is a vital element of watershed plginning. No city in the Nation is
more committed to watershed planning than is New York City. Under the Dinkins
Administration, a watershed-wide ecosystem planning approach has guided the
City's extensive drinking water and harbor-estuary policies. I would Uke to discuss
that experience, highlighting our Eigricultural program, and then comment on S.
1114, particularly as it addresses nonpoint source controls.
626
A) Drinking Water Protection
Under New York State law, New York City's watershed regulations are state law
in its two upstate watersheds — the Croton and Catskill-Delaware systems — which
encompass 19 reservoirs and over 1900 square miles, an area nearly the size of Dela-
ware. These watersheds are the source of drinking water for nine million consumers
each day — about half New York State's population. Nearly one million of these con-
sumers reside upstate, while the remaining 8 million reside or work in New York
City. The City's drinking water supply is of such exceptionally high quality that it
often wins contests. To protect this rich natural bounty, the Dinkins Administra-
tion, in cooperation with the State, and local upstate governments and citizens, is
implementing a comprehensive watershed protection plan.
In developing its comprehensive watershed protection strategy, the City has em-
phasized two fundamental ingredients. First, wherever appropriate, the City's wa-
tershed protection plans reflect the view that the best management of the land and
water resources encompassing major drainage systems will occur not through fiat
but with the active participation and cooperation of states, localities, regulated enti-
ties and citizens. Second, the City is focusing on pollution prevention and reduction,
rather than regulation for its own sake. Thus, the City is pursuing a program
whereby its regulatory structure sets the environmental targets but can be adminis-
tered flexibly — or even waived — if the City's environmental objectives can be more
readily or less onerously achieved through locally-based nonregulatory approaches.
The City's revised and enhanced watershed regulations place stringent controls on
septic tank installations, stormwater and wastewater treatment plant discharges,
development in environmentally-sensitive areas, the storage of petroleum and haz-
ardous materials, the use of pesticides and fertilizers, the disposal of snow, and the
protection of stream corridors through vegetative buffer zones and other means.
A similar regulatory structure was considered for agriculture. These proposals
were met with immediate and vociferous resistance from the farm community,
which claimed that the draft regulations would drive many farms out of business.
After initial review, the City was satisfied that these objections, though perhaps
overstated, had merit. Recognizing that good farming techniques can both preserve
land and yield economic benefit, the City, with the indispensable assistance of the
Department of Agriculture and Markets as facilitator, created a watershed agricul-
tural task force to review the City's draft watershed regulations. After a year of dis-
cussion and mutual education, the task force, which was comprised of farmers and
representatives of local and City government, agreed on a watershed agriculture
strategy with the following key components:
• Withdrawal of the City's draft agriculture regulations, except for provisions
against willful polluters and increased pollution loading, and substitution of the
regulations with a "Whole Farm Planning" program. Whole Farm Planning in-
volves the analysis of pollution sources and the development of plans to imple-
ment best management practices uniquely tailored to fit each farm's topograph-
ical conditions and business practice. These activities are conducted by a county
project team comprised of local farm institutions;
• Targeted City Funding of the programs and best management practices, beyond
any cost-sharing programs available through Soil and Water Conservation Dis-
tricts;
• Voluntary participation by individual farmers, coupled with a pledge by water-
shed agricultural leaders that unless 85% farmer participation is obtained
within five years, the City can reinstate agricultural regulations. The program
is to be formally evaluated in 1997;
• Establishment of a Watershed Agricultural Council representing State, City,
local government agencies, and the farm community, to monitor and assist the
program;
• Development by Cornell University water quality and agricultural experts of
new best management practices specifically targeted to Safe Drinking Water
Act concerns, such as pathogen control.
Today, thanks to Whole Farm Planning, watershed farmers and the City are en-
joying the first collaborative relationship in a hundred years. The Agricultural
Council meets on a regular basis, and Phase I of the projects, involving ten pilot
farms and the development of a new set of best management practices to control
pathogens, is well underway. City funding for Phase I totals $3.4 million dollars.
We can share three lessons from the program to date. First, to reiterate, be firm
with goals but flexible as to means. It has been the willingness of the farm commu-
nity to accept the City's water quality goals that has enabled the City to allow the
proposal of a locally-managed program to attain those goals. Second, local stakehold-
627
er leadership is crucial. I cannot praise strongly enough local farm leaders, such as
Howard Nichols and BUI Murphy, and the determination of State Agriculture and
Markets Commissioner Richard McGuire and Deputy Commissioner Dennis Rapp to
make this program succeed and to take the real politicsd risks necessary to realize
that goal. Third, bringing together diverse stakeholders, often with conflicting inter-
est, requires defusing rhetoric and establishing a common language. For example,
farmers were absolutely determined that the program should be voluntary. Environ-
mentfidists and regulators believed a voluntary program would fail to produce suffi-
cient progress. In the end, we resolved this conflict by recognizing the legitimacy of
both perspectives. Thus, as I described earlier, the program is voluntary but sets an
overall participation goal of 85% that the farm community has agreed to attain.
The success to date of Whole Farm Planning has sparked broader discussions be-
tween the City and a quasi-governmental organization of watershed community
leaders, known as the Coalition of Watershed Towns. Several working groups within
the Committee are examining a variety of issues and methods of City-watershed
town collaboration. From these discussions a new concept, called "Whole Communi-
ty Planning," has emerged. Whole Community Planning involves local watershed
communities, often ones that have been resistant to zoning and other planning ini-
tiatives historically, in charting environmentally-appropriate growth and protecting
local water resources from pollution and the perils of unrestrained development.
In return for the active pgirticipation of these communities, the City is considering
providing assistance to communities with approved whole community plans meeting
specified environmental criteria, such as variances from certain otherwise applica-
ble regulations and funding for certain of the best management practices or infra-
structure improvements that approved plans may prescribe. Many of these improve-
ments will benefit both water quality and local communities simultaneously. Al-
though Whole Community Planning is in its early stages — five towns have either
received start-up funding or signed on as pilot towns — its great potential is appar-
ent.
In connection with Whole Community Planning, the City is involved in a range of
other collaborative projects. We are working on programs to clean and upgrade pri-
vate septic systems and to arrange septage disposal at strategiceilly-located treat-
ment plants throughout the watershed. The City is also working with local environ-
mentalists and anglers to promote stream corridor protection through streamside
planting, and with local schools in stream monitoring projects. Overall, the City has
committed $120 million in its ten-year capital budget for future watershed protec-
tion participatory programs.
We believe that collaborative efforts that protect both water quality and local in-
terests, such as Whole Farm Planning and Whole Community Planning, can be the
future of watershed planning and nonpoint source pollution control. To complement
these collaborative ventures, however, the City is taking several independent ac-
tions.
A key component of nonpoint source pollution control programs must be the pro-
tection of environmentally-sensitive lands, starting with wetlands, which provide a
variety of natural filtration benefits, and, if necessary, land acquisition. The City
has budgeted $47 million for upstate land acquisition alone this year, and plans to
commit, over the remainder of the decade, as much as $150-200 million more, de-
pending on a variety of factors, for the acquisition of areas around reservoirs and
stream corridors, and for the protection of wetlands and other environmentally-sen-
sitive lands. This important nonpoint pollution prevention initiative should have the
assistance of SRF funding. In areas without whole community planning, we are also
conducting tightly-directed reviews of proposed lemd development and filing suits
when necessary to enjoin chronic discharge violations and unauthorized, environ-
mentally-insensitive development.
The City is backing up its watershed programs with science as well. We are un-
dertaking a GIS-based characterization and assessment of the entire watershed.
This data will assist the Department in conducting comprehensive analj^ses of reser-
voir and tributary water quality, soil and slope conditions, proposed development
impacts, and various nonpoint source pollution attributes, as well as unproved en-
forcement of our regulations. All of this information will be made available to inter-
ested watershed commvmities and other agencies for their own analyses suid plan-
ning.
Together, these and a vsiriety of other watershed protection efforts too numerous
to mention, comprise what is probably the largest municipal watershed protection
effort in recent history. The CLty has hired hundreds of staff and committed hun-
dreds of millions of dollars over the next decade to watershed planning, because the
Dinkins Administration is committed to a water quality strategy that aggressively
628
controls point and nonpoint source pollution, that emphasizes anti-degradation, and
that is preventive rather than reactive.
B) Harbor and Estuary Protection
The nation's estuaries are complex and imperiled natural systems that do not con-
form to political boundaries. Their preservation often requires interstate and, some-
times, international cooperation. Pursuant to section 320 of the CWA, New York
and Connecticut have undertaken a management study of the Long Island Sound,
whose waters they share. A similar cooperative program, focusing on New York/
New Jersey Harbor, has been developed by New York and New Jersey, with the
participation of other stakeholders. The urbanization of the Tri-State region has se-
verely impacted these harbor-estuary waterways and directly contributed to the loss
of wetland resources and other sensitive habitats. In addition, land use changes in
coastal and upstate regions of these watersheds have resulted in increased nonpoint
source pollution loadings.
The contributions of nutrients, such as nitrogen, have been of immediate concern.
In addition to nutrients, however, extensive monitoring and analysis has shown that
nonpoint source loads to tributaries account for a significant proportion of the or-
ganic enrichment, suspended solids, and metals in these estuarine systems. The City
is participating in the development of management plans for these estuaries that,
through the implementation of innovative strategies, will prevent, and ultimately
reduce, pollution loadings. These strategies will use as a starting point ongoing non-
point source control efforts, including erosion and sediment controls and stricter
emission controls under the Clean Air Act. By contreist, costly technological ap-
proaches, such as reconstructing wastewater treatment plants, can be financially
wasteful and environmentally unsound.
COMMENTS REGARDING S. 1114's WATERSHED PLANNING AND NONPOINT
POLLUTION CONTROL PROVISIONS
New York City strongly endorses S. 1114's emphasis on watershed planning and
management controlling nonpoint source pollution.
• To be truly effective, the Act's watershed planning provisions should set forth a
process that emphasizes site-specific management strategies and enables maxi-
mum organizational flexibility. We must encoursige local initiative and beweire
of processes that simply repackage current water pollution control policies and
procedures under a more attractive name or that turn watershed planning into
an additional bureaucratic process £ind leave the Act's current point source
biases in place. If we fail to be bold and innovative, decisions will continue to be
made in a rigid, top-down manner £md opportunities for truly effective collabo-
rations, based on mutual interests, will be lost. In addition, consistent with site-
specific watershed planning, the Act should allow flexibility in the attainment
of water quality standards. In some instances, for example, ten years may be
too little time; in others, too much time.
• We support S. 1114's mix of economic incentives with enforcement mechanisms,
i.e., linking grant and loan eligibility to the development of plans and requiring
the use of BMPs when plans are not approved. We believe the combination of
nonregulatory with regulatory approaches is yielding the most effective results
in New York City's watershed protection efforts and should be followed, to the
extent possible, on the national level.
• As the recent outbreak of cryptosporidiosis in Milwaukee demonstrated — an
outbreak that affected hundreds of thousands — the need to protect the Nation's
drinking water supplies cannot be overstated. Although more stringent drink-
ing water regulations have emerged in response to public health concerns about
toxics and microbial pathogens, the Clean Water Act's policies have failed to
keep apace. One of the most pressing challenges facing the Congress, therefore,
is to harmonize the Clean Water Act's and the Safe Drinking Water Act's poli-
cies. "This priority should be described in the Act's statement of goals and poli-
cies and should be reflected much more strongly throughout the Act's policy
provisions, especially in the water quality criteria and standards, anti-degrada-
tion and outstanding national resource water provisions. In particular, the Act
should require the implementation of stringent water quality controls that
ensure levels of protection for drinking water supplies that are consistent with
the Safe Drinking Water Act's policies, special protection for unfiltered drink-
ing water supplies, and the development of standards for microbial pathogens of
recognized public health concern, where such standards have not already been
developed.
629
• Watershed management should be aimed not simply at the attainment of water
quality standards in the water column but at use impairments and the develop-
ment of strategies that will protect and restore whole ecosystems, including
wetlands and coastal habitats. The Act must pay much more attention to land-
water interaction, to littoral zone preservation, and to expanding public access
to our Nation's waters.
• Comprehensive basin wide management requires an understanding of the full
spectrum of water quality impairments — point, stormwater, and nonpoint
alike — and how they interact. It should be a tool that leads to regulatory and
policy simplification and prioritization. In its current form, S. 1114 would seem
to create a discrete set of watershed protection requirements that will not nec-
essarily take account of separate but related water quality activities. For exam-
ple, it is not clear how, if at all, harbor-estuary programs developed pursuant to
section 320 would be linked with watershed planning activities.
• The Act should provide enough flexibility to enable watershed decision making
that can direct resources where they will yield the greatest return, whether on
anti-degradation measures to protect pristine waters or on pollution controls for
waters with the greatest use impairments.
• Effective control of nonpoint source pollution requires a greater understanding
of nonpoint sources. A serious, federeilly-assisted research effort is needed in
order to improve nonpoint source monitoring techniques and to develop reliable,
accurate methods of predicting the effectiveness of various nonpoint source
management techniques.
• New York City strongly supports m£iximizing linkages emd coordination be-
tween the Clean Water Act and related federal statutes, including the Coastal
Zone" Management Act, the Intermodal Surface Transportation Efficiency Act,
Sou and Conservation and Domestic Allotment Act, the Food Security Act of
1985, the Clean Air Act and, as stated above, the Safe Drinking Water Act.
• The eligibility of Animal Waste Facilities for Title VI funds for planning and
construction is a welcome amendment to section 319 programs. New York City's
experience with its watershed farmers is proving that animal waste manage-
ment, particularly for dairy cattle manure, is an essential element in nutrient
management and pathogen control to protect the integrity of the City's drink-
ing water supplies. This provision should be broadened to include fvmding for
multi-farm, or watershed-wide animal waste handling facilities and programs,
including regional composting, which in many instances may be more efficient,
cost effective, and less labor intensive for individual farmers than on-farm
waste management.
• The proper maintenance and operation of individual subsurface disposal sys-
tems is crucial to the overall control of nonpoint source pollutant contributions
to surface drinking waters supplies, such as New York s. Particularly in eco-
nomically distressed rural communities, but also in older town centers and
more urbanized eu-eas of our watershed, we've found that failed and poorly
maintained septic systems are a major threat to water quedity. These communi-
ties need technical, administrative and financial assistance in establishing
septic maintenance districts and remediation programs. The Eimendment to sec-
tion 319 relating to Subsurface Sewage Disposal is long overdue. New York City
strongly supports federal assistance to watershed communities, particularly in
the form of low interest loans and grants, in establishing and implementing
subsurface sewage disposal organizations.
• The Act should expand on the progress that has been made under the National
Estuary Plan of 1987. New York City urges Congress to support the important
regional and local estueiry planning efforts now in development. Efforts under
section 320 should receive funding for implementation, and provision should be
made to extend the duration and funding of those programs where more com-
plex estuarine systems are being studied, such as the Long Island Sound Study
(LISS) and the New York New Jersey Harbor Estuary Program (NYNJHEP).
OTHER PRIORITY ISSUES
A) Funding
The high costs of meeting the nation's unmet wastewater treatment needs is well
docimiented. The City urges Congress to support and expand funding of the State
Revolving Loan Fund to enable a wider variety of activities essential to meeting the
Act's clean water goals. A minimum of $5 billion in funds should be available to
fund any and all activities required for compliance with the Clean Water Act's re-
quirements, including nonpoint source controls, combined sewer overflow programs,
nutrient removal, comprehensive watershed protection, wetland protection, water
630
pollution control facilities upgrading, and water conservation. It is also essential
that funding be provided for basic scientific research and to support local programs
to minimize pollution discharges and control floatables. It is also finally time to
expand the Land and Water Conservation Fund and other programs to enable the
acquisition of environmentally-sensitive lands.
Unfunded federal water mandates have caused rate shocks in municipalities
across the Nation. Rate shocks hurt low income consumers most severely. Since
1986 alone, New York City's rates have increased over 200 percent. We applaud S.
1114's attempt to address this issue but urge the Congress to provide grants for mu-
nicipalities with high wastewater needs in addition to SRF loans. By stimulating the
economy, grants would provide economic as well as environmental benefit.
B) Combined Sewer Overflow Control
New York City supports an approach to combined sewer overflow (CSO) and
stormwater control that, reflecting current thinking about watershed planning, is
based on site-specific water quality targets, rather than uniform technology require-
ments. It is essential that local governments be provided the flexibility to achieve
water quality, best use classifications, and actual waste load allocations. We believe
that the EPA's draft CSO Control Policy, which is the indirect product of negotia-
tions among a wide range of interested parties, will enable such flexibility and
should not be disturbed by the reauthori2ation process.
C) Wetlands Protection
Wetlands protection is an essential element of comprehensive water quality man-
agement. To protect the nation's imperiled wetlands, at a minimum. Section 404 of
the Act should be broadened to incorporate a "no net loss to wetlands" policy and
the activities regulated must be expanded to include drainage, channelization, exca-
vation, and activities that impair the flow, extent, and circulation of the nation's
waters. In the case of freshwater wetlands, the quality of the City's drinking water
is closely linked to the biological purification actions of these natural systems. If
they are degraded or destroyed, the drinking water of nine million will be jeopard-
ized.
Mr. Chairman, thank you for the opportunity to testify before the Subcommittee
today. I would be pleased to answer any questions.
TESTIMONY OF GEOFFREY GRUBBS, DIRECTOR, ASSESSMENT AND WATER-
SHED PROTECTION DIVISION, ENVIRONMENTAL PROTECTION AGENCY
Good morning, Mr. Chairman and Members of the Subcommittee. I am Geoffrey
Grubbs, Director, Assessment and Watershed
Protection Division of the Office of Water at the United States Environmental
Protection Agency (EPA). Thank you for the opportunity to testify on one of the
most important water quEility challenges facing all of us — management of nonpoint
sources including polluted runoff. As Carol Browner noted in her recent testimony
before this Subcommittee, if we collectively assure better nonpoint source manage-
ment through a reauthorized Clean Water Act (CW^A), the legislation will be a suc-
cess.
First, let me note that many aspects of the CWA and of S. 1114 relate directly or
indirectly to nonpoint source management. Funding, watershed planning, pollution
prevention, and stormwater controls are all relevant here, and we should take care
that approaches in these related areas complement and reinforce any new nonpoint
source directions. I will provide more information on this later in my testimony.
I will first provide a little background on the nonpoint source problem. EPA and
the State water quality agencies are proud of the fact that most of our rivers, lakes,
and estuaries are now meeting their environmental objectives. In April 1992, States
reported to EPA on the quality of this country's vast waterways. In the two years
preceding their reports. States were able to assess nearly 774 thousand miles of
rivers and streams, over 18 million acres of lakes, and over 27 thousand square
miles of estuaries. The States indicate that two-thirds of these rivers, streams and
estuaries and over half of these lakes meet State water quality steindards and desig-
nated uses.
Nevertheless, our remaining problems are quite extensive. Of the assessed waters.
States report that over 258 thousand miles of rivers and streams, nearly 8 million
acres of lakes, and over 9 thousand square miles of estuaries do not meet water
quality standards or their designated uses.
631
While point source discharges continue to cause problems in some areas, nonpoint
source pollution including polluted runoff remains the dominant water quality and
environmental concern in most areas. For the last decade, States and others have
consistently reported that nonpoint source pollution is the main reason that water
quality objectives are not met. In their 1992 reports to EPA, States once again con-
firmed that nonpoint sources are causing extensive water quality problems. States
list agriculture, urban runoff and stormwater, resource extraction, hydrologic modi-
fications, and contaminated sediments among the sources most widely contributing
to water quality impairments nationwide. Depending on local conditions and eco-
nomic activity, other nonpoint sources — such as land disposal (including on-site
wastewater systems), forest harvesting, and small construction sites — can also be
significant contributors to water quality problems. The leading causes of impair-
ment related to nonpoint sources are sUtation, nutrients, and organic enrichment.
States have reported that the most widespread nonpoint source category of con-
cern is agriculture, which adversely affects about two-thirds of all impaired river
miles. Similarly, agriculture contributes to about one-half of all impaired lake acres
reported by the States. The United States Department of Agriculture's (USDA's)
second Resource Conservation Act appraisal of conditions and trends on non-federal
lands reported that agricultural nonpoint sources of pollution are degrading water
quality in about 10 percent of all streams. Many studies have documented that agri-
cultural nonpoint source pollution also affects ground water. For example, high ni-
trate concentrations from agricultural areas have been detected in the ground water
of the Central Great Plains, the cornbelt, the Palouse and Columbia River basins, as
well as parts of Montana, Arizona, Pennsylvania, Maryland and Delaware.
Urban and stormwater runoff, including certain construction and development ac-
tivities and on-site disposal systems, contributes conventional and toxic pollutants to
our waters.^ This runoff is the leading water quality problem in estuarine waters,
affecting over two-fifths of impaired estuary square miles according to State 1992
Section 305(b) reports. The National Oceanic and Atmospheric Administration
(NOAA) has documented that well over 1.5 million acres of Gulf, East and West
coast waters are limited for shellfish harvesting due to urban runoff. EPA and the
States have begun efforts to control stormwater from larger cities and industrial ac-
tivities (includmg m^or construction projects) through the National Pollutant Dis-
charge Elimination System (NPDES) permit program of the CWA. Runoff from
smaller urban areas and commercial, retail, and light industrial facilities is current-
ly managed £is a nonpoint source, but these sources are scheduled to become subject
to NPDES permit requirements in October 1994. As described in EPA's earlier testi-
mony, we support an approach similar to that set forth in S. 1114 that would move
these sources over to a strengthened nonpoint source program indefinitely.
Beyond urban and agricultural runoff. States have reported significant impacts
from other nonpoint source categories. For example, four States — ^Washington, Ten-
nessee, Idaho, and North Dakota — list hydrologic and habitat modification as ac-
counting for more than 20 percent of the nonpoint source impacts to their rivers
and streams. Another 22 States reported lesser but stUl significant impacts from hy-
dromodification. Seventeen States said forestry (silviculture) contributes to their
nonpoint source problems in rivers.
Not only the chemical, but also the physical and biological components of aquatic
ecosystems, are important to maintaining the integrity of our Nation's waters. For
example, urbanization and development can severely after the natural vegetation
and infiltration characteristics of watersheds and their wetlands, causing higher
£ind more frequent runoff with subsequent downstream erosion, riparian alterations
and destruction of habitats. Rivers eind streams are increasingly affected by temper-
ature stress, caused primarily by loss of streamside vegetation that provides shade,
and by channelization and hydromodifications (e.g., dams and flow alteration).
States have made progress in nonpoint source management since the addition of
Section 319 in the 1987 Clean Water Act amendments. All States have developed
and started implementing Section 319 nonpoint source management programs.
Since FY 1990, EPA has provided about $190 million in Section 319 funds to help
States with their nonpoint source management activities. State efforts have led to
increased public awareness of nonpoint source pollution including polluted runoff
and ways to manage the problem sources. State 319 programs have demonstrated
' Ck)mbined sewer overflows (CSOs) discharge pollutants from raw domestic sewage, industrial
and commercial wastes, and storm water runoff. CSOs contribute to water pollution problems in
older cities (primarily in the Northeast and Great Lakes) where such combined sewer systems
still exist. EPA's draft strategy for CSO controls was discussed at an earlier hearing in the Sub-
committee's review of Clean Water Act reauthorization issues.
69-677 0-94-21
632
the effectiveness of a variety of innovative management practices, established viable
institutional arrangements, and implemented some watershed projects. States have
also worked with other federal agencies to better use the existing array of natural
resource programs to support nonpoint source management. Support from the
USDA, the U.S. Department of Interior (DOI) and NOAA has helped EPA do its job,
buttressed State nonpoint source programs, and led to many localized watershed im-
provements.
In addition, the Coastal Zone Act Reauthorization Amendments of 1990 (CZARA)
provided a strong mandate to address nonpoint sources in coastal areas. Twenty-
nine coastal States and Territories are developing coastal nonpoint pollution control
programs for approval by NOAA and EPA. These progrgmtis wiU substantially
reduce polluted runoff associated with agriculture, forestry, urban activities, mari-
nas, £md hydromodification through the application of best available management
measures that are economically achievable. State-adopted and locally appropriate
management measures must conform to the national nonpoint source guidance pub-
lished by EPA after close collaboration with other federal agencies and States, and
consultation with the potentially affected sources and the public. These new State
coastal nonpoint programs will also provide for the implementation of additional
measures as necessary to attain and maintain water quality standards and designat-
ed uses. The coastal nonpoint programs represent an important forward step in con-
trolling nonpoint source problems.
Yet, despite progress under Section 319 and the promise of CZARA, the problems
of nonpoint source-related impairments are so widespread that State programs must
advance even further. Existing State programs under Section 319, while generally
providing a good, basic framework, need to be upgraded. While EPA and States are
working to improve Section 319 implementation, stronger authority is needed if we
are to make the progress required. We believe that the following principles should
guide reauthorization in this area:
• provide a stronger watershed framework;
• continue to focus on voluntary, targeted approaches, but supplemented by
backup enforceable requirements to be triggered when necessary;
• establish clearer performance expectations and technical baselines;
• focus water quality programs on aquatic ecosystem protection, not just on the
water column;
• stress pollution prevention; and,
• work with other federal agencies to provide for implementation through their
stewardship of federal lands.
I would like to discuss the Administration's view on possible approaches to these
challenges, including general areas of agreement with S. 1114 and a niunber of
ideas for improving its effectiveness.
STRENGTHENING STATE PROGRAMS
Section 319 gives States the leadership role in controlling nonpoint sources, in-
cluding significant flexibility to devise and carry out their own nonpoint source
management programs. Given the differing and localized nature of nonpoint source
problems, this flexibility appropriately provides for nonpoint source programs to
vary across the country according to local needs. States have used this flexibility to
focus on their specific priority problems, targeting and tailoring their projects and
available Section 319 funds to complement other State and federal funding and au-
thorities.
However, with initial State nonpoint source programs in place, it is apparent that
the differences in State programs go beyond those justified by local conditions. For
example. States do not share an understanding of the baseline management meas-
ures that are available, and there is no generally agreed upon schedule to guide
State progress. There is no basis in Section 319 for gauging the success of State non-
point source programs nor for EPA to step in where States fail to act, no matter
how severe the water quality problem may be. While most States are implementing
several nonpoint source watershed demonstration projects, adoption of nonpoint
source controls is not nearly as widespread as needed to reduce the extensive water
quality problems States report as resulting from nonpoint sources. EPA continues to
believe that voluntary approaches should be reinforced and relied upon as the strat-
egy of first choice, but the current Section 319 gives us no mechanism to assure suc-
cess where voluntary efforts fail.
Section 319 should be amended to bolster State nonpoint source programs in con-
cert with a watershed protection approach. As part of a watershed protection ap-
proach. States should specifically identify those waterbodies and their watersheds
633
that are impaired or threatened by nonpoint sources. In this respect, we agree with
S. 1114 that existing State assessments should be updated and should include delin-
eations of the contributing watersheds, although we would add that these assess-
ments should also cover threatened waters and include major relevant stresses on
ecosystems in addition to chemical pollutants. To reduce State paperwork burdens
and duplication, these assessments should also be consolidated with existing inven-
tory requirements under CWA Sections 305(b), 303(d) and 314(a). Where States com-
prehensively inventory their watersheds and undertake strong, broad programs to
expeditiously address the stresses in the highest priority areas, we would support
deference to that program. States could thereby adopt their own nonpoint source
management measures for the sources and pollutants causing problems on a local
basis as part of a comprehensive watershed approach. However, not all States are
ready to adopt this approach.
In impaired or threatened areas where States do not opt for a watershed ap-
proach, existing nonpoint source management programs should be upgraded to im-
plement best available management measures for categories of nonpoint sources
causing or contributing to water quality impairments (or threatening such impair-
ments). These State measures should be based upon EPA national minimum pro-
gram and management measure guidance, which in turn should consider costs and
the pollution reductions achieved and encourage pollution prevention wherever ap-
propriate. The guidance should be broad and flexible enough to allow for appropri-
ate local tailoring. States should also be allowed to adopt alternative management
measures if they can demonstrate that the alternative is as effective as the measure
in national guidance.
Additional protection beyond impaired and threatened waters is necessary as well
to make sure that water quality standards (including designated uses) are main-
tained. We therefore favor the application of best available management measures
to all new nonpoint sources except in areas where a State has developed a water-
shed program.
We agree with S. 1114 that some flexibility is appropriate for site-level implemen-
tation of national nonpoint source management measures and we support site-spe-
cific plans, developed and approved by a qualified federal or State agency, and de-
signed to manage nonpoint pollution, as an appropriate edternative. However, we
are concerned about deferring in all cases to existing agricultural conservation com-
pliance plans as S. 1114 does, since these plans are intended to address soU loss, not
water quality. Where the water quality impairment relates to nutrients or pesti-
cides, these pollutants must be addressed in site-specific plans, and conservation
compliance plans may not fully suffice. These site specific plans, required to be fully
implemented by 1995 for all farms with highly-erodible lands, could be augmented
when considered in concert with certain existing programs that do address the spe-
cific pollutants and land areas affecting water quality. Such programs could include
the Conservation Reserve Program established under the 1985 Farm Bill, and the
water quality incentive program established under the 1990 Farm Bill, and State
coastal nonpoint programs approved by NOAA and EPA under CZARA, as well as
conservation compliance plans.
In implementing best available management measures, we agree with S. 1114's
general philosophy that States should rely initially on an appropriate mix of volun-
tary and regulatory approaches. However, upgraded State programs should also in-
clude compulsory mechanisms, including enforcement authorities, to be triggered if,
within a reasonable time, voluntary means fail to result in implementation of the
memagement measures.
S. 1114 envisions a twelve and one-half year time frame for implementing en-
hanced nonpoint source controls: thirty months for new State programs plus two
five-year cycles for implementation. We think this two-cycle approach and time
frame is reasonable, but that the requirements should be phased in based on a
State-developed schedule. However, we note that the second cycle of the program (in
years eight through twelve) does not provide for additional steps which might stUl
be necessary to meet water quality standards in impaired waters despite the appli-
cation of the management measures described in national guidance. The second
cycle of State nonpoint source progrEuns should provide for additional State manage-
ment measures as necessary to meet water quality standards and designated uses.
We support S. 1114's provision for withholding Section 319 grants from States
that do not adopt revised, approvable nonpoint source management programs. We
adso support the provision in S. 1114 which would authorize the EPA Administrator
to estabUsh enforceable minimum nonpoint source controls where a State has failed
to develop an approvable program.
634
FUNDING AND FINANCING
EPA estimates that the total capital cost nationsdly to implement nonpoint source
management measures for agriculture and forestry would be about $8.8 bUlion over
the next 20 years. (We have not yet estimated the capital costs for the more target-
ed approach we are supporting today, but the cost should be lower.) Operation and
maintenance costs have not been estimated, nor have needs for such nonpoint
sources as hydromodification or stormwater runoff from small communities and
light industry, which are expected to be significEint.
The benefits of nonpoint source pollution control appear to be significant. In 1985,
the Conservation Foundation estimated in-stream damages from cropland erosion to
b»e $2.5 billion annually and total in- and off-stream damages to be $3.5 billion annu-
ally (this estimate does not include damage to water quality from animal waste, fer-
tilizer, pesticides, grazing, irrigation or non-agricultural nonpoint sources). A variety
of other studies corroborate that the benefits of nonpoint source pollution control
would significantly exceed its costs.
Since FY 1990, Congress has appropriated approximately $190 million in Section
319 funds to assist State nonpoint source programs. These funds are being used by
States and Indian Tribes to carry out their programs and do provide direct support
for implementing nonpoint source controls in priority watersheds. Several other
EPA programs provide limited funding to assist nonpoint source implementation, in-
cluding the Clean Lakes Program, the National Estuaries Programs, and the Great
Lakes and Chesapeake Bay programs.
Other federal agencies provide significant financial and technical support for ac-
tivities that help reduce nonpoint source pollution problems. For example, as a
result of the 1985 and 1990 Farm bills, approximately 1.5 million Conservation Com-
pliance Plans covering 140 million acres are being developed by USDA to reduce soil
loss; such plans are now fully implemented on 78 mUlion acres. Similarly, the Con-
servation Reserve Program implemented by USDA has resulted in removing from
production 36.5 million acres of cropland that pose particular threats of soil erosion,
while the Wetlands Reserve program has signed up 50,000 wetlands acres whose re-
tention can significantly improve water quality. Also, annually the Agricultural
Conservation Program provides cost share assistance to producers to install im-
proved management practices. In 1992, some 9.5 million acres were Eiffected.
The mandates of the CWA must be realistic in light of the resources we can rea-
sonably expect to be available to federal, State and local governments and the pri-
vate sector. For this reason, we support careful targeting of funds to priority water-
sheds and impaired and threatened waters. At the same time. States and federal
agencies will need to continually evaluate their assistance approaches to ensure
that limited resources are used in the most cost-effective manner possible.
However, even with targeting and streamlined approaches, we believe additional
resources will be needed at the federal, State, and local levels to fully address the
considerable national nonpoint source pollution control needs. Current Section 319
appropriation levels are providing States and Indian Tribes with base program as-
sistance but are not adequately supporting nonpoint source watershed implementa-
tion projects. Therefore, in addition to the $50 million per year currently being ap-
propriated for nonpoint source grants, the President is proposing to invest an addi-
tional $180 million in nonpoint source grants from FY 1994 through FY 1997.
The current one-third of one percent CWA cap on Section 319 grants to Indian
Tribes (resulting in a total of $165,000 in FY 1993) is hindering our ability to assist
Tribes in developing and implementing their nonpoint source progremis; we support
raising this limitation.
We note that S. 1114 would eliminate the provision for EPA to consider ground-
water protection activities such as planning, assessments, and technical assistance
when awarding Section 319 grsmts to States. It is important to avoid transferring
problems from surface to ground water and to protect ground water from nonpoint
source pollution. We believe the existing provision has worked well, allowing States
to foster nonpoint source related priority ground-water activities. We would favor
keeping this existing provision.
Under the CWA, nearly $9 billion has been appropriated to date for State revolv-
ing loan funds. In addition to supporting construction of wastewater facilities, these
funds may be used for loans to individuals or municipalities to implement nonpoint
source controls consistent with a State's Section 319 nonpoint source management
program. However, to date, only a very limited amount of these funds have been
used to address nonpoint sources.
We support retaining the existing revolving fund eligibility for nonpoint sources
for projects whose principed purpose is protecting and improving water quality to
635
encourage States to use these funds to support their priority nonpoint source
projects. Also, as more States begin using their revolving funds for nonpoint sources,
other public entities not traditionally involved in providing municipal pollution con-
trol will necessarily need to participate in this loem program. We should explicitly
recognize these entities, including Conservation Districts.
FEDERAL LANDS AND ACTIVITIES
Over 29% of the land in the United States, 701 million acres, is public land, ad-
ministered by the U.S. government for various purposes through the Bureau of
Land Management, the Forest Service, the Park Service, the Fish and Wildlife Serv-
ice, the Department of Defense, and other federal agencies. In addition, many feder-
al agencies, such as the Federal Energy Regulatory Commission, the Army Corps of
Engineers, the Bureau of Reclamation, the Bureau of Land Management and the
Forest Service issue licenses and permits and fund or conduct activities that can, if
conducted improperly, result in nonpoint source pollution.
As good stewards, the federal land managers and decision makers should ensure
that federal lands emd activities are properly managed to substantially reduce non-
point source pollution. In particular, federal lands contain many of our most sensi-
tive waters (e.g., cold-water fisheries, habitat for threatened and endangered species,
etc.), serve as watersheds for drinking water supplies, and contain high-quality and
outstanding resource waters.
We believe the current consistency provision in Section 319 should be strength-
ened by requiring States to identify, for their priority watersheds or their threat-
ened and impaired waters, the federal lands and federal activities that are inconsist>
ent with the State nonpoint source management programs. Federal departments
and agencies should achieve consistency with State programs in these areas to the
same extent as non-federal entities are required to do. ^ a minimum, federal agen-
cies should comply with management measures in watersheds to the same extent as
non-federal entities in those watersheds. However, we also believe that the Presi-
dent should have the ability in individual cases to waive these requirements if the
President determines it to be in the paramount interest off the United States to pro-
vide an exemption.
CONCLUSION
Polluted runoff poses a challenge that federal agencies. States, local governments,
and the private sector must meet if we are ever to realize the full promise of the
CWA. The problems are different and more subtle than those of the past, but they
are not insurmountable. Public education, clear definition of good practices, and a
commitment by State and federal agencies to water quality values will carry us a
long way. We thank Senators Baucus and Chafee for the thoughtful approach re-
flected in S. 1114 and we hope our suggestions will help to strengthen that approach
while remaining generally compatible with it.
I will be happy to answer any questions that you and other members of the sub-
committee may have.
TESTIMONY OF DIANE M. CAMERON, NATURAL RESOURCES DEFENSE
COUNCIL
I. Summary
Poison runoff impairs more waterbodies, surface and groimd, urban and rural,
than any other pollution source in the country. Poison runoff is the contaminated
stormwater and snowmelt that runs off of, or leaches through, land used and abused
for human purposes without regard to ecological needs. Although the dominance of
poison runoff ("nonpoint source water pollution") as a water quality problem is
widely acknowledged, (smd was known even before 1972), in general we have failed
to create and implement effective programs that protect and restore our nation's
waters that are subject to this threat.
The framers of the 1972 Clean Water Act explicitly recognized the need for State
water quality programs to address land-based sources of water pollution in their
water quality assessments and in their watershed mmanagement plans developed
under section 208 of the Act ("208 Plans"). The dominance of the "point source chal-
lenge," however, eclipsed public awareness of, and government attention to, more
diffuse pollution sources.
By the mid 1980s, impatient with the lack of EPA and State progress in control-
ling poison nmoff, Congress created the "State Nonpoint Source Management Pro-
636
gram" (§ 319). Unfortunately, the State 319 programs have been plagued by slow
and inadequate funding, lack of adequate implementing mechanisms, and insuffi-
cient direction and oversight from EPA. The 1987 CWA Amendments also included
requirements for the municipal and industrial stormwater permits; these permitting
programs are now helping to revive public interest in restoring blighted urban wa-
tersheds into oases of life. In 1990, Congress passed a new program, aimed at reduc-
ing poison runoff in coastal watersheds, with a more ambitious pollution reduction
mandate and more regulatory clout than the 319 program. The ' Coastal Zone Non-
point Source Pollution Control Program" may be a model for revisions to State
runoff and watershed management programs that will help to reduce and prevent
poison runoff. i • •
To underscore the severity of the poison runoff problem, and to explain it to the
uninitiated, we begin this section with a poison runoff primer. Next, we evaluate
the implementation and efficacy of Clean Water Act poison runoff programs that
existed before 1987, as well as the two major initiatives passed in 1987 (§ 319) and in
1990 (the Coastal Zone Management Act). We then apply these various findings
about the history of efforts to control runoff in our brief analysis of Title III of S.
1114.
Finally, in relation to the whole- watershed approach within Title III of S. 1114
and in anticipation of the upcoming hearing on watershed planning, we describe the
challenges that face urban leaders seeking to restore inner city waters to places of
recreation and refreshment, and to provide meaningful jobs in the process of heal-
ing urban waters.
II. Introduction to the Problem of Polluted Rimoff and Watershed Restoration
A. A Primer on Poison Runoff
Poison Runoff Problems Were Brought Here by the Pilgrims
Poison runoff is not a new phenomenon; in fact, it has been with us since the first
settlers clear-cut the New England forests, and since the first farmers began plow-
ing the fertile lands of the Eastern Coastal Plain. Reflecting a lack of understanding
of history, the official rhetoric has often apologized for the severe lack of money,
staff resources, and regulatory clout devoted to poison runoff reduction by claiming
that this is a new or obscure pollution source. For example, EPA's Final Report to
Congress on Section 319 of the Clean Water Act states,
"Nonpoint source impacts have not been fully assessed. The Nation has fo-
cused largely on impacts caused by traditional point sources (POTWs and indus-
trial dischargers) in the past because point source discharges were causing
major, visible problems in our surface waters. Thus, very little attention has
been given to assessing the impacts of NPSs. Since water quality impacts still
exist in many areas, it is now very clear that NPSs have had and continue to
have widespread impacts upon surface waters." ^
Contrary to this assertion, land-based, diffuse pollution sources and the severity of
damage they caused were well-known to the framers of the original Clean Water
Act. The 1972 Senate Report said:
"One of the most significant aspects of this year's hearings on the pending
legislation was the information presented on the degree to which nonpoint
sources contribute to water pollution. Agricultural runoff, animal wastes, soil
erosion, fertilizers, pesticides and other farm chemicals that are a part of
runoff, construction runoff and siltation from mines and acid mine drainage are
major contributors to the Nation's water pollution problem. Little has been
done to control this major source of pollution. ... It has become clearly estab-
lished that the waters of the Nation cannot be restored and their quality main-
tained unless the very complex and difficult problem of nonpoint sources is ad-
dressed. . . . The Committee recognizes, at the outset, that many nonpoint
sources of pollution are beyond present technology of control. However, there
are many programs that can be applied to each of the categories of nonpoint
sources and the Committee expects that these controls will be applied as soon as
possible." 2
Unfortunately, it would be over two decades before any land use category-specific
water quality controls were required as part of a federal program — ^the Coastal Zone
Nonpoint Source Pollution control Program — which we will discuss below. In the in-
tervening years, poison runoff continued unabated.
National Statistics Show That Poison Runoff Damages Are Widespread
Two water quality assessment programs required by the CWA include poison
runoff: the biennial 305(b) reports, and the onetime 319(a) reports. The 305(b) re-
637
ports are supposed to cover all waterbodies and all relevant pollution sources in
each State; the 319(a) reports are supposed to be statewide assessments of runoff
problems, conducted wherever possible on a watershed-by-watershed basis. There is
some overlap between these two reports.
The 305(b) water quality assessments are difficult to compile for a time-series
analysis of trends, since the scope and methodologies for reporting have chemged so
frequently. And these reports likely underestimate the magnitude of the poison
runoff problem even more than for other sources of pollution because, as discussed
below, poison runoff is even more dominated by physical and biological (as opposed
to chemical) impairment. The most complete, and thus the most revealing, 305(b)
reports on runoff problems were from the most recent (1988-1989) reporting cycle
compiled by EPA.
EPA in 1991 published a compendium of the States' 319(a) assessments, entitled
Managing Nonpoint Source Pollution, as required by § 319(m). This report also con-
tains a comprehensive set of statistics on the role of land-based sources in damaging
aquatic resources nationwide. Below we summarize the damage assessment from
this report as well as from the 1988-1989 305(b) compilation (The National Water
Quality Inventory).
Rivers: Over 100,000 assessed river miles are impaired or threatened by agricul-
tural runoff nationwide. Over 15,000 more assessed river miles are impaired by
logging; £md almost 1(),000 assessed river miles are impaired by construction
runoff. About 40,000 river miles were listed in the 319(a) reports as threatened
by runoff pollution sources.
Lakes: Almost 2 million acres of U.S. lakes are impaired by agricultural runoff
sources. Storm sewers impair almost another million acres.
Great Lakes: All affected Great Lakes areas of Indiana (Lake Michigan) and
New York (Lakes Erie and Ontario) do not support designated uses (wildlife-In-
diana), (fisheries-New York), attributed in large part to poison runoff sources.
(No other Great Lake State provided quantitative assessments of runoff impacts
to the Great Lakes.)
Wetlands: About 52,000 acres of wetlands in California, Iowa, and Delaware are
not supporting one or more designated uses, or are threatened due to poison
runoff sources. (No other States gave quantitative information on wetlands
damage from runoff sources.)
Coastal Waters: 1.2 million acres of coastal waters are not fully supporting one
or more designated uses due to poison runoff.
Estuaries: About 5,000 square miles of estuarine waters are impaired or threat-
ened by runoff sources.
Groundwater: Public drinking water supplies are threatened by runoff sources
in the four States that specified impacts to designated uses. ^ Nitrates in
groundwater exceed current health standards in virtually all States and occur
in 5 to 20 percent of sampled wells in the Western Com Belt and Mid-Atlantic
States, largely due to fertilizer applications on farms. *
The runoff management and waterbody assessment programs are not the only
source of national statistics on runoff damage. In June, 1989, under § 304G) dis-
cussed above, EPA released a list of over 17,000 "toxic hotspots" — seriously degrad-
ed waterbodies. Only 602, or less than 4 percent, were impaired "wholly or substan-
tially" by factories or sewage treatment plants. The rest were polluted, wholly or
substantially, by poison runoff from farms and other sources. ^
B. The Nature of poison Runoff Varies by Land Use Category. But Water Quality
Lkimage Tends to Be Systemic. Part of "Business As Usual"
Virtually every human activity on the land has the potential to impair water
quality and aquatic habitat. It is beyond the scope of this report to describe every
land use category in detail; we will, however, highlight the most significant catego-
ries that do the most damage nationwide: Agriculture (including cropping, confined
animal operations and grazing); mining; urban development and logging.
Agriculture Dominates as the Number One Source of Aquatic Impairment, But
Farming Practices that Save Money, Protect Water Quality Are Available
Agriculture is the leading source of water pollution in the United States, accord-
ing to EPA. ^ Agriculture was cited by EPA as the leading source of pollutants caus-
ing or contributing to "toxic hotspots" in its June 1989 release of the list of 17,000
hotspots nationwide. '' The latest National Water Quality Inventory (1988-1989) re-
ported that agriculture was far-and-away the largest source of river impairment,
serving as a contributing source in over 60% of impaired river miles. For perspec-
638
tive, the next biggest reported source — municipal sewage plant discharges — contrib-
uted to 16.4% of impaired river miles.) ^
Agriculture is also a leading cause of species endangerment and extinction. About
37% of the 436 species listed in the Endangered Species Information System data
base are imperiled at least in part by irrigation and the use of pesticides. An impub-
lished EPA staff report from November 1989, based on data from the Department of
the Interior, identified 125 endangered or threatened species that are aquatic or
water-dependent and are impacted by agricultural practices such as pesticide
Agricultural activities were also fingered as a major cause of fish kills. Three out
of the top six pollutant categories cited as causing fish kills, low dissolved oxygen,
pesticides, and fertilizers, are wholly or substantially from agricultural uses (the
other three are petroleum, pH/acidity and organic chemicals). However, agriculture
accounted for only 5% of the total number of fish killed from 1977 and 1985, be-
cause the size of each fish kill was relatively small. In EPA's 1986-87 summary of
State reports on fish kills, animal feedlot/waste operations were blamed for over 1
million fish killed (most likely due to oxygen starvation from manure pollution). i°
In a separate 1984 survey of fish kill data, pesticides were cited as the leading docu-
mented cause of fish kills in the U.S. over the previous two decades. ^ ^
Because agriculture is by far the bigjgest source of waterbody impairment nation-
wide, and because it is such a diverse industry, it is necessary to sub-categorize the
industry in order to explain regional differences in the types of impairments ob-
served.
Croplands
Soil erosion, pesticide pollution, nitrates leaching into groundwater, nitrogen and
phosphorus runoff into estuaries, wetlands conversion, streambank wastage, and
manure runoff are all major problems associated with crop production. Irrigated
crop production can be associated with all of these water quality problems, plus the
discharge of toxic mineral salts into estuaries and marshlands. Below we give some
national and regional data on water pollution from crop production.
Soil erosion data has only been collected on the national level since 1977. The Na-
tional Resources Inventory, taken roughly every five years by the Soil Conservation
Service, includes reports for 1977, 1982, and 1987.
The 1982 and 1987 reports are more reliable than the 1977 reports. Total U.S. soil
erosion estimates from sheet and rill (water-borne) erosion from cropland show a de-
cline from roughly 1.8 billion tons of sheet and rill erosion in 1982 to about 1.6 bil-
lion tons eroded in 1987 — a decline of about 11 percent.
Among the trends in crop production accounting for the decline are the onset of
the 1985 Farm Bill conservation program, including the conservation reserve and
conservation compliance programs. While a direct connection between soil erosion
and water quality cannot be made, in general, the more soil is conserved, the more
our waters are protected from sediment pollution. The job of keeping soil on the
land is far from over, however. Despite this apparent reduction in erosion losses,
sediment and siltation from agriculture and other land uses remains the top water
pollution problem in the country.
Pesticides pollute both surface and groundwater. Fish kills from pesticides were
discussed above. Overall pesticide use statistics are startling, and give an indication
of the magnitude of the potential pesticide problem for water quality. EPA has esti-
mated that approximately 600 active ingredients are marketed in 45,000 to 50,000
formulations. About 430 million pounds of pesticides were applied agriculturally in
1987 with a market value of about $4.0 billion. ^^ According to EPA's compilation
of the States' 1988/89 305(b) reports, pesticides impaired 11.2% of all assessed river
miles and 14.5% of Great Lake shore miles. (Pesticide impairment of lakes was not
assessed, or not reported in this compilation.) ^^ ^ , », ■,
A recent USGS study of ten current-use herbicides in surface waters of the Mid-
west found that high concentrations of herbicides were flushed from cropland and
were transported through surface waters as pulses in response to late spring and
early summer rainstorms. ^"^ Several of the herbicides exceeded the EPA water qual-
ity criterion for drinking water-human health protection in a significant percentage
of the samples. For example, 52% of the sites exceeded the primary drinking water
standard for atrazine (3 ug/L); 32% exceeded the WQC for alachlor (2 ug/L); and
seven percent for simazine (1 ug/L). The median concentrations of the four major
herbicides, atrazine, alachlor, cyanazine, and metolachlor, jumped by a factor of ten
in the late spring-early summer samples, and then dropped back to near preplant-
ing levels by harvest time. The study sampled 149 sites in 122 river basins of Ohio,
Indiana, Illinois, Wisconsin, Minnesota, Iowa, Kentucky. South Dakota, Kansas, Ne-
639
braska and Missouri. ^^ The fact that over half of these midwestern surface water
sites exceeded the atrazine drinking water standard, £ind a third exceeded the alach-
lor drinking water standard, is a concern for all communities that rely upon these
waters as drinking water supplies, and particularly for those small rural towns that
do not use advanced drinking water treatment such as carbon filtration.
The nutrients phosphorus and nitrogen are important water poilutdJits from agri-
cultural operations including manure spreading and artificial fertilizer applications.
Phosphorus in high levels is acutely toxic to fish; in much lower levels it over en-
riches waterbodies, causing them to fill up with algae ("eutrophication"). Nitrogen,
especially in the form of nitrate, is a human health and livestock health concern
(EPA's drinking water standard for nitrate is 10 mg/L) because it causes "blue baby
syndrome" (methemoglobinemia). Like phosphorus, nitrogen also contributes to eu-
trophication of laJces and estuaries in much smaller concentrations thein those of
human health concern. In the form of ammonia, nitrogen is also acutely toxic to
fish.
The use of nitrogen fertilizers in the U.S. increased by more than a factor of four
in the two decades between 1960 and 1981, to a 1981 total of 11.9 million tons per
year. Per-acre use of fertilizers doubled between 1964 and 1984. However, the sky-
rocketing increase in the use of nitrogenous fertilizers may have reached its apex in
the 1980s, and has apparently begun to decline slightly; the total tons of n-fertilizer
used declined 12 percent, to 10.5 million tons of annual application, between 1981
and 1988. i^
Long-term trend data for nitrate pollution is scarce. One ten-year study in Ne-
braska from the early 1960s to the early 1970s, showed a 25% increase, on a state-
wide average, of groundwater nitrate-nitrogen concentrations. During that same
time frame, nitrogen fertilizer use in Nebraska increased by a factor of four. A
longer time-series study on nitrogen pollution from almost 4600 samples from wells
all over Iowa showed that nitrate levels in groundwater from shallow wells less
than 100 feet deep increased slowly but steadily from 1952 to 1979, where total fer-
tilizer use and per-acre applications were increasing rapidly. ^^
Waters in karst (limestone-solution feature) topographies are especially vulnera-
ble to nitrate contamination. In Iowa's Big Springs Basin, part of the Karst region
that straddles portions of Iowa, Wisconsin, and Kansas, groundwater nitrate concen-
trations tripled (from five mg/L to 15 mg/L) from 1958 to 1982. These data suggest a
yearly rate of increase of 0.4 mg/L of the average nitrate-nitrogen concentration. A
farm survey in the basin in the mid-1980s showed that area farmers were not pre-
paring nitrogen budgets to determine appropriate fertilizer application rates. Where
such budgets were prepared, they were incomplete. Alfalfa and manure contribu-
tions to soil-nitrogen were being neglected, and thus in 1984 artificial fertilizers
were being applied in excess of need at a rate of about 90 kilograms per hectare. ^^
Of course, the foregoing examples of nitrate contamination trend data are per-
haps from regions with more vulnerable climate and geology, and the problems of
nitrate contamination inevitably vary in severity from region to region. Nonethe-
less, "snapshot8, statistics from single-year national studies show us that nitrate
contamination of groundwater is indeed a problem that is national in scope. A 1986
USGS sampling of 316 principal aquifers in 46 States turned up 288 (91%) with
median nitrate-n levels below three mg/L; 27 aquifers (8.5%) with median nitrate-n
levels between 3 and 10 mg/L; and 1 (0.5%) aquifer with median nitrate-n levels
above 10 mg/L. The same USGS study found that 41 (13% of the aquifers) in twenty
states had nitrate "hotspots" where greater than ten percent of the samples exceed-
ed the EPA-human health 10 mg/L standard. ^®
Conservation practices on the farm, designed to protect soil and water quality, are
often easier on the bank book as well. Thus, conservation tillage practices, which
are critical to reducing damaging soil loadings into rivers and lakes, also can save
farmers both work time, and fuel costs. ^° Soil nutrient testing can cut farmers' fer-
tilizer costs significantly. ^^ And a recent study by a group at the University of Iowa
found that agriculture and water quality goals may actually be far more compatible
than many now perceive. The Iowa researchers found that, for several policy options
for reducing agriculture's impact on water quality including regulation and re-
search and education,
. . . the effects on water quality and profitability suggest that water quality can
be significantly improved without losses to farm profitability, there is not neces-
sarily a direct tradeoff between water quality and profitability. Improvements
to both can be achieved simultaneously and, in some cases, without high imple-
mentation costs borne by taxpayers or farmers." ^^
Manure management stands out as perhaps the most costly water-quality practice
for most agricultural regions, and more work needs to be done to research cost-effec-
640
tive manure management techniques. As one farm researcher has observed, our ag-
ronomic universities need to
"stop funding research in animal-based agriculture production and marketing
unless manures are an int^ral part of the research question. The corollary is
to fund more research that both considers manure as an integral part of the
production system and innovative ways of better managing this manure." ^3
Thus, integrating manure as a resource into whole-farm management plans will
enable us to find cost-effective means of protecting waters from manure pollution.
Irrigation Pollution
Irrigation agriculture, which accounts for 90% of the water consumed in the
West, results in poisoned return flows which cause serious damage to waters and
wetlgmds, endangering aquatic wildlife with toxics including selenium, boron, molyb-
denum, and chromium. Selenium has been identified as the cause of an observed
high (64%) rate of deformed and dead bird embryos at Kesterson National Wildlife
Refuge in California.
Although they begin with the diffuse flow of irrigation water off of farm fields,
irrigation flows end as point source discharges, conveyed through pipes or ditches.
Irrigation return flows have been given an express exemption from NPDES permit-
ting in the Clean Water Act, without any database showing that the flows are
benign. In fact, the U.S. Fish and Wildlife Service's preliminary data indicate that
almost half (48%) of the Service's refuges that have toxic contaminant problems re-
ceive agricultural drainage. ^*
Grazing
Accurate national statistics on the total water quality damage wrought by grazing
on both public and private rangelands are not currently available. However, the
surveys that have been conducted on public rangelands do show massive damage to
riparian areas from overgrazing. Statewide surveys by the Bureau of Land Manage-
ment (BLM) in Colorado and Idaho, and more limited BLM surveys in Nevada and
Utah, showed that over 80 percent of assessed streams or riparian areas were in poor
or fair condition. Surveys by the U.S. Forest Service produced similarly troublesome
results; in Arizona, 80 to 90 percent of the stream riparian areas in the Tonto Na-
tional Forest were in unsatisfactory condition, ^s
Rangeland expert Lynn Jacobs gives additional data on grazing damages to
streams in the West, citing wildlife ecol(^t Charles Kay: "A recent study in Wyo-
ming found that of 262 nules of streams, only 2% fimction now as they did in 1850.
Eighty-three percent of the streams were lost or destroyed by overgrazing and accel-
erated erosion. The remaining 15% were in fair to good condition." ^e According to
another range technician, riparian damage from cattle is so widespread in the West
that most people, including most range managers, have never seen a healthy stream
channel. ^^
And this ripeuian damage is done to vast areas of the west, for the sake of a tiny
proportion of the nation's livestock: Although 90% of our western BLM lands are
used for ranching, they produce only about 1.1% of U.S. cattle and sheep, ^s A GAO
report on the health of riparian areas on U.S. public rangelands points out that the
preferred management practice, cattle exclusion from streamside zones combined
with revegetation, can reduce many of these impacts. Unfortunately, this practice is
not required in many £ireas, and BLM staff are thwarted by their own top manage-
ment in carrying out riparian restoration projects. ^®
Livestock Confinement (Feedlots)
EPA's Office of Policy, Planning and Ehraluation estimates that, based on the U.S.
Census of Agriculture, at least 1.1 million farmers have livestock. Of those, only
5,000 to 10,000 operations nationwide may be above the current 1000-unit cutoff for
NPDES permit issuance. ^° For the rest, no particular federal manure management
requirements apply imder the Clean Water Act. For an example of the severity of
the manure pollution problem, a Chesapeake Executive Council (the governing body
for the Chesapeake Bay cleanup) report that found that "Control of 85 percent of
Pennsylvania's animal waste alone would accomplish a 40 percent nutrient reduc-
tion for the state." '^ The Chesapeake Bay Foundation concluded that Pennsylvania
should toughen its manure management program, including the "targeting of en-
forcement efforts at those operations responsible for disproportionately high nutri-
ent loads as well as committing more resources to the program in general." ^^
641
Mining/Resource Extraction
Of the 171,008 impaired river miles assessed by the States for the 1988-1990 305(b)
reports, 14 percent, or almost 25,000 miles were polluted by mining runoff (designat-
ed "Resource Extraction" by EPA.) 3" As reported by GAO, a 1976 study by an EPA
contractor found that "80 percent of the nonpoint source pollution from inactive
and abandoned ore and mineral mining areas was occurring in five states — Califor-
nia, Colorado, Idaho, Missouri, and Montana. . . . The principal pollutants from
these mines and mine waste piles were acid mine drainage, heavy metals, and sedi-
mentation." As with all poison runoff sources, assessed sites are only a small por-
tion of the total; in Colorado, for exemiple, the state had studied the environmental
impact from only about one-sixth (8,000 out of an estimated 50,000) of the State's
noncoal abandoned or inactive mines. ^^
Urban Development
Over 9800 impaired river miles, or 5.7% of total impaired miles, were polluted by
construction runoff in the 1988-90 reporting cycle, and over 18,000 impaired river
miles, or 10.6% of total impaired miles, were polluted by storm sewers from urban
sites in the same cycle. (Urban watershed degradation and restoration are discussed
at length below.) ^^
Logging
A total of 9% of impaired river miles, or 15,459 miles, were reported by the States
as polluted by silvicultural activities in the 1988-1990 reporting cycle. These figures
are probably gross underestimates, however, since some key logging States such as
Maine do not monitor for logging-related pargmieters such as siltation levels, ^e As
EPA points out in its final 319 report, "The absence of information from 12 states
significantly distorts the figures; Alaska and Oregon, in particular, have consider-
able forestry activity and their inclusion would have affected the total." ^'^
Fisheries biologists in the Northwest have discovered that logging tends to destroy
fish habitat more profoundly than previously believed. Siltation from logging oper-
ations has long been known to clog the gravel beds that are the spawning grounds
for threatened salmon species. Only since the early 1980s, however, have biologists
discovered that salmon survival requires more than silt-free gravel beds for spawn-
ing. It also requires extensive drainage way protection, since the young-of-the-year
are reared in the tiny, capillary-level first-order tributaries, abandoned meander
ponds and seep-fed creeks. According to naturalist Robert Steelquist:
"There they grow rapidly on aquatic insects and other organisms. This burst of
growth gives these cohos a distinct advantage for survival at sea when they
eventually leave the freshwater system. . . . These pond and tributary habitats,
however, had never been recognized for their contribution to coho productivity.
Though measures were in place to protect main-stem habitats from destruction,
the beaver ponds and small channels were particularly vulnerable to logging,
road building, and culverts, often filling with slash and debris." ^^
The road cuts, skid trails, and clear cuts that timber companies bring to forest
lands do extensive damage to streams, rivers, and lakes around the country. In
Maine, for example, a study done in the late 1970s by the Maine Forest Service
found the following: 52% of harvesting sites had erosion or sedimentation problems;
a substantial number of sites near State designated protection zones violated logging
road runoff" and stream crossing requirements; and siltation in waterbodies from
logging operations located from 75 to 250 feet from the waterbody. (Despite this evi-
dence of widespread harm to water quality, water-sensitive practices for logging
sites are still voluntary for the vast majority of the Maine Woods.)
III. What does the CWA say about these problems, and how good a job have EPA/
States done in carrying out the will of Congress?
A. Runoff Mandates Dating Back to 1972 Were Abandoned or Implemented Poorly.
The Clean Water Act has addressed runoff pollution explicitly since the Act's in-
ception in 1972. As NRDC points out in the book Poison Runoff, runoff control man-
dates in the pre-1987 Act could have been used more effectively. In fact, since 1972
the CWA has required that EPA and the states devise comprehensive programs to
control water pollution from both point and nonpoint sources. At least five pre-1987
sections of the Act— 102(a); 201(c); 208; 303; and 305(b) relate to, or explicitly de-
scribe, poison runoff assessment, control and reduction. ^^ Below we describe briefly
these requirements of the original Clean Water Act, and the degree to which they
were implemented around the country.
642
Sections 102(a), 201 and 208 provided broad authority to EPA to set up holistic
Dollution prevention programs to protect water quality (long before "pollution pre-
vention" became a popular term). Section 201(c), addressing areawide waste treat-
ment management, was designed to ensure that State and local managers of the
construction grants program would not have "point source tunnel vision. Congress
wanted comprehensive water pollution benefits, through the control or treatment of
all pollution sources, not just point sources of raw sewage and industrial waste.
Section 208 can be seen as further explication of the "comprehensive program
goal" set forth in section 201. Section 208 is perhaps the best-known of the pre-1987
Boison runoff requirements of the Act, partly because so many citizens participated
m the creation of 208 plans. Section 208(bX2)(F) requires areawide waste treatment
management plans to include:
"a process to (i) identify, if appropriate, agriculturally and sUviculturally relat-
ed nonpoint sources of poUution, including return flows from irrigated agncul-
ture and their cumulative effects, runoff from manure disposal areas, and from
land used for livestock and crop production, and (ii) set forth procedures and
methods (including land use reqviirements) to control to the extent feasible such
SOllT'C6S.
A series of Congressional hearings in 1979 highlighted the following problems as
having hindered the success of the 208 program:
• too little time in which to create the plans;
• discontinuity and lack of federal funding;
• inadequate water quality data; and
• poor management by EPA. *°
These same hearings emphasized several obstacles preventing managers from im-
plementing practices to stem the flow of nmoff:
• inadequate data on the effectiveness of control measures;
• institutional conflicts;
• need for public education on the benefits of nonpomt source control;
• [inadequate] funding, and , ^ • j 4.- 4i
• debates over regulatory versus voluntary approaches to induce cooperation.*^
A total of 176 Section 208 plans were created, plus another 49 StateJevel
areawide plans. These 225 comprehensive water quality plans represented a definite
step forward in the national knowledge base on diffuse, land-based pollution
sources, and on watershed management in general. Another strength of the^OS
process was that it had very high levels of public participation particularly from
citizen leaders from the League of Women Voters, and from local Resource Conser-
vation Districts. ^^ , , , j x, • n i. *
Sadly during the 1980s, most 208 plans were shelved, and their excellent concepts
have fallen by the wayside. Reasons for the faUure of the 208 process, m addition to
the overall lack of implementation mandates and other admmistrative problems
listed above include lack of funding; EPA timidity in issuing strmgent guidelmes,
and in linking 208 implementation with mandates to achieve water quality stand-
ards; 4 3 and the turf battles that flare up when watershed boundaries cut across po-
litical boundaries. . u e ^4-u^^ f^^io
Earlier, we described sluggish progress m employmg a number of other tools,
basic to the CWA, that have potential power to stem the flow of runoff These m-
clude water quality standards, the 303(d) TMDL (Total Maxunum DaUy Loads and
Wasteload Allocation) approach, 305(b) assessments, and other basic CWA tools.
Water quality standards and their implementing mechanisms, mcludmg effective
state anti degradation programs, are especially important to the success of runoff
reduction programs, and are crucial to nmoff programs for two basic reasons:
• All programs to control poison runoff must be designed to achieve compliance
with water quality standards; ** , , , ^ ,, • • i i i *u
• At least before 1987, water quality standards formed the prmcipal legal author-
ity for controlling pollution generated by various land use activities.
Volunteers Needed to Help States Fill the Runoff Monitoring Gaps
Water quality standards must work hand-in-hand with well-targeted monitoring
and assessment programs in order to be effective for any pollution control program,
including runoff control. Section 305(bXl)(E) of Clean Water Act requires that the
biennial state water quality assessments include:
a description of the nature and extent of nonpoint sources of pollutants,
and recommendations as to the programs which must be undertaken to control
643
each category of such sources, including an estimate of the costs of implement-
ing such programs.
Nonetheless, an EPA report on the main elements of State water pollution source
monitoring programs suggests that, at least as of 1987, they were characterized by
point-source "tunnel vision:" 1) self-monitoring of effluent by industrial and munici-
pal dischargers; 2) compliance sampling inspections to cross-check discharger self-
monitoring; and 3) effluent characterization studies for industrial dischargers. One
of the five major "challenges" set forth for EPA in this study is to "Identify and
Characterize Toxic, Conventional, and Anthropogenic Pollutants from Nonpoint
Sources" (emphasis added). This report also recommended an in-depth study of the
feasibility of initiating a "Citizen's Watch Program."
Both of these recommendations, if they were to be followed by EPA, would have
major benefits for the ability of the States to characterize the threats and impedr-
ments due to land-based sources of pollution. *^ The good news is that apparently
many States are now beginning to shift their monitoring efforts into land-based
sources of water pollution, at least according to one 1992 report described in the
next section.
The early 1980s represented perhaps one of the lowest periods in the history of
poison runoff policy. Funding for the 208 program was gutted in 1981. *® Then, in
1983, EPA contended that the Agency had no direct role in controlling poison
runoff. In addition, the Reagan Administration actively opposed the establishment
of a new, comprehensive runoff control policy. *' Obviously dissatisfied with the
lack of progress made by states in stemming the flow of runoff, Congress created
new requirements in the 1987 Clean Water Act. For the first time, poison runoff
was addressed head-on in a new section of the Act.
Section 319: Congress Put Increased Emphasis on Runoff Programs in 1987
In 1987, Congress created Section 319 of the Clean Water Act, designed to get
States to identify waters damaged or threatened W runoff sources, and to develop
comprehensive programs to heal those waters by reducing and eliminating pollution
from those land-based sources. This program was not completely new; rather, it
gathered up provisions for runoff controls dispersed throughout the Act and EPA
guidance, and corral led them into one program.
This section of the Act strengthened the substantive standard for runoff control
program effectiveness by requiring, in 319(a)(1)(C), nonpoint source reduction, "to
the maximum extent practicable." By contrast, the earlier 208 programs were held
to a much weaker standard of runoff reduction "to the extent feasible." As NRDC
observed in Poison Runoff, the new steindard of "maximum extent practicable" "will
demand a higher level of control and a more stringent standard of proof before deg-
radation or downgrading can be permitted." *^ Unfortunately, the promise of sec-
tion 319 has not been fulfilled. True, there have been some notable success stories,
described below. On a national basis, however, significEuit progress has not been
shown under the new program.
B. Watershed Restoration Success Stories
Although Congress intended for the states to structure their poison runoff control
programs as much as possible on a watershed bsisis (319(bX4)), memy states did not
do so, choosing instead to write management plans based upon generic management
practices intended to apply to all lands within each major land use category in the
State. Some states, like Wisconsin, are exceptional in that runoff control is part of a
comprehensive, watershed-based restoration and protection program that targets
specific watersheds throughout the State. Other States are notable for individual
watershed programs that stand as shining examples for others to follow. Three such
programs are described briefly below.
Owl Run Watershed, in Fauquier County, Virginia, has a major nutrient and
animal waste problem that contributes to di^olved oxygen and other water
quality problems in the Chesapeake Bay. In response, the Virginia Division of
Soil and Water Conservation, in cooperation with conservationists at the John
Marshall Soil and Water Conservation District, are helping farmers to reduce
manure pollution through a variety of techniques. Management practices in the
2800-acre watershed include soil testing and the creation of nutrient budgets,
no-till cropping and filter strips, and the construction of manure storage tanks.
Cost-sharing can cover up to 100 percent of the farmer's installation costs. The
purpose of the project is to show that these kinds of practices are effective on a
whole-watershed basis in reducing pollution. The water quality goals around
which the project is designed include both in-stream, and downstream (Chesa-
peake Bay) restoration. *®
644
Big Darby Creek Watershed, Ohio. This multi-party project in central Ohio, co-
ordinated by the Natiire Conservancy, proves that farmers and environmental-
ists can be friends. A major goal of the project is to enroll 75% to 100% of the
watershed's farmers in a conservation tillage program; roughly 15% of the wa-
tershed's farmers now use conservation tillage. Cooperation and rapport have
been enhanced by the knowledge that Big Darby is a unique ecosystem with
many endangered or threatened species of mussels and fish, and by the now-
famous canoe trips in which each canoe holds a farmer and an environmental-
ist who survey the riparian zones together as they glide down the river. Many
farmers in the 370,000 acre watershed are also installing forested buffer strips
with the help of state foresters. The project's 1992 budget totalled more than
$750 000 with monies obtained from the Soil Conservation Service, TNC, Envi-
ronmental Protection Agency, and other agencies and groups. Big Darby is not
a purely agricultural watershed. A remaining "wild card for the fate of the
headwaters is whether suburban developers, seeking to supply wealthy resi-
dents of Columbus with low-density "country" housing, will be convmced to
adopt water-sensitive practices of their own. ^o ^ , . ,
Bis Spring Basin, Iowa. The Iowa Department of Natural Resources, Geological
Survey Bureau, has helped to make the Big Spring Basin famous for nitrogen
input reductions that have saved farmers money while they reduce water pollu-
tion Through a state cost-sharing program and extensive technical outreach to
the roughly 200 Basin farmers, a reduction of over 1.2 million pounds of applied
nitrogen was achieved between 1981 and 1989. This input reduction achieved a
savings of about $200,000 per year, or an average of $1,000 per year per fann.
With crop rotations that have farmers planting corn following alfalfa, maxi-
mum yields are often obtained with no addition of nitrogen to the soil. ^^
These "watershed success stories" are cause for hope that whole-watershed resto-
ration works, that cooperation between different stakeholders can be gained, and
that farmers are willing to adopt water-sensitive practices once they are convinced
of three things: 1) that such changes are needed by an ailing or vulnerable ecosys-
tem- 2) that such changes will not bankrupt their farm (and may even save them
money); and 3) that the risk and burden of adopting new practices is shared equally
among all other farmers eind landowners in the watershed.
The three examples given— Owl Run, Darby Creek and Big Spnngs Basm— are
voluntary programs. Their premise is that, given ample time, money, and technical
outreach all farmers will "volunteer" to "do the right thing. Unfortunately, these
programs may not be support in all impaired or threatened watersheds m each state,
sin^e ample grant monies to replicate their very favorable cost-share ratios statewide
simply do not exit. The need for urgent action in the case of impaired watersheds,
and the need for accountability, demand more than voluntary programs.
C. Recent Federal Oversight Shows EPA 's Implementation of the 319 Program has
Lacked Vision and Leadership
The EPA's Office of Policy, Planning and Evaluation (OPPE) reviewed the 319
program in the summer of 1992 at the request of the Office of Water. The study
looked at 10 sample state programs, as weU as the management policies at the EPA
headquarters and regions. The report reached 12 findings about what s right^-and
what's wrong — with the 319 program:
1) Because of the diverse nature of NPS [nonpoint source] pollution, there is no
single definition of a NPS program. ,, , ^ i
2) Authority for Implementing State Management Programs is generally decentral-
izG(l
3) The extent to which States are institutionalizing their NPS programs varies
4) The majority of the ten States do not have NPS programs oriented toward im-
proving water quality on a watershed-specific basis. (Emphasis added.)
5) State Management Programs generally cannot be used to gauge the States
progress in implementing NPS controls.
6) Flexible guidance has enabled States to use 319 resources to address numerous
NPS priorities. ^ ,.„ ^ ■ •>. 4. ••
7) States concentrate their use of 319 resources to focus on different priority actm-
8) The majority of States are making some effort to monitor the effectiveness of
BMP implementation, though water quality impacts due to implementation of
319 are as yet unknown.
645
9) Section 319 has facilitated increased communication and coordination among
agencies and organizations to develop and implement the State Management
Programs.
10) Although most EPA Regional EPA Offices use several staff to address NPS pol-
lution, few staff are dedicated specifically to assisting States to implement man-
agement programs or 319 grants.
11) EPA Region^ office implementation of the 319 grant program varies consider-
ably across EPA regions.
12) EPA provided States the opportunity to develop diverse NPS programs, but has
not yet defined a vision or role for a national NPS program. ^^ (Emphasis
added.)
OPPE then made the following two recommendations: a) the Office of Water
should emphasize more clearly that a watershed protection approach should be the
basis of State NPS programs; and b) Office of Water and Regional Offices should
clearly define EPA's goals, strategy and role for the national NPS program. ^^
One of OPPE's most important findings was that "The majority of the ten States
do not have NPS programs oriented toward improving water quality on a water-
shed-specific basis." Furthermore, "the majority of [State Management Programs]
do not identify strategic plans or milestones for achieving water quality goals for
specific waters identified in their Assessment Reports." ^'* Thus, the requirement of
section 319(b)(4), that States shall, to the maximum extent practicable, develop and
implement management programs on a watershed-by-watershed basis simply has
not been enforced by EPA. Although of course some state-to-state variation is ex-
pected and even desirable in the 319 progreuns, the report clearly suggests the need
for more program focus at both the federal and the State levels.
Lack of Adequate Funding
The General Accounting Office (GAO) also reviewed section 319 program imple-
mentation in 1990. GAO found that:
"officials in five of the states we visited identified the lack of resources as a key
barrier to controlling nonpoint source pollution. Although some states have or
will allocate million of dollars to deal with the problem they maintain that it
would require billions to correct." ^^
The total 319 appropriation for the past four fiscal years — roughly $200 million —
represents a drop in the bucket, compared both to present program needs, and to
the total $50 billion investment the nation made in sewage treatment, (significant
given that poison runoff pollution dwarfs the sewage treatment challenge of the
early 1970s).
D. Summary of Findings on Existing Runoff Control Programs, and Prescriptions
for Changes Needed
As is true for many outstanding water quality problems, there are major gaps in
the development gmd use of the Clean Water Act's basic tools for reducing poison
runoff. Their absence is perhaps most acute within the context of fledgling state
poison runoff control programs, partly because the tool of NPDES discharge permits
is usually not available to give these programs the "backbone and bite" of an auto-
matic enforceable mechanism. Thus, the relative weakness and under development
of the tools that are available to runoff managers — ^water quality standards, water
quality assessments targeted to land-bgised sources, TMDLs, and whole-watershed
plans — has hindered progress in stemming the flow of poison runoff.
E. On the Need for New Water Quality Criteria Relevant to Runoff Impacts
Although EPA took a quantum leap forward with the publication of its document
"Biological Criteria: National Program Guidance for Surface Waters" (April 1990),
few states have acted to use biocriteria in important ways in assessment and/or per-
mitting. No water quality standards at the State or federal level have been estab-
lished to protect physical or hydrological features of aquatic habitat, such as the de-
struction of first-order streams noted above in the logging discussion. To protect
whole aquatic ecosystems from the abuses of shopping mall and subdivision develop-
ment, logging, mining, and other land operations, EPA needs to publish, and the
States need to implement, water quality criteria for the following factors: ^®
• biocriteria, such as EPA's recommended use of the Index of Biotic Integrity,
first developed by Dr. James Karr and colleagues;
• habitat protection criteria for example, for pool-and-riffle complexes;
• drainage density metrics including minimal preservation and restoration of
first-order streams;
646
• complete hydrologic specifications including year-round flow minima and mini-
mum streamflow percentages of groundwater,
• seasonal and annual sediment loadings;
• nutrients (for eutrophication, not acute toxicity); and
• current-use pesticides.
In its review of EPA's management of the overall poison runoff program, the
GAO listed the lack of appropriate standards as a key barrier to progress:
"Criteria documents" and other technical information are not available to
states to enable them to set water quality standards for nonpoint source pollu-
tion. . . . State and federal officials told us that existing state water quality
standards need to be supplemented because they were developed primarily to
address point source problems and consequently have limited applicability in
controlling nonpoint source pollution. ^'
Summary and Conclusions on the States' Poison Runoff Management Programs
under the 1987 Clean Water Act
In summary, there are many reasons why the 319 program, as implemented over
the past five years, has failed to heal waters and watersheds damaged by land uses
and abuses:
1) lack of watershed basis for the programs;
2) lack of adequate funding, especially for pn^ram staff at all levels;
3) inadequate enforcement of the mandate for States to require water-sensitive prac-
tices to be adopted wherever monitoring indicates a problem, or where pristine
conditions indicate the need for protection;
4) major monitoring gaps; . . . , , ,.- i. ^,. _* • ee
5) inconsistent goals of other powerful federal programs, which thwart poison runott
control efforts; ^ ., ,
6) continued reliance by the States on ineffective voluntary compliance for the adop-
tion by landowners of water-sensitive practices;
7) reluctance to create relevant water quality standards to make the program mean-
ingful; and , . . J J ,
8) diffuse responsibility for the pn^ram; ofl«n administered and overseen by agen-
cies that lack a primary water quality focus.
As a result of these major obstacles, our national poison runoff policy is based
upon a voluntary, piecemeal approach riddled with inconsistencies, ineffectiveness,
and massive gaps in funding, monitoring and staffing. As a result, we now have 50
individual runoff assessment and management programs that are all over the map
in terms of comprehensiveness, stringency, degree of public participation, account-
ability, funding commitments, and in-stream effectiveness. And most programs fall
on the voluntary, all-carrots-and-no«ticks side of the spectrum. Major strengthening
changes are required in order to transform 319 into a publicly accountable and eco-
logically and economically effective prc^ram; unless these changes are made, it is
likely to continue to be ineffective.
F. The New Coastal Runoff Program Bears Promise, But Its Geographical Scope is
Limited
As part of the 1990 Coastal Zone Act Reauthorization Amendments ("CZARA"),
Congress welded two existing pn^rams— the States' Coastal Zone and Clean Water
Act Section 319 programs— into a single, powerful approach to preventing and re-
ducing runoff pollution in coastal— watersheds (including the Great Lakes). The cen-
terpiece of CZARA is the implementation of enforceable management measures to
reduce polluted runoff by specific land uses. Management measures are defined in
Section 6217(g)(5) of CZARA as:
"economically achievable measures for the control of the addition of pollutants
from existing and new categories and classes of nonpoint sources of pollution,
which reflect the greatest d^ree of pollutant reduction achievable through the
application of the best available nonpoint pollution control practices, technol-
ogies, processes, citing criteria, operating methods, or other alternatives."
The phrase "greatest d^ree of pollutant reduction achievable" is more stringent
than the "maximum extent practicable" standard for BMPs under Section 319.
Other important provisions of CZARA include:
• the extension of coastal zone boundaries farther inland, to control the land and
water uses that have a significant impact on coastal waters;
647
• implementation of additional management measures, where necessary to meet
or protect water quality standards and to protect the waters of criticsd coastal
areas;
• use of enforceable policies and mechanisms to implement the management
measures; and
• program coordination to ensure consistency of this new coastal zone program
with Clean Water Act programs under Sections 208, 303, 319, and 320.
For those who had grown weary of the haphazard nature of the BMP lists in the
State runoff control programs under Section 319, the CZARA program looked like it
might provide fairly seamless coverage of water-sensitive practices across wide
swaths of coastal zones. The second major advantage of CZAJIA over the 319 pro-
gram is that it requires EPA to provide the States with definite guidelines for those
water-sensitive practices. Under CZARA, States will have to implement manage-
ment measures in their coastal zones that are consistent with EPA's minimum man-
agement measures, thus removing some of the randomness (and weakness) that
characterizes many 319 programs. EPA's final CZARA management guidance was
issued in January, 1993. ^^
Environmentalists and some progressive State administrators urged EPA and
NOAA (who jointly administer the program) to base the maneigement measures on
objective, measurable criteria to ensure their effectiveness and accountability from
state to state. Unfortunately, EPA and NOAA did not always heed this advice. For
example, the draft guidance for controlling sediment pollution from farms originally
would have required farmers to reduce erosion to the specified levels (the "T" soil
loss tolerance standard). NRDC and several other organizations supported this
standard. Although less than perfect, it would afford an objective performance
standard around which each coastal zone farmer could structure site-tailored ero-
sion controls. In the final guidance, however, EPA caved to pressure from commod-
ities groups and other agricultural special interests, and recast the agricultural ero-
sion control meeisure as the "Alternative Conservation Systems" described in the
Field Office Technical Guides of the SCS. ACSs are generally sound practices, but
provide little objective guidance to judge whether a farm has adopted sufficient ero-
sion control practices.
Despite this weakening of the performance requirements for some of the manage-
ment measures, however, the CZARA program remgdns & model for strong State
runoff reduction programs. State implementation of required management measures
for each land use category would improve 319 programs greatly if it were adopted
for all watersheds, not just those in the coastal zone.
The coastal zone runoff program also contains some management measures, like
vegetated riparian buffers, designed to protect and restore urban waters. Urban wa-
tersheds are severely degraded by a multitude of runoff sources. Federal and State
money and leadership are needed to create community programs that restore urban
streams to full vitality; we describe these problems and solutions in part V below.
IV. Brief Analysis of Title III of The Water Pollution Prevention and Control Act
of 1993: "Watershed Planning and Nonpoint Pollution Control. "
Major Points Concerning Title 3 of S. 1114
Title ni of S. 1114 heis several important elements that we support in concept.
These include: 1) whole-watershed planning as the preferred approach for restoring
water quality, particularly for those waters impaired wholly or substantially by
land-based sources; 2) required management measures for new sources; 3) further
coordination between water-quality-related Farm Bill programs, and Clesin Water
Act programs; 4)encouragement of volunteer citizen water quality monitoring; 5)sig-
nificantly increased funding levels for nonpoint source programs, and 6) provisions
for runoff controls for activities on federal lands.
There are other, smaller elements that we also support, as well as aspects of Title
ni that we cannot support because we believe they unnecessarily weaken watershed
restoration and runoff prevention and reduction programs. We will provide to the
Committee more detailed comments on Title III in the next few weeks.
Below we discuss each major section of Title III, with the bulk of our comments
aimed at Section 304, Nonpoint Pollution (Dontrol.
Section 301. Water Quality Monitoring
This section replaces the existing section 305(b), which currently requires report-
ing every 2 years, with a new requirement for reporting every 5 years. We oppose
this change, unless it is accompanied by tougher requirements for more comprehen-
648
sive, accurate, and consistent reports than are now required of the States. In par-
ticular, we suggest the following changes to the bill:
(a) States should be required to assess all watersheds in the state every 5
years. The bill says "all" — p. 78, line 7 — ^but so does existing law. This should be
clarified to include actual monitoring and assessment of every watershed.
(b) For each watershed. States should be required to monitor for all known or
suspected pollutants, in the water, sediment and biota, and to assess physical,
biological and other sources of impairment.
(c) In determining use attainment. States should be required to use uniform
criteria established by EPA, so that States can be compared fairly. These crite-
ria should prohibit identification of waters as "fully supporting" uses when
water quality criteria are violated, or other evidence of impairment exists.
(d) State review and use of volunteer water quality monitoring data should be
required as it is in Title IV of H.R. 2543 (the "Oberstar Bill"), not merely en-
couraged as it is in subsection (a) of Section 301 of S. 1114.
Further comments regarding citizen volunteer water quality monitors: although
we support the inclusion of representatives of volunteer monitoring groups in the
Water Quality Monitoring Council, the prohibition on travel expense reimburse-
ment will severely curtail the ability of such representatives to participate in the
work of the Council. Most volunteer groups, and the citizens who participate in
them, have little or no travel funds to support long-distance travel for the work of
official advisory councils and committees. We suggest that this stricture be removed
altogether, or at least changed to allow for some reimbursement to be provided to
those who can demonstrate economic need.
Section 302. Comprehensive Watershed Management
We support the idea of whole-watershed planning in concept, but we see it as a
way to identify and address sources of impairment. Whole-watershed planning
mechanisms must not be allowed to become an opportunity for nonproductive "grip-
ing," "finger-pointing," or "buck-passing" between point and land-based sources, or
among members of the same polluter category. Neither must we allow watershed
planning to degenerate into a forum for downgrading water quality standards and
broader restoration and protection goals.
To avoid these problems, amendments to the Clean Water Act for whole-water-
shed planning need to include the following five explicit requirements: 1) retention
of basic water quality standards-setting authority solely in the hands of the State
water quality agency; 2) adoption and inclusion of all applicable water quality
standards and criteria for all waters in the watershed within the restoration and
protection plan; 3) establishment of habitat restoration and protection, biodiversity,
wetlsmds, floodplains, and other broader aquatic ecosystem goals and objectives as
part of the watershed plan; 4) adoption of antidegradation goals, objectives, and
standards including Tier II and Tier III antidegradation provisions (the current S.
1114 only requires Tier I antidegradation provisions); 5) establishment of enforcea-
ble, minimum water quality protection and restoration requirements for all sources
(esp. including land-based sources) prior to the establishment of "trading" schemes.
Regarding the States' designation of watersheds: the voluntary nature of this pro-
gram could result in either "triage," where only a few of the most degraded water-
sheds are addressed, or "showcasing," where the pristine gems are protected to the
neglect of virtually every other watershed. We have seen examples of both of these
cramped State approaches to watershed designation. The bill's several financial and
"point-source-based" incentives, aimed at encouraging the whole-watershed ap-
proach, will probably spur more states to designate more watersheds, but are not a
substitute for a required protocol that will ensure objectivity and truly comprehen-
sive watershed targeting on the part of the States.
We believe that the best approach to watershed targeting and State designation is
to require States to follow an objective protocol for designation that reflects the
truly comprehensive restoration and protection goals of the original Clean Water
Act. For example, we support the approach of H.R. 2543, the Nonpoint Source
Water Pollution Prevention Act of 1993, introduced this month by Congressman
Oberstar. H.R. 2543 requires each State to list as a Target Watershed each and
every watershed of a water already on a State 305(b), 319(a), or 304(1) list.
We suggest that S. 1114 be amended to reflect the same or similar, comprehensive
targeting requirement, or at least a targeting protocol that will capture all (or most)
of the watersheds that deserve such attention.
Regarding subsection (3) of this section: we oppose delegation to the States of any
aspect of watershed planning for which EPA currently has review/oversight/ap-
proval responsibilities. This includes water quality standards (use designation; crite-
649
ria; and antidegradation programs), wasteload allocations, NPDES program ele-
ments (including 402(c) permit veto authority, etc.
Traditionally! NRDC has opposed the use of ten-year permits. Section 302, subsec-
tion (4) calls for their use. At a minimum, permits must be allowed to be reopened
for changes in effluent guidelines, and any other new requirements that pertain to
the point sources in question.
Section 303. Impaired Waters Identification
In general, we believe this provision creates an open-ended process that will lead
to a repeat of the mistakes made in other open-ended listing mechanisms, notably
section 304(1). As noted above, the Clean Water Act needs a mechanism that will
accomplish the restoration and protection, over time, of all watersheds. This provi-
sion, in contrast, leaves the listing completely in State hands. Based on our experi-
ence with 304(1), EPA and citizen petition authority is a poor substitute for compre-
hensive State identification. Since the success of the runoff program in S. 1114 turns
on how many waters/watersheds get identified, this historical inability of the States
to be objective and comprehensive in their identifications is of critical importance.
Section 304. Nonpoint Pollution Control
In general, for those waters covered by the program, this section would move us
in the right direction; it does contain some key flaws that need to be fixed.
We address below the following key elements of Section 304; more-detailed com-
ments on this section will be provided to the Committee in the near future:
(a) Whole-watershed planning and flexible site-level plans;
(b) required management measures;
(c) new source requirements;
(d) credit to farmers enrolled in Conservation Compliance.
We briefly address each of these main elements in turn below.
Whole-watershed planning. As we discussed above in our comments in section 302,
the open-ended watershed designation process for the States is flawed because the
history of section 304(1) and other siniilar voluntary listing exercises is that the
States do not tend to foUow objective, comprehensive protocols, and thus the Lists
are often absurdly small and inadequate. This flaw in section 302 casts serious
doubt on the success of the watershed planning component of section 304, since
many States could well opt to designate a handful of showcase watersheds to satisfy
this provision, giving a false sense of security that the watersheds that need protec-
tion emd restoration on a whole-watershed basis, will get such plans and protections.
Subsection (a) of Section 304 contains an enforcement provision for the required
management measures and, by reference, the "optional" site-level plans. This provi-
sion does not "kick-in" imtil seven years have transpired. This is far too long for the
States to wait before implementing the necessary legal authority to ensure that on-
the-ground actions are taken. Such authority should begin as soon as any required
management measure, or site-level plan, is first implemented.
Site-level plans: We support the inclusion in S. 1114 of the site-level planning
option, although we prefer the approach taken in H.R. 2543, where flexible site-level
plans within whole watershed programs are not optional but required. Nonetheless,
the site-level planning option in S. 1114, if strengthened, could be workable and ef-
fective. In particular, we want to see requirements for the time-frame of the site-
level plans changed so that the plans must be maintained into perpetuity; with pro-
visions for plan revisions at certain reasonable intervals. In addition, the require-
ments for the site-level plans must specify that they are to be designed to reflect,
and collectively to enable, the attainment and maintenance of the watershed plan's
goals and objectives.
Required management measures: Since the "specter" of imposition of management
measures is the "stick" that is intended to drive effective site-level water quality
plans and state participation in voluntary watershed planning, the management
measures must be strong, and include performance standards. Therefore, we are
concerned that the management measures will not be a cursory revision of the so-
called "Coastal Zone" (Coastal Zone Act Reauthorization Amendments of 1990 —
CZARA) management measures. Since the CZARA guidance is the current EPA
compendium of runoff" control measures, and the bill gives EPA only 90 days to
issue its guidance, this prospect may be spurred on by S. 1114. Our single greatest
problem with the CZARA measures is that they tend to lack performance standards,
such as "T" (the soil loss tolerance factor) as the performance standard for farm
erosion control.
650
With sound, objective performance standards, the choice and application of par-
ticular on-the-ground practices remains flexible and optional for the land operator.
Without such performance standards, the management measure is either extremely
open-ended and vague, as is the case for most measures in the EPA CZARA guid-
ance, or results in the specification of actual practices that leave farmers and ether
land operators with little flexibility. Either outcome is undesirable, and S. 1114
needs to be amended to specify that the required management measures shall con-
tain objective performance standards along with optional, flexible practices that di-
rectly conform to the water quality problems identified in the watershed.
New-source requirements: The definition of "New Source" in Section 304 should be
based on the timing of the activity, not on a limited list of types of activities, as is
now the case. On page 111, the "program implementation criteria" that pertains to
new sources is unacceptably weak. The provision allows for "financial incentives" to
serve as "enforceable mechanisms." This could be interpreted to mean, for instance,
that developers don't have to use runoff-prevention-based site design, unless the
State gives them cost-share money to do so. This would be an unacceptable outcome
of this provision.
New Source Controls
Pollution Prevention in New Urban Developments
The concept of "pollution prevention," a congressional mandate under the Pollu-
tion Prevention Act of 1990, ideally would work hand-in-hand with the Clean Water
Act programs relating to new urban developments. Preventing stormwater runoff
from new urban developments is addressed implicitly or explicitly in both the "New
Sources" provision of Title III of S. 1114, as well as the stormwater provision of Title
IV. We propose that the following runoff prevention and reduction hierarchy be ap-
plied to requirements for new developments (as well as existing developments where
appropriate):
1) for new development: runoff prevention through mapping and preservation of
natural drainage ways, preservation of mature forest zones along waterways,
and caps on the amount impervious surface; ^^
2) for redevelopment and retrofitting of existing developed areas: runoff reduction
through revegetation, impervious surface reclamation (e.g. retrofitting parking
lots with grass swales designed to capture and filter the lot's runoff, thus pre-
venting or severely reducing the need to discharge to a nearby stream);
3) chemical source controls and toxics use reduction (e.g. policies that require
lawn service companies to test lawns for nutrient content and pest problems
before applying chemicals, in order to reduce lawn chemical use); and
4) conventional "end-of-pipe" stormwater treatment devices, such as extended de-
tention ponds, infiltration trenches, and catch basins.
Prevention-based stormwater controls are known to be more cost-effective than
the usual dominant reliance on end-of-pipe retention ponds that has — characterized
stormwater programs in such regions as suburban Maryland. The new town devel-
opment project called Woodlands, Texas, pioneered "Design With Nature" as a
stormwater management concept in the early 1970s and showed that the natural
drainage/vegetative retention option saved over $14 million for the development, a
four-fold savings over the estimated costs of conventional stormwater manage-
ment. ^° The lesson here is that cost-saving and water-protective measures have
been known to the development community for at least two decades; the problem is
that lax and fragmented local government planning and Zoning procedures have
thwarted the widespread use of these design principles. The new coastal nonpoint
pollution control program contains a site design management measure that is a step
in the right direction towards "prevention design" for stormwater management.
Without the addition of a requirement that verifiable performance standards be at-
tached to this measure, even if accomplished at the county or other local level, this
measure may remain little more than a well-intentioned, but toothless, concept.
For both new urban development, and existing development, prevention-based
stormwater practices for Clean Water Act "402(p)" programs, as well as for urban
components of revised section 319 and whole-watershed programs, are available that
are cost-effective, affordable, and amenable to financing through use of a variety of
funding sources including stormwater utilities. The challenge to Congress, EPA, aiid
the States is to articulate a stormwater permitting policy that contains cost-effective
minimum mandatory practices known to protect urban waters, and to provide fund-
ing for sufficient technical and programmatic support to municipal managers.
Giving exemption to farmers doing Conservation Compliance plans: This provision
is acceptable only to the extent that the problem in the watershed is sediment poUu-
651
tion, since these plans only address soil erosion (and are triggered only by the pres-
ence of highly erodible land on farms enrolled in the Farm BUI Commodities pro-
gram, not by the location of farms within water quality-limited watersheds). A par-
ticular problem with this exemption is that one of the most common practices used
by farmers enrolled in Conservation Compliance, "no-till" cropping, is known to in-
volve increased use of herbicides which particularly threaten groundwater supplies.
Indeed, the Wall Street Journsil has referred to this phenomenon as "Spare the
Plow. . . . Spread the Chemicals." ®^
In summary, we believe that the provisions of Title III, and of section 304 in par-
ticular, are workable and potentially effective if the strengthening changes outlined
above are made. Below we have summarized our own overall watershed restoration
and runoff control policy.
Summary of Our Whole- Watershed Restoration and Runoff Control Policy
Comprehensive requirements are critical to the effectiveness of both watershed
targeting and landowner responsibility in the target watersheds. All watersheds of
waters on the "sick lists" — 305(b); 319(a); and 304(1) — need to receive some kind of
"care" to restore them to full health. And, in order to accomplish the restoration
goals in each target watershed, all landowners and operators must be required to
tailor water-sensitive practices to their particular site. This latter policy is consist-
ent with the recommendation for farm-level planning in Water Quality 2000, which
states
"Farm-level resource management plans should be mandatory for all farms in
watersheds where surface waterbodies or around water systems are impaired or
where there is a probability that these waterbodies or systems will become im-
paired. Further, in watersheds that are not determined to be threatened or im-
paired, if individual owner/operators are causing significant pollution or are
clearly violating water quality standards and the situation cannot be resolved
expeditiously by voluntary programs, these individuals should edso be required
to develop and implement farm-level resource management plans." ^^ (Empha-
sis added.)
There were sixty organizations that ratified the overall Water Quality 2000 policy
document that included this consensus statement on agriculture. Working through
the Clean Water Network, we seek to apply this same watershed-wide, mandatory
water quality planning policy to all land use categories in the target watersheds —
logging, mining, subdivision development, as well as farming. Far from singling
farmers out for special regulation, we seek to include farmers as full partners,
alongside all other land users, in multi-lateral watershed restoration programs.
The heart of our polluted runoff prevention policy is whole watershed restoration
coupled with required site-level water quality planning in the target watersheds,
backed up by citizen water quality monitoring efforts. Without each of the three
parts of this policy, the success of future watershed restoration efforts will be in
jeopardy.
V. Blighted Urban Waters Mirror Urban Decay — The Failure of Stormwater Pro-
grams and Need for Urban Watershed Restoration.
Title in of S. 1114 is the bUl's "whole-watershed" restoration and protection pro-
vision. Since we believe that urban watersheds deserve special attention within the
Clean Water Act, we have included the following written testimony in =£mticipa-
tion and support of the upcoming hearing on watersheds.
Urban waters are among the most degraded in the country. Urban streams £U"e
concertized and channelized, used as conduits for stormwater runoff, industrial and
municipal effluents, and raw sewage from leaking sewer pipes (often laid lengthwise
in streambeds) or ftom combined sewer overflows. And as if all of this abuse were
not enough, many urban streams are obliterated altogether, "enclosed," (a euphe-
mism for transforming a stream into an underground sewer), or (as in the case of
many groundwater springs and first-order and ephemeral streams) simply destroyed
beneath the treads of earth-moving vehicles preparing the ground for new develop-
ment.
A. The Degradation of Urban Waters and Watersheds.
According to a 1992 EPA study of the environmental impacts of stormwater dis-
charges, urbanization degrades a disproportionate share of our nation's waters:
While urban population areas take up only about 2.5% of the total land surface
of the country, stormwater pollution from these urban areas and associated
urban activities (i.e., storm sewers/urban nmoff, combined sewers, hydromodifi-
652
cation, land disposal, construction, urban growth, etc.) accounts for a propor-
tionately high degree of water quality impairment (i.e., 18% of impaired river
miles, 34% of impaired lake acres, and 62% of impaired estuary square miles
reported under 319) when compared to that from rural activities (i.e., agricul-
ture, silviculture and mining) which take up approximately 53% of the total
land surface. ^^
Urban stormwater pollution thus deserves high-priority attention by citizen activ-
ists, water quality officials and other watershed stewards.
The most comprehensive study of urban runoff quality to date is NURP, the Na-
tionwide Urban Runoff Program. NURP was a joint project between USGS and EPA
between 1979 and 1983, and it looked at stormwater quality in 28 cities across the
country. NURP found certain pollutants to be virtually ubiquitous in urban runoff,
in average concentrations high enough to warrant concern over loadings in down-
stream sinks— -estuaries like Chesapeake Bay, and lakes like Lake Quinsigamond in
Worcester, Massachusetts. Among NURP's key findings:
• copper, lead and zinc were each found in at least 91 percent of the samples;
• other frequently detected contaminants included arsenic, chromium, cadmium,
nickel, and cysuiide;
• significant average concentrations of total suspended solids, phosphorus, nitro-
gen compounds, oxygen-robbing organic matter (BOD), and fecal coliform were
found. «^
Using national average runoff pollutant concentration data derived from the
NURP study, NRDC made coarse estimates of runoff pollutant loadings for heavy
metals, oil and grease, BOD, nitrogen, and phosphorus for seven urban areas around
the country: Baltimore, MD; Washington, D.C.; Harrisburg, PA; Tidewater, VA; Los
Angeles, CA; Atlanta, GA; and Cleveland, OH. Although the results varied from city
to city, these "Poison Runoff Indexes" showed that runoff rivals, and in some cases
surpasses, factories and sewage plants as a source of these pollutants. For instance,
in most of the urban areas modeled by NRDC, zinc loadings from runoff exceeded
the loadings from factories in the State or region. ^^
The NURP authors described the water quality impacts of urban runoff as falling
into three categories:
• short-term receiving water impacts during or following storm events (where pol-
lutant concentration is important);
• longer-term downstream receiving water effects — the buildup of contaminants
in the sediments of "sinks" like river mouths, lakes, and bays (where seasonal
or annual pollutant mciss loads are important). (Although NURP did not exam-
ine in detail this phenomenon, NURP data enable coarse estimates to be made
of runoff annual mass loadings from large urban areas.)
• physical effects of stormflows on the hydrology and geomorphology of urbanized
watersheds^including stream channel scouring (NURP did not examine this
third type of effect, but acknowledged its existence.) ^®
One logical outcome of NURP's acknowledgement of this wide range in receiving
water effects from urban runoff is the creation of comprehensive watershed restora-
tion programs. An example is the program developed for the Anacostia River, which
flows through Washington, D.C. and into the Potomac River after collecting urban
stormwater from dozens of tributaries in suburban Maryland. The Anacostia is well-
known both for its severe degradation, and for the extraordinary vision and commit-
ment of the local governments now working for its restoration. The Six-Point Action
Plan for the Anacostia's restoration is keyed to a list of six problems that could
apply to dozens of urban watersheds nationwide:
1) Poor water quality: The tidal Anacostia estuary has some of the poorest water
quality recorded in the Chesapeake Bay system . . . rapidly filling with sedi-
ment and debris . . . low dissolved oxygen levels . . . sediments contaminated
with toxics ...
2) Ecological degradation: Dozens of miles of stream habitat have been severely
degraded by uncontrolled runoff, and in some cases by engine&ring "improve-
ments." Urbanization has profoundly altered the flow, shape, water quality, and
ecology of these streams, many of which possess only a fraction of their original
biodiversity.
3) Loss of anadromous fish habitat: As many as 25 man-made barriers prevent
the upstream spawning migrations formerly made by menhadens, yellow perch,
herring, and striped bass.
4) Loss of wetlands: Over 98 percent of the once-extensive tidal wetlands and
nearly 75 percent of the watershed's freshwater wetlands have been destroyed.
653
5) Deforestation: Nearly 50 percent of the forest cover in the basin has been lost
due to urbanization. The most severe losses have occurred in the riparian zones,
where trees play a critical role in maintaining stream water quality, preventing
streambank erosion, and providing both aquatic and terrestrial habitat.
6) Lack of public awareness: The 600,000 residents of the basin are generally
unaware that they live in the Anacostia watershed. They do not perceive their
connection to the river and its unique natural features, the desire to take part
in their watershed's restoration and to become stewards is largely unfulfilled. ^^
Despite all of this degradation, urban streams, lakes and bays are still oases of life
for millions of urbanites. Jamaica Bay is one 'example. 'Like many-city waterbodies,
Jamaica Bay is oddly wild, given that it lies within the boundaries of New York
City, is bordered by BrookljTi and JFK Airport, and its waters are affected heavily
by a mixture of urban runoff and sewage effluent. According to some of Jamaica
Bay's stewards,
"... fishing for sport and food has long been a favorite recreational activity in
the park. Weekend fishermen line the railings of bridges and piers while others
venture out in personal boats or charter fishing boats in hopes of a good
catch." ®^
The City of New York Department of Parks and Recreation, and the managers of
the Gateway National Recreation Area, recently surveyed 450 fishermen who fish
from the shores and bridges of Jamaica Bay. ITie survey revealed that 304 of the
fishermen, or two-thirds, eat the fish they catch, despite the fact that it is contami-
nated with low levels of PCBs. ^^ And Jamaica Bay is not unique. People of all ages
can be seen fishing for crayfish in Sligo Creek, an Anacostia tributaiy, in Takoma
Park, Maryland; and for catfish off of bridges over the Charles outside of Boston.
People fish regularly in Lake Erie off of the 55th Street pier in Cleveland, and off of
wharves in South San Francisco Bay. The fact that at least some of these people eat
what they catch, even if it may be contaminated, is not a reason to shut these active
fisheries down. It is a reason to work with a sense of urgency to reduce and elimi-
nate the toxics now flowing into them.
B. On the Need for An Urban Watershed Restoration Program in the Clean Water
Act.
Comprehensive watershed restoration programs are needed for our city waters —
that highlight the importance of urban waters to inner-city dwellers, rely on local
citizen groups and municipalities to initiate and structure long-term restoration
strategies (that may include community-based studies like surveys of urban fishing
patterns, and locally-based skilled jobs like urban forestry), and channel federal dol-
lars to selected urban watershed projects to help fund the restoration work. ''° Such
programs would help to focus the energies of urban activists into the work of "re-
greening the urban landscape," enshrining this ecology goal as a critical part of the
Clean Water Act's goal of "fishable, swimmable", waters for all Americans.
C. On the Need for Jobs Within Urban Watershed Restoration Projects
In restoring our degraded urban watersheds, we will help to build the skill level
and the economic seff-reliance of the inner city work force. New generations of
skUled and semi-skilled workers are needed to restore damaged wetlands and flood-
plains and to design and build riparian buffer strips, runoff detention ponds, and
combined sewer overflow storage tanks, £dl of which can be part of new urban wa-
tershed restoration programs.
It is critical that all urban watershed restoration programs, targeted to waters as
diverse as the Anacostia in Washington, D.C.; the Los Angeles River, or Cleveland's
Lake Erie tributaries, have three essential elements: a) primacy of local citizen
group and local government leaders (with federal and State government in support-
ive roles); b) provision of jobs and career paths for inner city youths and skilled/
semi-skUled workers seeking employment; and c) emphasis on "bioengineering" res-
toration, such as constructed wetlands and tree plantings on stream banks. Without
these three essential elements, there is little guarantee that our investment in
urban watershed revitaUzation will yield long-term returns in the form of "self reli-
ant, green communities."
VI. Conclusion
Federal and State water quality managers have historicsilly missed out on oppor-
timities to stem the flow of poison runoff via implementation of several key provi-
sions of the Clean- Water Act, most of which were available prior to the 1987 amend-
ments. "These key provisions include: development and application of relevant water
654
quality standards; whole-watershed planning and management; and creating fo-
cused, effective State runoff management programs. As a result of the failure to
evolve these and other tools into effective runoff reduction and prevention programs
on a watershed basis, the waters of the United States continue to be degraded by
poison runoff from virtually every category of land use.
New federal and State programs, including the Coastal Zone Nonpoint Pollution
Control Program, and municipal and industrial stormwater permits, provide new
opportunities for States and EPA to eliminate the foot-dragging and unfocused,
piecemeal approach to runoff control that occurred in the past. Whole-watershed
management approaches are needed to tie together urban and rural dwellers in the
goal of restoring their common waterways to full health. Such programs offer the
promise that we can correct the mistakes of the past and' actually stem the flow of
poison runoff. Crucial to the success of these programs is the formidable political
challenge of establishing enforceable requirements for water-sensitive land use prac-
tices and site designs that accrue to all of a watershed's landowners in a fair and
equitable manner. If these elements are incorporated into a strengthened S. 1114,
the bill has a strong chance of encouraging and creating the kind of watershed res-
toration and protection that all 50 States now sorely require.
ENDNOTES
1. U.S. Environmental Protection Agency (EPA), A Report to the Congress: Activities and Pro-
grams Implemented Under Section 319 of the Clean Water Act— Fiscal Year 1988, 7.
2. 1972 Legislative History, 1457.
3. EPA did not require States to provide groundwater data in their 319 assessments, so these
figures aie gross underestimates.
4. Water Quality 2000, September 1990. Phase II: Problem Identification, Workgroup Reports,
2.
5. CWA § 304(1). And: U.S. Environmental Protection Agency (EPA), "Reporting Status and
Quantitative Analysis of 304G) Lists and Individual Ck)ntrol Strategies," August 4, 1989.
6 U S Environmental Protection Agency (EPA) — 1992. Managing Nonpoint Source Pollution:
Final Report to Congress on Section 319 of the Clean Water Act (1989), EPA-506/9-90, 17.
7. Statement by Martha Prothro, Deputy Assistant Administrator for Water, U.S. EPA, in re-
sponse to reporter's question. EPA briefing on the 304G) Toxic Hotspots List, June 13, 1989.
8. U.S. Environmental Protection Agency (EPA), 1992. National Water Quality Inventory: 1990
Report to Congress, 9.
9. U.S. Environmental Protection Agency, 1991. Pesticides and Ground-Water Strategy: A
Survey of Potential Impacts, Office of Pesticide Programs, Biological and Economic Analysis Di-
10 U S. Environmental Protection Agency (EPA). Fish Kills Caused by Pollution, 1977-1987:
Summary of Findings 1977-1985, (I-l— 1-2), H-l.
11 Maas, R.P., et al. Biological and Ag. Eng. Dept., NCSU, 1984. Best Management Practices
for Agricultural Nonpoint Source Control— IV. Pesticides. USDA National WQ Eval. Proj.
(USDA Ck)operative Agreement 12-05-300-472, EPA Interagency Agreement AD-12-F-O-037-0).
Cited in: 1986 Water Quality Implications of Conservation Tillage: A Reference Guide. Conserva-
tion Tillage Information (Center, Ft. Wayne, Indiana.
12. National Oceanic and Atmospheric Administration (NOAA), 1992. Agricultural Pesticides
in Coastal Areas: A National Summary. Anthony S. Pait, Alice E. De Souza, Daniel E.G. Farrow,
eds. NOAA, Review Copy, 4.
13. EPA, 1990 National Water Quality Inventory, 7, 38.
14. Thurmem, Goolsby, Meyer and Kolpin, 1991. "Herbicides in Surface Waters of the Mid-
western United States: The Effect of Spring Flush. In Environmental Science and Technology,
Vol. 25, 1794-1796.
15. Thurmem, et al, "Herbicides in Surface Waters of the Midwestern United States, 1794.
16. Fedkiw, J., 1991. Nitrate Occurrence in U.S. Waters (And Related Questions). A Reference
Summary of Published Sources from an Agricultural Perspective, U.S. Dept. of Agriculture,
USDA Working Group on Water Quality, 7.
17. Fedkiw, Nitrate Occurrence in U.S. Waters, 19, 21.
18. Fedkiw, Nitrate Occurrence in U.S. Waters, 21-22.
19. Fedkiw, Nitrate Occurrence in U.S. Waters, 3.
20. Conservation Technology Information Center (undated). "Benefits of Conservation Tillage,
21. "Farm Bill 1990" Agenda for the Environment and Consumers. Published by Island Press
for a consortium of eleven conservation emd environmented groups, page 16.
22. Contant, Duffy and Holub (March 1993), Tradeoffs Between Water Quality and Profitability
in Iowa Agriculture. University of Iowa, Public Policy Center, 4.
23. Nowak, Pete (April 7, 1993), "Constraints to Proper Manure Management. Presentation
to the Center for Resource Policy Studies and Programs Seminar Series, "Agriculture and Wis-
consin's Environment." Dr. Pete Nowak, Professor, Dept. of Rural Sociology. UWEX Environ-
mental Resources Center, University of Wisconsin.
24. U.S. Department of the Interior, Fish and Wildlife Service (FWS), 1992. An Overview of
Irrigation Drainwater Techniques. Impacts on Fish and Wildlife Resources, and Management Op-
tions, iv. , „ T^. . ^ r> J
25 General Accounting Office (GAO), 1988. Public Rangelands: Some Ripanan Areas Restored
but Widespread Improvement Will Be Slow, GAO/RCED-88-105, 37.
655
26. Jacobs, Lynn, 1991. Waste of the West: Public Lands Ranching, 92.
27. Jacobs, Waste of the West, 92.
28. Jacobs, Waste of the West, 22-23.
29. GAO, Public Rangelands, 51-52.
30. Long, Catherine, U.S. EPA, Office of Policy, Planning and Evaluation. Personal communi-
cation, April 23, 1991. See 40 C.F.R. § 122.23, Part 122 Appx. B.
31. Chesapeake Bay Foundation (CBF), September 1989. "Improving Water Quality Through
Effective Implementation of Pennsylvania's Manure Management Regulations," Lamonte
Gsirber, ed., 3.
32. CBF, "Improving Water Quality Through Effective Implementation of Pennsylvania's
Manure Management Regulations," 1.
33. EPA, 1990 National Water Quality Inventory, 12.
34. U.S. General Accounting Office (GAO), 1990. Water Pollution: Greater EPA Leadership
Needed to Reduce Nonpoint Source Pollution, GAO/RCED91-10, 22.
35. EPA, 1990 National Water Quality Inventory, 12-13.
36. EPA, 1990 National Water Quality Inventory, 12-13.
37. EPA, Managing Nonpoint Source Pollution, 19, "Silviculture." [Note: The 1988 Oregon
Deq. Report, entitled "1988 Or^on Statewide Assessment of Nonpoint Sources of Water Pollu-
tion" does allow the interested reader to compile watershed-based (and component waterbody-
based) data on land use sources contributing to impairments; thus, EPA's statement about
Oregon not reporting data on silvicultural water quality effects is apparently em error.]
38. American Forestry Association, July/ August 1992, "Watershed Wars: Salmon and Forests,
Fog Brothers," Robert Steelquist, ed., in American Forests. 31.
39. Another section — 101(e)— contains a broad mandate for public participation that has been
grossly underemployed in the campaign to stem the flow of runoff. Without widespread public
participation in the form of volunteer water quality monitoring programs and citizen involve-
ment in the creation of whole-watershed management plans, runoff" control programs may lack
crucial public support and political momentum.
40. House Conmiittee on Public Works and Transportation; 1980 oversight hearing on the 208
progreim, 16 and 18.
41. House Committee on Public Works and Transportation; 1980 oversight hearing on the 208
program, 27-28.
42. According to a longtime water policy activist with the League of Women Voters of the
United States, there were "tens of thousands of meetings on 208 plans nationwide over a three-
year period in the mid-1970s, and LWV members headed many of the 208 committees . . . virtu-
ally every local League was into the 208 process." Merilyn Reeves, former Boeird member.
League of Women Voters of the United States. Personal communication, May 15, 1992.
43. Thompson, Paul, 1989. Poison Runoff: A Guide to State and Local Control of Nonpoint
Source Water Pollution, Natural Resources Defense Council, 21-22.
44. To quote from Poison Runoff,
". . . the degree to which poison runoff can be controlled dictates whether or
not designated uses of individual waters are considered attainable:
'At a minimum, uses are deemed attainable if they can be achieved by the im-
position of effluent limits . . . and cost effective and reasonable best man£ige-
ment practices for nonpoint source control. 40 CFR 131.10(d), 131.10(hX2); 33
U.S.C.1315(bXl).'
In effect, a state cannot legally decide that the minimum fishable/swimmable goal
of the Clean Water Act is not attainable in a particular surface water unless the
state has developed a poison runoff control program that controls nonpoint sources
to the maximum extent practicable, and still is unable to achieve fishable/swimma-
ble water quality. Similarly, under EPA's antidegradation regulation, even where
water quality is better than necessary to protect designated instream uses, allowing
further degradation is prohibited unless, among other requirements, the state as-
sures the achievement of "all cost effective and reasonable best management prac-
tices for nonpoint source control." 40 CFR 131.12(aX2); 33 U.S.C. 1313(e).
From: Thompson, Poison Runoff, n.21, chapter two, 30.
45. U.S. Environmental Protection Agency (EPA), 1987. Surface Water Monitoring: A Frame-
work for Change, 4, iv, 27.
46. Copeland, Claudia and Jeffrey A. Zinn, 1986. Agricultural Nonpoint Pollution Policy: A
Federal Perspective, Congressional Research Service, 8-11. EPA did try to pick up the slack in
208 funding via continued grants to States under CWA sections 106 and 205(j). EPA, National
Water Quality Inventory, 1984 Report to Congress, 67. EPA 440/4-85-029.
47. Thompson, Poison Runoff, 22.
48. Thompson, Poison Runoff, 26.
49. Virginia Dept. of C!onservation and Recreation (undated) "Owl Run Livestock BMP Re-
search Watershed" (fact sheet). VA Dept. of Conservation and Recreation, Division of Soil and
Water Conservation, 203 Governor St., Suite 206, Richmond, VA 23219-2064.
50. Allan, Kelly (1991), "One of the Last of the Best," in The Nature Conservancy Magazine.
January/February, 1991. Also: Gary Overmier, U.S. Soil Conservation Service, personal commu-
nication, January 1, 1993.
51. Hallberg, et al, 1991. A Progress Review of Iowa's Agricultural-Energy-Environmental Ini-
tiatives: Nitrogen Management in Iowa, Iowa Department of Natural Resources, 5-6.
656
52 U S Environmental Protection Agency (EPA), Office of Policy, Planning and Evaluation,
Draft Report- State Implementation of Nonpoint Source Programs, June 29, 1992, at 7, 9, 11, 15,
18 21, 24, 28, 31, 33, 34, 37. „ t, o,^ .•■
53 EPA, Draft Report: State Implementation of Nonpomt Source Programs, 39-41.
54 EPA' Dreift Report: State Implementation of Nonpoint Source Programs, 15.
55! GAO, Water Pollution: Greater EPA Leadership Needed to Reduce Nonpoint Source Pollu-
56 We recognize that these criteria will need to be tailored to specific bioregions and basins;
nonetheless, EPA guidance to the States, and a legislative mandate for adoption of such criteria,
would be immensely beneficial. „„, , , , ■ xr j j . d j \t • *c on
57. GAO, Water Pollution: Greater EPA Leadership Needed to Reduce Nonpoint Source Pollu-
tion, 14. .J.
58. Federal Register publication IS pending. . . , ^ , , ,.., ^ j
59 This has been shown to be quite feasible as a design pnnciple for landscape architects, and
less costly by a factor of four than conventional pave-as-usual, treaMater, end-of-pipe approach-
es Sykes R 1989, "site Planning," Chapter 3.1 in Protecting Water Quality m Urban Areas,
Best Management Practices for Minnesota. Minnesota Water Pollution Ck)ntrol Agency. The
author Rdtert D. Sykes, ASLA, is Associate Professor of Landscape Architecture, Umversity of
Minnesota "The modem classic example of a comprehensive approach to development incorpo-
rating all of these [water-sensitive site design] goals is Woodlands New Community locat«i
north of Houston, Texas, planned and designed by Wallace, McHarg, Roberts and Todd, Land-
scape Architects and Planners, Philadelphia, Pennsylvania. ... In the original planmng,--engi-
neers compared the cost of the natural drainage system to that for a conventional approach and
found that the natural drainage option saved over $14 million." Id. 61, 3.1-7 ^ . ,
60 Sykes, R. (1989), Site Planning. Chapter 3.1 in the State of Mmnesota Pollution Ckjntrol
Aeencv s handbook, "Protecting Water Quality in Urban Areas."
61 The Wall Street Journal (July 8, 1993) article by Scott McMurray entitled No Till Farms
Supplant Furrowed Fields, Cutting Erosion But Spreading Herbicides." (p^e Bl). ^. , „ ^
62 Water Quality 2000 (1992), A National Water Agenda for the 21st Century, Final Report,
21
63 U S Environmental Protection Agency (EPA), 1992. Environmental Impacts of Stormwater
Discharges: A National Profile (EPA SAl-R-92-001)T. „.,.,,,. . tt t^ i? ff
64 US Environmental Protection Agency (EPA), Results of the Nationwide Urban Runoff
Program, Vol. 1— Final Report, Chapter Six, ''Characteristics of Urban Runoff.
65 See for example, NRDC's summary of results for the four Chesapeake Bay cities withm:
Cohn-Lee R. and Cameron, D. (1992) "Urban Stormwater Runoff Contammation of the Chesa-
peake Bay: Sources and Mitigation." The Environmental Professional, Vol. 14, 10-27.
66 EPA, Results of the Nationwide Urban Runoff Program, 5-8 and 5-9. . , , c
67 Metropolitan Washington Ck)uncil of Governments, Watershed Restoration Sourcebook, 15-
17 Anacost'a Restoration Team, Dept. of Environmental Programs. Collected papers presented
at "the conference: "Restoring Our Home River: Water Quality and Habitat m the Anacostia,
November 6-7, 1991, College Park, Maryland . ^ . , , ^ • t, ^ 1 *^ » t d ».
68. Lane and Tanacredi, 1987. "Coastal Fisheries Project at Jamaica Bay Completed. In Park
69 Gateway National Recreation Area, Shore Based Recreational Fishing Survey, 1985-1986.
The summer and winter flounders that are among the most popular eatmg fish from the Bay
have average PCB concentrations around 0.1 to 0.2 parts per million, roughly ten tune less than
EPA's recommended tolerance level of 2 parts per miJlion. fiQQQ.. rwK.^
70. Discussion Draft (June 30, 1993). "The Urban Watershed Restoration Act of 1993. Office
of CJongresswoman Eleanor Holmes-Norton.
TESTIMONY OF GERALD VAP, VICE PRESIDENT, NATIONAL ASSOCIATION
OF CONSERVATION DISTRICTS
Mr. Chairman and members of the subcommittee, my name is Gerald Vap and I
am Vice President of the National Association of Conservation Districts (NACD). I
also operate a farm supply outlet that sells hardware, nursery and garden supplies,
native grass, alfalfa and sorghum seed. I appreciate the opportunity to present our
concerns and recommendations on nonpoint source pollution and the Clean Water
Act
The National Association of Conservation Districts (NACD) represents nearly
3,000 local conservation districts across the United States, more than 15,000 men
and women who serve without pay on their governing boards. Conservation districts
are independent, special purpose districts that coordinate and carry out comprehen-
sive natural resource management programs that address forest and rangeland
management, wetland protection and enhancement, agricultural and urban erosion
and sediment control, wildlife and fish habitat management, and nonpoint source
pollution prevention and abatement for the protection of ground and surface water
quality.
CONSERVATION DISTRICTS
Conservation districts are special purpose units of government comprised of, and
governed by, local citizens who know their own needs and work to develop the most
657
practical and effective solutions to natural resource management problems locally.
Conservation districts have long been involved in developing and carrying out a va-
riety of local conservation programs emphasizing the wise use, management, and de-
velopment of our natural resources. Through their nationwide, grass-roots delivery
system, districts coordinate and carry out innovative programs to address many nat-
ural resource management concerns, including nonpoint source water p>ollution pre-
vention and abatement. Conservation districts provide a unique, local delivery
system, the strength of which lies in local ownership of the programs.
Conservation districts and their cooperating state partners have been addressing
nonpoint source pollution problems for a number of years. As early as 1977, when
the Clean Water Act Amendments established Section 208 and recognized nonpoint
source pollution as a major impediment to our Nation's clean water goals, the dis-
trict delivery system was recognized by state and federal agencies as an effective
vehicle for delivering assistance to landowners. In fact, districts were nsmied lead
local implementation agencies for agricultural nonpoint source pollution programs
in some 38 states. The Experimental Rural Clean Water Program projects, begun in
the late 1970's and early 1980's as an offshoot of the 1977 amendments, often uti-
lized districts to deliver both technical and financial assistance to land users in high
priority watersheds. Similarly, many of the state Clean Water Act Section 319 non-
point source management programs recognize the conservation district delivery
system as the best way to achieve practical solutions to local nonpoint source pollu-
tion problems. In addition, 31 states operate various types of state-funded financial
incentives programs that address agricultural and other water quality problems.
Many of these programs, which operate through local conservation districts, have
been helping landowners with water quality problems since the mid-1970's.
Although traditionally conservation districts have been thought of in terms of
their work with agriculture, over the past two decades many have expanded their
involvement in a number of other resource areas such as urban erosion and sedi-
ment control, stormwater management, forestry, surface-mined reclamation, and
lake, coastal and estuarine management initiatives.
NONPOINT SOURCE POLLUTION— THE PROBLEM.
It is widely recognized that runoff from diffuse, or nonpoint sources such as crop-
land, construction and mining activities, urban streets and lawns, and others had
become the principal source of impairment to our nation's waters. The extent and
intensity of nonpoint source pollution problems are becoming more evident as state
and federal agencies sharpen their abilities to detect pollutants and assess their ori-
gins. The most common nonpoint source reported is agricultural runoff, accounting
for roughly 60% of impaired lakes and rivers.
Programs to address nonpoint source pollution require a different institutional
framework from that of traditional point source efforts. The diffuse nature of the
problem renders the command and control approach, used effectively to address
point sources, unworkable. By enacting 1987 Clean Water Act Section 319, Congress
recognized that the solution to nonpoint pollution lies in state and local action. Sec-
tion 319 calls for the development and implementation of state nonpoint pollution
management programs. Through these programs, and through a number of state-
initiated programs, considerable progress has been made in developing the infra-
structure needed to control nonpoint pollution. Now that much of the groundwork is
in place, a serious commitment of manjwwer and funding — from local, state and fed-
eral governments — is needed to tremslate the nonpoint agenda into action.
GENERAL PRINCIPLES
The nation's water quality goals must be holistic and should seek to achieve and
maintain clean water for all uses. Comprehensive resource management programs
that include water quality goals should be developed on a watershed basis, targeting
actions where they will do the most good. Pollution prevention should be the foun-
dation of our water quality agenda. Within a national framework, a mix of volun-
tary action and regulation is needed. Where water quality standards are violated or
at risk of being violated, an iterative approach of implementing more stringent
levels of runoff management measures should be required. Monitoring and assessing
the state of our water resources are needed to provide accountability for state and
local program efforts, as well as to target limited resources to the most pressing
problems. Information and education, and technical and financial assistemce must
be utilized to empower all segments of society to address water quality problems.
Funding, from all levels of government, must be increased to match the scope of the
problem.
658
NACD recommends that we continue the strategy set forth in Section 319 where-
by states are delegated authority under federal legislation to develop management
programs responsive to local needs and conditions. The management programs
should continue to emphasize technical and financial assistance coupled with educa-
tional programs. Site-specific nonpoint source pollution management plans also
should be predicated on technology-based standards that protect water supplies from
adverse impacts from nonpoint pollution. The standards should be based on existing
or planned use of the water resource and should be developed within a national
framework with input from states and various affected communities including agri-
culture, industry, and conservation and environmental groups.
BASIC APPROACH
The strategy set forth in the current Section 319 is essentially sound: States are
delegated authority under federal legislation to develop management programs re-
sponsive to local needs and conditions. The management programs should continue
to emphasize technical and financial assistance coupled with educational programs.
Further, the programs must be predicated on economically feasible and technically
attainable standards that protect water supplies from impairment. Section 319 as-
sessment and management programs need to be reviewed for re-approval every five
years to measure the progress of the states in achieving their program goals, and to
provide for the inclusion of new nonpoint control strategies and technologies.
FEDERAL ROLE
The Environmental Protection Agency (EPA), the principal federal agency
charged with water quality protection, should have the overall lead in developing
guidance for implementing state nonpoint management programs. EPA's role
should include working to increase public awareness of nonpoint problems and solu-
tions, and to assist states in developing incentives and economic opportunities to en-
courage the adoption of state and local management practices. EPA also should pro-
vide technical and financial assistance to states in developing, refining and carrying
out their programs. ,,,,,. x, . ^ i
The U.S. Department of Agriculture should be designated to assume a strong role
in providing technical and educational assistance to state and local governments, in
carrying out their programs. The Soil Conservation Service, in cooperation with
local conservation districts, should provide technical assistance to land managers as
they develop and carry out comprehensive resource management plans.
STATE ROLE
States, operating within the overall guidance set by EPA, should have the lead
role in setting priorities and developing the program mix that works best for the
specific problems, as well as the social and economic conditions, for the individual
state. State programs should continue to emphasize educational and outreach activi-
ties to raise public awareness of nonpoint pollution, and their role in solving and
preventing nonpoint problems. _ ...
States also need to provide technical and financial assistance and mcentives to
land managers in addressing nonpoint problems. Backup regulatory mechanisms,
such as "bad actor" provisions in the programs, also should be included in a state s
program mix. Specifically, conservation district approved farm-level resource man-
agement plans should be required for all producers in watersheds where surface
water bodies or groundwater systems are impaired or where there is a significant
probability that these water bodies or systems will become impaired due to agricul-
tural pollution. These plans should be developed based on an integrated evaluation
of options for environmentally sound cropping systems and nutrient, pest, water,
livestock and sediment management.
LOCAL ROLE
Local government will have the principal accountability in carrying out nonpoint
pollution control programs. Conservation districts, with technical assistance from
the USDA Soil Conservation Service, should have the lead responsibility for local
implementation and plan approval where their expertise is the best— m agricultur-
al, urban and forestry programs. The state and local programs should emphasize de-
velopment and implementation of comprehensive resource conservation and man-
agement plans that address the full range of nonpoint source pollutants.
It is critical that both state and local governments have the flexibility m nonpomt
pollution control programs to respond to unique local and regional factors. Because
of factors such as climate variations, differing institutional arrangements among
state and local government agencies and other widespread variations across the
659
nation, state and local msinagement entities need wide latitude to develop program
mixes that best fit their own individual needs and situations.
FUNDING
Lack of adequate funding is one of the chief impediments to more effectively ad-
dressing nonpoint problems. Congress should fund Section 319 grants to states at a
minimum level of $500 million per year. Ck)ngress also should greatly expand
USDA's water quality progfram funding and responsibilities under Section 319. The
bulk of Section 319 funds should be made available to states for carrying out the
memagement programs mandated by the Act. Additional funds also should be made
available to the Soil Conservation Service to provide increased conservation techni-
cal assistance for local implementation efforts. After the state revolving loan fund
programs required by the Act have been fully capitalized in 1994, Congress should
retain the roughly $2 billion per year Clean Water Act funding to continue address-
ing ongoing point and nonpoint source pollution problems.
S. 1114
Our comments on S. 1114 reflect an initial staff review of the bill. Our national
committee system is currently reviewing the document and will be able to provide
more detailed comments in the future.
Overall, NACD supports the approach taken in S. 1114. We believe that building
on the foundation of the current Section 319 is a sound direction in which to steer
the nation's nonpoint pollution control efforts. State leadership in developing and
implementing nonpoint programs, as well as the strong program role suggested for
substate regional and local agencies and organizations will be essential to the suc-
cess of this effort.
Specifically, NACD supports establishing state water quality monitoring programs
with technical and financial assistance from the federal government. States need
more and better data on where water quality problems exist and what the major
contributors are. With respect to the state water quality monitoring councils, NACD
recommends that they include representatives of affected user groups: agriculture,
silviculture, mining, construction. We also recommend that conservation district
and state conservation agency representatives should be included on the state coun-
cil since they will play an important role in carrying out the state nonpoint man-
agement program.
NACD and conservation districts strongly support the watershed-based approach
outlined in S. 1114. Conservation districts have been practicing and advocating this
program approach for more than 50 years. We're also pleased to see specific recogni-
tion of conservation districts as possible management entities for watershed man-
agement units.
NACD supports the inclusion of trading schemes, but not as outlined in S. 1114.
We believe they should be strictly voluntary and should not allow a point source
permit to be more permissive at the expense of nonpoint sources. We believe that
water qugdity gains need to continue for both point and nonpoint sources.
"The foundation of the conservation district philosophy is that all land users
should have a comprehensive site-specific conservation plan in order to prevent en-
vironmental degradation from soil erosion, nutrient and pesticide runoff and other
sources. We believe that states should be encouraged to develop voluntary, incen-
tive-driven programs that combine education and technical and financial assistance,
to persuade land users to work with their local district to develop and implement
these plans before pollution problems occur. Although we generally favor this un-
prescribed approach, we also believe that, in impaired or threatened watersheds,
land users who fail to comply with voluntary programs should be required to devel-
op site-specific, technology-based conservation plans.
With respect to the time frames outlined in S. 1114, NACD maintains that 180
days is an unrealistic deadline for the publication of guidances under the act. As
evidenced by the lengthy delays in publishing guidances under the 1990 Coastal
Zone Act Reauthorization Amendments, six months is far too short a period to allow
sufficient public and user group input.
The time frame for state program revisions is also too short. Again, NACD be-
lieves that there needs to be ample opportunity for input by the public and affected
user groups in developing revising state nonpoint programs.
Given the proliferation of different water quality initiatives in the past few years,
program coordination will also be critical to the success of this program. The act
and the guidance need to clearly instruct agencies such as EPA, USDA and NOAA
to work together closely in carr3dng out the mandates of the Clean Water Act and
ensure that it works to complement, rather than compete with, initiatives such as
660
Coastal Zone Act Section 6217, the Farm Bill water quality initiatives and ongoing
state and local nonpoint programs. States also need to be encouraged to coordinate
the different nonpoint program elements within the program such as the coastal,
urban, agriculture and forestry components. Resources are too scarce and budgets
too tight to duplicate program efforts.
NACD strongly supports the increased funding levels authorized under S. 1114
and we urge the Congress fund these programs at the levels authorized. The plan-
ning and implementation for thousands of water quality plans will create a tremen-
dous workload for federal, state and local conservation and resource management
agencies. The technical assistance delivery system is already severely strained by
the 1985 and 1990 Farm Bills, as well as the many ongoing state and local conserva-
tion initiatives. The Coastal Zone Act and Clean Water Act, will only add to that.
In funding this new initiative, it is important to recognize significant increases in
technical assistance will be needed to help land managers implement the required
management measures and site-specific plans. This will mean not only adequately
funding the Section 319(h) grants and other Clean Water Act authorizations, but
also providing significant increases in technical assistance from agencies such as
EPA and the USD A Soil Conservation Service. If Congress isn't serious about fund-
ing this program, NACD recommends that it be scaled back to a level that can be
reasonably accomplished with the funding that is available to carry out its memdate.
NACD supports allowance regional variations in the development of maneigement
measures. There are vastly different conditions across the country that will require
many different program mixes for water quality efforts to be successful. In addition
to regional flexibility, local program flexibility also will be critical for the attain-
ment of nonpoint program goals. Differences in social, economic and political insti-
tutional arrangements, as well as vast climate variations across the nation mean
that each state and substate and locality needs to have enough flexibility to tailor a
nonpoint program to its specific needs.
Overall, NACD believes S. 1114 is a good starting point for building on Section
319 and other ongoing federal, state and local nonpoint source pollution manage-
ment efforts. For the past six years we've been running Section 319 essentially as a
demonstration program, funding it at only a very basic level. We believe it's time to
move the nation's water quality agenda another step forward.
Thank you for the opportunity to share our association's views.
TESTIMONY OF ROB OLSZEWSKI, REPRESENTING AMERICAN FOREST AND
PAPER ASSOCIATION
Mr. chairman and Members of the Subcommittee, my name is Rob Olszewski,
Manager of Forest Hydrology for the Georgia-Pacific Corporation. While I am testi-
fying today on behalf of the American Forest and Paper Association (AFP A), the
national trade association of the U.S. forest products, pulp and paper industry, I am
also a small non-industrial landowner in Florida and a professional forester former-
ly employed with the Florida Forestry Association and the Florida Division of For-
estry.
BACKGROUND
Our industry accounts for 7 percent of all U.S. manufacturing output. AFPA's
member firms directly employ 1.6 million workers in the growing of trees, the man-
ufacture of forest and paper products, and the recovery and recycling of paper prod-
ucts, collectively, the industry injects $43.5 billion into local economies and ranks
among the top ten employers in 46 of the 50 states.
Unlike many industries, we are regulated for point discharges from our manufac-
turing facilities and subject to nonpoint Best Management Practices (BMPs) from
our forest lands. Needless to say, our interest in S. 1114 is quite substantial. For
example, we estimate the point source control section of the bill will cost our indus-
try well over $10 billion in capital costs and $1 billion annually in operating costs.
An enormous sum for a capital intensive industry such as ours.
Although this hearing is confined to issues affecting nonpoint source runoff, we
request, with your permission, Mr. chairmzm, to submit a longer statement for the
hearing record which details our serious concerns with a number of other provisions
in the bill.
661
NONPOINT SOURCES
It has been estimated that at least 50% of all water pollution comes from non-
point sources. If we are to achieve water quality improvements, then it is appropri-
ate to consider additional approaches in this area.
Unlike others, the forest industry, which includes small woodlot owners, has been
implementing nonpoint source Best Management Practices — what is in effect called
"management measures" in S. 1114 — for a number of years. Since pass^e of the
1972 clean Water Act, all states with significant forest management activities have
either passed forest practice laws or developed BMPs, approved by EPA to minimize
the impact of timber harvesting on water quality.
Consequently, forest activities contribute relatively little to water quality impair-
ment as opposed to other land activities. According to EPA, forestry contributes, on
average, only six percent of the loadings attributed to nonpoint source pollution.
Beyond the "quantity" issues, there is also the issue of "quality" — and runoff from
forests has been demonstrated to be much cleaner than from other types of land
uses as well.
With regard to forestry, we ask you to move forward with extreme caution in any
nonpoint legislation, to consider what approaches are working well now, and to
avoid a Federal regulatory approach that will result in land-use planning.
First, we urge you to recognize the highly successful efforts already being made
by those now implementing management measures, particularly in silviculture
management.
State reporting requirements under Section 305(b), State best management prac-
tices and auditing programs, and EPA's Section 319 reports and studies conducted
by the National councU of the Paper Industry for Air and Stream Improvement, all
confirm forest management activities as a de minimis contribution to nonpoint
source water quality impairment.
Many audits have been conducted to demonstrate the effectiveness of state forest-
ry nonpoint control programs.
For exeunple, Florida inspections indicate 94% compliance with BMPs, Virginia
has achieved a 90% compHance, and South Carolina shows an 85% compliance.
These rates have been achieved under existing programs and can be improved with
additionsd education, outreach on the part of the states and the industry.
Notwithstanding these statistics, the forest industry is committed to further im-
plementation of best management practices on all forested lands across the country.
Second, BMPs £u:«, and should continue to be, developed on the basis of state-spe-
cific characteristics. AFPA generally supports the approach taken by the National
(Governor's Association (NGA) and the Association of State and Interstate Water
Pollution Control Administrators (ASIWPCA), which calls for a state-based,
"bottom-up" approach in developing and implementing BMPs.
Each state has its own vmique circumstances of landownership tjrpes, land-use,
state resources and program costs, existing state statutes and social/institutional
characteristics.
Because all state programs reflect these characteristics, AFPA would oppose the
concept of allowing EJPA to establish "Program Implementation Criteria" in section
304 of the bill for all states based on the demonstrated success in only one state.
For example, Florida's new forestry BMP program, which I helped develop, was
designed for Florida would likely not work well in Idaho. Likewise, applying Pacific
Northwest practices or implementation criteria to the Northeast, Great Lakes or
South would not be reflective of these regions of the country.
Although the bill gives discretion to the Administrator through the EPA Regions
to modify management measures to reflect special conditions "in the region," we
are concerned that this authority might be unworkable since even the geographical
features within the States of the various regions differ greatly. States — not EPA —
must have the flexibility to devise management measures to address their own spe-
cial circumstances.
Third, any nonpoint source program should avoid prescriptive land-use planning.
We are deeply concerned over the application of the water quality criteria and
standards provisions of the bill to nonpoint sources. Implementing BMPs is one
thing, but having the Federal government telling private landowners if, when, and
where to harvest timber is inappropriate and unnecessary.
The antidegradation section in particular, requires designation of any water body
within a national forest or any water of "exceptional recreational, cultural or eco-
logical significance, including any that supports a population of threatened and en-
dangered species," would drastically affect our abUlty to harvest timber on millions
of acres of federal and private land.
662
Under this bill, would the entire Columbia River system and all its watersheds be
included as outstanding national resource waters? What about the St. Johns River
that supports the endangered manatees or the Potomac which supp)orts bald eagles?
If so, what would be the consequences for land-based activities in those watersheds?
Would foresters, farmers and ranchers be required to modify their activities so as
to protect existing uses, or in the case of water quality that exceeds standards, to
maintain those levels?
Despite the implementation of management measures on lands adjacent to nation-
al resource waters, we believe timber harvesting in these watersheds could be effec-
tively stopped on the grounds that operations were degrading water quality — even if
small amounts of soil were discharged into the water as a result of the operations.
A situation such as this could make the ongoing controversy over the timber
supply in the western United States pale by comparison — not only in the North-
west, but in many other parts of the country as well. These are very troubling issues
for us and we would like to work with the Committee to address them.
AFPA's membership believes that the only practical and feasible method to pro-
tect water quality and ensure the protection of beneficial uses is through state-de-
vised implementation of forestry BMP programs.
Finally, any new program should include effective maneigement measures for all
nonpoint sources. Identifying a small, select group of "easy targets" will not result
in measurable water quality improvements and will only place a disproportionate
burden on those covered in the program.
WATERSHED PLANNING
Watershed analysis and management concepts can provide useful tools for ad-
dressing regional and site specific water quality problems. Not only does substantial
authority already exist in the Clean Water Act to implement watershed planning
approaches, but activity is also occurring on a local level in nearly every part of the
country.
While watershed analysis and management can be utilized by the states as a
screening and coordinating tool to identify and address impaired waters, this section
greatly expands watershed evaluation from in-stream water quality parameters to
associated land areas including sensitive habitats, wildlife habitat and general lemd-
use patterns.
Although the watershed provisions in S. 1114 are voluntary in nature, the plan-
ning requirements, which must be adopted by the states, raise the potential for
land-use restrictions on private landowners. If watershed planning were used to
impose federal land-use restrictions on landowners, such as restricting legitimate
timber harvesting activities, or controlling residential or commercial development,
businesses, private landowners, and their communities could be severely impacted.
The strict application of nonpoint source water quality criteria through a water-
shed approach is not appropriate to land use activities. To guarantee compliance
with water quality criteria, given unpredictable weather events, natural background
loads and to pinpoint causes and effects when many other activities are occurring
both upstream £ind downstream, is not scientifically or technically feasible.
With each watershed containing potentially thousands of private landowners and
facilities, the assignment of pollutant loadings becomes an extremely impractical
and inefficient exercise in a given watershed, assuming loads could be fairly guid
accurately measured in the first place.
AFPA is also concerned about the Federal consistency provision which would re-
quire Federal agencies to carry out their activities in a way which is consistent with
watershed management plans. For example, would this provision affect timber sales
in national forests; any federal permitting activity, or affect the relicensing of small
hydropower projects? If so, we would strongly object to its inclusion in the bill.
For these reasons, we urge the Committee to continue its review of the Act's cur-
rent authority prior to S. 1114's modification later this year, as well as a review of
the watershed management activities already underway, to see if less resource in-
tensive and more practicable approaches can be taken.
663
CONCLUSION
In conclusion, Mr. chairman and Members of the Committee, AFPA appreciates
this opportunity to share its views with you on these issues. AFPA has a strong in-
terest in the development of the clean Water Act amendments. We look forward to
working with you to develop sound policies that recognize existing authorities in the
Act, and that address remaining water quality problems in the most efficient and
least disruptive manner.
TESTIMONY BY WILLARD DE GOLYER, DAIRY FARMER, NATIONAL
COUNCIL OF FARMER COOPERATIVES
Mr. Chairman and members of the Subcommittee, my name is Willard De Golyer,
and I am accompanied by Dr. Stanley Weeks. We are pleased to testify today on
behalf of the National Council of Farmer Cooperatives and appreciate the opportu-
nity to share our views on reauthorization of the Federal Water Pollution Control
Act.
I am president of Table Rock Farm, Inc., which I operate with my imcle, Calvin
De Golyer. Our farm is located near Castile, New York, which is in Wyoming
County, west of Rochester. We have a milking herd of 650 cows and plant 600 acres
of corn and alfalfa, and are currently constructing a new milking facility and in-
creasing the herd size to 850 milking animals. I also serve on the New York State
Working Group on Dairy Manure Management and am a participant in the Animal
Science Advisory Committee at Cornell University. We have been working for some
time to implement environmentally beneficial best management practices in our op-
erations, including improved manure handling systems. I am an active member of
Agway Inc., our regional farm cooperative, and often turn to my cooperative for in-
formation £md technical assistance on environmental concerns.
Dr. Stanley Weeks is Director of Agway's Farm Research Systems and Product
Development, and he is an internationally recognized expert in the science of
manure management. Among his many notable contributions is the development of
a biogas systems approach to dairy manure management.
The National Council of Farmer Cooperatives (National Council) places a high pri-
ority on development and implementation of policies that maintain and enhance the
quality of surface and ground water resources through effective management of
NPS pollution from agricultural activities, where problems are identified, in a
manner compatible with food and agricultural policy objectives.
Farmers and their cooperatives have a great deal at stake in the water quality
policy debate. Farmers are directly impacted by both point source (e.g., livestock
and poultry confinement facilities, etc.) and nonpoint source (NPS) pollution policies
and requirements. Farmers are also impacted by the significant point source re-
quirements placed on farm input manufacturing and food processing facilities
owned and operated by their cooperatives. To the extent that incremental costs re-
lated to point source requirements translate into reduced earnings for the coopera-
tive business, farmers are impacted either through reduced patronage dividends or a
reduction in the value of their investment in the cooperative.
Our cooperative community is committed to plajdng a constructive role in the
search for effective solutions. The National Council's comments today will be fo-
cused in particular on measures directed to agricultural NPS pollution, as proj)osed
in Title III and other sections of S. 1114, the "Water Pollution Prevention and Con-
trol Act of 1993."
Our Environmental Policy Committee's analysis of toxic and point source meas-
ures contained in S. 1114 is still underway, and we expect to submit written com-
ments on Title 11, Title V and related sections for the Subcommittee's consideration
in the near future.
INTEREST OF THE NA'HONAL COUNCIL
Description of Membership:
The National Council is a nationwide association of coojjerative businesses which
are owned and controlled by farmers. The National CouncU represents about 90 per-
cent of the nearly 4,500 local farmer cooperatives in the nation, with a combined
membership of nearly 2 million farmers. National Council members handle practi-
cally every type of agricultural commodity produced in the U.S., market these com-
modities domestically and around the world, and furnish production supplies and
credit to their farmer members and patrons.
69-677 0-94-22
664
• Cooperatives are in the important business of manufacturing and supplying
farmers with fuel, fertilizers, crop protectants, feed, seed and other important
farm inputs. Cooperatives supply about 40 percent of all fuel, fertilizers and
other production inputs used by American farmers.
• About one-fourth of the fruits, nuts and vegetables on supermarket shelves, and
ultimately on dinner tables, arrives there through the efforts of cooperatives.
• Cooperatives account for over three-fourths of the milk and a large portion of
the cotton, wheat, feedgrains, oil seeds and rice produced and marketed in the
United States.
Agway Inc.:
Agway Inc. is a cooperative owned by 91,000 farmer members in 12 northeastern
states — Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire,
New Jersey, New York, Ohio, Pennsylvania, Rhode Island, and Vermont. Agway is
headquartered in S5Tacuse, New York.
Agway produces and markets crop needs and services, dairy & livestock feeds,
farm-related products, pet food and supplies, and yard & garden products. Its oper-
ations are conducted by more than 7,000 customer-oriented employees. Agway is a
major diversified business, with consolidated sales of $3.3 billion last year. Internal
and external subsidiaries are involved in food processing and marketing, energy
products, leasing, insurance, and other businesses.
MANAGING AGRICULTURAL NPS POLLUTION
EXHIBIT 1 is a "Statement of Principles" endorsed by the National Council and
other agricultural organizations, which we believe identiiles the NPS challenge con-
fronting agriculture and conveys important concepts which form the basis for effec-
tive solutions. The National Council's participation in the ongoing clean water
policy debate is being guided in large part by these important principles.
Briefly stated, NPS pollution concerns involve trace levels of pesticides and nutri-
ents (principedly Nitrogen and Phosphorus) which are being detected in some water
bodies at levels deemed to exceed acceptable levels under standards set by the Clean
Water Act and other statutes. One of the potential sources of concern frequently
cited is that of NPS pollution from agricultured operations (Note: Off-farm sources
are also recognized in the debate, including septic systems, urban landscapes, natu-
ral vegetative decay, etc.).
In framing the policy debate about how to address management of NPS pollution
from agriculture, a brief review of (1) roles of key agricultural inputs that are re-
garded as potential sources of pollution, and (2) elements that the National Council
believes are key to their successful management may be helpful to the Subcommit-
tee: 1
Nutrients and Crop Protection Chemicals Critical to Production Agriculture:
• Nutrients are basic building blocks that both plants and animals require in
order to grow and survive. Natural soil nutrient replenishment processes in-
clude decay of organic matter, siltation (flood plains) and lightning and rainfall.
Although nitrogen (N) is but one of 16 elements essentied for plant growth, it is
one of the most critical, in that yields are generally proportional to the amount
of N available.
• Natural supplies of N and phosphorous (P) in the soil are limited, and can be
quickly depleted. These nutrients must be replenished and often supplemented
to achieve acceptable yields on a sustainable basis. A number of sources of sup-
plemental nutrients are available to farmers, such as meinure, crop rotations
Qegumes and green "manure" crops), commercial fertilizers, sludge, etc.
• Pesticides are crop protectants which comprise critical tools in the farmer's ar-
senal to supplement crops' natural defenses against a host of predators, com-
petitors and diseases, which can cause major losses to the detriment of both
farmers and consumers. Crops in the U.S. must compete with 10,000 species of
insects, 1,800 different weed varieties, 18,000 species of fungi and 250 viruses.
Even with effective use of all crop protection tools, nature's competitors typical-
ly cause a 25 percent jdeld reduction.
* EXHIBIT 2 is a white paper entitle "Crop Nutrients and Water Quality," which was devel-
oped under auspices of the National Council's Environmental Policy Committee in an attempt to
address these two dimensions for nutrients. Major points are summarized in this testimony as
they apply to both nutrients and crop protection chemicals.
665
• The judicious use of supplemental plant nutrients and crop protection chemi-
cals has helped American agriculture realize a doubling of yields in the past
four decades.
• As a result, agricultural producers have been able to respond to the growing
food and natural fiber needs of an expanding population on reduced acreage,
thus averting environmental pressures on more fragile lands that otherwise
would be brought into production.
Ingredients to Successful Management of NPS Pollution from Agricultural Oper-
ations:
The National Council is sensitive to the need for American agriculture to be part
of the solution in managing NPS pollution. We believe that the operative goal of
any successful policy response is as follows:
To maintain and enhance the quality of surface and ground water resources
through effective management on the farm and in the field of NPS pollution
from agricultural activities where problems are identified, in a manner compati-
ble with food and agricultural policy objectives.
Based on cooperatives' experience in working with farmer-members, American
farmers are generally anxious to be a constructive part of the NPS pollution man-
agement solution. Speaking for my own family, we are firmly committed to being
part of the solution.
However, given financial and other resource constraints in much of American ag-
riculture, we cannot succeed alone. There must be a shared burden — a partner-
ship— in responding. Farmers' basic needs are three-fold:
• Sound Information on what works;
• Technical Assistance in tailoring solutions based on site-specific best manage-
ment practices; and
• Financial Assistance, particularly for more capital-intensive options.
Sound information is critical, as cooperatives can speak from long experience in
that it is difficult to over-emphasize the importance of maintaining credibility.
Farmers want good information on remedies that work. Not just their crop for that
year, but often their livelihood and way of life, may be at risk. One has to be wrong
only once to destroy farmers' trust for years to come, dealing a serious setback to
NPS maneigement programs, whether voluntary or mandatory.
Technical and financial assistance are be geared to achieving actual results in the
field, where the success or failure of emy initiative to manage NPS pollution from
agriculture will ultimately be determined. These results will be dependent upon rec-
ognition of the following interdependent factors:
• All nutrient sources can potentially cause NPS pollution, whether they exist
naturally or are added to the soil; and therefore all sources must be properly
maruiged.
• To reduce N and P contamination, a systems policy approach is needed to
ensure that reductions in one source are not offset by increases in another. The
systems approach requires careful examination of both ag and non-ag, as well
as both point and nonpoint, sources.
• Existing ag-environmental initiatives, such as those implemented pursuant to
the 1985 and 1990 Farm Acts, offer significant potential for managing NPS con-
tamination. Unfortunately, insufficient or even no funding has been provided in
many instances.
• Adoption of Best Management Practices (BMP's) — practices shown to give maxi-
mum productivity, input efficiency and environmental protection — holds signifi-
cant potential to adcfress nutrient contamination and, at the same time, help
contribute to the financial viability of the farm enterprise. Integrated Pest Man-
agement (IPM) programs offer similar benefits for crop protection chemicals.
• Time is needed to evaluate the results of programs that are already underway
time for farmers to implement BMP's, and time for the environmental benefits
to show up in water bodies.
• Finally, and perhaps most importantly, farmers must be financially viable to
implement NPS pollution management programs.
S. 1114
While the National Council has significant concerns about specific provisions con-
tained in S. 1114, the sponsors are to be applauded for making great strides in craft-
ing comprehensive l^islation whose conceptual approach on complex and potential-
666
ly controversial issues is generally sensitive to the special needs and concerns of
American agriculture.
In discussions with staff to date regarding specific concerns, the National CouncU
has often found that upon clarification we may agree with the intent of provisions
in question. However, we do feel that more work needs to be done to ensure that
intent is clearly stated in such cases, £uid ultimately realized upon practical imple-
mentation.
In today's testimony, we would like to (1) express our understanding of the bill's
structural approach to agriculture's role in managing NPS pollution; and (2) based
on that understanding, identify issues of concern and offer recommendations, in-
cluding the critical area of funding.
Title Ill's Structural Approach to Ag NPS Pollution Management:
Title III of S. 1114 recognizes the realities of resource constraints both in govern-
ment and agriculture by targeting impaired watersheds. States are to take the lead,
so that water quality management initiatives are undertaken by people at the local
level who are in the best position to craft workable solutions. 'These are fundamen-
tally important steps that we applaud and endorse.
Farmers not in targeted watersheds will not be required to implement water qual-
ity management plans. We would point out that many farmers outside of targeted
watersheds will still be adopting BMP's voluntarily for economic and environmental
reasons, as well as due to Conservation Compliance Pleins (CCP's) required under
the 1990 Farm Act, Coastal Zone Management Act (CZMA) provisions, etc.
State Planning. In general, states are given 2.5 years to classify water uses, iden-
tify and delineate problem watersheds and revise comprehensive management plans
designed to achieve water quality standards. The plans are subject to EPA approval.
Groups may seek additions to the list through a citizen petition process. These first
steps represent an ambitious undertaking likely to require a substantial commit-
ment of resources by state governments. Since subsequent steiges involving agricul-
ture hinge upon how these actions are carried out, we would be interested in states'
view regarding whether there will enough time and resources to comply and avoid
the more onerous default option.
First 5-year period. States are given up to three years in the first five year imple-
mentation period (starting 2 years after enactment) to work with farmers to develop
and approve site-specific water quality plans. A state-designated agency is to work
with individual farmers in the target watershed to develop site-specific BMP's. Par-
ticipation equals farmer compliance. Participation presumably meeins implementa-
tion of the site-specific plan, not just approval. If a CCP is in place, the farmer has
met requirements. Also, it is our understanding that a farmer could stUl implement
a CCP to comply.
Second 5-year period. At the end of the first five years, states are to take a fresh
look based upon upgraded monitoring data and determine whether water quality
standards are being achieved. If not, a second stage triggers, with various sources of
pollution (point and nonpoint), including agriculture assigned load additional reduc-
tion requirements deemed necessary to bring the watershed into compliance by the
end of the second 5-year period. Watershed planning units would conform with U. S.
Geological Survey delineations. Minimum state enforcement authorities would be
strengthened to include injunctive jwwers.
Funding. To facilitate these steps, S. 1114 authorizes incresised funding for Sec-
tion 319, increased flexibility for use of Section 319 grants and dedication of a por-
tion of state revolving funds (SRF's) for NPS investments. Authorization for Section
319 funding would increase to $600 million by 1999. Up to 20 percent of $3 billion
annually in SRF funds could be used for NPS investments. It is unclear, however,
whether farmers would be eligible or, if so, what criteria they would have to meet.
Issues and Recommendations:
The National Council believes that S. 1114 can evolve into a fined product that
can truly allow agriculture and cooperatives to be a partner in the effort to achieve
national water quality objectives. Our concerns and recommendations that follow
are directed to that end.
Site-Specific, Flexible, Coordinated. The sponsors of S. 1114 have indicated that
the goals of water quality plans as applied to agriculture are (1) to be site-specific,
(2) to be flexible, and (3) to be coordinated with other programs. The National Coun-
cil concurs. Achieving these goeils is essential to successful implementation, and we
applaud the sponsors for that commitment. They are so importeuit that we would
urge they be specifically emphasized in key sections of the bill to ensure these goals
carry through to the implementation process.
667
Coordination. S. 1114 provides that CCP's fulfill phase 1 requirements. We would
recommend that the Subcommittee consider inclusion of other programs which rep-
resent credible water quality management efforts, such as CZivIA, Chesapeake Bay,
etc. Perhaps those identified in H.R. 2543 could serve as a useful point of departure.
Number of Farmers Impacted. Important to the issue of resource and time re^
quirements is an assessment of how many farmers will fall into impaired water-
sheds. However, we do not yet know the geography of these watersheds; nor is there
a clear indication of how states may use their discretionary power in designating
uses. Furthermore, we do not know how many states will opt not to go the water-
shed route, with all farmers then subject to regulation. Without such information,
our comments concerning adequacy of time frame and funding are necessarily con-
strained.
Fxmding Priorities.
If nonpoint source pollution is believed to be a major priority in achieving clean
water objectives, are disbursements of available funds commensurate with that
view?
About $75 billion in federal, state and local funds have been contributed toward
sewage treatment construction projects alone in the past two decades. By contrast,
funding directed to managing NPS pollution has been minuscule; and at this junc-
ture there are no initiatives evident that would eifter this imbalance. Will the policy
process ultimately generate resources — even if it involves redirection of existing al-
locations— for NPS pollution management commensurate with the challenge, as has
been the case for municipal projects? The National Council looks forward to work-
ing with the Subcommittee as future deliberations focus on this important question.
While agriculture is supportive of efforts to maintain and enhance the quality of
our water resources, we are concerned about the potential cost. This is because agri-
culture, unlike other industries, cannot readily pass on such increased costs in the
form of higher prices. While some BMP's intended to manage NPS pollution will
mean cost savings over the long run, many wUl represent increased costs of produc-
tion. Even those that may reduce costs will in many cases pose major capital invest-
ments that may be beyond the financial means of the farmer.
For these reasons, we are pleased that the bill provides for increased funding and
expanded authority for both the Section 319 and State Revolving Fund (SRF) pro-
grams to help offset and/or restructure such costs. Since grants are likely to be
somewhat limited, we believe consideration should be given to establishing special
loan guarantee prograrns to help farmers, cooperatives and other eligible borrowers
obtain necessary financing for environmental improvements. Such a program would
help stretch limited federal and state resources while serving to encourage a pri-
vate/public sector partnership. It appears that S. 1114 moves in this direction, and
we would like to work with the Subcommittee in exploring ways to make the pro-
gram more effective.
The legislation's proposed authorization for Section 319 would essentially double
present authorization levels, and that is welcome news. Still, compared with funds
allocated to municipal sewage, the amoimt is de minimis by comparison, particular-
ly when the bill targets NPS pollution as the "number one" priority in the reau-
thorization process. Unfortunately, while we will commit to supporting appropria-
tions, funds appropriated have consistently lagged well below that authorized due to
budgetary constraints; and we are concerned that this trend will continue.
The expanded eligibility of Section 319 to include some grant assistance for farm-
ers implementing proven practices is a positive development, although the practical
effect will likely be limited. We would urge that grants be more commensurate with
the cost of some BMP's. For example, on the point source side, $5,000 would make
little difference in the decision, or ability, to install concrete or steel holding tanks
for animal wastes. By contrast, significantly more assistance was made available to
a number of farmers in the Chesapeake Bay, with positive results. We would urge
the Subcommittee to explore potential environmental benefits of larger grants in se-
lected circumstances.
Phase 1 Focus. The National CouncU interprets this legislation as promoting a
partnership between federal/state government and the farm community. Our priori-
ty objective is to work with the bill's authors so that everything possible is done to
achieve water quality management objectives in the first phase (first 5-year period
as proposed), in the hope that as few farmers as practicable are subject to increas-
ingly prescriptive and costly load reduction requirements that could result in the
second phase.
Time Problems. In analyzing S. 1114, we are concerned that the prescribed time
frames and commensurate funding levels are such that most if not all farmers are
668
likely to find themselves subject to phase 2 (second 5-year period) requirements re-
gardless of their best efforts. We know of no similar outreach program that even
begins to approach any sort of implementation success rate in the time frames pro-
posed.
We question whether states will able to meet the initial proposed deadlines, par-
ticularly since appropriations from the federal level intended to assist state efforts
and on-farm implementation are likely to fall short of targets. Yet this would not
relieve farmers of their obligations. The bill calls for states to work with farmers in
target watersheds so that sdl have approved management plans no later than the
end of the third year in phase 1. Experience would suggest that a large number of
farmers won't have plems approved and implemented until near end of the first 5-
year period at best. ^
There is generally a significant time lag involved between the adoption of BMP s
and water quality improvements showing up in the monitoring data. We are con-
cerned that even if all goes well in terms of timely implementation of BMP's on
farms, the initial 5-year review will lead to a conclusion few water bodies are in
compliance. This could lead to calls for mandatory programs.
We question how close to the end of the 5-year period monitoring data will be
available for determination of progress toward compliance. Data could well predate
implementation of BMP's pursuant to the Act.
These factors combined lead us to the unhappy conclusion that water bodies are
unlikely to come into compliance in the first 5-year period. Only CCP's or other
BMP's implemented earlier and independently of Clean Water Act requirements
will be in place to yield desired results. Yet the deadline for CCP's being in place is
1995.
Time Frame Recommendations. A farmer failing to live up to the partnership
proposed in S. 1114 is faced with penalties, including under injunction authority and
other enforceable powers of the state. Yet what if, for example, states fail to work
with farmers to accomplish approved management plans? The National Council
would propose that the Subcommittee consider building in mechanisms to ensure
that farmers are not penalized if other components of the government/farmer part-
nership fail.
The Subcommittee could build in time a lag reflective of (1) performance by states
of their charge; (2) the availability of needed funding; and (3) time needed for BMP's
to yield water quality results. It should be an operative goal that states are to be
timely in working with farmers, so that farmers aren't penalized by tardy response
on part of the state.
Section 304(e) Criteria. This section provides that the EPA, in cooperation with
USDA, is required to establish animal waste management facility design guidelines.
Farmers and others may submit facility plans to the EPA. Once approved by EPA
and USDA, the plems are eligible for funding provided under Title VI. Also, USDA
is authorized to provide technical assistance.
In general, the proposed animal waste management facilities program provides
considerable opportunity to livestock producers to deal with NPS pollution. The leg-
islation recognizes the responsibility of the federal government to provide financial
and technical support to farmers to address the NPS problems identified and others.
It should be recognized that farmers have been installing animal waste manage-
ment facilities for many years. Their primary motivation has been to address mate-
rial handling problems. For example, winter weather conditions in the Northeast
states make it nearly impossible for dairy farmers to make daily applications of
manure on their farms. As a result, many Northeast dairy farmers have built
animal waste management facilities to address this material handling problem.
To achieve NPS pollution benefits, it makes good sense for animal waste manage-
ment facilities to be tied to a nutrient management or whole farm management
plan. Such plans recognize the fertilizer value of properly stored manure. 'The
animal waste management facilities can be designed for adequate storage taking
into consideration appropriate timing of applications of the manure to farm fields
based on the nutrient needs for crops that will be grown on those farm fields.
The National Council would offer the following recommendations to strengthen
Section 304(e):
• Rather than require the EPA to establish facility guidelines, we would suggest
that EPA be authorized to establish "performance" guidelines. This would allow
for engineering flexibility to address individual farm situations while ensuring
a consistent achievement of environmental objectives. For example, EPA could
set as a performance guideline that there be no leakage of animed waste from a
storage facility, with consultants and builders then required to ensure that
669
proper materials and construction techniques are used to meet that and other
criteria.
• Over the past 20 years, the federal government has spent over $60 billion to
build sewage treatment plants to deal with human waste management con-
cerns. A similar commitment to dealing with animal waste management has
been virtually nonexistent. While the proposed legislation does provide funding
in this direction, the federal commitment is extremely small, and eligibility cri-
teria are very restricted. We would urge a greater financial commitment and
would further recommend that eligibility criteria be expanded to allow for the
use of federal funds to help pay for private sector teclmical assistance, biogas
digester systems, and liquid-solid separator systems.
• We recognize that USDA alone, through the Soil Conservation Service, cannot
serve the needs of all farmers. Farmers are increasingly turning to their coop-
eratives for assistance. We would recommend that the Subcommittee ensure
that provisions for financial assistance include services provided by cooperatives
to farmers. This would be consistent with current use of Section 319 funding
which allows for municipalities to hire private sector consultants for technical
advice and design of publicly-operated treatment works.
Specificity as a Potential Funding Barrier. We would urge the Subcommittee to
be sensitive to the danger that requirements associated with access to grants/loans
will become so prescriptive that they could unintentionally become barriers to funds
needed for site-specific investments by preventing the much needed flexibility that
the bill's authors recognize as necessary for site-specific planning. Furthermore, re-
quirements associated with funding could mean that farmers would be forced to hire
consultants or outside contractors, when perhaps by doing it themselves they might
do the job at a far lower cost.
Costs for Regulated and Regulator. It is our understanding that the Office of
Management and Budget (0MB) and the Congressional Research Service (CRS) have
been asked to analj^ze the costs associated with this legislation, both for government
and the regiilated community. We urge timely completion of this analysis so it can
be factored into assessment of the adequacy of propt^ed funding levels.
Consideration of Economics. The bill defines the term "management measures"
as 'economically achievable measures for the control of additional pollutants from
existing sources and new sources . . .' (emphasis added). The National Council ap-
plauds the specific recognition of economics as appUed to agricultural operations,
particularly since there seems to be a general consensus that farmers must be eco-
nomically viable to adopt BMP's. We would suggest that the term 'control' be re-
placed with the term 'management,' given the significant difference in l^al conno-
tation associated with each.
Citizen Petitions. The legislation would permit citizen petitions as a means of
adding water bodies to states' target lists for action. Since S. 1114 provides for ex-
tensive public input into the initial decision process, we question the need for this
second step. Although the petitions would have to meet certain criteria, they are
unspecified. If the provision is retained, we would urge ftirther clarification, at least
in terms of criteria.
Volunteer Monitoring. The National Council understands and appreciates the
provisions calling for volunteer monitoring. This is consistent with our view that
creative means be sought to maximize available resources. In some instances, we
could see where farmers and cooperatives would want to participate in the monitor-
ing of their water resources. For example, agriculture in a given watershed may
want to provide data more current than a state has the resources to generate to
demonstrate water quality improvements due to recently adopted BMP's. It should
be made clear that farmers and cooperative personnel would be eligible to partici-
pate in volunteering monitoring programs.
In order to assure maximum utility of this resource, the National Council would
urge the Subcommittee to direct the EPA to develop criteria for types and quality of
data that would be suitable for consideration by states. Otherwise, data of inconsist-
ent or poor quality could be misused, with scarce resources misdirected as a result.
Use Designations. S. 1114 provides the opportunity for states to develop their own
use designations, according to water bodies' intended use, with the default being the
Clean Water Act's fishable/swimmable standard. The National Council strongly en-
dorses this approach.
Water Quality Standards. The National Council remains concerned that provi-
sions calling for biological monitoring, conversion of narrative to quantitative stand-
ards and related matters could have the unintended result of more stringent stand-
ards, subjecting more watersheds and farmers to potential regulation, and trigger-
ing more stringent and costly requirements than intended.
670
For example, does biological mean looking at native species as a signal for taking
a closer look at other indicators? If so, what criteria would be utilized in selecting
the water body/ecosystem as a reference point? Could the provision be used to intro-
duce sensitive, non-native species as an environmental indicator that could trigger
regulatory or enforcement action? . j ,
Staff has responded by indicating that such provisions are mtended to augment,
not elevate, current standards. While refining existing standards may be appropri-
ate we would like to continue working with the Subcommittee to thoroughly exam-
ine' these provisions, with modifications and additional clarification as necessary to
ensure that current standards are indeed enhanced and not elevated.
New Sources. Agriculture is appropriately excluded, except for construction of sig-
nificant animal feeding facilities. , J „ .,-, x • i. • J J •
Guidelines and Handbook. To ensure that needed flexibility is retamed dunng
implementation at the local level, the Subcommittee should work to ensure that
these general references are not used as rigid, prescriptive criteria.
Giving BMP's Time to Work. We would urge that S. 1114 make it clear that one
reasonable conclusion during evaluation regarding NPS pollution load reduction re-
quirements is that water quality standards can be achieved if BMP s already unple-
mented are given more time to work. „ , ^. . , ^ -,. j • i.
Potential Politicization of Phase 2. Part of the National Council s desire to see
phase 1 (first 5-year period) be successful is based on uncertainty over how phase 2
will operate. In addition to not knowing how stringent requirements will be, we are
concerned about politicization of the process envisioned where all sources in a wa-
tershed are to get together and "agree" about what sources are contributing how
much to the problem, and how much load reduction each is required to contribute.
With one-half of the value of agricultural production in Standard Metropolitan Sta-
tistical Areas (SMSA's), or in counties immediately adjacent to SMSA's, urban-ori-
ented politics could force scientifically unmerited burdens on agriculture.
Watershed Delineation. Senate staff has indicated that the intent is to require
that watersheds under phase 2 conform to the USGS definition. We support this
intent and urge that staff ensure this is clearly stated in the bill. , , .
"Good Actor" Philosophy. The Subcommittee faces a critical philosophical choice
in its search for policies that will achieve nonpoint source pollution management
objectives on the farm. Should the emphasis be on "command-and-control," with un-
position of solutions remforced by penalties? Or should the emphasis be upon volun-
tary, incentive-based measures? We are pleased that the sponsors of S. 1114 have
selected the latter path, and we would urge the Subcommittee to build upon that
There may well be a place for both approaches over the long term. However, at
this stage in the process, the National Council would strongly urge that the latter
approach be used as the freunework for policies targeting nonpoint source pollution
and agriculture. The emphatic message being sent to cooperatives by their farmer-
members is that they are aware of NPS pollution concerns bemg raised by others
and directed toward agriculture, and that they are anxious to be part of the solu-
tion, in ways that allow them to remain in business and deal with the complexities
of agriculture and natural processes. , . ^ ^ , . ^ j n
We respectfully submit that far more environmental gams for funds mvested will
be achieved by seeking a partnership with the overwhelming majority of farmers
who are wUling to respond, especially in light of likely financial shortages and the
uncertain and highly variable nature of NPS management responses. In seekmg to
impose requirements at this juncture on farmers who may be regarded as bad
actors " one risks alienating the willing population, and divertmg disproportionate
funds away from education and assistance to enforcement. The superfund debacle,
with most funds going to attorneys instead of to cleaning up sites, is an experience
not to be repeated in the water quality arena.
Citizen Suit Exemption. The National CouncU strongly supports the exemption
provided for in S. 1114 for farmers from citizen suit authority m Title III. We would
caution that if citizen suits were to carry over to lenders instead, the unmtended
effect could be to dry up farmers' access to funds. • , • •
Enforceability. States are required to have an enforceable provision, with mjunc-
tion power in phase 2. Does injunction power mean that the state can shut down a
farm operation? It is not clear whether this power is regarded as a first or last
resort. We would recommend that the provision be dropped or if retamed make it
clear this significant power Ls to used only as a last resort.
Innovative Solutions Need to Be Explored. Recognizing that there will never be
enough resources needed to accomplish important water quality objectives, the Na-
tional Council would urge that creative and flexible alternatives be explored, rather
671
than imposing costs of mandated regulatory solution on farmers. For example, the
EPA has done some good work on pollution trading that may be applicable to agri-
culture. 2
ONGOING COOPERATIVE ENVIRONMENTAL INITIATIVES
A number of innovative initiatives, principally built around environmentally ben-
eficial Best Management Practices (BMP's) and Integrated Pest Management (IPM)
programs, are already underway, with promising results, as illiistrated in part by
the summary of a 1989 member survey contained in EXHIBIT 3. We are aware of a
number of additional new programs that have been initiated since the survey was
conducted.
Cooperative Research Efforts:
We in the Agway system are particularly excited about developments in animal
manure management at our research facility that we believe offer the potential to
contribute a great deal in responding to water quality challenges. The Agway Farm
Research Center was first opened in 1967. Today there are nearly 500 tillable acres
and a 500 head registered Holstein herd. In addition to being a working laboratory
for testing Agway products. Dr. Weeks and his team of researchers have tested and
demonstrated BMP's in both crop and dairy operations.
Agway is also a member of Cooperative Research Farms (CRF), an organization
made up of 12 cooperatives throughout the U.S., Canada and France. » These coop-
eratives pool research facilities, knowledge and dollars to maximize benefits to
farmer-members, including in the environmental arena. This multi-cooperative
effort means that information on such advances, both at our research farm and
those of other cooperatives, can often be of benefit nationally and internationally.
While the foundation for the effort is animal feed research, with CRF members rep-
resenting combined sales in excess of $4 billion annually, research farms include en-
vironmental and other objectives in their systems-oriented approach.
Agway's Biogas Systems Approach to Manure Management:
One successful project under the stewardship of Dr. Weeks may be of particular
interest to the Subcommittee, as it highlights the fact that environmental solutions
on the farm are rarely simple, but instead require a systems approach that often
must take into account seemingly unrelated factors before hoped for results can be
achieved.
Dr. Weeks' team has worked for a number of years on the challenge of handling
manure on a working dairy farm, looking for alternatives to enhance more tradi-
tional approaches. As they went up the learning curve, they came to realize that
any workable solution must begin with the cow and consider all facets in the dairy
operation, including nutritional needs, barn temperature, the farmer's pocket book,
and even the cow's creature comforts. The biogas system that they have developed
can, under the right circumstances, turn a dairy farmer's environmental challenge
into a cost-effective energy and revenue source, while at the same time yielding im-
portant water quality and other environmental benefits.
Agway is continuing to make significant progress in working to make the system
more cost-effective and compatible to a wider range of operations. Dr. Weeks is
available to provide further details and respond to any questions. Furthermore,
Agway would be pleased to provide a personal tour for any members or staff who
would like come to our research farm and take a closer look.
COOPERATIVES AS PART OF THE SOLUTION
The National Council wishes to emphasize a strong desire to work with the Sub-
committee in developing policies that enable American agriculture and the farmer
cooperative community to be an effective and active part of the NPS pollution man-
agement solution. We applaud the strong beginning that S. 1114 represents in ap-
2 EPA, "Administrator's Point/Nonpoint Source Trading Initiative Meeting— A Summary,
EPA 841-S-92-001, August 1992. '
^ CRF members are Agway Inc., Syracuse, NY; Countrymark Cooperative, Inc., Indianapolis,
IN; Atlanta, GA; GROWMARK; Inc., Bloomington, IL; Land O'Lakes, Inc., St. Paul MN; South-
em States Cooperative, Inc., Richmond, VA; Tennessee Farmers Cooperative, La Vergne, TE;
Co-op Atlantic, Monton, New Brunswick, Canada; Cooperative Federee de Quebec, Montresd,
Quebec, Ceinada; Federated Co^jperatives Limited, Saskatoon, Canada; Gold Kist, Inc. UCAAB,
Chateau Thierry, France; United Co-operatives of Ontario, Mississauga, Ontario, Canada.
672
plying the principles that we believe are required for American agriculture to be an
effective part of a successful water quality program.
Comments offered today on S. 1114 are intended to move this important policy
document closer to the goals that we share with the Subcommittee. Proposed im-
provements are based on our best understanding to date of the bill's provisions. Our
Environmental Policy Committee's Water Quality Legislative Task Force is continu-
ing to analyze S. 1114's individual provisions, as well as how they might ultimately
interact when implemented on the farm. As our understanding improves, so too
hopefully might the value of additional observations and suggestions.
If the National Council could leave this Subcommittee with one lasting impression
from our testimony today beyond our specific suggestions for improving S. 1114, it is
that agricultural cooperatives are uniquely positioned to be part of the solution. Co-
operatives work in partnership with the farmers and ranchers who are their
member-owners as they strive to address NPS pollution and other environmental
challenges. , . , , o., . ^- , • ,x
Farmer cooperatives are a prominent and mtegral part of this nation s agricultur-
al landscape and culture. Farmers began banding together through cooperatives
early in this century, combining their individual limited resources to address both
input and marketing challenges as a means of helping them remain viable as farm-
ers. Although specific needs may have changed greatly over the years, this role re-
mains the basic charge of cooperatives.
Today, four out of five farmers belong to one or more cooperatives. Cooperatives
by definition are self-help organizations. In the search for water quality solutions,
cooperatives offer an invjduable outreach capability.
This Subcommittee is already painfully aware that resources at the federal and
state level, as well as in agriculture, are far too scarce to accomplish all that we
might like' in the water quality arena by starting from scratch. Our earlier com-
ments underscore this reality. Thus, we would urge that the Subcommittee look for
means of augmenting and energizing existing resources and outreach systems, such
as those in cooperatives. Incremental investments in such systems could yield tre-
mendous environmental benefits more quickly than might otherwise be possible.
Toward this end, we have offered a few suggestions in this testimony regarding co-
operative resources and hope to identify other opportunities as the process moves
In closing, the National Council stands ready to work with the Subcommittee in
advancing water quality legislation that brings to life a true partnership between
agriculture and government in responding to NPS pollution challenges. Dr. Weeks
and I are available to respond to any questions members of the Subcommittee may
have.
SUMMARY
The National Council of Farmer Cooperatives believes that the operative goal of
successful agricultural NPS pollution management policy is to maintain and en-
hance the quality of surface and ground water resources through effective manage-
ment on the farm and in the field of NPS pollution from agricultural activities
where problems are identified, in a manner compatible with food and agricultural
policy objectives.
There must be a shared burden — an agricultural/government partnership — m re-
sponding. Farmers' basic needs include sound information on what works; technical
assistance; and financial assistance to achieve site-specific BMP's.
S. 1114 is comprehensive legislation whose conceptual approach on complex and
potentially controversial issues is generally sensitive to the special needs and con-
cerns of American agriculture. It is targeted to impaired watersheds; places states
in a lead implementing role; and relies on site-specific BMP's.
The National Council recommends that S. 1114 be strengthened to encourage
timely agricultural adoption of BMP's in impaired watersheds. Evaluation of
progress should be compatible with implementation of key program components.
Specific recommendations include (1) increase funding through Section 319 and
SRF targeted to agricultural NPS pollution management initiatives, with expanded
eligibility; (2) allow sufficient time for programs to work before conducting evalua-
tion that could trigger unposition of more stringent provisions on agriculture; (3)
link agricultural accountability to performance on part of states and funding levels;
(4) ensure flexible guidelines in Section 304 program and funding eligibility manure
management systems contributing to enhanced water quality; (5) make certain that
biological monitoring and conversion of narrative to numerical standards accom-
plishes intended goal of refming, and not increasing, existing water quality stand-
673
ards; and (6) maintain the bill's focus on directing limited resources to "good actors"
in agriculture as the primary means of achieving NPS pollution management objec-
tives.
One example of how farmer cooperatives are uniquely positioned to be part of the
solution is Agway's biogas systems approach to managing dairy manure. Coopera-
tives work in partnership with the farmers and ranchers who are their member-
owners as they strive to manage NPS pollution. S. 1114 should be strengthened to
take advantage of resources offered by the cooperative system.
The National Council stands ready to work with the Subcommittee in advancing
water quality legislation that brings to life a true partnership between agriculture
and government in responding to NPS pollution challenges.
EXHIBIT 1
PRINCIPLES STATEMENT OF THE CLEAN WATER ACT WORKING GROUP
CLEAN WATER ACT REAUTHORIZATION
In the reauthorization of the Clean Water Act, Congress should adhere to the fol-
lowing principles:
1. The Clean Water Act (CWA) does not stand alone in protecting America's waters
from nonpoint source (NPS) pollution. Other ongoing programs at the federal,
state and local level must be funded fully, coordmat^ with and not superseded
by the CWA. This includes, in particular, the soil conservation and water qual-
ity provisions of the 1985 and 1990 farm acts and the state groundwater and
surface watex- protection programs of the Federal Insecticide, Fungicide and Ro-
denticide Act (FIFRA).
2. Recognizing the 20-year commitment our country has had to eliminating point-
source pollution, success in reducing the more complex and diverse NPS pollu-
tion will require similar time and resource commitments. However, manage-
ment of this problem will require a different approach than that of point source
pollution elimination because, unlike point source pollution, NPS pollution is
primarily a weather-related phenomenon that can be managed, but not feasibly
eliminated. NPS pollution is caused by the inadvertent discharge of pollutants
from a wide variety of society's most essential activities.
3. The central focus on NPS management solutions should be a reasonable and vol-
untary approach based on incentives, education and technical assistance as the
primary means of managing NPS pollution.
• NPS pollution management program should (a) emphasize the protection of
water resources and state-designated water uses, including state-designated ag-
ricultural uses, and (b) recognize the importance and ne^ of individual agri-
cultural producers and other landowners affected by the CWA.
• This approach emphasizes the use of locally designed and applied, economically
feasible, site-specific best management practices which do not infringe on pri-
vate property rights. Implementation of these farm management options over a
realistic time frame will further the goal of reaching or maintaining designated
uses of water bodies.
• It is inappropriate to link USDA commodity, conservation or disaster program
payments to the success or failure of management programs for NPS pollution
authorized under the CWA.
4. Current CWA language contains valuable provisions for NPS management em-
bodied in Section 319. Although this NPS section has been historically under-
funded £ind has been hampered by bureaucratic roadblocks, all states now have
approved Section 319 assessments and approved management programs. Within
the CWA, it is the preferable vehicle for management of NPS pollution, and
changes which occur during CWA reauthorization should reinforce these exist-
ing NPS provisions.
• The proper management of NPS pollution lies in state and local efforts. As
such, states should continue to identify and resolve their priority NPS water
problems through administration of Section 319 funds. With state oversight and
approval, local organizations should continue to carry out these NPS programs.
Agencies at the federal and state levels should harmonize objectives and coordi-
nate funding for national and regional NPS management programs.
• State and local programs should provide for a mix of research, development,
education and technical and financial assistance for both planning and imple-
menting actions aimed at achieving state designated uses.
674
5. Management efforts funded by Section 319 of the CWA should be directed to pri-
ority areas based on scientific assessments that identify water bodies with im-
peiired or threatened uses.
• Priority, as determined by states, should be based on the magnitude of risk to
human health, the protection of designated uses, and likelihood of further sig-
nificant and unreasonable water quality degradation if no action is taken.
• Strategies should be developed on a hydrologic unit, watershed-wide basis using
an approach that includes the consideration of both surface and ground water
quality.
• Programs should focus on cost-effective, site-specific practices for individual op-
erations with flexibility for implementation.
• In order for Section 319 to work effectively for agriculture, USDA must play a
lead role in the delivery of education and technical assistance at the state and
local level.
6. An effective and cost«fticient response to water quality problems requires accu-
rate and reliable information on (a) the source, extent, and impact of NPS pol-
lution, as well as G>) the effectiveness, utility and economic feasibility of conser-
vation measures and best management practices.
• Any Clean Water Act reauthorization should include a strong financial commit-
ment to further research, monitoring and assessment projects.
• Monitoring should include before and after sampling as well as frequent sam-
pling during storm events and assessment of natural and historic loadings.
• Scientific research and monitoring projects should follow protocols developed by
the US Geological Service and should be conducted on a watershed basis with
local and state input.
• Representative pilot projects aimed at achieving market based incentives on a
watershed or regional level should be encouraged.
7. The Clean Water Act Reauthorization should not directly or indirectly create a
federal water quality law or program which supersedes, abrogates or impairs
state water gdlocation systems and water rights.
8. Section 319 management programs on federal lands should be developed and im-
plemented by the specific agency statutorily charged with management of the
lands in question, rather than by regulatory authorities independent of that
agency.
9. It is inappropriate for a reauthorization of the Clean Water Act to provide the
authority for citizens suits against individuals participating in NPS manage-
ment programs.
ENDORSING ASSOCIATIONS: American Farm Bureau Federation; American
Feed Industry Association; American Forests & Paper Association; American
Nurserymen; American Sheep Industry Association; American Soybean Assoc-
clation; The Fertiuzer Institute; National Agricultural Chemicals Associa-
tion; National Association of Conservation Districts; National Assoclation of
State Departments of Agriculture; National Association of Wheat Growers;
National Broiler Council; National Cattlemen's Association; National Corn
Growers Association; National Cotton Council; National Council of Farmer
Cooperatives; National Farmers Union; National Milk Producers Federation;
National Pork Producers Council; National Turkey Federation; National
Water Resources Association; U.S. Rice Producers.
EXHIBIT 2
CROP NUTRIENTS AND WATER QUALITY
INTRODUCTION
Detection of crop nutrients (principally nitrogen and phosphate) in ground and
surface water supplies has been a mounting public concern. Research indicates
these compounds come from numerous sources, both natural and man-made, and
the primary sources of contamination are not yet known. Nonetheless, the use of
nitrogen and phosphorus fertilizers in agricultural production has led to increasing
public scrutiny of farmers and farm production practices.
The National Council of Farmer Cooperatives (NCFC) represents more than 2 mil-
lion U.S. farmers and the cooperatives they own. Nearly 50% of the nation's farm-
ers purchase fertilizer through cooperatives. In addition, farmers (through their co-
operatives) own approximately 25 percent of all commercial fertilizer production ca-
pacity.
675
The purpose of this report is to discuss non-point source (NPS) pollution of ground
and surface waters, the factors involved, and recommendations for addressing the
problem. The report is divided into the following sections:
• Executive Summary
• The NPS Problem
• The Role of Crop Nutrients in Agriculture
• The NPS Solution
EXECUTIVE SUMMARY
The NPS Problem
• There are many potential sources of nitrates and phosphates in water, such as
decaying organic matter, manure, atmospheric lightning, commercial fertilizers,
and septic tanks.
• Evidence on the scope of NPS pollution is most prevalent for nitrates. The
EPA's National Survey of Drinking Water Wells found 1.2% of community
wells and 2.4% of rural wells contain nitrate in excess of EPA standards.
• Environmental concerns from nitrogen and phosphates center on eutrophica-
tion — stimulated growth of algae in surface waters. Both nutrients can cause
eutrophication.
• For human health, nitrate concerns center on "Blue Baby Syndrome," a condi-
tion affecting infants. However, no cases have been reported in recent years,
and national health organizations no longer keep statistics on it.
• Phosphates pose few, tf any, known threats to human health, according to sci-
entists.
• Potassium, another major crop nutrient, generally is not a health or environ-
mental concern.
Role of Crop Nutrients in Agriculture
• There are 16 essential elements for plant growth. Nitrogen and phosphorous
(along with potassium) are the elements used in the largest quantities.
• The natural supply of these elements in soil in forms avedlable to plants is lim-
ited, and must be supplemented to maintain crop growth and productivity for a
wholesome, abundant, reasonably priced supply of food.
• Many sources of supplemental nutrients are available, such as manure, sludge,
commercial fertilizers, and crop rotations. Whether natural or manmade, all
can potentially cause NPS pollution and all must be properly managed.
• Commercial fertilizers offer numerous benefits to both producers and the envi-
ronment. Advantages include the capability to measure, time and place nutri-
ents for maximum plant uptake and benefit, and thereby minimize groundwat-
er leaching and erosion ninoff.
The NPS Solution
• To effectively manage nitrate and phosphate contamination, a systems policy
approach is needed to ensure that reductions in one source are not offset by in-
creases in another. The systems approach requires careful examination of both
ag and non-ag, as well as both point and non-point, sources.
• For new ag-environmental policies to be effective, producers will need sound in-
formation, as well as technical and financial assistance to implement desired
practices. If government makes NPS the focal point of water policy, government
funding needs to reflect this change.
• Recent ag-environmental policies, such as those of the 1985 and 1990 farm bills,
have significant potential for addressing NPS contamination. The problem is
little or no funding has been provided in many instances. Moreover, time is
needed to evaluate the results.
• Adoption of Best Management Practices (BMPs) — practices shown to give maxi-
mum productivity, input efficiency and environmental protection — 1ms signifi-
cant potential to address nutrient contamination, and, at the same time, ensure
the financial viability of America's highly efficient and productive farm sector.
Specific Recommendations
1. The numerous ag-environmental programs adopted in recent years need to be
properly structured and administered, and fully funded in order to reduce NPS
contamination and mitigate the need for additional policy responses.
676
If new water quality programs are developed, farmers must be provided with
sound information and additional financial resources to adopt site-specific
BMPs.
New policy proposals must be cognizant of imposing additional costs on farm-
ers. In light of large cuts in farm support programs in recent years, farmers
have extremely limited capital resources. Farm programs may see additional
cuts in the near future.
. Any new policy proposals must be designed to ensure maximum environmental
protection at miniTnnm cost. New programs should make ample use of provi-
sions such as pollution credits and trading between point and non-point nutri-
ent sources, to allow affected parties maximum flexibility in meeting specific
water quality goals.
677
PERCENTAGE OF WELLS THAT CONTAIN
NITRATE IN EXCESS OF THE STANDARD
COMMUNITY WELLS
1 .2% EXCESS
RURAL WELLS
2.4% EXCESS
T
97.6% WJTHIN STANDARD
678
THE NPS PROBLEM
Nitrates can potentially pose a threat to human health, but no incidents have
been reported in recent years. Both nitrates and phosphates can cause eutrophica-
tion, damaging surface water bodies. There are many potential sources of both nu-
trients in water.
• For nitrogen, sources include:
decasdng organic matter
manure/sludge
atmospheric lightning
commercial fertilizers
legume crops/immature grasses
septic tanks.
• For phosphate, major sources include phosphate-containing detergents, natural
sources, and farm inputs (manure, commercial fertilizer, etc.).
• All nitrogen sources — ^both organic and inorganic — can leach nitrates into
ground water systems or, through soil erosion, convey nitrates into surface
waters, such as lakes and rivers. All phosphate sources potentially can contami-
nate surface water bodies. Because phosphate binds tightly to soil, it is general-
ly not a ground water risk.
• Potassium, another major crop nutrient, creates no known quality problems for
surface waters, and generally does not pose a contamination problem for ground
water systems (CAST, 1992).
SCOPE OF THE NPS PROBLEM: NITRATES
EPA Water Well Survey (Ground Water)
• The National Survey of Drinking Water Wells conducted during 1988-89 esti-
mated about one-half of the nation's wells contained traces of nitrate (N03), but
the vast majority were below the maximum contamination level of 10 pats per
million (ppm) nitrate as N.
• EPA found nitrate in excess of the standard in 1.2% of the nation s commimity
wells and 2.4% of rural wells.
Des Moines River Study (Surface Water)
• The Leopold Center for Sustainable Agriculture at Iowa State University found
that nitrate levels in the Des Moines river were nearly as high in 1945 as for
1980-90. .^ ,
• The study shows that the nitrate problem in the nver significantly pre-dates
the use of commercial fertilizers, which did not become widespread until the
1960s. The results are particularly important as Iowa is one of the largest states
for fertilizer use.
Specific health and environmented concerns include:
• Eutrophication .
Eutrophication occurs when algae growth is stimulated in surface water
bodies.
Nitrogen and phosphorus can contribute to eutrophication. Phosphorus is an
essential (and generally lacking) nutrient in the growth of algae.
• "Blue Baby Syndrome" (Methemoglobinemia)
Digestive tracts in infants up to 6 months of age are naturally low in acid.
When coupled with excessive consumption of nitrates, this can prevent proper
oxidation of infant blood cells, and lead to Blue Baby syndrome.
—Modem society has virtually eliminated Blue Baby risk. From 1947-49 {long
before significant agricultural use of commercial fertilizers), Minnesota reported
139 cases and 14 deaths, attributed to high nitrate levels in farm wells. Since
1960 only one case has been reported in the nation. The cause was a shallow
farm well located too near a septic tank system and barnyard.
Because occurrences are so rare, major U.S. health organizations (National
Institute of Health, National Center for Disease Control) no longer keep statis-
tics on it.
• Few, if any, adverse human health effects have been linked to exposure to high
levels of waterbome phosphates (Klaassen, 1986).
679
ACTUAL U.S. CORN
YIELD - 1992
ESTIMATED YIELD
WITHOUT ADDED N.
SCIENTISTS ESTIMATE U.S. CORN YIELD WOULD
BE CUT BY MORE THAN 40 PERCENT WITHOUT
SUPPLEMENTAL N.
680
THE ROLE OF CROP NUTRIENTS IN AGRICULTURE
Crop nutrients are essential to agriculture. Commercial fertUizers are an impor-
tant source of nutrients, offering farmers several environmental and economic ad-
vantages. However, fertilizers are only one nutrient source, and all sources must be
managed to minimize NPS. , »t. j i. i. ^ j
ThCTe are 16 essential elements for plant growth. Nitrogen and phosphorous (and
potassium) are the elements used in the largest quantities.
• Nitrogen is the most essential crop nutrient, playing a key role in cell division
and raising protein content. It is the nutrient most frequently deficient m agri-
cultural soils. , .^. , J r- • * •
• Phosphorus, although not required in large quantities, is also deficient m some
soUs. Phosphorus is essential for cell division, photosynthesis, utilization of
sugar and starches, and energy transfer.
The limited supply of these nutrients in the soil must be supplemented. Many
sources of supplemental nutrients are avaUable, and whether natural or manmade,
all are potential NPS contaminants. , .. , , , • j ^ j i
• To maintain farm productivity and a plentiful, reasonably priced food supply,
modem agriculture requires the addition of crop nutrients. Without supplemen-
tal nitrogen, com yields, for example, would fall 40 to 50 percent (Hoeft, 1990).
• Before the advent of modern agriculture, too often the soil was mmed of its
naturally occurring nutrients and then abandoned.
• Between the introduction of crop hybrids and the use of fertilizer, U.S. corn
yields, have increased nearly 250% since 1950. Wheat yields have climbed
almost 150%. . ,j ■, j i.- * j
• Curtailing the use of supplemental nutrients would reduce productivity and
could draw environmentally sensitive lands into production, boostmg soil ero-
sion and worsening the NPS problem. . _. .
• Commercial fertUizers are just one component.— albeit an unportant one— m nu-
trient management. Other important sources of supplemental nutrients mclude
legumes, manure, crop rotations, green manure, sludge, and numerous others.
• All sources have equal potential to contribute to NPS pollution.
681
U.S. FOOD PRODUCTION
CAPABILITY AND FERTILIZER USE
1980
SOURCE: THE FERTILIZER INSTITUTE, 1 982
682
When used properly, commercial fertilizers can provide environmentally soimd,
economically efficient nutrients for crop production.
• Commercial fertilizers are man-made, but the chemical interaction with plants
is exactly the same as an organic product such as manure. Fertilizers are pro-
duced from, and break down into, naturally occurring compounds.
• Commercial fertilizers offer many important advantages, including the capabil-
ity to measure, time and place nutrients for maximum plant uptake and bene-
fit. In that way, fertilizer use can minimize groundwater leaching and erosion
• Commercial fertilizers are economical, providing farmers with crop nutrients at
relatively low cost— particularly in terms of capital and labor costs.
• Animal manure and sludge can be productive elements in nutrient manage-
ment but must be carefully managed, particularly as they pose special chal-
lenges for NPS pollution: In addition to nitrate and phosphate, these sources
can spread microbisd diseases in waters (CAST, 1992).
THE NPS SOLUTION
New programs to deal with NPS should be multifaceted, involving systems-based
policies, sound information, technical and financial assistance for producers, and
further'development and promotion of Best Management Practices.
The systems policy approach is needed is to ensure reductions m one source are
not offset by increases in another. The systems approach requires careful examma-
tion of both ag and non-ag, as well as both point and non-point, sources.
• The systems approach means that the agricultural production process must be
examined in its entirety when developing and implementing specific policy ac-
• A non-systems approach— policy that focuses on reducing one or two specUic
sources— could, unintentionally, increase use and contammation from other
sources leaving overall contamination unchanged or even worse.
• Non-system policies that dramatically reduce agricultural productivity— e.g.
policies that restrict nutrient use and reduce crop yields, or that require exces-
sive rotations and reduce overall farm output— could easily push production
onto more erosion prone, environmentally sensitive lands.
In rural areas, improving ground water systems requires addressing nitrates from
non-ag sources.
• According to the Council on Environmental Quality (1980), home septic systems
are a larger source of ground water contamination than farming. Septic systems
release nitrate by design. , ^^ j • x i
• Septic systems remain the primary sewage control method m most rural areas
(Perkins, 1984). . , tt o j u oo -i
• EPA estimates 25% of the housing units m the U.S. are served by some ZZ mil-
lion septic units (1986).
For new policies to be effective, producers will need sound information, as well as
technical and financial assistance to implement desired practices.
• New policies, developed to reduce ag-related NPS, must focus on farmers as the
target audience, and must be designed accordingly.
• If NPS is the policy focus, resources must be reprioritized. At present, the vast
majority of government resources is allocated to addressing contamination from
point sources. .„ , , , ^ j i x v i
• Investment in research and education will be needed to develop new technol-
ogies/practices that minimize agriculture's contribution to NPS, and to assist
producers in incorporating new technologies on individual farms.
• In order to implement new practices, farmers must be economically viable. Ad-
ditional resources will be required to support new practices, particularly if
large-scale implementation is expected.
• Farmer cooperatives are already working with producers, promoting environ-
mentally beneficial practices, and stand ready to further assist with the adop-
tion of new, proven technologies/practices. Cooperatives play a unique role m
agriculture and are well positioned to facilitate adoption.
Recently-adopted ag-environmental policies have significant potential for reducing
contamination of ground and surface waters. The problem is that only partial fund-
ing has been provided. Moreover, time is needed to see results.
• The 1985 Farm Bill contained a number of important environmental provisions,
and the 1990 Farm Bill went even further. Important non-farm bill programs
have been initiated eis well.
683
• Policy objectives have centered on
— reducing soil erosion and runoff
— maximizing efficiency of input usage
— promoting Best Management Practices — environmentally safe, sustainable,
economically efficient practices.
• Many of these programs have received little or no funding since being passed.
For some, regulations have not even been promulgated.
• Even the best funded programs are relatively young, and their impact on water
quality is only beginning to be seen.
Adoption of Best Management Practices (BMPs) has significant potential to ad-
dress nutrient contamination. A BMP system requires total integration of all inputs
into the system and is inherently site specific.
• BMPs are those practices that are already proven in research and tested
through farmer implementation to give optimum production potential, input ef-
ficiency emd environmental protection.
• A BMP system involves both conservation and agronomic practices.
• According to the Council for Agricultural Science and Technology (1992), re-
search studies indicate that nutrient and other non-point source contaminants
are reduced by implementation of BMPs.
• Increasingly, farmers are looking to extension personnel from land-grant uni-
versities, as well as numerous USDA agencies, to gain information on BMP
technology and how to apply it to their farms.
THE NPS SOLUTION: SPECIFIC RECOMMENDATIONS
1. The numerous ag-environmental programs adopted in recent years need to be
properly structured and administered, and fully funded in order to reduce NPS
contamination.
• USDA programs must be coordinated, to gain maximum environmental benefit.
• Ekiucation and promotion progreuns should be developed to ensure farmers are
aware of program goals, requirements, and benefits.
• Evaluation systems should be implemented to determine which are most envi-
ronmentally effective and economically efficient for both taxpayers and farm-
ers.
• Fully funded, these programs can substantially mitigate the need for additional
policy responses.
2. If new water quality programs are developed, farmers must be provided with
sound information and additional financial resources to adopt site-soecific
BMPs.
• Proposals should encourage, through economic incentives, the use of BMPs— re-
warding farmers for good soil stewardship and sound crop management.
• Research gmd extension programs should be a major part of any new proposals,
to develop, demonstrate and promote BMP technology.
• BMP technology is inherently site-specific, because of differences in soils, grow-
ing seasons, weather patterns, etc. To reflect this, BMP research should be
"bottom up" in nature, incorporating significant farmer input.
3. Policy makers must be cognizant of imposing additional costs on farmers.
• Farmers are short on resources, especially capital resources, in the face of large
cuts in farm support programs in recent years. Farm programs may see addi-
tional cuts in the near future.
• The farm population continues to decline, and additioned, policy-related cost
pressures could cause a precipitous drop in population.
• Even small cost increases could spell financial ruin for a large number of pro-
ducers.
4. Any new policy proposals must be designed to ensure maximum environmental
protection at minimum cost.
• New programs should allow affected parties maximum flexibility to meet envi-
ronmental goals, making ample use of provisions such as pollution credits and
trading. This flexible, marke^based approach Gike that contained in the 1990
Clean Air Act) has been shown to be effective, from an environmental as well as
a cost perspective.
• Pollution trading and credits should be allowed among both point and non-point
sources.
684
• Numerous successful market-oriented policies have been used by state and local
governments to combat water quality problems, as demonstrated by North
Carolina and New York City.
BIBLIOGRAPHY
Council for Agricultural Science and Technology. 1992. Water Quality: Agriculture's
Role. Council for Agricultural Science and Technology, Ames, LA.
Council on Environmental Quality. 1980. Environmental Quality— 1980: The Elev-
enth Annual Report of the CEQ. Government Printing Office, Washington D.C.
Hoeft R G. 1990. Fertilizer Nitrogen: Providing Nitrogen and Protecting the Envi-
ronment. Better Crops with Plant Food. Fall 1990. Potash & Phosphate Institute. At-
lanta GA.
Keeney, D.R., and T.H. DeLuca. Des Moines River Nitrate in Relation to Water
Shed Agricultural Practices: 1945 Versus 1980s. Journal of Environmental Quality.
22.
Klaassen, CD. 1986. Distribution, Excretion, and Absorption of Toxicants. In CD.
Klaassen! M.O. Amdur, and J. Doull (Eds.). Casrett and Doull's Toxicology. 3rd. ed.
Macmillian Publishing Co., New York.
Perkins, R.J. Septic Tanks, Lot Size, and Pollution of Water Table Aquifers. Journal
of Environmental Health. 46.
The Fertilizer Institute. 1982. Fertilizer Handbook. The Fertilizer Institute, Wash-
ington D.C.
US Department of Agriculture. 1991. Agricultural Resources— Cropland, Water,
and Conservation. Situation and Outlook Report. September. Economic Research
Service, U.S. Department of Agriculture, Washington D.C
U.S. Environmental Protection Agency. 1986. Septic Systems and Ground Water Pro-
tection: A Program Managers Guide and Reference Book. Office of Ground-Water,
U.S. Environmental Protection Agency, Washington D.C.
U S Environmental Protection Agency. 1990. National Survey of Pesticides in
Drinking Water Wells. EPA570/9-9-015. U.S. Environmental Protection Agency,
Washington D.C.
APPENDIX: AG-ENVIRONMENTAL POLICIES
Agricultural Water Quality Protection Program (1990 Farm Bill)
• Participants must follow Best Management Practices consistent with a USDA-
approved water quality protection plan, which includes reporting input usage,
and conducting soil and tissue tests for each year of the 3 to 5 year agreement.
• Producers receive incentive payments of up to $3,500 per person, per year; cost-
share assistance of up to $1,500 per person, per contract; and technical assist-
ance in developing/ implementing plans.
• Farm program payment yields and acreage bases are protected on enrolled
acreage.
• Eligible lands include:
—well-head protection areas t^ „ ,. ^
—land deemed critical as per section 319 of the Federal Water Pollution Con-
trol Act
—areas of shallow Karst topography where sinkholes allow runoff to directly
enter ground water supplies ttot^a j i.u
—other areas identified as environmentally sensitive by EPA, UtsDA, and the
Departments of Interior or State.
• When created, the AWQPP's goal was to enroll 10 million acres by 1995, but
lack of funding makes it questionable as to whether the program will meet that
• What little funding the program has received has come from other USDA con-
servation programs.
• At this date, USDA is unable to say exactly how much acreage is enrolled.
Conservation Reserve Program (1985 Farm BUI)
• The CRP was designed to remove highly erodible land from agricultural produc-
tion for 10 years. Enrolled acreage must be planted to a USDA-approved cover
crop or trees/shrubs. ttct-»a j
• Participating producers receive annual "rentsd payments from UbDA and cos^
share assistance.
685
• The goal for total CRP enrollment is 40-45 million acres by 1995. (Significant
acreage considering total principal crop acreage last year was 319 million
acres.)
• Enrollment in the CRP has gradually increased to the current 36 million acres.
• With changes made via the 1990 Farm Bill, the CRP has an increased environ-
mental focus. Explicit goals now include improvement of ground and surface
waters.
Wetlands Reserve Program (1990 Farm Bill)
• Designed to return farmed or converted wetlands back to a wetland environ-
ment.
• Participgmts must agree to long term easements. Easements can be permanent,
for 30 years, or the maximum allowed under applicable state laws.
• Similar to CRP, producers receive annual "rental" payments from USDA.
• Enrollment goal is 1 million acres by 1995. Current enrollment is approximate-
ly 50,000 acres.
Conservation Compliance (1985 Farm Bill)
• Requires all farmers with highly erodible land to develop USDA-approved con-
servation plans designed to minimize soil erosion and runoff.
• Implementation must be completed by January 1, 1995.
• The 1990 Farm Bill expanded potential penalties for violating conservation
compliance. Farmers violating the provision could be denied virtually all USDA
payments/benefits.
• Approximately 40% of U.S. farmers, and 140 million acres, are affected.
• Less than 2% of highly erodible land is not covered by a compliance plan.
• To date, approximately 60% of plans have been implemented.
Environmental Easement Program (1990 Farm Bill)
• Purpose is to reduce the impairment of water quality and provide long term
protection of environmentally sensitive lands.
• There is no acreage mandate for the program.
• Long term easements will be offered to landowners through 1995.
• Eligible lands include:
— acreage enrolled in the CRP that is likely to return to production after the
CRP contract expires and would pose an environmental threat
— areas containing riparian corridors
— environmentally sensitive areas that would be in violation of State or Federal
environmental goals if cropped.
• Participants agree to implement a natural resource conservation management
plan, recorded deed restrictions, and permanently retire any existing base and/
or allotment history.
• Participants receive 100% cost sharing for establishing conservation measures,
and easement payments for up to 10 years. Payments can total up to $250,000.
• Because no funding has been appropriated, USDA has not accepted any acreage
into the program; in fact, USDA has not even promulgated program regula-
tions.
President's Water Quality Initiative (1989)
• Directs USDA to implement research program to develop new farming systems
designed to protect ground water.
• USDA to set-up nationwide demonstration projects promoting various cropping,
nutrient/ pesticide memagement, and tillage practices for improved water qual-
ity.
Section 6217, Coastal Zone Management Act (1990)
• Goal is to restore and protect coastal waters.
• Each of the 35 states eind territories with coasted waters will be required to de-
velop NPS pollution control programs.
• EPA, USDA and other state and federal agencies are currently in the process of
developing program guidelines.
Section 319, Clean Water Act (1987)
• Requires states to submit a report to EPA that identifies state waters not meet-
ing water quality standards because of NPS pollution; identifies general and
specific nonpoint sources; describes methods for identifying effective BMPs to
combat problems; and identifies programs for controlling NPS.
• States are required to develop management plans to address identified NPS pol-
lution problems.
686
• Implementation of the program has been slow, as little funding has been pro-
vided. While all states have now filed assessment reports and management
plans, the plans have not yet been approved by EPA.
EXHIBIT 3
SURVEY OF COOPERATIVE ENVIRONMENTAL INITIATIVES ^
SUMMARY
Farm supply cooperatives were surveyed concerning Promotion of BMP's. Of a
population of 25 regional supply cooperatives that the survey was mailed to:
• 18 regional cooperatives informed their local cooperatives of fertilizer BMP's
through a variety of means (training courses & seminars, written materials,
etc.), using information obtained from USDA, universities, trade associations
and their own research efforts. ^ Most of the training programs were certified
by state agencies.
• 10 cooperatives provided soil test kits to locals. Most indicated that soil tests are
free if fertilizer is purchased as a result of tests.
• 12 cooperatives had names for their program promoting BMP's, and 9 had hired
agricultural experts to implement the program (others used current employees
or hired contractors). 13 regionals worked with the media to promote BMP's.
• 20 regionals indicated their locals inform farmer-members of BMP's, and assist
farmers in determining the fertilizer application rate best suited to safeguard
the environment and maintain production efficiency. Locals made use of com-
puter models, soil testing, plant tissue analysis, historical application rates and
advice from the regional cooperative.
• Of 11 regionals providing estimates on the percentage of farmer-members utiliz-
ing BMP's, 8 indicated greater than 50 %, including 4 exceeding 90 %.
• 9 regionals conducted research on fertilizer application rates, including 5 on
BMP's; 8 were involved in an experimental farm program. 15 provided financial
assistance for university research on BMP's.
Twenty cooperatives primarily engaged in food processing and marketing respond-
ed to a parallel survey on Promotion of IPM Programs:
• 15 regionals informed locals of IPM techniques, based on information obtained
from a variety of government, university and in-house resources. 4 had certified
IPM courses. 11 had names to promote their program. 7 cooperatives had hired
experts to implement their IPM program.
• 14 regionals indicated their locals review IPM techniques at meetings with
farmers. . x u i.
• 18 regionals assisted farmers in determmmg pesticide application rates best
suited to safeguard the environment and maintain production efficiency.
• 9 cooperatives conducted research on IPM; and 10 provided financial support
for university research on IPM.
STATEMENT OF JUDY OLSON, VICE PRESIDENT, NATIONAL ASSOCIATION
OF WHEAT GROWERS, GARFIELD, WASHINGTON
Mr. Chairman and Members of the Subcommittee:
My name is Judy Olson, and I am vice president of the National Association of
Wheat Growers. My husband and I have raised wheat, barley and lentils in the Pa-
louse region of Washington State for the past 20 years. Today I am also speaking for
the American Soybean Association, National Barley Growers Association, National
Corn Growers Association, National Cotton Council, and the U.S. Rice Producers
Group.
• These partial results were derived from analysis of a member survey developed through a
joint effort with the USDA Agricultural Cooperative Service and conducted by the National
Council in 1989. The National Council assumes sole responsibility for the interpretation of re-
sults as presented. ,. , . .. , ^ ^ r i.-
2 The reference to "regionals" and "locals mvolves organizational structure of cooperative
businesses and warrants brief explanation. Generally speaking, while some regional coopera-
tives are centralized, with farmers belonging directly, others are federated^i.e., farmers (several
hundred to several thousand) are typically members of "county ' locals, and locals m turn are
members of the regional. Either structure can encompass anywhere from a few counties to a
number of states.
687
I appreciate the opportunity to comment on the nonpoint source title of S. 1114,
and those provisions which we feel are of the most direct importance to agriculture.'
The goal of improving watershed planning is a central feature of the proposed leg-
islation, and we agree that better identification of impaired watersheds and develop-
ment of a strategy to manage sources which have been specifically associated with
impaired water quality is essential. Where this is already occurring, and where agri-
culture has been specifically related to water quality impairment, farmers have
been willing participants in watershed projects.
Projects established under the Rural Qean Water Program (RCWP) and USDA's
Water Quality Initiative exemplify high levels of farmer participation in cooperative
problem-solving efforts. The RCTWP, administered by the U.S. Department of Agri-
culture in consultation with the U.S. Environmental Protection Agency, was initiat-
ed in 1980 as an experimental effort to address agricultural nonpoint source pollu-
tion in 21 watersheds across the country. Most RCWP contracts began in 1980-81
and ended in 1986. Landowner participation was voluntary, with cost sharing and
technical assistance offered as incentives for implementing best management prac-
tices. In order to achieve water quality goals established for the watersheds, the re-
quired 'level of best management practice (BMP) implementation on cropland was
set by the agencies at 75 percent of the critical area encompassing major pollutant
sources — and in all 21 projects this goal was met or surpassed.
Preliminary analysis of participation in the 74 nonpoint source "hydrologic unit
area" projects established under USDA's Water Quality Initiative indicates similar
participation rates. For example, the Godfrey Creek project in Gallatin County,
Montana has 80 percent of the area within the watershed under contract to install
recommended BMP's for dairy farming and irrigated cropland. Education and tech-
nical assistance were jointly provided by USDA's Cooperative Extension Service and
Soil Conservation Service, and cost-sharing made available through ASCS. These
agencies have longstanding working relationships with farmers, and a record of suc-
cessful outreach.
These high levels of watershed project participation lead to two very important
conclusions: (1) voluntary, incentive-based programs are successful when correctly
administered; and (2) it is not necessary that specific practices be in place on 100
percent of the watershed area in order to achieve significant water quality improve-
ment. The immediate objective of nonpoint source programs, we believe, should be
aimed at involving the majority of landowners within impaired watersheds — not
necessarily 100 percent. Participation should be encouraged on the basis of technical
assistance, education and cost-sharing.
Changes in farming practices in my own area add further support to these conclu-
sions. In the Palouse region of Washington State, where we farm on extremely hilly
terrain, farmers have been progressively implementing new practices voluntarily to
reduce soil erosion and improve water quality for over 30 years. Following the origi-
nal enactment of the Clean Water Act in 1972, the Washington State Department of
Ecology endorsed a locally developed series of water quality BMP's for farmers in
the Palouse, including "divided slope" farming to reduce runoff. Since that time,
200,000 acres in Whitman County are farmed according to the recommended prac-
tices. In addition, a regioned research and technology transfer project known as
STEEP was instituted in the mid '70's, and the project has resulted in the voluntary
adoption of minimum-till and no-till systems on over half the acres in Whitman
Covmty, where we farm. As a result of these "technology and knowledge transfer"
projects and official recommendations by local authorities, every one of the farmers
in our area has adopted at least one of these management practices.
In rice producing areas, management practices to improve water quedity have also
been volimtarily adopted by most farmers. As a result of practices recommended by
the Texas A&M University system for the production of rice, most farmers in Texas
are holding irrigation water in their fields long enough so that any fertilizers and
chemicals that are used in production have degraded or dissipated and other dis-
solved solids are less than when the water entered the fields. Similar practices are
being followed by rice producers elsewhere in the United States.
It is our strong belief that if projects like these were adequately funded, expanded
and coordinated with ongoing 319 programs in states, farmers would be enabled to
make the management changes necessary to address nonpoint problems identified
with agriculture. It is also our belief that more BMP's will be installed at much less
cost to both government and individuals under cooperative programs than under en-
forceable programs which require a policing mechanism. Education is a much better
buy than a police force. Funding for the multi-year, 21 watershed RCWP totalled
$64 million, and BMP's were installed on 730,000 acres of cropland. It should also be
688
noted that many of the projects focused on animal waste containment facilities,
which are very costly. . • x r r v-
Cooperative projects such as these engage the vast majority of farmers who are
"good actors" in watershed management, rather than focusing on the "bad actor .
In fact, it has been my observation that those individuals sometimes described as
"bad actors" more often than not turn out to be late joiners rather than nonpartici-
pants A successful watershed project with positive participation from the majority
tends to overcome negative attitudes and resistance from conservative mdividuals
who find it difficult to make changes. Cooperative projects also tap the traditional
community loyalty that is typical of rural life without relying on threats to achieve
positive goals for the community. , . ^.,., , ^ ^ i. ^ n *• *
Inadequate resources account for the mability of many states to fully activate
nonpoint source management strategies. Making adequate resources available to
states to develop and implement their 319 programs is essential to achieving the
goal of improving watershed planning and involvement of landowners— the stake-
holders" in the watershed. A very important provision of S. 1114 is the substantial
increase in the authorization for nonpoint source program funding. It is essenti^
that these increased funds be directed toward improving technical assistance and
education programs in the states, and that grants be made available under the State
Revolving Fund to individuals to assist them in implementmg management prac-
tices which are designed to meet the requirements of the legislation.
The ingredients of a successful watershed planning effort are good understanding
of the nature of any impairment, defining suitable management practices that will
be necessary to address the problem, and aggressive outreach to landowners to
ensure their understanding of the problem and the role that they must play in ad-
dressing it We believe that many of these ingredients are provided for m S. 1114,
particularly increased funding to states to improve planning, assessment and out-
reach. The site-specific approach to BMP design for existing sources and requinng
economic achievability are also very important. . , ^. ,^ . i. j _i.
We believe that local watershed planning authorities, mcludmg the state depart
ment of agriculture, land grant university agricultural specialists, and local S^
and Extension Service experts are best suited to the task of assessment, site-specific
BMP design, and landowner outreach. Each farm operation has imique soil and cli-
matic conditions, in addition to economic conditions which dictate many manage-
ment decisions which farmers must make. Site-specific BMP's taUored to local con-
ditions can best be designed by technicians and researchers who have a wor^g
knowledge of the region. We do not beUeve that the federal EPA should overshadow
this effort by publishing a handbook which local watershed managers must refer-
ence when matehing farming systems to the water quality objectives of the water-
shed Farming according to a national handbook is simply not workable and the
handbook called for in the legislation would defeat the purpose of site-specific plan-
ning and local problem solving. ,, . , . X-
Farm law requires farmers with highly erodible land to unplement a conservation
plan designed and approved by the SoU Conservation Service by 1995. The plans
were developed in accordance with the SCS "Field Office Technical Guide . In some
instances the Guide and SCS technicians have offered a suitable selection of prac-
tices from which the farm operator may choose, but in other instances plannmg has
been inflexible. Farmers can expect an EPA handbook to be a far more mflexible
"guide" to farming.
Other means for EPA to maintain effective oversight over state management pro-
grams would be bore productive, and have already been identified by the agency
itself: These include requiring states to do a better job of reportmg their progress m
meeting program goals and requiring more consistency among state pl^-
Importantly, the legislation recognizes the relationship between SCS-approved
conservation plans and water quality improvement. Since conservation plans are de-
signed to minimize runoff, the legislation provides for them to satisfy water quality
requirements within an impaired watershed for a 5-year period. We are very
pleased that the achievements of conservation plans have been recognized, given the
enormous efforts and costs that farmers have taken on in order to comply.
However, since plans will not be fully implemented untU 1995, they should be
given more time to show results. We believe that ten years, rather than five, would
be a fairer time frame for allowing conservation plans to satisfy watershed BMP
requirements. It has been shown in Rural Clean Water Program and other NPS
projects that runoff reduction resulting from BMP installation can sometimes not be
quantified in terms of water quality improvement for a period of many years, even
though the BMP may be the best available technology. It would be unfair and bur-
689
densome to require new efforts of farmers before the efforts they are already
making have been given a chance to work.
Five years is also an inadequate period of time for watershed planners to assess
nonpoint sources and develop appropriate BMP's for landowners in the watershed.
And it is not an adequate amoimt of time to allow citizens to respond to problems
that are made known to them and for which they £u-e assigned responsibility in
many cases for the first time — ^within the framework of a fully functioning coopera-
tive watershed project.
As the watershed planners develop BMP's for the watershed, they should be dem-
onstrated to landowners, and the lemdowners should be given adequate time to re-
spond and participate in the watershed proiect. The legislation emphasizes the im-
portance of watershed planning and local ownership of watershed projects, and
^ve couldn't agree more. But this philosophy must be made practical with realistic
time frames for states and individual citizens to respond to a new federal mandate.
Thank you very much, Mr. Chairman, for your consideration of our views. We ap-
preciate the efforts made by you and the committee to address water quality con-
cerns in the proposed legislation, and we look forward to cooperating with the com-
mittee in finalizing a sound nonpoint source strategy for the nation.
TESTIMONY OF PAUL GENHO, CHAIRMAN, PRIVATE LANDS AND ENVI-
RONMENTAL MANAGEMENT COMMITTEE, NATIONAL CATTLEMEN'S AS-
SOCIATION
The National Cattlemen's Association is the national sj)okesm£m for all s^ments
of the beef cattle industry — including cattle breeders, producers and feeders. "The
NCA represents approximately 230,000 cattlemen. Membership includes individual
members as well as 46 affiliated state cattle associations and 29 national breed asso-
ciations.
Good morning. My name is Paul Genho, and I am currently Chairman of the Na-
tional Cattlemen's Association's (NCA) Private Lands and Environmental Manage-
ment Committee. I am also a rancher from the state of Florida.
NCA appreciates this opportunity to provide testimony before the Senate Environ-
ment and Public Works Committee, Subcommittee on Clean Water, Fisheries, and
Wildlife, regarding re authorization of the Qean Water Act (CWA). NCA represents
approximately 230,000 cattle producers nationwide through 75 affiliated state cattle-
men's and national breed organizations. This issue is a priority to NCA members,
who earlier this year ranked CWA reauthorization among their top priorities.
Cattlemen across the country are vitally interested in this re authorization of the
CWA. There has been no other CWA re authorization, or other federal statute for
that matter, which potentially could have such pervasive impact on land and water
uses which are fundamental to agriculture. Cattlemen own and manage land which
encompasses over half the U.S. land mass; land which exists in widely varjdng geo-
graphic settings and therefore is exposed to numerous climatologic and geologic oc-
currences. This wide variation in climate and topography makes land management
decisions in the state of Florida very different from those management decisions
made in other portions of the country. For this reason, broad land use planning pro-
visions made on a national level can be very effective in one locality, but be com-
pletely inappropriate for other areas. NCA would urge this subcommittee to keep
these local and regional climatilogical variations in mind as the CWA re authoriza-
tion proceeds.
The beef cattle business is affected by the CWA in a number of ways. For exam-
ple, the 635 million acres of privately owned grazing land represents the predomi-
nant land use in watersheds across the country. According to USDA, over 85% of
U.S. beef cattle raised in feedlots are finished in feedlots which are required to be
permitted as point sources of pollution imder Section 402 of the CWA. Furthermore,
many cattle producers utilize wetlands, during drier months of the year, for haying
and grazing. Although Section 404 contains an exemption for agriculture from per-
mitting requirements, many of these producers have been required, and often
denied, permits for this beneficial, maintenance use of wetlands. The recently pro-
mulgated regulations under the Coastal Zone Management Act prescribe a "one size
fits all" approach to non point source (NPS) pollution. By EPA's own estimates, the
cost of this NPS approach to the private sector in this narrow band of coastal areas
(735 counties) is expected to be at least $500 million. As stated earlier, this nation-
wide approach will not provide an effective, cost-efficient means of reducing NPS
pollution in these areas, let alone throughout the rest of the country. At the present
time, ranchers and farmers across the country are operating under state developed
690
and driven Section 319 plans which, if given adequate time and resources, could
prove to be very effective in reducing NPS pollution.
NCA has been actively involved in the re authorization of the CWA for a number
of years. Most recently, we have worked as part of a coalition of over twenty agri-
cultural and conservation organizations to develop a Statement of Principles regard-
ing re authorization of the CWA. This document, attached for your review, outlines
those provisions of NPS policy which are necessary for a workable and cost effective
CWA re authorization. NCA would urge the Committee to review these Principles,
and incorporate those provisions into any CWA re authorization measure.
NCA appreciates the leadership of the Senate Environment and Public Works
Committee in drafting legislation for CWA re authorization, S. 1114. NCA has found
a number of positive provisions embodied in S. 1114, such as:
A) efforts to ascertain the quality of all "waters of the United States". This is
a key provision of any CWA re authorization measure and will, for the First
time since the CWA has been introduced, provide an accurate assessment of the
quality of surface waters nationwide.
B) expansion of water quality monitoring to a continuous, five-year cycle. This
provision enables states to more accurately assess and establish trends for
water quality improvements.
C) addressing the management of water pollution from a watershed approach
and targeting those watersheds with a demonstrated water quality impairment.
D) recognition of current, ongoing agricultural programs and site specific
plans which are expected to protect or improve water quality.
E) the recognition for increased funding levels as necessary for improvements
of the NPS section of the Act
F) recognition of states ability to best direct pollution reduction efforts.
NCA appreciates the consideration given to States ability to direct water quality
protection. However, there are sections throughout S. 1114 which may undermine
the efforts of states by requiring extensive EPA oversight. The provisions in ques-
tion include:
A) dictating federal numeric criteria for water quality standards.
B) promulgating federal gviidance for NPS management measures developed
by the States. ..,,,,
C) translating narrative water quality standards to numeric standards based
on federal criteria.
D) allocating loadings and potential load reductions among each perceived
source of pollution.
E) expansion of priority waters to include "outstanding national resource
waters" and undefined "sensitive aquatic and wildlife habitats" as determined
by EPA. These determinations are best made by states.
F) development of targeted watershed areas and watershed plans to protect
water quality, which must be approved by EPA.
G) establishing strict allocation regimes for NPS funding at state level.
H) federal approval of site-specific plans.
I) requirements of federal agencies who manage lands to seek EPA approval.
NCA's testimony submitted today will address this legislation in a number of
areas, including:
Water Quality Standards/Criteria
Non Point Source Provisions
Timing/Funding
Watershed Planning
Enforcement/ State Deference
NCA is also plsmnuig to submit written testimony at a later date to this Commit-
tee regarding point source issues and wetlands law reform.
WATER QUALITY STANDARDS/CRITERIA
The water quality standards section of current law would be greatly expanded by
the inclusion of criteria for sediment quality, numeric concentration limitations for
toxic pollutants, and by adding "pathogens or indicators of pathogens (or both), pH,
oil and grease". Many of these pollutants are typically naturally occurring. Unfortu-
nately, these natural, historic loadings are not considered. When numeric criteria
are established for these pollutants and loadings for a particular water body exceed
this criteria, natursJ loadings may well be the culprit. Without recognition for these
historic levels, non point sources of pollution will shoulder the blame and be re-
quired to mitigate the pollution problem. For this reason, the establishment of nu-
meric loadings for individual waterbodies, while workable for discernible point
691
sources, are unreasonable for discrete nonpoint sources. Also, when water quality
standards are frequently revised (every three years), they are potentially made more
stringent with each revision. NPS will continue to be targeted as the source of these
pollutants, further hampering the ability of landowners to make long term manage-
ment decisions which will protect water quality for the future.
Criteria for "at a minimimi, nutrients, suspended solids, and dissolved oxygen"
are to be developed within three years. Once again, these are naturally occurring
constituents which are only pollutants when agitated by nature or man. Additional-
ly, EPA has plans to develop sediment quality criteria for no fewer than 8 constitu-
ents (including PCB's and dioxins). This federal approach for establishing standards
and criteria will become the norm, where states, strapped for resources, have no
other choice but do adopt stringent federal standards as their own state standard.
States are required to make a number of changes to their water quality standards
and designated uses, especially as they pertain to the current triennial reviews.
These changes include re<j[uirements that states designate uses for all water bodies
within their jurisdiction, as well as numeric water quality standards necessary to
support these uses. EPA will provide oversight to these changes, and will designate
as "fishable/swimmable" the water bodies in any state which does not establish des-
ignated uses. NCA feels that deference should be given to states as they establish
uses and the water quality standards necessary to support these state designated
uses. The federal role appropriate for this section should include federal support for
these efforts, rather that create a program dictated by EPA.
The anti degradation policy included in Title 11 is problematic, not only because it
prevents activities in those waters which exceed established water quality stand-
ards, but also because it would go back almost twenty years (November 28, 1975) to
establish instream water uses. Ctace again, the burden of proof for this provision re-
mains with the state, rather than states dictating the standards. Furthermore, the
opportunity for relaxation of the anti degradation standards will simply pit point
source dischargers against NPS in each watershed. Point sources are allowed to dis-
charge to impaired watersheds, as long as non point sources are subjected to "en-
forceable best management practices pursuant to Section 319". This provision will
create economic and ix)litical battles between point sources and non point sources
which will not result in water quality improvements.
To prevent this type of infighting, NCA would suggest that states are most appro-
priate to implement anti degradation programs. These programs should include pro-
visions that recognize that when a discharge is allowed, the state water quality pro-
gram in place shall assure that point source and non point source programs are
available to protect existing state designated uses.
The designation of "Outstanding National Resource Waters" has also been greatly
expanded. Not only is the criteria for this designation being expanded, but also the
dictates upon states to restrict use of these lands. These lands must also meet the
strict anti degradation standards discussed above (zero degradation). This is not
based on any failure to attain water quality. Rather than being allowed to identify
protections necessary to maintain water qusdity. States are allowed only to decline
an "Outstanding National Resource Water" designation. In the case of federal
lands, this must be done with the concurrence of the federal lands manager. States
must allow for any citizen to petition for the addition of a water designated as such,
but the legislation does not contain a provision for the states to veto this listing. In
order to effectively identify and protect those areas needing this designation, the de-
lineation of an area as an "Outstanding National Resource Water" should be left to
the states. Designations under this section shall be based on waters with real risks
for losing designated uses. Broad categories, such as all waters within national for-
ests, shall not be considered "Outstanding National Resource Waters", unless they
have demonstrated an impairment of state designated uses. Any water body desig-
nated as an "Outstanding National Resource Water" shall be limited to the bound-
euies of the designation: upstream and downstream uses shall not be considered.
WATER QUALITY MONITORING
NCA appreciates the recognition this Committee has given to the need for contin-
uous monitoring of water quality for all "waters of the United States". Additionally,
the five year monitoring cycle proposed in S. 1114 provides a more realistic time
frame under which States can effectively assess the quality of waters within their
jurisdiction.
NCA is concerned that, as stated in this l^islation. States must assess and quan-
tify the contribution of various sources of pollution as psui; of their watershed plan-
ning process. This requirement will, for the first time, quantify and allocate load-
ings and mandatory load reductions upon all sources, including NPS. This approach
692
is unworkable, given the additional burden already placed on states to monitor
water quiity, identify boundaries of watersheds, and establish water quality stand-
ards for each water body. Furthermore, the requirement that allowable discharges
for point sources be dependent upon the presence of enforceable NPS provisions will
simply pit the economic and political power of point sources against non point
sources
The bill also provides for States to draw water quality data from a number of
sources. While other data may currently exist, NCA would question the value of this
data if the accuracy and consistency of the data were not compatible with protocols
established under state water quality collection regimes.
S. 1114 also provides for the establishment of a Water Quality Monitoring Council
directed by the President to provide coordination of Federal and State water quality
monitoring programs. NCA would urge this committee to consider that landowners
and other water users, who are ultimately responsible for water quality protection,
be represented on this Council. NCA also has concerns that this Council may ne-
glect the differences between states as they develop coordinated federal programs
and advice for the President.
The premise of comprehensive watershed management is supported by NCA as a
means to achieve reasonable water quality standards which protect state designated
uses. NCA would caution the Committee regarding the approach taken under these
provisions of S. 1114. By including ground water, outstanding national resource
waters and sensitive aquatic or wildlife habitat areas (which are imdefined), as spe-
cial categories under these comprehensive plans, the legislation greatly expands the
scope of required land management activities. NCA would emphasize to this Com-
mittee that these decisions are best made by states. Furthermore, the idea that "any
public or nonprofit entity" may be considered as the management entity for water-
shed management plans, without some level of landowner input, creates a real op-
portunity for abuse.
The key provisions of the watershed plan also include broad, undefined param-
eters such as "potential uses" of waterbodies, "living resources" and "sensitive habi-
tats" supported by the waters, perceived "threats" to impairment of water quality,
and also an effort to allocate pollutant loadings among sources. As stated earlier,
the allocation of load reductions to specific sources is, by the nature of NPS runoff,
difficult if not impossible to quantify. It is important to identify sources of pollution,
but any means to quantify the contribution of these specific sources will be impossi-
ble without comprehensive monitoring at the edge of housing subdivisions and agri-
cultural fields across the country. The quantification and allocation of pollutant
loadings, in order to support specific numeric water quality standards, will not be a
workable solution for comprehensive watershed management. States should be de-
ferred full authority to identify appropriate site specific plans which protect state
designated uses of waters.
The limitations provided for point source dischargers by this section will create
conflicts between all perceived sources of pollution in a watershed. S. 1114 provides
for permitted discharges into an impaired water body only if the watershed plan
includes enforceable requirements under State or local law over the non point
sources in the same watershed. The flexibility of land owners to make management
decisions to effectively protect water quality is lost by requiring these enforceable
measures.
IMPAIRED WATERS IDENTIFICATION
NCA appreciates the efforts of the Committee to target limited resources to those
watersheds with known impairments. This philosophy represents a good start by fo-
cusing limited resources on areas designated by states to need additional protection,
but quickly creates an opportunity where states may lose control over their pro-
grams. This can occur in a number of ways, such as the ability of EPA to add to this
list waters considered to be threatened with impairments, outstanding national re-
source waters, and any other water EPA deems necessary for special consideration.
The result is a shift in determining the urgency for consideration from a basis of
water quality impairments to broad and undefined parameters. Also, citizen peti-
tions should be based on real water quality impairments, and states should have the
authority to veto these petitions based on insufficient demonstration of water qual-
ity impairments.
Additionally, biological monitoring should not be considered the sole grounds tor
inclusion on this listing of impaired water bodies. Biological standards should be left
to states, in order to determine what standards are appropriate and where these lo-
cally derived standards may best be used. Standards for NPS pollutants should be
locally based to take into account natural levels of NPS pollutants.
693
NON POINT SOURCE CONTROLS
NCA appreciates the consideration given landowners by recognizing options for
the development of site specific plans, but would caution the Committee to not un-
dermine these efforts by establishing federal guidelines as minimums. The effective-
ness of these site specific plans are rooted in their local design, not by virtue of
meeting federally established criteria. The time frame outlined in S. 1114 is such
that EPA will only reiterate the guidance for the CoEistal Zone Act Re authorization
Amendments, rather than creating a new, more appropriate document which recog-
nizes differences in climate and topography from state to state. NCA supports defer-
ence to states in identifying appropriate NPS management programs as the basis
for an effective water quality protection program which is also cost efficient.
Provisions in S. 1114 for those states who choose to not develop watershed man-
agement plans adversely impact landowners, not the states. The net result of this
proposal would be to require landowners to meet federally established minimum
management measures. The only alternative for landowners is to develop site specif-
ic plans, which must once again be approved by EPA. Either way, the decision by a
state to avoid comprehensive watershed management will adversely affect landown-
ers, rather than states. NCA urges this Conunittee to refocus it's penalties upon
States, not landowners.
S. 1114 currently triggers compliance measures by being located within an "im-
paired" watershed. Efforts should be made to define impaired areas as those areas
which do not currently support existing state designated uses. If a state designated
use is not precluded, the water body is not unpaired. Broad habitat protection ef-
forts should not be considered.
Congress and EPA should recognize the progress made by States and landowners
within states toward water quality protection. Although the current Section 319 pro-
gram has been historically underfunded and has been given inadequate time to
demonstrate its effectiveness, aU states currently have in place 319 management
plans. Furthermore, the most recent water queility assessment data was collected in
1990 and is inadequate for evaluating the effectiveness of what may have been ac-
complished to date in terms of gains in water quality. Point sources of pwllution
have been given twenty years and untold billions of doUars to correct their prob-
lems. NPS should be given Uke consideration.
NCA is currently conducting a research program to assess the accuracy of current
state and federal water quality assessments, as well as identifying the level of ac-
tivities on the part of lemdowners and state agencies in a number of states. We have
attached a brief description of the NCA Water Quality Information Project to this
statement. While our findings £u-e not yet complete, we would like to assure you
that there are a great number of activities which are ongoing in states across the
country. We would be pleased to share a copy of this report upon completion with
the Members of this Committee.
TIMEFRAME
The time frame for various activities, the success of which depend a great deed
upon effective management measures, seem to be short and conflicting. While the
three year time frame for implementing management measures and site specific
plans may be realistic, the fact is that these plans, required to be approved by the
federal agencies, may be slowed by backlogs during the review process. Any delays
during this review and approval phase will only shorten the period of time during
which approved activities may be implemented.
In addition to backlogs and approval delays, NCA would question the timing of
subsequent water quality assessments as site specific plsms and management meas-
ures are being implemented. For example, if plans are not expeditiously approved,
which then delays the implementation phase, well over half of the seven year time
period allowed for implementation of these plans will be consumed. If only three or
four years remedn, after which time the effectiveness of said plans will be evaluated,
the likelihood of these activities effectively protecting water quality is greatly di-
minished. Once again, NCA would urge the Committee to transfer these responsibil-
ities of plan approval to states or local units, such as local conservation districts.
ANIMAL FEEDING OPERATION
NCA would also recommend to this Committee that Animal Feeding Operations
which are not subject to point source permits imder existing Section 402 not be con-
sidered as new sources of NPS pollution, and likewise not r^ulated under standards
different than the balance of agriculture. These smaller faciUties many times are, or
will be additions to, a diversified agricultural operation. By requiring separate pro-
694
visions for various components of agricultural operations. Congress will clearly be
discouraging diversification of America's farms and ranches.
NATIONAL PROGRAM GUIDANCE
The National Program Guidance is crafted and viewed as mandatory minimums
for performance of site specific plans, rather than as a handbook for states to use to
develop programs which are specific to their local needs and conditions. To avoid
this confusion, it should be clearly stated throughout the guidance and this section
of S. 1114 that the provisions contained herein are not viewed as minimums, but
rather as recommendations to state agencies who are charged with assisting in the
development of site specific plans. NCA also feels that it should be clearly reiterated
that states have the authority to develop watershed management plans and man-
agement practices that are specific to the local conditions of a given watershed.
FUNDING
NCA appreciates the recognition of additional funding as necessary for the devel-
opment of successful NPS management programs. EPA would caution the Commit-
tee against centralizing the funds in the manner included in S. 1114. For example,
for the first two years, EPA has control of half of the funds to be provided to states
for NPS management activities. These funds are to be allocated based on a formula
which might easily be abused by states who have been starved for NPS dollars for
the last five years. NCA would encourage this Committee to develop a provision for
direct disbursement of funds to states, where allocations can be made on the basis of
NCA also would question the funding mechanism to be used beginning with Fiscal
Year 1998, where allocations of half of the NPS funds are based on estimated costs
of site specific plans. The bill does not indicate who may be responsible for estimat-
ing these costs. Landowners who are responsible for developing and implementing
site specific plans will have a significant role in estimating the cost of said plans.
NCA would question the manner in which this information can be organized by
states to effectively compete with other states in securing NPS funds.
Since the 1987 Amendments were passed, funding for state NPS activities has
been minimal. Funding for the first three years was zero, followed by funding at
half the level authorized the last two years. Nonetheless, many states have devel-
oped NPS programs with other, equally limited funds. NCA urges the Committee to
take a hard look at funding mechanisms in order to minimize abuses which may
quickly hamper efforts to manage NPS runoff, as well as consider realistically the
level of funding which may be available in future years. S. 1114 authorizes $3 billion
in NPS funding for Fiscal Years 1994 through 2000, compared to $500 million for
the last five years. It would be unfortunate to see a well crafted CWA re authoriza-
tion which falls victim to inadequate funding.
The limitations on funds included in S. 1114 appear to be inconsistent with tradi-
tional agricultural programs. For example, no other federal funds can be available
for a specific grant proposal, yet if funding is made available, the grant can only
fund up to half the cost of said project (difference to be made up in nonfederal dol-
lars). Also, this legislation would further limit one of the most effective funding pro-
grams by restricting states' grants programs to no more than half of the total funds
available. NCA would urge the Committee to divert funding for land acmiisition and
conservation easements, the latter already provided for under the Food Security Act
of 1985, to the grants program. The activity of acquisition, through easement or pur-
chase, should not be granted to EPA, but rather to agencies who are not charged
with enforcement of these provisions. At present, the Department of Agriculture
can fulfill this role.
SITE SPECIFIC WATER QUALITY PLANS
The site specific plans included in S. 1114 offer opportunities for landowners to be
recognized for their unique ability to reduce the threat of NPS runoff. NCA appreci-
ates the Committee's recognition of the role that USDA can play in the develop-
ment of site specific plans. NCA would encourage the Committee to also recognize
local sources of assistance already available to landowners, such as local Soil Con-
servation Service, Extension Service and Conservation District offices.
S. 1114 recognizes specifically a number of current programs which protect water
quality, such as the Conservation Compliance Program and the Conservation Re-
serve Program. We would hope that other, well developed and effective programs at
the state and local level are not forgotten simply because they are omitted from S.
1114. One such program (information attached) has been developed in California by
the California Extension Service and SCS with financial assistance from EPA. The
695
goal of the program entitled the Rangeland Watershed Program, is to develop public
understanding of proper rangeland watershed management, to inform land owners
and managers about current federal laws affecting private range land management,
and implementation of a Rangeland Water Quality Management Plan in California!
This plan is an example of states taking the initiative to disseminate information,
and subsequently protect water quality.
The requirements for the site specific plans in S. 1114 are troublesome in two
areas. First, we question how these plans will be required to demonstrate their abili-
ty to reduce water pollution. As we have said before, it is impossible to quantify
reductions for NPS dischargers. Rather than quantification of NPS load reductions,
effectiveness should be measured by attainment of the state designated use for each
particular water body. Secondly, at what level will the determination of adequacy of
these plans take place? The legislation would indicate that this task will occur at
the federal level, but NCA urges the Ck)mmittee to place this activity at the most
local level possible. This will create less potential for delays and backlogs of a large
number of plans at one level, and would also give the site specific plans a truly local
orientation in order to help assure their effectiveness.
NCA would also like to discuss the time frame in which these site specific plans
will be judged for effectiveness, and subsequently altered if determined to be inad-
equate. The recently completed Rural Clean Water Program, funded by EPA, pro-
vides an explanation of how effective NPS management activities have significant
lag times between implementation and demonstrated response in water quality.
After completion of the ten year program, some sites were only beginning to show
water quality improvements. If the implementation schedule for a site specific plan
is closely followed by the five year monitoring cycle, the site specific plan may later
be inappropriately judged as ineffective and required to be changed. This sort of co-
ordination of timelines is absolutely necessary for site specific plans to be the effec-
tive tool they are designed to be.
The Handbook, as referred to in this section, appears to be a floor by which site
level plans are to be evaluated. Although the document is referred to as a "hand-
book", the expected format of this document (based on the time allowed EPA for
publication) is certainly not expected to be user friendly. As long as the CZMA docu-
ment is simply reiterated as this Handbook, site specific plems will be nothing more
federally mandated controls for NPS discharges. Site specific plems must be rooted
in local flexibility, and therefore should be developed and assessed by appropriate
local agencies, such as SCS or local Conservation Districts.
FEDERAL PROGRAM COORDINATION
NCA questions the intent of the Committee with the approach taken under this
section of S. 1114. Other federal agencies, who have clear roles in order to assist in
the effectiveness of the CWA, should not be dictated their roles by EPA. For exam-
ple, the bill states that all watersheds listed under Section 319 by states (with EPA
concurrence) are to be considered as "conservation priority areas" by USD A. Addi-
tionally, EPA shall dictate to USDA appropriate lands for inclusion in the Conser-
vation Reserve Program (CRP), and assist USDA in prioritizing their expenditures
under CRP. Coordination among federal programs is an idea whose time has come;
policies which create turf battles between federal agencies will not constructively
protect water quality.
FEDERAL LANDS
In order for NPS management activities on federal lands to be an effective compo-
nent of state watershed maneigement programs, they should rely less on regulations
and more on coordination with locally designed site specific plans. Furthermore,
states should have a greater role in developing NPS management plans for federal
lands, in order to further assure a consistent, coordinated effort between plans on
privately owned and federally owned lands which share a common v/atershed.
ANIMAL WASTE MANAGEMENT FACILITIES
NCA feels that this section of S. 1114 creates an unnecessary new classification of
sources separate from other NPS facilities. This section duplicates many provisions
for (Concentrated Animal Feeding Operations (CAFO's) in current law, as well as the
Animal Feeding Operation provision of S. 1114. The provisions of this legislation
would require federal guidelines to be developed by EPA. As with other portions of
this bill, we would encourage the Committee to reconsider this notion. USDA clear-
ly has, and will continue to, provide technical assistance of this nature to agricultur-
al producers for years. We would also refer the Committee to the Waste Manage-
ment Field Handbook, recently released by USDA, as an appropriate guide for state
69-677 0-94-23
696
and local decision making with regards to animal feeding operations and associated
facilities.
ENFORCEMENT
NCA would question the necessity of such broad enforcement capabilities for citi-
zens, when states must demonstrate adequate enforcement provisions in a state wa-
tershed management plan submitted for EPA approval. NCA is also concerned that,
as load allocations and reductions for NPS as well as point source dischargers are
developed, NPS will be held in violation, sued for unlawful discharge (no discharge
permit or exceeding permitted discharge), and fined to the maximum extent possi-
ble. This particular section offers a great potential for abuse. If this provision re-
mains intact, discrete NPS activities would be accountable to the same level of per-
mits and fines as discernible point sources.
NCA is also concerned with the provision in S. 1114 where civil penalties are to
be used for beneficial "restoration of water quality, wildlife or habitat of the water-
body". This provision will allow special interest groups to sue for wrongful dis-
charge, and then settle the grievance out of court for an amount less than the fine
levied on the discharger. Instead, this money should go to the U.S. Treasury or to
fund water programs that need funding, rather than as a donation to special inter-
est groups. The significant increase in funding authorized by S. 1114 warrants this
chgmge.
STATE DEFERENCE
States have historically been granted deference in a number of substantive areas
of the CWA. These areas include the designation of uses of waters within their juris-
diction, water quality standards necessary to support these uses, and land use meas-
ures to reduce the threat of NPS runoff. Deference to states should not be hindered
by the provisions of CWA re authorization in any manner. An effective NPS man-
agement program must be locally based and state managed in order to provide pro-
tection for state designated water uses.
Another provision that is an important component of states' rights is what is com-
monly referred to as the Wallop Amendment. This provision, in a greatly edited
form, is included in the Comprehensive Watershed Management section of S. 1114.
Many groups, including NCA, have asked that this amendment, found in the cur-
rent law at Section 101(g), added without changes to the substantive portions of this
bill, such as the states' authority section. This is an important provision for land
owners and water users in many states of the country.
CONCLUSION
Cattle producers across the country are key components to water quality protec-
tion efforts. We have the knowledge and expertise that, combined with local assist-
ance from USDA agencies such as the Soil Conservation Service or Extension Serv-
ice, will make positive strides toward protecting water quality.
NCA would urge this Committee to meiintain a state and local focus throughout
efforts to craft a Clean Water Act re authorization measure. Adequate science and
funds must be available to accurately identify sources of pollution. Effective and
cost efficient responses to water quality problems must be rooted in local programs
with solutions tailored to local conditions. Incentives to land owners should be local-
ly based and can include a number of considerations, including technical and finan-
cial assistance.
Mandatory federal land use requirements, promulgated at the federal level, will
not guarantee significant protection of water quality. They will, however decrease
the productive capacity of property, and therefore constitute a takings. The usurpa-
tion of private property rights in the form of federally mandated land use control
measures, should 1^ avoided during reauthorization of the CWA. A more effective
program rooted in local efforts with significant landowner involvement, should be
the basis of an effective CWA reauthorization measure.
The NPS provisions of the current law are not broken, but they can be improved
upon. The quality of eill "waters of the United States" must be assessed on a contin-
uous basis. Limited resources must be targeted to those areas with a demonstrated
water quality problem. Land owners, through voluntary programs established at the
state and local levels, can be significant components of an effective NPS manage-
ment program. Federally driven efforts to direct land use will not be adequate to
protect water quality. These efforts must be directed by states.
NCA appreciates the opportunity to submit testimony regarding S. 1114, the
Water Pollution Prevention and Control Act of 1993. NCA welcomes the opportunity
697
to work with the Members of this Committee and their staff as CWA re authoriza-
tion continues. Thank you.
PRINCIPLES STATEMENT OF THE CLEAN WATER ACT WORKING GROUP
American Farm Bureau Federation; American Feed Industry Association;
American Nurserymen; American Sheep Industry Association; American Soy-
bean Association; The Fertiuzer Institute; National Agricultural Chemicals
Association; National Assoclation of Conservation Districts; National Asso-
ciation of Wheat Growers; National Broiler Council; National Cattlemen's
Association; National Corn Growers Association; National Cotton Council;
National Council of Farmer Cooperatives; National Forest Products Associa-
tion; Nationai. Milk Producers Federation; National Pork Producers Council;
National Turkey Federation; National Water Resources Association; U.S. Rice
Producers.
CLEAN WATER ACT REAUTHORIZATION: NONPOINT SOURCE PROVISIONS
In the reauthorization of the Clean Water Act. Congress should adhere to the fol-
lowing principles:
1. The Clean Water Act (CWA) does not stand alone in protecting America's waters
from nonpoint source (NPS) pollution. Other ongoing programs at the federal,
state and local level must be funded fully, coordinated with and not superceded
by the CWA. This includes, in particular, the soil conservation and water qual-
ity provisions of the 1985 and 1990 farm acts and the state groundwater and
surface water protection programs of the Federal Insecticide, Fungicide and Ro-
denticide Act (FIFRA).
2. Recognizing the 20 year commitment our country has had to eliminating point-
source pollution, success in reducing the more complex and diverse NPS pollu-
tion will require similar time and resource commitments. However, manage-
ment of this problem will require a different approach than that of point source
pollution elimination because, unlike point source pollution, NPS pollution is
primarily a weather-related phenomenon that can be managed, but not feasibly
eliminated. NPS pollution is caused by the inadvertent discharge of pollutants
from a wide variety of society's most essential activities.
3. The central locus of NPS management solutions should be a reasonable and vol-
untary approach based on incentives, education and technical assistance as the
primary means of managing NPS pollution.
• NPS pollution management programs should (a) emphasize the protection of
water resources and state-designated water uses, including state-designated ag-
ricultural uses, and (b) recognize the importance and ne^ of individual agri-
cultural producers and other landowners affected by the CWA.
• This approach emphasizes the use of locally designed and applied, economically
feasible, site-specific best management practices which do not infringe on pri-
vate property rights. Implementation of these farm management options over a
realistic time frame will further the goal of reaching or maintaining designated
uses of water bodies.
• It is inappropriate to link USDA commodity, conservation or disaster program
payments to the success or failure of management programs for NPS pollution
authorized under the CWA.
4. Current CWA language contains valuable provisions for NPS management em-
bodied in Section 319. Although this NPS section has been historically under-
funded and has been hampered by bureaucratic roadblocks, all states now have
approved Section 319 assessments and approved management programs. Within
the CWA, it is the preferable vehicle for management of NPS pollution, and
changes which occur during CWA reauthorization should reinforce these exist-
ing NPS provisions.
• The proper management of NPS pollution lies in state and local efforts. As
such, states should continue to identify and resolve their priority NPS water
problems through administration of Section 319 funds. With state oversight and
approval, local organizations should continue to carry out these NPS programs.
Agencies at the federal and state levels should harmonize objectives and coordi-
nate funding for national and regional NPS management programs.
• State and local programs should provide for a mix of research, development,
education and technical and financial assistance for both plemning and imple-
menting actions aimed at achieving state designated uses.
698
5. Management efforts funded by Section 319 of the CWA should be directed to pri-
ority areas based on scientific assessments that identify water bodies with im-
paired or threatened uses.
• Prioriry, as determined by states, should be based on the magnitude of risk to
human health, the protection of designated uses, and likelihood of further sig-
nificant and unreasonable water quality degradation if no action is taken.
• Strategies should be developed on a hydrologic unit, watershed-wide basis using
an approach that includes the consideration of both surface and groimd water
quality.
• Programs should focus on cost-effective, site-specific practices for individual op-
erations with flexibility for implementation.
• In order for Section 319 to work effectively for agriculture. USDA must play a
lead role in the delivery of education and technical assistance at the state and
local level.
6. An effective and cost-efficient response to water quality problems requires accu-
rate and reliable information on (a) the source, extend, and impact of NPS pol-
lution, as well as (b) the effectiveness, utility and economic feasibility of conser-
vation measures and best memagement practices.
• Any Clean Water Act reauthorization should include a strong financial commit-
ment to further research, monitoring and assessment projects.
• Monitoring should include before and after sampling as \yell as frequent sam-
pling during storm events and assessment of natural and historic loadings.
• Scientific research and monitoring projects should follow protocols developed bv
the U.S. Geological Service and should be conducted on a watershed basis with
local and state input.
• Representative pilot projects aimed at achieving market based incentives on a
watershed or regional level should be encouraged.
7. The Clean Water Act Reauthorization should not directly or indirectly create a
federed water quality law or program which supercedes, abrogates or impairs
state water allocation systems and water rights.
8. Section 319 management programs on federal lands should be developed and im-
plemented by the specific agency statutorily charged with management of the
lands in question, rather than by regulatory authorities independent of that
eigency.
9. It is inappropriate for a reauthorization of the Clean Water Act to provide the
authority for citizens suits against individuals participating in NPS manage-
ment programs.
STATEMENT OF L. SCOTT TUCKER, CHAIRMAN, STORMWATER COMMIT-
TEE NATIONAL ASSOCIATION OF FLOOD AND STORMWATER MANAGE-
MENT AGENCIES
Introduction
Mr. Chairman, my name is Scott Tucker, and I am Executive Director of the
Urban Drainage and Flood Control District in Denver, Colorado. The District pro-
vides both flood control and stormwater management services for the Denver metro-
politan area, serving approximately 1,800,000 citizens in 30 municipalities and six
counties.
Today I am appearing on behalf of the National Association of Flood and Storm-
water Management Agencies (NAFSMA), a national organization representing more
than 50 flood control and stormwater agencies serving a total population of more
than 50 million citizens. I now serve as Chairman of the organization's Stormwater
Committee and as a member of the Board of Directors.
NAFSMA appreciates this opportunity to share our views on The Water Pollution
Prevention and Control Act of 1993, specifically its provisions affecting municipal
separate stormwater systems. As we move forward together to expand the munici-
pal stormwater program, we need to build a strong intergovernmental partnership.
The legislation before us today is clearly moving in that direction. More important,
it shows a willingness by this committee to take control of the debate on the future
of municipal stormwater quality regulation.
With this legislation, the intent of the 1987 Act is more precisely expressed, un-
derscoring that this is a phased national program of considerable magnitude. It ap-
propriately emphasizes the immediate role that local officials, both elected and tech-
nical staff, must play in designing stormwater management programs that will
work in their communities and in pursuing measures that respond to identifiable
699
problems. The legislation also recognizes the limitations of the National Pollutant
Discharge Elimination System (NPDES) as a means of controlling urban stormwater
runoff in the near term, avoiding "command and control" directives that will not
work. In short, the proposal recognizes the limitations of what we now know and
sets us on a course to build more knowledge and experience in developing cost-effec-
tive responses to municipal separate stormwater system discharges.
Mr. Chairman, as you work to finalize new amendments affecting municipal
stormwater systems, please reflect on the recommendations that you will hear today
on non-point pollution. Urban runoff quality is a non-point pollution problem. The
fact that most communities constructed separate stormwater systems to collect
runoff and deliver it as point discharges does not change its character. In virtually
every other sector, the same runoff is non-point pollution. Statements before this
committee emphasizing the need for flexibility, management approaches, pollution
prevention and decentralized decision-making in tackling non-point pollution and
urgings that "one size does not fit all" circumstances apply fully to urban runoff as
well.
C!omments and Recommendations on the Municipal Separate Stormwater Provisions
ofS. 1114
Mr. Chairman, in reviewing the provisions of S. 1114 within the context of NAFS-
MA's principles for new legislative amendments, we find that it addresses the major
elements of our position statement. A full discussion of NAFSMA's principles is pro-
vided later in this statement. The following summarizes the features of S. 1114 af-
fecting municipal stormwater systems, providing suggestions and other comments
on areas to strengthen the framework that has been set forth. I have also cited pre-
liminary results from our 1993 survey of the Phase 1 large and medium systems to
support our comments on the proposed changes to the municipal stormwater pro-
gram.
I. Point vs. Non-Point Sources
Short of massive engineering solutions involving costly detention and treatment
of municipal stormwater to comparable levels for point sources, the remedies for
pollution carried by municipal stormwater systems have to rely on programs for
source control, pollution prevention, improved public and private management prac-
tices, education and the like. These activities represent the most appropriate and
cost-effective methods of addressing municipal stormwater discharges for the fore-
seeable future.
Local governments have consistently taken the view that while the NPDES
permit program was selected as the means to deliver structure and accountability to
the national regulatory effort, it is a tool that must be customized to reflect the non-
point nature of urban runoff. Many in the local government community believe that
it is not possible to adapt the NPDES permit structure to municipal stormwater and
have argued that large and medium systems should be taken out of the NPDES
permit program entirely.
U.S. EPA in its November 1990 regulations and in other actions on the municipal
stormwater program has been struggling with expectations that a NPDES permit
somehow guarantees certainty and uniformity in how each community will combat
pollution conveyed by their municipal separate stormwater system. The Eigency has
worked to adjust to the limitations of Section 402, establishing a regulatory frame-
work that emphasizes the non-point nature of urban runoff. This approach is fully
supported by the legislative history and debate on the 1987 Act amendments and is
again confirmed in the proposed amendments before this committee.
The provisions of S. 1114 acknowledge the limitations of the NPDES program,
proposing changes that make the permit process more compatible with local control
strategies and programs to combat urban runoff. First, the future regulation of most
of the nation's smaller communities will be addressed through state non-point pro-
gram initiatives, not NPDES permits. This is an appropriate course of action and we
commend the sponsors for making this change. NAFSMA's members, I should point
out, are generally large and medium systems that are now seeking NPDES permits
under Phase 1 of the national program. For communities operating under the con-
straints of the NPDES permit system, the legislation aligns the use of water quality
standards in the near term with the realities of local conditions and circumstances
in controlling urban runoff. It also provides further direction on the Maximum
Extent Practicable (MEP) standard that will guide permit-writers in developing per-
mits based on maneigement practices and other such measures.
700
n. Water Quality Standards (WQS) & Maximum Extent Practicable (MEP) Standard
Water Quality Standards:
The use of water quality standards in municipal stormwater system permits has
received considerable attention by all parties involved in municipal stormwater
issues. The application of standards and the associated water quality-based limits is
the central concern of our members and others that are now developing stormwater
management programs under Phase 1 of the program. It also represents the most
striking example of how the NPDES permit program, as applied to conventional
point sources, fails to respond to the practical and administrative impediments in
regulating urban stormwater.
S. 1114 offers a remedy that is not only appropriate, it is essential. We are not in
the position to translate existing water quality standards into municipal stormwater
system permit limits in a manner that is enforceable or achievable. The provisions
of S. 1114 offers a period of time to vmderstand and assess how and if water qusdity
standards can be appUed to mimicipal system permits. I can assure this committee
that communities will use this time to implement and demonstrate how memage-
ment practices and other measures can achieve water quality improvements. It is
imperative that the federal government use this time to further refine the science
to support the use of standards appropriate for urban stormwater. S. 1114 should
include directives that ensure that U.S. EPA undertakes this necessary research
and program development.
S. 1114 acknowledges that you can have enforceable permit conditions (i.e. the
management practices specified in the permit) without the direct application of
water quality stemdards in the form of numeric effluent limitations. During this in-
terim period, permittees and permit-writers will use water quality standards as the
guidepost in developing and assessing the effectiveness of local program efforts.
More important, it is has the immediate benefit of allowing communities to get on
with the task of developing and implementing stormwater management programs
and measures. All of these initial local efforts, its should be noted, are intended to
improve water quality, either directly or indirectly.
Mr. Chairman, as we enter the next generation of the Clean Water Act, we must
strive to make this program an example of a functioning and healthy partnership,
whereby communities work cooperatively with federal policy-makers in taking on
the difficult task of controlling pollutants that pass through our municipal systems.
This program is not about leveraging permittees with the threat of unreasonable
burdens and costs, it is about improving the quality of urban runoff. All parties in
this debate know that it is now impossible to subject municipal system discharges to
the level of performance of traditional point sources. We commend the authors of S.
1114 for responding to local governments on this issue. It is one aspect of the munic-
ipal stormwater program that will be continuously reviewed and evaluated over the
next several years.
Maximum Extent Practicable (MEP) Standard:
As you know, U.S. EPA issued its permit application regulations for municipal
systemwide permits setting forth a very comprehensive, and in several areas overly-
burdensome program framework, to guide permittees and permit-writers in develop-
ing municipal stormwater management progremtis.
During development of first term permits for municipal systems, the permittees
will help shape what will be locally- and regionally-specific permit requirements
under the Maximum Extent Practicable (MEP) standard. As the committee consid-
ers what constitutes an acceptable interpretation of the MEP standards, let me pro-
vide some background on how NAFSMA sees the current system and state of knowl-
edge. Preliminary results from NAFSMA's 1993 survey of large and medium sys-
tems now seeking permits tells us that most communities do not have enough infor-
mation to make reasoned judgments about urban runoff and local receiving water
qusility. These responses are very consistent in noting an inability to demonstrate
the effects of management practices on water quality. In the absence of such infor-
mation, the current program is basically about good community housekeeping. In
spite of these limitations, large and medium systems are moving forward with man-
agement programs, uncertain about what will work, unsure about how to convince
their elected officials and citizens that costs of the program can be justified and not
knowing what the benefits will be.
The assumption and the hope is that in the aggregate and over time the applied
management practices will improve the quality of urban runoff and, more impor-
tantly, the quality of receiving waters.
701
This view of the system stands in stark contrast to witnesses and others that sug-
gest that there is more certainty in these decisions and urge the adoption of mini-
mum measures to be required in all municipal system permits. This view of the
system simply defies overwhelming evidence to the contrary and the experience of
practitioners in the field, most of whom are senior engineers in the nation's largest
cities and counties. What we consistently hear from our member agencies and
others is that the municipal stormwater program at this juncture is a mandatory
national demonstration program. Yet these same officials indicate that if there is a
problem with urban runoff, they want to find out what it is and what they can do
about it.
I noted that NAFSMA is now in the process of assembling information from our
1993 survey of the approximately 200 large and medium systems that are now seek-
ing permits for their stormwater systems under the first phase of the national pro-
gram. Most of these communities will receive their final permits by the middle of
next year. Form our survey last year we estimated that the some 200 listed cities
and counties have expended nearly $140 million in preparing permit applications or
an average of approximately $750,000 per community. We estimate based on initial
results from our 1993 survey that more than 40 percent of these same jurisdictions
anticipate expending at least 10 times the amount of their application costs during
the initial five-year term of their permits. In the Denver area, for example, the
cities of Denver, Aurora and Lakewood anticipate total expenditures of nearly $23
million during the first permit term.
The scale of these projected expenditures by large and medium systems over the
next five years is a significant effort, given that the problem is ill-defined and the
benefits are unknown. This program is obviously much more than "writing your
own permits" as some have asserted. It is about communities attempting to identify
and correct water quality problems that are real and identifiable. This program will
collapse if this committee and others in the Congress give way to the notion that
there is a "silver bullet" out there or a "one size fits all" scenario. When you consid-
er this level of investment among the larger systems relative to the level of uncer-
tainty, it does support S. 1114 in terms of how additional communities are phased
into the program.
It is simply makes sense to allow communities that are brought into the munici-
pal stormwater permit program to secure some of the benefits from the efforts of
larger jurisdictions that go before them. The 1987 amendments appropriately set
forth such an approach.
This preliminary survey data also underscores the wisdom of proceeding carefully
with a statutory definition of MEP. S. 1114 defines MEP as the equivalent of the
guidance issued pursuant to the CZMA reauthorization amendments of 1990. Two
years after enactment, U.S. EPA is directed to set additional requirements, further
defining the MEP standard.
Our survey results further illustrates how difficult it is to design a national pro-
gr£un using set assumptions or fixed minimum program elements. For example, the
1987 Act directed that all listed communities remove Ulicit connections from their
stormwater systems. This is good practice and one that makes sense for communi-
ties that have a problem. EPA had some evidence to suggest that this was a prob-
lem in several communities, providing the basis for the 1987 statutory directive to
remove illicit connections. Two-thirds of our 1993 survey respondents have already
indicated that illicit connections were not a problem or occurred in low amounts.
We asked communities to identify the most significant limitations of their pro-
gram over the near-term in controlling stormwater runoff. Virtually every respond-
ent cited their inability to document the effects of management practices on water
quality. In response to a question on how they would allocate any new federal funds
that came to the states, respondents cited the need for demonstration grants assess-
ing technology, BMPs, etc. along with grants to implement local management pro-
grams at their top two choices. What is revealing is about these responses is the
consistent pattern that communities want more information and support of their ef-
forts to learn about what practices will work in their respective communities. This
is a threshold issue regardless of whose resources are being expended. It also ampli-
fies our position that measures to improve urban runoff are not readily apparent or
even fully demonstrated.
In the metropolitan Denver area, for example, we sit more than 5,000 feet above
sea level. I am certain that EPA staff, its consultants and commentors did not have
all of my concerns before them when they were developing the final CZMA guid-
ance document. This committee should expect to hear from communities where
local conditions, such as arid and semi-arid regions, would necessitate another look
at this guidance suid proposed management measures.
702
As U.S. EPA develops its guidance on the MEP standard, NAFSMA, therefore,
recommends that EPA be given the authority and direction to make necessary revi-
sions in the CZMA guidance to make it more effective and workable if it is to be
used as a national standard. NAFSMA also echoes the comments of the National
League of Cities in requesting that EPA be required to work with state and local
governments in developing these CZMA revisions and any additional management
requirements under the MEP standard. To ensure that this process is inclusive and
can take full advantage of new information, U.S. EPA should be given at least three
years, not two, in issuing this guidance on the MEP standard.
in. Industrial Facilities
Current regulation define certain facilities owned and operated by local govern-
ments as industrial facilities. Under existing regulations, local governments with
large or medium separate stormwater systems must submit separate applications
for NPDES permits for all designated "industrial facilities" that they own or oper-
ate, while at the same time they must apply for systemwide permits. NAFSMA rec-
ommends that the conunittee provide a process allowing local governments, at their
discretion, to include stormwater discharges from municipal facilities in their sys-
temwide NPDES permit.
This is also interest among jurisdictions in having local agencies provide addition-
al regulatory support to the efforts to control discharges associated with industrial
facilities, recognizing that these functions are now properly assigned to state and
federal permit and compliance personnel. NAFSMA supports changes in current
law to allow, but not require under any circumstances, federal and state agencies to
transfer regulatory responsibilities to municipal permittees for "industrial facili-
ties" within their service areas. Under S. 1114, construction sites of 1-5 acres and
gas stations would be required to seek an industrial permit if the municipal permit-
tee chooses not to regulate these sources. NAFSMA supports this approach to regu-
lating industrial sources.
IV. EPA/State Research and Technical Assistance Capabilities
The provisions of S. 1114 directing the Administrator to imdertake a biennial
report to Congress on national sources controls and authorizing the Administrator
to take steps to control the introduction of such contaminants into municiped storm-
water systems are an important step forward in defining a continuing federal policy
role in support of local stormwater program efforts. All communities are expected to
rely on source controls and other pollution prevention measures as the defining ele-
ments of their local programs. What is now evident in the debate over the 1987 Act
amendments, and to be remedied by S. 1114, is that Congress did not provide any
role for the federal government in defining and implementing strategies to limit or
control the introduction of contaminants to municipal separate stormwater systems.
Communities under current law are assigned the entire task of managing storm-
water quality even though local governments are severely constrained in their abili-
ty to control many of the inputs into their systems. S. 1114 directly enlists U.S. EPA
as a partner in helping us prevent the introduction of contaminants, many of which
can only be controlled at the federal level.
I have already discussed NAFSMA's recommendation that new provisions be
added to S. 1114 to require U.S. EPA to initiate additional efforts to improve the
science and research to support the application of appropriate standards to munici-
pal stormwater system permits. I recognize that while proposed revisions of the
standards program under S. 1114 anticipate that this work will go forward, we
would request that U.S. EPA be specifically directed to address this important area
of concern.
NAFSMA and its members also have continuing concerns about the administra-
tive and technical capacity to respond to an expanded municipal stormwater pro-
gram. S. 1114 would add an estimated 1,000 municipalities and more than 200 coun-
ties to the municipal system permit by the end of this decade. These communities
will require more assistance and support than the first tier of larger systems. Your
final bill should anticipate and direct funding for increased staffing and technical
assistance support well in excess of the current levels of support.
NAFSMA, as an orgeinization, has not taken a formal position on funding for com-
munities. The Administration has recommended and S. 1114 proposes further capi-
talization grants to states for their SRF programs to support a broader range of
clean water programs, including stormwater. I should point out that our prelimi-
nary survey results show a very strong interest in grants to support demonstration
projects on BMPs, related water quality assessments aiiu studies pertaining to mu-
703
nicipal stormwater programs. In our view, the suggestion by the National League of
Cities to allow some set-aside of SRF funds allocated to each state to support such
demonstration projects, selected research and studies makes sense and would en-
hance the knowledge and practical execution of measures in support of municipal
stormwater programs. Our preliminary survey responses indicate very little interest
in loans for local programs, reflecting the fact that municipal stormwater programs
are operating programs and are funded on a "pay as you go" basis. Communities
will not use debt financing to support these program activities.
Status Report on Municipal Stormwater Program
The Water Quality Act of 1987 established an approach for the permitting of mu-
nicipal stormwater discharges for the nation's larger cities and counties that is now
fully in place and moving forward on the schedule set forth in U.S. EPA's Novem-
ber 1990 regulations. Approximately 200 communities serving a substantied portion
of urban America have already filed applications for systemwide National Pollutant
Discharge Elimination System (NPDES) permits, representing a major milestone in
what will be a long term effort to address urban stormwater runoff.
Mr. Chairman, I am pleased to report that these larger communities have been
both timely and earnest in responding to this federal directive. More importantly,
despite considerable uncertainty, continuing local resource constraints and the reve-
nue effects of a lingering recession, the initial commitment of local resources has
been substantial. Total permit application costs, according to a 1992 NAFSMA
survey of cities and counties to be permitted, are estimated at $130— $140 million.
This survey also points out that the costs of permit applications are much higher
than this estimate when the jurisdictions with early permits and the smaller com-
munities that joined with larger, listed jurisdictions in areawide or joint applica-
tions, are included. NAFSMA is now conducting a follow-up survey of these same
jurisdictions to secure final application cost data and to generate a nationwide view
of the program as communities secure their initial permits.
Mr. Chairman, a legislator who shaped the 1987 requirements for municipal sys-
tems emphasized that the permits for municipal separate stormwater systems would
not be permits in the traditional sense but were to be "programs." We strongly
agree with this view and would add that the programs and measures that munici-
palities must develop to control pollutants conveyed by municipal systems are new
programs and unfortunately at this time, we do not know how to measure their per-
formance or effectiveness. In short, the nation's larger cities and counties are now
charting the course, using the NPDES permit program as the means into the com-
plex issues of non-point pollution, specifically urban stormwater runoff. We are at
the front of the line in discovering the level to which our citizens £md institutions
are willing to make the required adjustments in the way we live and work. "The
irony of this circumstance is that, in spite of this massive local effort, there is little
known about the ultimate effectiveness of this endeavor.
The success of this effort over the near term will depend on the creativity and
consensus-building of our local communities, supported by our technicEil and elected
leadership, and their ability to direct massive new financial resources into storm-
water systems. Over the longer-term, the level of support and commitment that you
and others at the federal and state levels provide will be a critical determining
factor in achieving the most significant improvements in the nation's stormwater
quality.
Our experiences have shown what we believe is the most significant deficiency in
the design of this federal initiative directing larger communities to seek permits for
their stormwater systems. The municipal stormwater provisions have created an ex-
pectation that now pervades the system that these are our pipes and therefore our
pollutants. The 1987 Act did not set forth a parallel agenda for the federal govern-
ment and/or the states to begin reviewing actions and measures to support a broad-
based reduction in the sources and availability of pollutants that find their way into
municipal storm drains. In short, if this is a nationsil problem, we see little evidence
of any federal and state leadership backing our efforts. S. 1114 through its provi-
sions on national source controls is moving federal policy in a direction that sup-
ports our efforts.
This initiative is particularly important in light of the results of more advanced
locEil programs that are now documenting the contributions of the automobile, im-
pacts of air pollution, and a vast array of household and commercial chemical uses.
In short, Mr. Chairman, we know treatment facilities will not work and we know
that controlling the sources is what this program must be about. We need a higher
level of national leadership that places the federal government, in its policies and
actions, on a course to do its part. In many areas, you are the only level of govern-
704
ment that can effectively help us control what passes through our stormwater sys-
tems.
NAFSMA POSITION
NAFSMA's key principles setting forth the organization's position on future legis-
lative proposals on municipal stormwater systems are as foUows.
I. Point vs. Non-Point Sources
There is a need to emphasize more definitively in the Act that municipal storm-
water systems convey, not create, pollutants, that are generated by many different
sources. As such, municipal separate stormwater systems are more like non-point
pollution sources than traditional point sources. The matter of placement of munici-
pal stormwater in Section 402 in the Qean Water Act reinforces inappropriate and
unworkable linkages to other CWA requirements developed for point sources that
over time may be extended to municipal separate stormwater system permits,
rather than emphasizing the non-point nature of this problem and the appropriate
control measures (i.e. management practices).
Short of massive engineering solutions involving costly detention and treatment
of municipal stormwater to comparable levels for point sources, the remedies for
pollution carried by municipal stormwater systems wiU rely on programs for source
control, pollution prevention, improved public and private management practices,
education and the like. These activities represent the most appropriate and cost-ef-
fective methods of addressing municipal stormwater discharges for the foreseeable
future. Such measures are similarly applied in addressing non-point pollution prob-
lems that are currently supported imder Clean Water Act prc^ams.
Position: New amendments should redefine municipal stormwater permit require-
ments, separating this cat^ory of NPDES permits from current law linkages
and requirements for NPDES-permitted point source.
Moreover, establishing municipal stormwater as a distinct category of the
NPDES permit progreun does not preclude or limit the implementation of ap-
propriate water quality standards (WQS) to protect beneficial uses.
II. Water Quality Standeirds (WQS) & Maximum Extent Practicable (MEP) Standard
NAFSMA members rightly assert that compliance with all existing WQS in every
storm event cannot be achieved in the municipal program. Qarification of water
quality standards and objectives as applied to municipal stormwater is needed to ac-
count for the substantial geographic variability and differences between municipal
separate stormwater systems and traditional waste water jmd industrial effluent
SOllI*C6S
Existing NPDES permit application requirements for municipal systemwide per-
mits provide permittees and permit-writers with an opportimity to develop locally-
and regionally-specific permit requirements under the Maximum Extent Practicable
(MEP) standard to address water quality problems attributable to municipal storm-
water discharges. New Clean Water Act amendments further defining MEP shovdd
account for substantial progress, including level of effort, local expenditures and as-
sessments of local stormwater impacts which have been or will be achieved imder
current law and regulations. In addition, such CWA amendment proposals should
recognize that permit applications, the resulting permits and compliance efforts will
further define and implement the MEP standard.
Position: NAFSMA members intend to move forward with reasonable and fiscally
soimd programs, including best management practices and other pollution pre-
vention measures, to address urban stormwater impacts on receiving waters.
NAFSMA urges adoption of a longer-term federal strategy to develop new water
quality objectives for municipal stormwater nmoff that are appropriate to iden-
tified water quality impacts on designated uses, properly account for urban
stormwater and are technologically-achievable and financially responsible. Ex-
isting water quality standards can be used in the interim to measure progress of
municipal stormwater permits and programs, while compliance under the Maxi-
mum Extent Practicable (MEP) standard is measured by performance of the
practices specified in the permits.
III. Industrial Facilities
Under existing regulations, local governments with large separate stormwater
systems must submit separate applications for NPDES stormwater permits for all
designated "industrial" facilities that they own or operate, while at the same time
they must also apply for systemwide NPDES permits.
705
There is interest among some municipalities and regulators in having local agen-
cies provide additional regulatory support to the efforts to control discharges associ-
ated with industrial facilities, recognizing that these functions are now properly as-
signed to state and federal permit and compliance personnel.
Position: NAFSMA supports legislative or regulatory changes to provide a process
allowing a local government, at its discretion, to include stormwater discharges
for municipal facilities (current regulations defined certain facilities owned or
operated by the local government as industrial facilities) in its systemwide
NPDES permit.
In addition, NAFSMA supports changes in current law to allow, but not require
under any circumstances, federal and state agencies to transfer regulatory re-
sponsibilities to municipal permittees for "industrial facilities" within their
service areas.
IV. EPA/State Research and Technical Assistance Capabilities
NAFSMA is concerned about the lack of technical and outreach capacity to assist
municipal applicants in designing and implementing cost-effective programs and
measures to address municipal stormwater discharges. For example, during the ap-
plication preparation phase of this program, regulations requiring monitoring pro-
grams were not well conceived and have resulted in substantial local expenditures
for results of limited value to the regulatory agencies and local agencies.
NAFSMA believes that resources are needed to strengthen the technical and pro-
grammatic capabilities of EPA and the states to help ensure timely and cost-effec-
tive implementation of control measures by regulated municipal systems.
NAFSMA is also concerned that the limited resources now allocated to federal
and state agencies for research, technical assistance and other related information
exchange functions cannot adequately support an expanding municipal stormwater
program in all of the hydrologic regions of the country. Moreover, even the basic
information dissemination efforts (e.g. copying and mailing documents, development
of case studies to disseminate information on local programs, etc.) are very limited.
Position: NAFSMA supports the establishment of a separate authorization to fund
new studies, pilot grants to communities, direct technical assistance to commu-
nities, clearinghouse and database functions for information-sharing, further re-
search and effective technical development activities in cooperation with state
and local governments in similar geographic/hydrologlc regions.
V. Smaller Communities and Other Phase II Sources
NAFSMA believes that we are not ready to proceed with an expansion of the
stormwater program beyond the sources that are presently subject to permit re-
quirements. Current law authorizes U.S. EPA and the states to require NPDES per-
mits for Phase II sources where water quality problems exist. This authority has
already been exercised on numerous occasions, to address discharges from Phase 11
sources, such as smaller communities and currently unregulated industries.
As representatives of many of the communities already subject to municipal
permit requirements, we feel it is crucial that we gain more experience and knowl-
edge before we move forward with an expanded program. This Committee is urged
to pursue a full discussion with U.S. EPA and state administrators on the implica-
tions of moving forward at this time beyond the Phase I sources.
Position: NAFSMA supports a deferral of further regulation of the Phase II sources
(except in individual cases where federal and/or state administrators require a
permit under existing law) until such time as the federal and state regulatory
systems are capable of assuming this substantial responsibility and can develop
regulatory requirements based on the experiences of the Phase I program.
Conclusion
First, the primary concern of NAFSMA members is that water quality-based
limits, including numeric effluent limitations, should not be used in the municipal
stormwater permit program to measure permit compliance. Instead, compliance
should be based on permittee performance of the practices specified in the permits.
S. 1114 addresses this major concern by imposing a ten-year moratorium on numeric
effluent limitations and the direct application of water quality standards. However,
it is essential that this ten-year period be used to advance urban runoff science to
allow the development of appropriate standards for wet weather conditions.
Second, the CZMA guidance document was developed for coastal areas. This docu-
ment needs to be reviewed and further modified before it can be properly applied
nationwide.
706
Third, a significant effort is already underway by the some 200 larger cities and
counties and an estimated 400 other jurisdictions to reduce the pollution carried by
municipal separate stormwater sjrstems. As an indication of the level of effort, over
$130 million was spent by the 200 larger cities and counties to prepare applications.
Preliminary indications from a recent NAFSMA survey shows that many of these
permittees are projecting to spend at least ten times the amount of their application
costs during the first five years of their permit. Overall investment in municipal
stormwater program efforts will increase significantly as more communities are
brought into the progreim.
Fourth, we urge that federal government and states to commit the political, finan-
cial and technical resources to adequately support local efforts. Local governments
alone will not be able to achieve the results we are all seeking, nor will local gov-
ernments believe that Congress is really serious about this problem if adequate fed-
eral and state support is not provided.
There are other issues in the l^islation that are now under review by our mem-
bers. NAFSMA will report to you and your staff providing additional recommenda-
tions as you develop your final legislation.
Mr. Chairman, I thank the Subcommittee for this opportunity to share the views
of NAFSMA on the Clean Water Act reauthorization.
STATEMENT BY THE ASSOCIATION OF STATE AND INTERSTATE WATER
POLLUTION CONTROL ADMINISTRATORS (ASIWPCA)
We are, Mr. Chairman, pleased to submit our statement for the record As you
know, the Association of State and Interstate Water Pollution Control Administra-
tors (ASIWPCA) is the national organization of state officials who on a daily basis
implement the Clean Water Act. Mr. Chairman, the states appreciate your personal
leadership in the Clean Water arena and we are delighted that you are conducting
this series of hearings on reauthorization.
Since 1972, states have made tremendous strides in cleaning up and protecting
the environment. Water quality improvements have been well documented by both
ASIWPCA and by USEPA. Not surprisingly, with the point source focus of the past
two decades, it is now appropriate for States to expand ad enhance their programs
to address nonpoint sources (NPS). Recent ASIWPCA reports indicate tha.t NPS now
represent the majority of remaining water quality problems in the nation's lakes,
streams, harbors, bays, coastal waters and groimdwater due to current activities,
natural conditions and past practices. Under the 1987 Water Quality Act, States
placed high priority on NPS control and gained considerable experience confronting
many of these serious problems. While the 1987 Water Quality Act represented a
starting point for the national program, it is now time to move ahead from the dem-
onstration phase to implementation. ^
States applaud S. 1114 for recognizing the importance of NPS in the nations
clean water efforts and we have some suggestions that are intended to enhance the
Senate provisions. Our comments and recommendations are based on, the following
principles:
• The Clean Water Act must strengthen State efforts by assisting them in build-
ing permanent programs. Under the 1987 Act's demonstration program. States
could not count on a stable national commitment. The Clean Water Act should
assist States and Local governments in developing the right institutional struc-
tures for long-term NPS management
• The Clean Water Act should support and complement ongoing State programs,
with flexibility to continue and expand those efforts. It should not prescribe a
particular approach-to be used, because that would slow down State efforts.
Command and control for the too down will not work — ^there is too much diver-
sity gunong the pervasive NPS and other factors.
• "The Clean Water Act needs to provide an improved national framework with:
• Established national goals and schedules,
• A clarified definition of NPS,
• Improved USEPA guidance,
• Progressive water quality based management in targeted watersheds and
• Pollution prevention for new sources.
• Mandates, milestones and deadlines for NPS control must be realistic. It has
taken 20 years to come this far in the i>oint source arena — ^we can not expect
the NPS program to be an overnight success. NPS control must be viewed as a
long-term task comparable to point source control, but requiring a substantially
higher level of intergovernmental coordination and cooperation.
707
• NPS control can best be achieved through a "package" of voluntary and manda-
tory approaches. While the latter may be needed for specific NPS categories,
the most effective approaches rely on a combination of incentives, technical/
educational assistance, enforcement, etc. States need flexibility to determine the
appropriate balance to accomplish Clean Water goals.
• Targeted and focused efforts are essential. NFS are ubiquitous. Severely con-
strained staff and financial resources must be used as efficiently and effectively
as possible to maximize water quality results within a reasonable time frame.
• Water quality monitoring is a vital component of an effective NPS control pro-
gram to identify impaired waters, further develop cause and effect relationships
between sources and water quality impairments and measure the success of
management measures. This too takes time.
• Significant improvements must be made in the basic science of NPS control
there is a great deal we do not know that inhibits progress. NPS control needs
to be better related to water quality needs, particularly regarding appropriate
water quality standards and determining best management practices (BMP) ef-
fectiveness.
• Federal agencies need to comply with State NPS management plans. The Fed-
eral government must be required to practice what it preaches. Not only are
they a major part of the problem, they can also be a key to the solution. The
Federal government should be leaders in demonstrating proper management.
• Adequate Federal 319 funding, covering all aspects of the program, is essential
to achieve water quality goals in a timely manner.
ASIWPCA COMMENTS AND RECOMMENDATIONS
I. IMPROVING THE NATIONAL FRAMEWORK
ASIWPCA supports an improved national framework for NPS control that in-
cludes:
• Establishing a national goal to control existing and new NPS,
• Developing additional national guidemce to evaluate State programs, and
• Revising State NPS management programs to incorporate an adequate level of
watershed planning, BMP design, water quality monitoring and assessment of
progress.
A. National Program Guidance — ASIWPCA agrees with S. 1114 calling for
USEPA to develop guidance to be used in evaluating State NPS programs. Consist-
ent with the bill, this guidance should include:
• A description of the NPS categories and subcategories,
• Program implementation criteria appropriate for use in evaluating State pro-
grams,
• Methods to estimate reductions in pollutant loads necessary to protect water
quality and achieve the goals and requirements of the Act,
• Evidence of necessary local government authority and involvement and
• Recognition of critical habitats and ecosystems.
Phgising: In addition, the Clean Water Act should more clearly emphasize the
need to progressively move towards controlling existing NPS through implement-
ing water quality based BMPs in targeted watersheds, consistent with the intent
of the proposed Section § 321 on Comprehensive Watershed Management, but
not as prescriptively as recommended for 319 in S. 1114. New sources and exist-
ing sources outside targeted watersheds are best handled initially through tech-
nology based BMPs.
Deadline: While ASIWPCA agrees that USEPA guidance should be developed as
soon as practicable, 90 days is not sufficient to prepare a quality document or
provide adequate State input. A short time period will only encourage prema-
ture adoption of the untested § 6217 Coastal Zone Act Reauthorization Amend-
ments (CZARA) guidance.
B. Revised State Management Programs — ASIWPCA supports the need for each
State to revise their NPS management program, consistent with USEPA guidance
to:
• Adequately describe their phased management strategy for existing and new
NPS,
• Identify all targeted or priority watersheds,
• Establish a schedule for starting implementation projects in targeted or priority
watersheds within a time period identified in the Clean Water Act,
• Establish a process for determining NPS pollutant load reductions, critical sites
and BMPs for targeted watereheds,
708
• Establish schedules which identify milestones to measure progress and
• Identify a strategy to monitor accomplishments of the NPS management pro-
gram, as part of a comprehensive water quality monitoring program.
II. IMPLEMENTATION SCHEDULES
ASIWPCA does not support the 5 year implementation schedule called for in S.
1114. Although it may be possible to establish State programs to deal with new
sources within 3 years of program approval, it is unreasonable to anticipate control-
ling existing NPS in such a short time. Any effort to implement for all critical NT*S
within 5 years will overwhelm all program delivery systems, to the detriment of the
goal. As stated earlier, NPS control will be a long term mission. State experience
indicates that the task is much greater than S. 1114 envisions.
For example, Wisconsin's NPS program is recognized as a leader and has substan-
tial amounts of State funding being provided. The State has been implementing a
watershed based NPS program since 1978. More than 15 years of effort illustrate the
order of magnitude need^ and the time period required to effectively control NPS.
Even with substantial efforts, Wisconsin is able to control only a relatively small
portion of their critical NFS. The delivery systems are incapable of going much
faster.
• 60 priority watershed projects have been initiated, addressing about one-third of
the State watersheds with laikes and streams impaired or threatened by NPS.
These projects involve thousands of farms and tens of thousands of needed
BMPs.
• To date, over $50 MiUion in State funds have been spent, with a FY 93 budget
of $17 Million
• These funds support the over 120 local staff implementing these watershed
projects. Even at that level, Soil Conservation Service (SCS) staff cannot meet
watershed needs. Moreover, engineering assistance demands far exceeded what
SCS can satisfy.
• Due to such factors, Wisconsin statutes call for completing all watershed
projects in 15 years, which is an extremely aggressive but reasonable goal. De-
spite the continuing and substantial support from its legislature, Wisconsin's
program could not meet the implementation schedule proposed in S. 1114-
The schedule does recognize the extensive time required to build the support
needed to enact strong programs, to implement them and to scientifically evaluate
the results in order to mate program adjustments. For example. North Carolina:
• Has had an animal waste cost share progrsim for over 8 years, providing $8 Mil-
lion annually. In 1990 they decided mandatory BMPs were needed. It took until
January 1993 to get the rules in place that will be phased in by 1994 for new
sources and 1997 for existing sources. Eight years of concerted effort will be re-
quired to do what S. 1114 requires in 3.
• Passed a rule requiring BftO*s around water supplies in 1989. Plems to imple-
ment those requirements are due in 1993 and actual implementation begins in
1994.
In short, quality programs take time. S. 1114's unreasonably short schedules risk
public backlash and programs of inferior quality. The tradeoff is not worth it. States
have to be able to prioritize and have time to build and carry out adequate pro-
grams. In addition, under S. 1114 there would simply not be enough funds, enough
qualified staff in States, Local governments, and the private sector, or enough equip-
ment and pickup trucks to come remotely close to meeting the deadlines.
ASIWPCA Recommendation:
Within 60 months after USEPA approval of revised programs. States should be
required to, in a two phase process, evaluate implementation progress and pro-
pose reasonable revised implementation schedules as part of their NPS manage-
ment programs. (See below for details)
m. ENFORCEMENT
Although enforcement should be part of the total approach to control NPS, man-
dating enforcement for all NPS is premature and may be coimterproductive in the
long-term. Enforceable approaches to controlling existing NPS are likely to be most
successful if they are coupled with voluntary efforts and used after voluntary efforts
have had an opportunity to work. More time is needed for State programs to be es-
tablished and progress to be assessed.
ASIWPCA Recommendation:
709
• Within 48 months of USEPA approval of revised State programs — require
States to evaluate progress in implementing their programs, including meeting
water quality standards/designated uses and success of voluntary/ incentive im-
plementation mechanisms, etc.
• Within 12 months of evaluating progress and every five years thereafter — require
States to update their management programs in a manner necessary to ade-
quately deal with causes of water quality impairments or threats. The revised
program should address, at a minimum, actions needed to achieve compliance
with standards, including mandatory BMP installation, prohibitions on certain
land practices and implementation of permits.
Inforcement for new sources should take into account the advantages of dealing
with the source at the time of a major investment.
IV. FUNDING
Federal funding needs to be greatly expanded to assist States in implementing
NPS management programs in a timely manner. The Clean Water Act amendments
should move the national program beyond demonstrations to full scale implementa-
tion of controls that meet water quality standards in an efficient and effective
manner. Since 1987, States have made progress in NPS control and program devel-
opment. However the rate of progress has been severely limited by a number of fac-
tors, particularly inadequate funding.
Ck)ngress must recognize the long term commitment of resources needed. At least
a 6-8 year period of sustained financial support is needed to build the foundation to
achieve the necessary rate of progress.
ASIWPCA Recommendation
Funding should come through a number of vehicles, including Section 319. Al-
though, the State Revolving Loan Fund is a viable source, at present it lacks an
adequate institutional mechanism to repay loans. Therefore, Section 319 will
continue to have a vital role.
• Eligibility. 319 funding assistance should cover all aspects of the revised and
approved State nonpoint source management programs.
ASIWPCA Recommendation: Eligibilities under 319 should include the fol-
lowing which may include local program institution and 319 plan updates:
• State level administration,
• Targeted watershed problem identification,
• Pollutant load reduction determination,
• Critical site identification,
• BMP identification and implementation planning,
• Technical assistance,
• Education assistance,
• Enforcement activities and
• Financial assistance to install BMPs where needed.
• Distribution: To be effective and taken seriously, the program must transcend
the demonstration mentality to become a mainline program. The present proc-
ess of work plan development and review is not manageable at increased fund-
ing levels. Funds should be distributed to states — with no set-a-side for "beauty
contest" competitive projects at USEPA. S. 1114 goes only part way, allocating
50% of the funds by formula. This implies a "208 type" project by project proc-
ess for the remainder of funds, which historically has not worked well in
achieving the Act's goals.
ASIWPCA Recommendation:
All authorized funds should be allocate to States to carry out activities identi-
fied through approved State NPS management programs.
• Economically Achievable Management Measures: S. 1114 calls for implementing
management measures that must be, by definition, economically achievable.
While it is important that BMPs be reasonable, it is unlikely that water quality
standards wiU be met if NPS controls are limited to management measures that
are economically achievable without financial assistance. For example, based on
USEPA's Economic Achievability Analysis for implementing §6217 of the
CZARA, costs to control animal waste on dairy farms in many upper midwest
and northern States cannot reasonably be born by the farmer without finsincial
assistance. By definition, therefore, in S. 1114, implementing these management
measures is not economically achievable.
710
ASIWPCA Recommendation:
Ck)st sharing for BMP installation should be available, based on need, even
when installation does not meet a test of "economically achievable."
• Incentive Grants: While S. 1114 proposes incentive grants to encourage installa-
tion of BMPs, the limitations specified (up to 50% of project cost and a limit of
$5,000 per year) make the incentives too low and too restrictive to control many
NPS in a practicable and timely manner. More flexibility is needed For exam-
ple, based on the experience in Wisconsin's State funded pn^ram, animal lot
runoff controls cost over $15,000, while needed manure storage facilities cost
$20,000 — or a total of at least $35,000 per livestock operation. Statewide, the
cost to control animal waste sources on 15,000 to 20,000 livestock operations ex-
ceeds $500 million.
ASIWPCA Recommendation:
S. 1114 should give States more flexibility. Given the situation in Wisconsin,
Michigan and other upper midwest States alone, a 50% incentive grant or a low
interest loan can be insufficient to make EMPs economically achievable. The
limit of $5,000 per year is impracticable when dealing with such costs.
• Funding Level and Matching Requirements: Funding is needed conunensurate
with the program established imder S. 1114. Unless refinements are made as
recommended above, the proposed authorization will be grossly inadequate.
ASIWPCA Recommendation:
The streamlined program recommended above requires for:
FY 1994-96:$500 Million annually
For FY 1997-98:$1 Billion annually
The existing 40% match requirement should be retained. Funds not used by a
State or other eligible recipient should be available for redistribution to other
States.
SUMMARY
• S. 1114's objective should be to build the State NPS pn^rams needed over time
to achieve water quality goals. It assumes, instead, that foundation is in place to
carryout the BMPS prescribed — ^when that is not the case. States should be ac-
countable for achieving that objective. USEPA should oversee their program de-
velopment and support activities through fimding, research, technol<^y develop-
ment/transfer and better standards. Such a partnership can produce more
broadly supported programs that achieve water quality goals much faster. In
many ways, the bill must "reinvent" historical government relationships.
• States should be responsible for setting priorities and determining with Local
governments, etc, cost-effective approaches to improvii^ water quality. S. 1114
"over-Federalizes" by defining and micro-managing activities down to the local
level, with an untested CZARA approach. Historically, the Federal government
has not performed weU in such endeavors, whereas State and Local govern-
ments can.
• The Clean Water Act should put into place an improved national framework to
achieve the above objective, reljdng on State programs, with iterative water
quality based management in targeted watersheds and pollution prevention for
new sources.
• NPS control is best achieved through a mix of voluntary, incentive, educational
and mandatory approaches. States should evaluate revise/update their NPS
programs periodically, including enforcement and other refinements as needed.
• The implementation schedules in S. 1114 should be more reasonable given the
nature and extent of the nonpoint sources, intensive multi-agency activities nec-
essary, likely resources and delivery system cai»bilities.
• The Act should not perpetviate the demonstration prc^ram S. 1114 needs to do
more to support, instead, implementation of approved State 319 programs. Ade-
quate Federal funding eligibility for all parts of State programs is essential to
achieve water quality goak in a timely manner.
• Success depends upon adequate 319 funding ($500 Million to $1 Billion annual-
ly) and the ability to leverage other Federal programs through consistency re-
quirements.
• S. 1114 needs more adequate incentive grants for BMPS that are not economi-
cally achievable without financial assistance.
711
Mr. Chairman, the States and our Association appreciate the opportunity to
present our views on the Nonpoint Source program. We are available at euiy time to
work with you and/or your staff on these key issues. Please contact our Executive
Director, Roberta (Robbi) Savage at 202-898-0905, if you wish further details or
would like additional State input.
STATEMENT OF THE COASTAL STATES ORGANIZATION, INC.
As a representative organization of the Governors of the 35 coastal States, Com-
monwealths and Territories of the United States, the Coastal States Organization
appreciates the opportunity to submit our comments on the Nonpoint Pollution Con-
trol Provisions of the Water Pollution Prevention and Control Act of 1993, S. 1114 to
this Subcommittee. Founded in 1970 the Coastal States Organization represents the
collective voice of the coastal State Governors on ocean. Great Lakes and coastal
affairs. Due to our experience in implementing the coastal nonpoint pollution con-
trol program over the last three years, we have an intense organizational interest in
the nonpwint pollution control provisions of S. 1114.
The coastal States have been the leaders in addressing the problem of nonpoint
source pollution, and recognize the need for a more comprehensive and effective ap-
proach than that currently prescribed in § 319 of the Clean Water Act. We believe
that S. 1114 makes significant progress towards enhancing the Clean Water Act's
nonpoint source pollution control program. At the same time, we believe that sever-
al points must be considered.
Keys to a Successful Nonpoint Pollution Control Program
Coordination with other Federal Programs: Section 304 of S. 1114 provides for
consistency with other federal nonpoint control programs, specifically agricultural
and highway construction programs. Conspicuously absent, however, is any mention
of the coastal nonpoint pollution control program being implemented under the
Coastal Zone Management Act. This program, commonly known as the CZMA
§ 6217 program, is well imderway, and should be coordinated closely with the non-
point pollution control program under § 319 of the Clean Water Act.
The CZMA §6217 program statutorily requires States to submit to EPA and
NOAA their coastal nonpoint pollution control programs for approval in July 1995.
Many States are revising their Clean Water Act § 319 programs as part of this proc-
ess. Further, program revisions are required under § 6217 if water quality goals are
not attained.
The provisions of S. 1114 must recognize these efforts. If S. 1114 is enacted as is,
States would be required to revise and submit their programs to EPA again in 1996.
Care should be taken to avoid placing the States in an endless cycle of plan revision
which will be at a cost to plan implementation.
Scientific Foundation for Controlling Nonpoint Sources: The monitoring
provisions contained in §301 of S. 1114 are much needed. However, they should be
more focused on providing technical assistance to the States, especially in detecting
and quantifying nonpoint source pollution. Identifying the linkage between non-
point source pollution and land use is often tenuous. Hard data, and the means to
acquire it, is needed for effectively controlling nonpoint pollution, especially if regu-
latory enforcement actions for controlling nonpoint sources are to be sustained in
the face of inevitable l^al challenges. EPA and NOAA have a wealth of expertise,
monitoring and modelling capabilities that are not adequately utilized to meet im-
mediate coastal management needs. States need federal technical assistance to iden-
tify nonpoint sources and gauge the success of their control efforts.
Flexibility through Multiple Approaches: S. 1114 requires States to ensure
that management measures be enforceable, much the same as the CZMA § 6217 pro-
gram. However, S. 1114 contains considerable more flexibility than § 6217. First, it
allows for recognition of regional variation in the implementation of management
measures. Second, it allows for consideration of the economic capability of the af-
fected land or water user to implement management measures. T^e flexibility pro-
vided in S. 1114 is necessary to obtain the public support crucial to the successful
local implementation of this program. The Coastal States Organization supports this
flexible approach in S. 1114.
S. 1114 recognizes the need for enforceable requirements where other means have
not effectively promoted the adoption of nonpoint source control measures. Howev-
er, by itself, a regulatory r^ime for controlling nonpoint source pollution will not
work. The resources to patrol the broad and diverse scope of sources of nonpoint
712
pollution are simply not available. Developing and implementing nonpoint source
control programs, as well as monitoring compliance and the effectiveness manage-
ment measures is very labor intensive.
We strongly recommend that changes to § 319 allow States to prioritize their re-
sources according to the significance of their problems and their ability to address
those problems. A graduated, flexible approach for controlling nonpoint sources is
needed, one which is tailored to each type of source.
Linking Federal Subsidies to Responsible Land Use: S. 1114 takes a "get seri-
ous, no more excuses" approach to controlling nonpoint pollution. We could not
agree more. To this extent we urge the Committee and Congress to come to grips
with the role of leveraging agricultural subsidies to promote measures to control ag-
ricultural nonpoint pollution. The solution to the problem of agricultural nonpoint
pollution is not to provide more subsidies as incentives not to pollute, but to make
the provision of existing subsidies contingent upon responsible agricultural prac-
tices. We realize the difficulty Congress faces in trying to address this issue given
the split of committee jurisdiction. However, State authority is also split among
many State agencies, yet these agencies must be able to come to terms with each
other in order to meet federal mandates. There is no reason that the Federal gov-
ernment should not hold itself to the same standard of coordination and coopera-
PuBUC Support: The public must understand the serious problem of nonpoint
source pollution and its relationship to land use in order for them to support an
effective nonpoint source pollution control program. Public participation in the revi-
sion of nonpoint pollution control programs should not be confused with public sup-
port. There is no doubt that there will be broad resistance from coalitions of affected
users challenging efforts to control nonpoint source pollution. Public support for an
enhanced § 319 program envisioned in S. 1114 will only come about through public
education, a process which is likely to take many years to accomplish. Building
broad public support for the widespread implementation of management measures
will take a concerted effort with federal assistance.
Economically Practical Solutions: Section 304 of S. 1114 recognizes the need
for economically practical solutions of controlling nonpoint sources by authorizing
the States, with EPA approval, to adopt alternative requirements with respect to
specific sources of nonpoint pollution. In many cases, no single management meas-
ure will be effective in controlling a nonpoint source. The assessment of economic
capability of implementing management measures must also consider the combined
costs of multiple management measures. For these reasons, we support the "eco-
nomic capability" approach of § 304.
Adequate Financial Support: Controlling nonpoint source pollution is expensive,
especially for existing sources in urban areas. The costs of controlling some sources
of nonpoint pollution may be prohibitive without federal financial support for imple-
mentation, monitoring and enforcement. We support the increased authorization of
appropriations under this section, but in view of the terribly tight fiscal constraints
on the federal government, we continue to be concerned that actual appropriations
will remain far below the authorized spending levels.
Federal Agency Regulation of Local Use: S. 1114 requires EPA to publish reg-
ulations to implement enforceable minimum control measures in the event that a
State fails to submit a revised nonpoint source pollution control management plan.
We must note our concern with this provision because it raises questions about the
ability of a federal agency to regulate local land use, an area of the law that has a
long-standing tradition of being the primary responsibility of State and local govern-
ments. Beyond the legal policy questions, we also question whether EPA, from a
practical standpoint, has the capability to enforce the implementation of site specif-
ic management measures.
Conclusion
We appreciate the opportunity to submit these general observations to the Sub-
committee at this time. The Coastal States Organization is continuing to analyze
and review the nonpoint source pollution control provisions of S. 1114, and will be
submitting more detailed comments for the record in the near future.
Thank you.
REAUTHORIZATION OF THE CLEAN WATER ACT
TUESDAY, JULY 27, 1993
U.S. Senate,
Committee on Environment and Public Works,
Subcommittee on Clean Water, Fisheries, and Wildlife,
Washington, DC.
WATERSHED PLANNING AND MANAGEMENT; MONITORING AND
ENFORCEMENT
The committee met, pursuant to notice, at 2:15 p.m., in room 406,
Dirksen Senate Office Building, Hon. Bob Graham [chairman of the
subcommittee] presiding.
Present: Senators Graham, Durenberger, Faircloth, Chafee, and
Lautenberg.
OPENING STATEMENT OF HON. BOB GRAHAM, U.S. SENATOR
FROM THE STATE OF FLORIDA
Senator Graham. I call the meeting to order.
This is the fifth in a series of hearings on the reauthorization of
the Clean Water Act. Today we turn our attention to two issues:
watershed planning and enforcement.
Watersheds are the areas that drain into a common outlet such
as a river or lake. As early as 900 B.C. the Chinese understood how
watersheds work and their importance to human activity. They
had a proverb: "To rule the mountain is to rule the river."
Today, most of those who have studied the matter agree that we
must control what is discharged into the watershed if we are to
clean up rivers, lakes, and streams into which they drain. They be-
lieve this is especially true as we try to tackle our largest remain-
ing water quality problem: nonpoint source pollution.
Watershed planning is not a new topic in the Clean Water Act.
The 1972 Clean Water Act established a program entitled section
208 of the act that was designed to identify all waste — point and
nonpoint — ^generated in a specific region and to plan for structural
and nonstructural means to prevent their discharge. Unfortunate-
ly, the 208 process was not a great success, in large part due to lim-
ited funding. It has also been criticized because it emphasized plan-
ning and provided no financial assistance or incentives to link
planning with implementation of nonpoint source control meas-
ures.
Despite the failures of this program, many States have taken the
lead in watershed planning and we will learn about some of those
efforts today in the States of North Carolina and Rhode Island.
(713)
714
An argument often made for watershed planning is one that has
been repeatedly made in our previous hearings. People relate to
the waters where they live, work, and play. A key goal of water-
shed planning is to motivate and educate the community as to the
causes of pollution of neighboring rivers, lakes, and streams. This
is important because our most difficult problem, nonpoint source
pollution, is not just an agricultural problem. It affects the way we
all live and dispose of substances that rain washes into our lakes
and streams.
Human nature tells us that this goal is easier to achieve when
the watershed is relatively small. People are simply more likely to
alter their lifestyles for the benefit of those downstream if they feel
a sense of connection. Thus, the definition of the watershed be-
comes an important issue.
Those who advocate watershed planning also tend to emphasize
its flexibility: its recognition of the fundamental differences be-
tween the soil and hydrology of a State like Florida and a State
like Colorado. Watershed planning can recognize the difference be-
tween a river whose watershed is populated with dairy farms and
one that is home to industry or suburbs.
Watershed planning is not without potential problems. Water-
sheds do not recognize jurisdictional political boundaries, whether
they are State lines, counties, or cities. When the time comes to im-
plement a plan, much less develop it, there are many intergovern-
mental disputes that must be addressed. We will explore these
problems today and see how they might be resolved.
We are also likely to hear concerns today about whether Con-
gress should require States to engage in watershed planning and to
do so on a State-wide basis. The bill before us takes a more modest
approach. It encourages States to plan watersheds and emphasizes
those watersheds that are impaired.
Every night the news tells us of the problems we face when wa-
tersheds are flooding. Looking at the devastation that is occurring
in the midwest from the floods, I am reminded of the lessons we
learned at our first hearing about the way rivers draw people to
them and how we alter river basins to sustain human activity.
While these floods are primarily the result of extraordinary natu-
ral occurrences, they also serve as lessons to us on the manner in
which we impact rivers and how we plan or fail to plan for the
growth near them.
It is with this in mind that I look forward to the discussion today
on our first topic.
Our second topic is also important because we know that pollu-
tion does occur, despite our best efforts, and we must take action to
prevent it when we can. The Clean Water Act provides the EPA
and States with many enforcement weapons against polluters. Per-
haps as important, the act also empowers citizens to bring civil ac-
tions. Many believe that we need to strengthen the enforcement ar-
senal both for the agencies and for concerned citizens. Our second
panel is likely to present us with different perspectives on how we
should proceed.
We will conclude our current series of hearings next week with
two hearings on August 4th and 5th. We will be holding an addi-
tional hearing on wetlands in September.
715
As can be seen, we are again using an informal format. Because
we wish to use this format to facilitate discussion, I will ask our
witnesses to very briefly summarize their statement, if they feel
that they can do so, and in no event take longer than 5 minutes.
Your full written statements will be made a part of the record. At
the conclusion of all the statements from each of the two panels,
we then look forward to a very constructive interchange of ideas
and questions.
Having just made the announcement of brevity, I will now break
the rule.
I believe Mr. Tedder has a brief series of slides and his presenta-
tion may somewhat exceed 5 minutes. I felt that this was impor-
tant so that we could put some specificity and tangibility behind
the concept of watershed planning. I believe that his remarks will
be a useful introduction to the topic.
We are joined by two of our colleagues today. Senator Faircloth
and Senator Durenberger.
Do you have an opening statement?
Senator Durenberger. None.
OPENING STATEMENT OF HON. LAUCH FAIRCLOTH, U.S.
SENATOR FROM THE STATE OF NORTH CAROLINA
Senator Faircloth. Yes, I do have a very brief one. Thank you,
Mr. Chairman.
I would just like to introduce one of our witnesses, Steve Tedder.
Steve is from North Carolina and he is chief of the water quality
section of the North Carolina Division of Environmental Manage-
ment. He will be testifying today not only on behalf of North Caro-
lina, but of his colleagues in a similar position around the country.
Steve has been with the North Carolina water quality division
for 17 years and has done an excellent job. In fact, North Carolina
is the Nation's acknowledged leader in watershed planning. We are
way ahead of the game, we are way out front, and we intend to
stay there. Steve and his colleagues deserve a great deal of the
credit for putting us there.
I thank him for being with us and I look forward to him bringing
a real-world common-sense approach to what we are talking about
from someone who has been in the business for 17 years and under-
stands how it works.
Steve, thank you for being with us.
Senator Graham. Thank you, Senator. You have just provided a
wonderful introduction to one of the members of our first panel,
who I will call upKon to be the first witness in that panel.
Also, we are joined today by Mr. Blake Anderson, county sanita-
tion district of Orange County, California; Mr. Charles Gauvin,
president of Trout Unlimited, Vienna, Virginia; Mr. Curt Spalding,
executive director of Save the Bay, Providence, Rhode Island; and
Ms. Loma Stickel, representing the Western Governors Associa-
tion, based in Denver, Colorado.
I thank each of you for being here today in what I know will be a
very constructive discussion.
Mr. Tedder?
716
STATEMENT OF STEVE TEDDER, CHIEF, WATER QUALITY SEC-
TION, ENVIRONMENTAL MANAGEMENT DIVISION, STATE OF
NORTH CAROLINA REPRESENTING THE ASSOCIATION OF
STATE AND INTERSTATE WATER POLLUTION CONTROL AGEN-
CIES
Mr. Tedder. Thank you, Mr. Chairman and members of the com-
mittee for this opportunity and this vehicle for my counterparts
and myself to address the Clean Water Act and possible changes in
the Clean Water Act, especially on the topic that we are going to
discuss today on watersheds because this is an extremely critical
part of our programs and a critical part of the focus of many of the
programs across the country right now.
[Slide presentation.]
Mr. Tedder. Basin-wide water quality management, as was men-
tioned earlier, is not new. Many States have already started em-
ploying various techniques at various scales. I think it is very en-
couraging that we are seeing that already and now we are seeing
some reflection of that in the Clean Water Act.
As we look at the North Carolina program, on this map you will
see 17 basins in the State of North Carolina. We really have adopt-
ed a scheme and a method to move forward with 17 individual
basin plans at this point. So we have actually taken the approach
to include the entire State of North Carolina in our planning proc-
ess for the basin-wide or watershed approach.
What is the goal? What are we looking for as we develop these
17 individual plans?
We are trying to develop a consistent yet effective long-range
plan, something that we can move toward. We have to be cognizant
that it is not quick. It is an evolving process that we must acknowl-
edge as we go through this approach. It will not happen overnight.
This allows us to focus efforts and resources, which for the States
is extremely critical. We will never have the resources to do all of
it at one time, so we have to look for these unique mechanisms to
be able to focus those resources, our monitoring, our assessments,
and our permitting. For our approach, it is not a new regulatory
program. I think that is extremely important. We are dealing with
the existing rules, regulations, and statutes that we have to try to
more effectively implement those regulations.
it is a way to see the big picture. I think that is extremely impor-
tant as we work to protect water quality. It is an evolutionary proc-
ess. The way our system is set up, it will be revisited every 5 years
for each basin across the State, for the first time a very good oppor-
tunity to integrate both the point source and nonpoint source con-
trol efforts into a single plan to address the problems of specific
basins.
So we have the framework to address many of the areas that we
have not in the past. At the bottom you will see one that is very
important, which is to lay out a plan not only from an educational
standpoint but to allow the public to participate in the process. We
provide this citizen input through public hearings. We have al-
lowed considerable public input through the entire process of the
basin-wide.
717
Why basin-wide? At least in North Carolina — and I know it is
the same in every State — watersheds themselves are very different.
Therefore, the solutions to the problems are going to be very differ-
ent in each watershed. We cannot treat them the same. It is an in-
vestigative process to find out what the problems are in a particu-
lar watershed and what is responsible for those problems.
Yes, it can still be point sources. We have not solved all the prob-
lems with point sources. At the same time, in a particular water-
shed it may be sediment. It may be from an agricultural operation.
Or it could be nutrients from the homes and developments. A vari-
ety of areas could cause these problems that are going to be very
distinct in each basin, in each watershed that we evaluate.
So the causes are very different and those pollutants — those
issues of concern — this graph will look extremely different for
every watershed that we evaluate and every basin or watershed in
any State will look very different from this one. If we look at the
nonpoint sources, there are several areas that we have to concen-
trate. We have to rank and look at and focus our resources. In one
basin, it may be agriculture, but yet in another basin it may be for-
estry. With the planning process it allows us to rank our efforts as
to which ones we have to identify and develop new avenues to ad-
dress problems in those areas.
Those different areas are different also in each basin. The chart
will be broken up very differently each time.
It is very interesting that it allows us the ability to focus on
problems. In North Carolina, as you will know, it is an agricultural
based State. Yes, it has been the sacred cow for many years. This
approach has allowed us to work together with the other agencies
to focus on the problems, to target certain areas. In North Caroli-
na, we have been targeting certain areas that we need to address
either through new rules and regulations or how to use the regula-
tions that are on the books more effectively.
Our point source controls are there. They are very ingrained in
the program. It is not new, but we still have problems. We will
always have problems that we have to address through our enforce-
ment mechanisms. I think these are very evident. As we address
those problems, we have to acknowledge that they are not consist-
ent problems. Those same situations may change on a daily basis.
We have to be aware of that and we have to tailor our approaches
to meet those demands.
This leads into the enforcement part. This is a very important
aspect of are program — and I know you are going to talk about
that today. As we have modified certain things, we are seeing im-
provements. Don't let anybody kid you that improvements are not
being made in the environmental programs, because they are. I
think this graph displays that very readily. And there are different
ways to accomplish this.
As we embarked on the watershed approach, we also looked at
different ways of enforcement. I think you can see on this graph in
1990 that there was some type of subtle change in the program to
increase our enforcement activities 500 percent with the same staipf
that we had before. The monitoring is critical. That is the reason
that watershed planning takes time.
718
But is it more efficient? The answer is yes. I think you can see
from this graph, which displays — pre and post basin-wide monitor-
ing efforts — the increase in the level of effort that was allowed
using the very same level of staff.
As we look at the approach, what is different? One of the things
that we have done is to have all the permits in each basin expiring
at the same interval. Therefore, we can address those problems and
make changes more rapidly. The studies are not scattered, they are
focused. Most importantly, there is a plan.
What is the watershed approach? It is everything we think of in
a water program combined into one. We need to get away from the
fractionalization of the programs and independent way of doing
business and pull these into a focused concept, as well as the funds.
Let's not treat these as separate. It is a water quality program, and
that is how we must work this we are to be successful. Let all those
program component, be watershed protection.
We see these issues as the major keys to success. We must elimi-
nate some barriers for sure. We seek consolidation of efforts,
whether grants or reporting, as very important to allow the States
to move forward without substantial resources for the basin-wide
approach. Of all of these, the one that is most important is that
one size does not fit all. We must allow that flexibility within the
States to work within their resources to make the basin-wide ap-
proach work.
I don't think you can mandate success. You have to let success
gradually occur, because it will happen. The movement is occurring
across the country right now. Let's encourage it. Let's not get in
the way of that momentum.
The Clean Water Act, currently encompasses numerous places
that already clearly indicates that basin-wide is here. The mecha-
nisms are here, the directions are already in the Clean Water Act.
Let's not jeopardize what is there.
Yes, the level of programs and the expectations of each of the
programs are incregising drastically. We will never fund all the ex-
pectations. Let's look at what is causing the barriers to the States
to implement a watershed approach. 'To more efficiently address
these issues I think would be heading the right direction.
As we in North Carolina and the other States across the country
move forward with specific basin plans, there is a movement out
there of support. It will take time and it will not happen overnight.
It will not happen in 3 years, I can assure you, because it takes
time to put these together if you are going to have an effective
plan.
Look at the keys. It is more efficient; it is more effective; and it
is predictable. I think it is important for the regulated community
to have some predictability to the process. It allows better resource
management and it is politically achievable.
What does it do? It does a lot for the public. It allows us to edu-
cate the public, to provide them information on the watersheds in
their backyard where they are going to have an interest.
We have to quite juggling the resources. We have to focus the
resources if we are going to be successful in our programs. I think
a lot of the States have the staffing. We can eliminate the compli-
cations and delays if we are thoughtful and careful with the Clean
719
Water Act reauthorization. I think we can do it with very mini-
mized increased costs. If there are any doubts as to whether it can
be successful, the answer from North Carohna is no, there is no
doubt. We can be successful in this effort, but we have to look at it
from a very holistic measure and look at it from a watershed basis.
We think that is very essential to the success of the program.
Thank you, Mr. Chairman.
Senator Graham. Thank you very much, Mr. Tedder. Any pres-
entation that can go from Sherlock Holmes to Miami Vice and end
with Planet Earth is wide ranging.
[Laughter.]
Senator Graham. Mr. Anderson?
STATEMENT OF BLAKE ANDERSON, COUNTY SANITATION DIS-
TRICT OF ORANGE COUNTY, CALIFORNIA, REPRESENTING THE
ASSOCIATION OF METROPOLITAN SEWERAGE AGENCIES
Mr. Anderson. Mr. Chairman, what you will hear from me
pretty much parallels what you just heard from Mr. Tedder.
AMSA strongly endorses the concept of comprehensive water-
shed management. We see it making incredible sense from a local
perspective. It gives us the flexibility and the accountability to
move toward site-specific solutions to real problems within a water-
shed. We see it as really where the bold action needs to be taken
by the Senate in moving toward a new model for managing water
quality into the next century.
We see watershed management as an umbrella under which the
existing provisions of the Clean Water Act can operate. It gives us
the opportunity to first look at what the resources are withm a wa-
tershed that need to be protected; second, look at what the sources
of pollutants and impacts are; third to look at the alternatives that
are available for us to solve the problems; and fourth, it gives us
the enforcement provisions that allow us to make sure that prom-
ises made are promises kept.
Today, water quality standards are pretty much dictated in a
top-down way of looking at things. There are national standards
which drive permit conditions, which then drive the facility and
construction and operational decisions that drive the programs
that are in existence today. At this point, there is really little
thought to the environmental and resource response to these activi-
ties. Comprehensive watershed management will allow us to look
at local conditions, and on that baisis develop a management plan.
From that management plan we can begin to implement the ex-
penditures of resources to address those issues, and then monitor
the effects. Then it feeds back up to the top.
As Mr. Tedder said, it is a long-term iterative process to really
understand where the resources are being impacted and what we
can best do to effect improvements.
I would like to give a little input on S. 1114. First of all, it does
give the governors the ability to voluntarily designate watersheds
and create watershed management plans. We endorse the concept,
but we believe that it should go farther. We believe that it should
not be voluntary, that it should be mandatory. We think that will
drive the entire country along on an even basis. It will keep a level
720
playing field throughout the country and will assure the steady
movement toward improved water quality.
S. 1114 gives the governors the ability to designate management
entities that send completed plans to EPA for approval. We en-
dorse the concept, but we think you need to go farther. First of all,
you need to define who is on the commission, and the commission
should include State, Federal, and local government. It should in-
clude the major stakeholders, sources of pollutants as well as the
people who are using the watershed for all its beneficial uses.
Citizenry and environmental groups all need to be at the table as
coequal partners discussing the direction in which the plan is
headed, the schedules and time lines that are going to be estab-
lished, and finally the priorities that the people within the water-
shed are going to use to make progress toward water quality im-
provement.
We also think the commissions need to be empowered to make
the final decisions. Right now, S. 1114 says that the plan, once com-
pleted by the management entity, is passed onto EPA for approval.
We believe that EPA should be at the table at the time the plan is
being designed and that all the people within the commission make
the considered judgment of how the plan should be completed. On
that decision, the plan then moves forward. Moving things to some
kind of an administrative fiat hundreds of miles away from the
point of action will just invite regulatory gridlock. You must have
everyone participating in the decision.
One final note is that we really see S. 1114 and comprehensive
watershed management as really being an umbrella under which
existing mandates are operated. It is really not asking for anything
new. It is simply clarifying and streamlining the process that must
go forward for improved clean water objectives.
Senator Graham. Thank you very much, Mr. Anderson.
We have been joined by the ranking member of the committee
and this subcommittee. Senator Chafee of Rhode Island.
Senator Chafee. Thank you, Mr. Chairman.
I am delighted that Mr. Curt Spalding, head of Save the Bay in
Rhode Island, our largest environmental organization, is here to
testify. I look forward to hearing his testimony and the others like-
wise.
Senator Graham. Thank you.
Mr. Gauvin?
STATEMENT OF CHARLES GAUVIN, PRESIDENT, TROUT
UNLIMITED
Mr. Gauvin. Thank you, Mr. Chairman.
I would like to say that I am glad to be here. On a personal note,
' it is the first time I have ever testified before Senator Chafee. I am
a former constituent of his and used to work with Save the Bay,
which is the organization that Mr. Spalding heads, back in the
days when the Providence sewage treatment plant was putting into
the bay what we euphemistically called "grease balls". That situa-
tion has been cleaned up.
I am very happy to have a chance to give you Trout Unlimit-
ed's
721
Senator Chafee. Mr. Gauvin, nothing breaks a politician's heart
more than to hear that an admiring individual turns out to be a
former
[Laughter.]
Mr. Gauvin. Thank you, Senator.
I am pleased to present Trout Unlimited's views on this very im-
portant piece of legislation. I would like to say that our biggest con-
cern with the triad of objectives in the Clean Water Act — namely,
the restoration and maintenance of the chemical, physical, and bio-
logical integrity of the Nation's waters — really has to do with the
biological integrity. The problem that we see around the country
with cold water — namely, Salmon and Trout habitat — is that you
have, despite the appearance of attainment status with water qual-
ity standards, you have more and more extirpations of local popula-
tions and genetically distinct stocks of fish, which causes us great
concern.
This situation collectively I have chosen to call a biological defi-
cit. When I use that term I refer to situations such as the scores of
Pacific Salmon stocks that are in jeopardy of extinction throughout
their range, such as the stocks and populations of other native
Salmon in the inter-mountain west which are endangered or
threatened and to summarize the overall situation, which involves
a third of all our native freshwater species that are threatened or
endangered and a fifth of all our aquatic species that are now
threatened.
This, to me and to our organization and to other conservationists,
is a potential loss of unprecedented and unconscionable biological,
economic, social, and cultural dimensions. It is a great potential
loss of biological diversity. Needless to say, our aquatic habitats,
our economic life, our social life, and our cultural life will be great-
ly affected by it if it is to occur.
So much of this loss has to do with habitat degradation and so
much of that has to do with the conditions of our watersheds. I
think S. 1114 is an important step in the right direction. I think
there is much in the bill that could be used to protect our water-
sheds and to make life a little bit better for some of our native and
vnld Trout, Salmon, and other fish species.
I would like to give you some specifics as to how I think the bill
could be improved. In section 301 of the bill, the basic introductory
and fundamental planning section of the bill, it seems to me that if
you have — if the term biological integrity in the act is to mean
anything, then we have to protect species diversity. We have to
protect the species diversity that is in healthy habitat and we have
to ensure that unhealthy habitat is restored and that it regains
species diversity.
In many cases, that won't occur, even if the habitat in question
meets current water quality or future sediment standards. We have
to look at biological monitoring, biological assessment, we have to
monitor for those conditions, and we have to incorporate those
standards in the planning and other guidance mechanisms of the
act.
In addition, when you are talking about a balance of indigenous
populations of fish, shellfish, and wildlife, again the important
thing is diversity. It is at least as important as balance. Unhealthy
722
habitat and a depressed condition will achieve its own balance, but
it is not biologically healthy. In order to be so, it must be diverse.
As far as the monitoring provisions of section 301, I would like to
suggest that monitoring capture the effects of nonpoint and other
pollutants on all sediments, in the water column, and on all signifi-
cant populations of aquatic biota. I would like to see that biota pro-
vision added in the monitoring provisions of the bill.
I would also like to suggest that really no watershed planning
and assessment is adequate unless you also look at the problem of
in-stream flows. In know in-stream flows — the jurisdictional situa-
tion under the Clean Water Act is extremely qualified, but for
planning purposes and assessment purposes, we really ought to be
looking at in-stream flow issues whether hydropower projects or
other kinds of diversions — dams and other diversions are at least
as big killers of fish as the things we normally consider pollutants.
Finally, we would like to call upon the committee to consider re-
quiring uniform attainment status so that we no longer have a sit-
uation in which some States water is in attainment at a particular
standard or partial attainment and in other States — or even within
the State — ^you have other waters that are not so in attainment.
Finally, I would like to suggest that with respect to the other
component of the bill, the thing that really makes the bill work,
the nonpoint area of the bill, that there is some room for improve-
ment. Again, I think biological integrity of the water has to be the
focal point of nonpoint source regulation. I think you need to avoid
incorporating a position that will not result in the weakening of
point source regulation as we move forward, all on the mistaken
assumption that existing waste load allocations accurately capture
either the existing nonpoint sources or the new point source load-
ings of pollutants.
In this connection, I would like to comment to your attention
Representative Oberstar's bill on nonpoint which seems to me to do
the job a little bit more forcefully and in a more biologically sound
direction than S. 1114.
We at Trout Unlimited have some experience with watershed
protection and restoration. A good example is our recent to protect
and restore Norman McLean's beloved Big Blackfoot River in Mon-
tana.
I think the bill before the committee is directionally correct,
sound in many respects, but it still needs to be strengthened to
yield effective watershed protection and restoration.
Thank you.
Senator Graham. Thank you very much.
Mr. Spalding?
STATEMENT OF CURT SPALDING, EXECUTIVE DIRECTOR, SAVE
THE BAY, PROVIDENCE, RHODE ISLAND
Mr. Spalding. Thank you very much, Mr. Chairman. And thank
you to the committee for allowing me the opportunity to come all
the way from Providence, Rhode Island to testify.
Some of you may be wondering. Save what bay? For those in the
audience who haven't been to Rhode Island, it is Narragansett Bay.
723
Save the Bay represents 15,000 members and we are dedicated to a
clean and healthy Narragansett Bay that people enjoy.
We have been around for 23 years. During that period, we have
had extensive experience with strategic environmental planning.
In effect, watershed planning is another version of that initiative
or idea. We have done 208; we have done CRMC plans, which are
special area management plans under the Coastal Zone Manage-
ment Act; and we have done a CCMP, a comprehensive conserva-
tion management plan, for Narragansett Bay under the national
estuary program. Under that, of course, there were several water-
shed initiatives.
So we have had our share of experience working in this kind of
forum. We decided to sit down and think a little bit about what
works and what doesn't when we're talking about watershed plan-
ning and distill our experience in that area. I guess I am going to
serve to emphasize some of the points Mr. Tedder made and then
move on and talk about when we think a watershed plan should be
done, and then talk a little bit about how we think S. 1114 can be
improved a bit.
I say that with the full support of the initiative that is before us
today, this legislation. The emphasis on watershed planning is im-
portant and I think that this bill, when finished, will be a big step
forward.
Let's talk about what works in watershed planning or strategic
environmental planning as a rule.
Getting the stakeholders involved has been talked about and
touched on quickly here, but you cannot emphasize that enough.
We have seen planning experiences in Rhode Island where in fact
some whole segments of stakeholders were virtually ignored. Some
of the problems with our conservation management plan, or CCMP,
was that the coastal zone mangigement agency was virtually ig-
nored. I think it must be a mandatory provision that the manage-
ment entity actually reach out to those stakeholders and actually
identify them and actually bring that list forward to the public in a
way so that anybody who may have been missed would have an op-
portunity to r£dse their hand.
Targeting issues has been talked about as how this process can
help us set priorities. That is critically important. It is easy for
those of us who are environmental advocates to say that every-
thing is important. Sit us down and work through the issues. Make
us say that the progress we have made on toxics is pretty good so
far in this watershed. Our critical issue is nutrients. Let's all do
something about nutrients on all levels of government. That is an
example of the process that must be done to make a system like
that work. Otherwise, it becomes just a big pile of actions that
people can't identify as to why you are doing what.
Accountability in monitoring is critically important. You have to
evaluate where you have gone and where you are going. Volunteer
monitoring is something that we are very involved in at Narragan-
sett Bay. It has to be a critical part of that. It is the only way I
think you can monitor these watersheds effectively. The resource
base in these States are very small — and I will touch on that when
I close my remarks.
724
A final point is that this is definitely iterative. Our experience is
that you do a plan, you knock off a couple of things — let's say the
nutrient problem or the toxic problem — and then you step back
and look at your evaluation and say, "Let's do some more," and
you work your way down the list. You have to think of a watershed
as a little like a room. If it is all messed up when you walk in, if
you try to do it all at once, you can't. You have to start to make
lists to get things done. I think it is very important that these
plans do that. That is how it would relate to the average person.
They need to see lists and they need to see actions and they need
to see things that really lead to outcomes.
From our standpoint, when to do a watershed plan — we very
much support the idea that the point source program and the non-
point source program and stormwater regulations should be imple-
mented and implemented fully, but this shouldn't become a process
where we can start to question where we are going on those other
initiatives. What do I mean by that?
We have a river called the Patuxent River that is grossly pollut-
ed and we have three sewage plants on that river. They have all
had to do advanced wastewater treatment, but they are now in the
permitting phase. The politics of that could have overwhelmed us if
we were in a watershed planning type of forum. These cities are in
fiscal crisis, but there really need to do this advanced wastewater
treatment.
Nonpoint sources are much more difficult to quantify and it is
very easy to push the blame off to those sources. So we have to be
very careful as we move forward using a whole watershed ap-
proach. Our thinking is to do your point sources, do the very best
you can with nonpoint sources using management techniques, and
then when you need to go further — especially into the activities
and powers of local government — ^bring in this watershed approach
and really involve local government at that point. After all, they
have the most power in this whole format.
Save the Bay favors things such as stormwater utility districts.
That has to be done on a local level. Setbacks from rivers have to
be done on a local level. Things that really make a difference in
the long-run will be done on the local level.
I guess I want to point out a couple of things that we see as criti-
cally important to improving this legislation. First, we would urge
you to consider putting a solid matricide for doing watershed plans.
I think honestly that if Save the Bay had been forced to go the
State Legislature and say, "We need 25 percent of the money to go
ahead and do this CCMP for Narragansett Bay," we would have en-
gaged the local politicians in the process and we would have moved
forward. When we got all done, they said that we had to be com-
mitted because of the investment. We think a local match is very
important.
Watershed management plans should be mandatory for areas of
non-attainment. I think that has been discussed, so I will move on.
There should be a requirement to incorporate previous water-
shed management efforts. One of the frustrations we have had is
that it seems as if history starts with every new government pro-
gram. We don't go back and look at 208, look at the CCMP, look at
the myriad of plans that have been done.
725
The requirements for public participation need to be better de-
fined. The term "maximum extent practical" means nothing to the
local advocate. We need to define that public participation and es-
tablish how issues are identified and priorities are set. In some cir-
cumstances, we need to protect from the viewpoint that a politi-
cized process leads cities to backing off point source actions.
The final point I want to make — and it is a sobering point — is
that in Rhode Island right now, we have permit backlogs as long as
your arm. There are big problems in States getting the work that
they are required to do done now. Perhaps one of the strongest
pieces in this legislation is the need to raise permit fees. I think if
we are going to move ahead with the strategic initiatives like wa-
tershed planning, let's not forget that the water quality programs
right now in our States are starved.
In Rhode Island we just took a 10 percent budget cut on the
State level. The State has been raising fees all along. The need for
the Federal Government to set a fee structure in place to protect
water quality is critically important in our minds.
Thank you very much for the opportunity and Save the Bay
really appreciates being here.
Senator Graham. Thank you very much, Mr. Spalding.
Ms. Stickel?
STATEMENT OF LORNA STICKEL, REPRESENTING THE WESTERN
GOVERNORS ASSOCIATION, DENVER, COLORADO
Ms. Stickel. Good afternoon.
I am Lorna Stickel, Chair of Oregon's water resources commis-
sion and chief planner for the Portland Water Bureau, which is Or-
egon's largest municipal water supply system. I am also a member
of the Western States Water Council and have been for 4 years. I
have been asked today to testify on behalf of Governor Barbara
Roberts, who is co-lead governor for water for the Western Gover-
nors Association. WGA and the Western States Council work to-
gether to provide strong leadership in developing regional solutions
for water issues in the 18 western States, and I have been involved
in many of those activities over the past 4 years.
To encourage the benefits of a watershed approach under the
Clean Water Act, the Council and the WGA have position papers
that encourage the Clean Water Act to first encourage but not
mandate a watershed approach to water and natural resource man-
agement protection. It should allow flexibility to States and local
entities to craft basin-specific goals and programs that are priori-
tized on the basis of risk to quality of life, human health, and eco-
logical concerns.
It should emphasize performance and not planning. It should not
interfere with the rights of States to allocate supplies. It should
allow States to use existing authorities and programs to establish
watershed entities to meet their needs as they understand them.
It should require EPA to provide technical, financial, and re-
search assistance. It should provide Federal funding to support wa-
tershed management. And it should support integrated regulatory
programs and consistency within the Federal programs themselves.
726
Title III, as proposed, addresses the principles listed very well.
Therefore, I am here to speak in support of the proposed amend-
ment.
The Oregon experience itself — Oregon has had a long history of
water quality and quantity planning on a basin and sub-basin level.
Many of these early plans were based on regulations rather than a
broad view of actions. The State is implementing, as a result of a
court decree, water quality plans in 15 water quality limited water-
sheds.
A reading of the Oregon documents that I have submitted will
demonstrate to the committee that this State is well on its way to a
voluntary program that matches the title III proposal. Some of our
experience, briefly, include that our Legislature established a gov-
ernors watershed enhancement board in 1987. Since then, nearly
$2 million has been awarded for 62 major projects with actual on-
the-ground physical improvements.
Two, the Governor's forest planning team has been reviewing
National Forest and Bureau of Land Management plans and em-
phasizing the watershed approach and the need to protect uplands
to benefit water systems. After the Snake River Salmon species
were listed under ESA, the Northwest Power Planning Council
called upon Bonneville Power Administration to fund model water-
shed programs in each of the affected States. The Grande Ronde
Basin in Oregon is one of those.
In 1990, following a legislative session that debated but did not
resolve the issue of needing more locally based water resource
planning. State agencies developed a pilot stream restoration pro-
gram. We did that in the John Day Basin. It uses a watershed ap-
proach to stream restoration and has served as the basis for imple-
mentation since then with several successes.
In 1992, the State's strategic water management group, chaired
by the Governor's office and composed of all the agency directors,
formally developed a new watershed management strategy. The
SWMG watershed management report is enclosed in the written
testimony.
This process is being formally recognized by our Legislature at
this very moment in this session. The law does not codify the proc-
ess, but sets it up as a 4-year pilot program.
In a major effort to manage resources holistically, nine State nat-
ural resource agencies teamed together to prepare a funding pro-
posal to restore watershed health and sustainable production in
two critical basins of the State. It is likely to receive between $7.5
million and $10 million over the next 2 years.
In terms of some suggestions for this specific bill, we would point
out some of the following:
First, the interagency committee needs to have a more specific
charge directed to it because it is unclear at this point. They cer-
tainly could be used to help develop the guidance rules that are
mentioned in that section.
Two, we would suggest some new language regarding the man-
agement entity, which should be designated as coordination entities
rather than having specific responsibilities for funding and imple-
mentation. My written testimony provides some specific language
changes.
727
Three, time frames need to reflect that protections for quality
watersheds may be a high priority — this is the refuge system con-
cept— and may require some flexibility in timing for problem areas.
This reflects the issue that in many cases you don't just necessarily
want to focus on the problem watersheds, but you have high qual-
ity watersheds in many parts of the west and you do not want
them to get worse. You want them to maintain and continue the
high qualities that they have. Watershed planning works equally
well on that basis as well. We suggested some specific language for
section 304 on nonpoint source pollution control.
Four, there may be a conflict between the requirement for Feder-
al consistency on page 94(a) and the State water section (j) on page
97, which notes that Federal requirements under environmental
laws are not meant to be affected. There would appear to be a con-
flict between those two sections.
Five, what is the relationship between the waters of national sig-
nificance section requirements and this section on comprehensive
watershed management? I would venture to guess that a majority
of the waters in the western States would meet the definition of
waters of national significance as you have defined it in this bill.
Due to the deadlines in that section that States shall designate and
that States shall implement plans within a 2-year period, the end
result could be to make both sections mandatory, basically, and in
a very short time frame with a very heavy load on resources that
need to be brought to bear.
In conclusion, we haven't always done a good job — and we will
admit that — in devising mechanisms that accommodate the diverse
group of interests. This act deserves credit for trying to do so. It is
important to maintain the flexibility that will promote solutions
tailored to varying State issues, management structures, and laws.
The answers lie within the specific targeted watersheds and devel-
oping them at the watershed level. It will provide the local buy-in
that can achieve lasting results.
Addressing environmental issues on a watershed basis holds
great promise because it fosters the most efficient use of public re-
sources and participants.
Thank you.
Senator Graham. Thank you very much, Ms. Stickel.
We will now turn to a period of questions. As I indicated earlier,
one of the reasons for this particular format is to encourage discus-
sion among the witnesses as well as with us.
We have heard some very persuasive testimonies on the benefits
of watershed planning. To ask you to be the devil's advocate for a
moment, what has caused the majoritj' of States, as of today, to not
adopt a watershed planning approach? What have been the con-
straints on their doing so? And what is your evaluation of the 208
program, which over 20 years ago was intended to encourage a
more holistic approach to water planning? Why did it not achieve
its result? What lessons can we learn?
Mr. Anderson?
Mr. Anderson. I would like to begin with 208 first?
I think there were two faults with 208. The first one was that it
quickly lost relevancy because as the regional planning effort was
moving forward, the major program that was being addressed at
69-677 0-94-24
728
the same time was the construction of wastewater treatment plants
and those agencies in the government that were doing that were
oftentimes not involved in the 208 process. So as the 208 plans
were completed, they became, in essence, a report that went onto
somebody's shelf and really didn't become relevant for the long-
term direction of the region. ^ . r u
I think there really wasn't local buy-in, oftentimes, for that
reason. For any kind of planning process to remain relevant and to
the point, the commission has to be made up of all the major play-
ers, the people who can plan, people who can design, construct, op-
erate, maintain, pay for, and regulate the plan. I think that is
probably the main failure. , , , . r
I think a lot of the States don't take up watershed plannmg for
two reasons. One is because of limited resources and all the other
mandates that they already have to deal with. The second thing is
the uncertainty about whether or not there will be buy-in at the
Federal level once the plan has been completed.
I have seen that up close in southern California. The Santa Ana
River is a watershed that is east and slightly south of the Los An-
geles area. There was a regional plan that was completed just
within the last couple of years with site-specific objectives and ob-
jectives tailored to that particular river. Once it went up to the
EPA regional office, it really fell on deaf ears. There wasn't the
continued buy-in and participation at the Federal level. That is
why it is very important to get everybody linked up at one table.
Senator Graham. Any other comments?
Mr. Tedder?
Mr. Tedder. I will just briefly touch on 208. I think it was cov-
ered very well by Mr. Anderson.
I think 208 came across as an overlay program. It did not really
integrate with the other programs that were in existence at the
time. Therefore, the States did not really get the support from the
existing programs and the public that could have been there had it
not been an overlay program. I think that was the downfall of 208
and the reason we have a lot of bookshelves lined today with those
documents. ^ , j u
As far as the States not moving toward the watershed approach,
I think it gets down to the ever-increasing demands and new initia-
tives that have been placed on the States both at not only the Fed-
eral level but at the State level. They have been tremendous.
Simple things such as 5-year permits and the enormous backlogs
the States are trying to overcome right now will never happen
unless we look at that issue and create the time— I think that is
the essence of it— the time to do the watershed and the plan and
eliminate some of the multiple reporting. x. .-, ^
Eliminate some of the widget counting for the sake of widget
counting that the States are saddled with right now and I think
they will turn those resources into watershed management plans.
Mr. Spalding. I would like to comment on 208 just quickly.
I think it is important to remember what period of time we were
in 20 years ago. As Charles Gauvin said, we had raw sewage flow-
ing into Narragansett Bay with grease balls washing up on Senator
Chafee's beach. So to some level, I think to the average person
there was a touch of irrelevance about it. When you could see these
729
big industrial sources and these big sewage plants spewing raw
waste into our bays and rivers, the idea of local setbacks and a
myriad of small actions just didn't seem very important.
I guess I could testify from Save the Bay's standpoint that we fo-
cused primarily on point source sewage compliance for a number of
years. To 208's credit, it did say clearly that we needed to upgrade
our sewage plants in our basin. That literally has happened. So it
shouldn't be considered a total failure, but clearly we didn't get
very far down the list.
Senator Graham. Any other comments?
Mr. Gauvin. Just one point on 208 as well as to underscore what
was really the unreality of 208.
I was the legislative point person for the 208 program in Rhode
Island shortly after graduating from college and was plenty green
behind the ears. I got out and tried to sell nonpoint source control
legislation to a Legislature which had many leakage sewage treat-
ment plants and other big problems, including toxic waste dumps.
There was a real air of seriality to it. It just seemed to be the
wrong environmental priority at the wrong time.
Something like that now, though, which is watershed-based, and
which really seeks to integrate particularly the fish and wildlife
habitat considerations I think hooks into problems that people are
well aware of now and that will receive a fair hearing and a very,
very enthusiastic reception in the States.
Senator Graham. Ladies and gentlemen, I apologize, but we have
a vote underway right now. We will take a short recess until we
return from the vote, at which time Senator Chafee will ask the
next round of questions.
Thank you very much.
[Recess.]
Senator Graham. While we are waiting for Senator Chafee to
return, I will start with my second round of questions.
I was very interested, Mr. Tedder, in your presentation of water-
shed planning in North Carolina and the description Mr. Spalding
and others gave of the effort in particular States.
I would like to ask some more specific questions about just what
watershed planning means. Let me ask a series of questions and
then you can respond without feeling that you have to necessarily
answer every question in order to get a passing grade. I would en-
courage as much specificity — for instance, Mr. Tedder, if you would
like to select a particular watershed in North Carolina for purposes
of illustrating how the process evolved — ^what was done to identify
the help of the river and the causes for its lack of help if in fact it
was determined to be impaired?
What was the range of options available to address the various
forms of impairment? Which option was selected and why? What
were the consequences of that choice? How are you monitoring
those consequences?
How has all of the above differed from what might have hap-
pened had you not chosen to engage in watershed planning?
Mr. Tedder?
Mr. Tedder. Let me give an example. I will use the Neuse River
Basin, which happens to be one that has completed the process.
The plan is in effect.
730
Senator Graham. For those of us who are not from North Caroli-
na, where is that geographically?
Mr. Tedder. That basin covers much of the State from the Ra-
leigh area in central North Carolina to the coast. It is approximate-
ly a 300-mile stretch of river and tributaries.
What was the background to identify the problems? This was an
effort that began in the late 1970's with numerous problems within
the river system. We started a very intensive monitoring program
at that time to identify the major areas that needed to be ad-
dressed in the Neuse River Basin.
As we looked at the range of options at the time — and again back
one second because I think it focuses on a previous speaker's com-
ments— not only were we using chemical information, but we were
using biological information very extensively. I think that is very
important to successful monitoring programs, as well as looking at
the land use and what goes on within the basin.
As we looked at the range of options that we had available, there
were many. We chose to implement some earlier and some in the
actual basin plan. One of our supplemental classifications in North
Carolina is called nutrient sensitive waters. It is a special designa-
tion for waters and if so designated allows our commission and our
agency to prescribe various nutrient controls to address that par-
ticular situation, which we did in the Neuse River Basin.
But it also allowed us to look at other areas. Our basin-wide ap-
proach is not a new regulatory program. We have looked at those
areas in the basin. We were initiating efforts throughout our pro-
gram— whether it be animal operations — ^we are an agricultural
State and the coastal part of North Carolina — that was an area of
concern. We again stressed the control, working with our nonpoint
source agencies directing agricultural cost share funds to that part
of the State for animal operations and agricultural problems. That
was part of the solution.
We chose many options, and I think that is what you are going
to find in any basin plan. There are going to be numerous options.
We chose numerous options such as nutrient sensitive waters,
NSW. We are concentrating on animal operations, not only with
new rules we have just recently adopted but also the State right
now has about $8 million a year that we put in a cost-share pro-
gram in trjdng to direct those resources toward the problem areas
of the State.
The consequences of the choice and how we are monitoring the
consequences — the best consequence was that we got tremendous
support from the regulated public, from the public in general, from
our Legislature using this approach for this basin and for the
entire process of watershed management. The public really got
behind the process. I think that was the best consequence out of
the entire exercise we went through, plus I think we focussed direc-
tion to address the most significant problems and to focus on those
problems in the Neuse and get more realistic results in a faster
time frame than would have otherwise happened.
What would have been different? I think we would have had lack
of public involvement in the overall decisions and understanding
the basin and its problems and how we're going to direct those re-
sources. We would have probably continued to waste resources — I
731
hate to say — because I am totally convinced that the watershed ap-
proach is much more efficient. We would not have had a plan.
We would have been addressing very specific situations in indus-
try, municipality, or any particular discharge, maybe some compo-
nent of the nonpoint source. But we would not have put a fully im-
plementable plan on the ground for everyone to know what that
plan is and where our focus would be for the next 5 years, not just
a focus for tomorrow or the week after.
How do we follow-up? These plans are set up so that they have to
be revisited every 5 years. One of the things we are implementing
in each of the basins is a very dynamic monitoring program to
ensure that we can fill in the gaps that we identify each time we
go through the process and also to measure the success of those
management actions in that basin.
Senator Graham. Any other comments?
Ms. Stickel. I would like to address that the scale of the water-
shed issues in many of the western States is really quite large with
sparsely settled areas. One that I would call particular attention to
is the John Day Basin in Oregon, which is a major tributary of the
Columbia River and is one of the only rivers in the State that does
still has a wild fish run of anadromous fish. It is not supplemented
by hatchery fish. It also has almost no structural storage built on
it.
It is a ranching, farming community. It has nine different coun-
ties in it, numerous small cities. What was done was that the State
Legislature identified it to focus resources on, a large GIS effort —
and I can't stress enough, I guess, that I think to some extent one
of the biggest problems you face in looking at watershed level plan-
ning, particularly if you're going to be aggregating a lot of sub-
basins or you are looking at one large basin, is that you can never
really kind of get your hands around what the condition of that
particular watershed is, particularly in some of the larger States
where resources are limited to get that information.
That was a focusing of all the different agency resources, includ-
ing Federal, State, and local. In that case, a local watershed council
was formed, appointed by the county commissions from those vari-
ous counties. They started to work. They spent about 2 years
taking a look at what the issues were, what the problems were
with the river. Causes of impairment, particularly in this river
system, seemed to be oriented to diversion structures and high
amounts of agricultural water diversions during summer low flow
periods, large winter flows relatively now because of upland man-
agement issues, scour down and leave the watershed relatively
quickly.
The range of options that were available to improve some of
those situations were both structural and nonstructural. Many
times local folks in the west will simply say, "Well, we get the
water in the wrong time of year, so let's just store it in the winter
and release it in the summer and then we can correct a lot of the
problems that we have." In some instances, that actually does seem
to be the case because we have modified the natural system to such
an extent that it doesn't have the water retaining capabilities that
it originally had.
732
In addition to that upland management was a key issue. There
are large amounts of National Forest lands. There has been a tre-
mendous amount of cutting. There has been quite a bit of change
to climatic species of vegetation. As a result, you have infestations
that come along and then fires, which cause any number of prob-
lems.
The options that were chosen were basically non-structural and
structural in nature.
Senator Graham. I am sorry, but Senator Chafee is going to have
to go to another meeting. Actually, I am impinging on his time. So
when it gets to be my time again, I am going to return to you and
you can complete that analysis.
Senator Chafee. Thank you, Mr. Chairman.
First of all, watershed planning is very expensive. We, in Rhode
Island, have spent on Narragansett Bay alone something on the
order of $6 million. We got that money not from one of these bills
that we're talking about. We got it from the estuary legislation. So
obviously, the situation Ms. Stickel was talking about and Mr.
Tedder — they wouldn't qualify under the estuary bill. It is difficult
to get the money.
Do all of you agree that it is expensive?
Mr. Spalding. There is a need to collect data, which makes it ex-
pensive, and a need to run a good process. That makes it at times
expensive. I think Mr. Tedder talked about other expenses, but
definitely you need to put the resources to it.
Senator Chafee. The other point is that it seems to me in water-
shed planning, your point sources aren't a major problem because
you have the tools to deal with those. Am I correct that the real
problem is with your nonpoint sources such as farmers and woods-
men?
Mr. Gauvin. Yes, I would say that.
Senator Chafee. You have the tools to deal with the point source
pollution. You don't need a watershed plan and you don't need per-
su£isiveness to deal with point sources.
Mr. Anderson. Well, with one exception. The question is. How
far should point sources continue down the road in additional fa-
cilities? There is still a large amount of resources that need to be
spent for point sources. EPA identified resource needs in the vicini-
ty of $80 billion. AMSA itself has looked at resource needs for
O&M for construction of about $12 billion annually.
Senator Chafee. Mr. Tedder mentioned watershed planning and
involvement. We've had some excellent testimony about the New
York city watershed area the other day and about getting the
farmers involved. It is very good what they have done.
But could you briefly tell me how you get these people involved?
How do you get some lumbering group involved?
Mr. Gauvin. We have had lots of contact with ranchers and
wood lot operators and the like through restoration projects that
we have sometimes done on private reaches of stream. We have
gotten them involved that way. Often when you do a habitat resto-
ration project you can politely suggest — and sometimes be very suc-
cessful in suggesting — that the way the property is managed might
be revised. A number of the people we have worked with have been
very responsive.
733
Senator Chafee. Mr. Spalding?
Mr. Spalding. You can meet when they are able to meet. One of
our problems in the Narragansett Bay project was that we would
meet during the day when the State officials were available and
other professionals in the business were available and they were on
the bay. They pointed it out time and time again and we just
couldn't move on that. Clearly we have to set these things up so
that the average person can get there.
Senator Chafee. Mr. Tedder?
Mr. Tedder. In 15 seconds or less, basically we went through the
public hearing process, we would also explain the plan in the
media. We spread the word that if we did not get it from a volun-
tary approach, we would get it from a regulatory approach. That
gets everybody out.
Senator Chafee. But I don't know how you got a regulatory ap-
proach on a nonpoint source pollution problem.
Mr. Tedder. We very much have a regulatory approach with our
turbidity standard in the State of North Carolina and how it is im-
plemented and tied into best management practices. In our forestry
statutes, BMPs are required. There are quite a few regulatory ap-
proaches that are available.
Mr. Gauvin. a number of other States have taken that approach
as well.
Senator Chafee. Thank you, Mr. Chairman.
Senator Graham. Senator Faircloth?
Senator Faircloth. Mr. Tedder, I am well aware of what we
have done, but maybe for the edification of all of us, why did North
Carolina decide to undertake the watershed approach on a State-
wide basis?
Mr. Tedder. To try to sum it up
Senator Faircloth. And when did we do it? What year? Was it
1979?
Mr. Tedder. We began some of our first efforts with the planning
initiative — and again, we restructured the water quality program.
We put together a format, a brief structure and a thought process
whether it is the enforcement, the compliance, the nonpoint
source — it all starts to focus into individual basins. It was in late
1970's or early 1980's.
We officially started the process this past year as far as the
basins. Also, we had to get all permits in sequence. That takes at
least 5 years under the existing Clean Water Act.
Efficiency was the major reason. We must maximize the re-
sources we do have. The effectiveness of the plans we put together,
the effectiveness of our actions was another reason. We needed to
roll the nonpoint source issues into a plan. We needed to look at
what the issues are and not approach everything on a State-wide
basis, but tailor it for the needs of specific watersheds.
We also had to look at the backlog. It was mentioned before that
States have a backlog with permit situations, which affects new in-
dustry. It affects develop when you cannot get the permits issued
in a timely fashion, not to mention the reissuance of expired per-
mits. This I think will allow us a long-range mechanism to control
that situation, at least in North Carolina.
734
We have several mechanisms and several rationales to proceed
with a watershed approach.
Senator Faircloth. I have a number of questions, but we are
going to have to go vote, so I will ask this: Have you put a dollar
figure on how much it cost us to put this watershed project in and
to keep it in? What does it cost us a year in North Carolina?
Mr. Tedder. That is a tough question. Some of my counterparts
would probably shoot me for this answer, but basically we have
always approached it in North Carolina that it did not cost any-
thing to change a management style. We did not get an increase in
appropriations. We surely did not get an increase in our grants for
the process.
We changed the way we do business and the way we think of
these things in North Carolina. I think we could do that because
we addressed the entire State, therefore you can use entire pro-
grams to change the philosophy.
So I have always said that it did not cost us anything. Could we
do a lot better job? Could we do better basin plans with additional
resources? The answer is yes. But at the same time, I think if we
look at some of the barriers, that would be incentives as well as
financial incentives because the last thing I want to do is to rob
from various pots of the Clean Water Act for watershed implemen-
tation. ,
Senator Faircloth. Do you think the clean water bill we re dis-
cussing will speed up the watershed planning process in North
Carolina, or being as far ahead as we are, will it tend to slow it
down?
Mr. Tedder. As written, I think it would probably slow the proc-
ess. Again, I say that because of designations of certain watersheds.
Again, looking at the language of the governor — Administrator ap-
proval— what I see there are Federal bureaucratic hoops that we
would have to go through that we have already gone through.
Would it be worth it to us? The answer would be no.
Senator Faircloth. Thank you, Mr. Tedder.
Senator Graham. You can take another 2 minutes, if you would
like. Senator Faircloth.
Senator Faircloth. Since this is a big issue nationwide — we saw
it the other day from New York— you have worked with it over a
period of 17 years probably one of the greatest concentrations of
livestock in the Nation and maybe the world in an immediate area
of North Carolina.
What problems have you had? What has been done to solve
them? What is the position we are in today with this vast concen-
tration of livestock?
Mr. Tedder. It has been a major issue in our State. Actually, in
February of this year our commission adopted some fairly compre-
hensive animal management rules. The intent is to have a form of
control over every large animal livestock operation in the State.
The turbidity standards, which were adopted some time ago, tie in
to the entire agricultural arena as well as the animal operations.
We now are getting a lot of support from the various agriculture
agencies within the State because we think we have put forth a
plan and a mechanism for control with the animal operations that
is realistic, does not drop the heavy hammer all at once, and gives
735
them a chance to make it work. We are hoping that will be a very
large success for what we consider to be one of the major issues in
the State right now.
Senator Faircloth. I thank you.
Senator Graham. Thank you, Senator.
We will recess again for purposes of this roll call vote and will
reconvene as soon as possible.
[Recess.]
Senator Graham. We will reconvene.
Ms. Stickel, about an hour ago, you were in the midst of respond-
ing to the question relative to the practical implementation of wa-
tershed planning. I apologize for the long interruption, but if you
would like to conclude your response to that question, you may do
so.
Ms. Stickel. I guess what I decided to do in the meantime — par-
ticularly since I start getting nervous when my plane is getting
close to leaving — I am going to go ahead and submit some informa-
tion from Oregon about watersheds related to answering these spe-
cific questions. I will send that to you.
But I would say in general — Mr. Gauvin raised the issue that
quantity and quality issues really are wrapped together. I think we
in the western States totally recognize that. Much as we in the
past probably have been perceived as saying, "Hands off that con-
cept. We don't want anyone thinking about the quantity relation-
ships," clearly they are there. We recognize them.
I think the days are different today than they were back when
208 planning was beginning, which was much more focused on the
quality issues and the agencies that are responsible for quality
issues. I think today, with the amount of political jurisdictions that
are out there mucking around in water issues, the amount of regu-
latory things that are put down on people — growth pressures which
exist in many parts of the urban west, in particular — that people
are beginning to realize that they are having trouble getting to do
what they want to do.
They are seeing handwriting on the wall that says that if they
don't start dealing with some of these issues in a more holistic
fashion, a couple of things are going to happen, both of which
relate to dollars. One is that they are going to go to court. There is
no bigger money suck than going to court. I am sure most of you in
this room are probably aware of that.
There is a lot of money that is going to have to be spent to fix
problems that have been coming up on us for a number of decades
and to be able to continue, then, to make uses of water in the most
efficient way possible.
To this question about what leads people to use these kinds of
approaches — I think if you look at Portland's problems with CSOs
that are going to cost somewhere between $750 million and $1 bil-
lion to solve under the most recent estimates, if you look at meet-
ing regional water supply needs in the whole Portland metropoli-
tan area, we are looking at least $500 million. You say to yourself,
"What is the most efficient way to spend those dollars?"
It isn't sitting around in court. And it isn't writing tons of envi-
ronmental impact statements. It is taking a look up front. It is
looking at all the stakeholder issues that are out there and saying,
736
"Can we come to the table and meet needs in a much more win-
win environment than we have had in the past?"
I know that is a cliche and I know that from an environmental
perspective — myself being one of them — I often look at the slice of
the pie that is left and say, "What do you mean balance? We are
not talking balance here, we are talking about restoring imbal-
ances."
I think that a lot of people recognize that quality of life issues
are getting elevated in people's minds. I know the economy is a
major issue for a lot of people in the west, but economy now is
wrapped up not only with resource extractive issues, but also with
other issues related to just why you went there in the first place
and what you're trying to do with your life.
I think many of us see that this isn't just an exercise anymore.
This is where it is at. This is what is going to get us from A to B,
out of decisionmaking gridlock, out of being in court, out of being
put down heavy regulatory programs — these issues are our issues.
They are not congressional issues solely. They are State issues and
they are local issues.
They are there. The more you can deal with them on the direct
basis level of the problem shed that you're trying to deal with,
people are coming to the table. And they are not having to be
dragged kicking and screaming. So I really do think times are
changing.
We have needed this time period beginning with the environ-
mental era and moving on its way through the 1980's and now into
an era of restricted resources. I think this kind of a technique
offers the best way to win your way through this process.
That is my soapbox.
Senator Graham. I would like to frame three or four issues and
would request as direct a response — including yes or no being satis-
factory.
This bill takes the approach of voluntary watershed plannmg
with incentives and inducements to do so. There has been some
suggestion — I think Mr. Gauvin stated that making it voluntary is
almost to ensure its failure.
Briefly, what is your opinion? Should Congress go beyond the
language that is in the bill and make this a mandatory program
that all States would have to adopt?
Mr. Anderson?
Mr. Anderson. Yes. AMSA's position is that it should be manda-
tory. I think you just heard a terrific argument for that position.
Once you have everyone at the table — and as painful and as argu-
mentative as it sometimes is, particularly in the early going— it is
the only way to develop consensus and to target the real priorities
within a watershed and to be as efficient as you can at addressing
the problems.
Senator Graham. Mr. Gauvin?
Mr. Gauvin. Senator, I would agree. The important qualifica-
tion— the biggest problem in the watersheds we are going to be
dealing with is nonpoint sources. If you tighten up the provisions
in the bill on nonpoint sources and address a number of these
issues in the regulatory context, you probably don't need to make
737
the planning part strictly mandatory because, frankly, the prob-
lems are so difficult and so important that people will plan.
Senator Graham. Mr. Spalding?
Mr. Spalding. I guess I would agree with Mr. Gauvin.
Basically, we share a concern that if you take this approach as it
is defined, you will in some cases perhaps take the pressure off
point sources. It has been discussed why AMSA likes the process.
They see opportunities not to have to do some things with their
sewage plants.
Senator Chafee did point out that there is a certain enforceabil-
ity around that program that has worked pretty well now for 20
years. Nonpoint sources are much harder to get a handle on.
I worry that if we make it mandatory we will somehow open up
doors that we don't want to. On the other hand, it is a very good
approach and needs to be taken very seriously in all watersheds.
Senator Graham. Is your answer that you think we ought to
make this mandatory?
Mr. Spalding. I think with the qualification that he had, that we
tighten up the nonpoint side a good deal.
Right now, I think you should do it where you have to do it.
Where your standard program isn't working, you should mandate
this kind of approach. North Carolina has taken it as a manage-
ment approach for the whole State and they are very persuasive.
But different States have different ideas on how to do things.
But I think where you have a non-attainment area it certainly
should be mandatory.
Senator Graham. Mr. Tedder?
Mr. Tedder. I hate to disagree with all the speakers, but I think
it should definitely be voluntary at this point. I think we have a lot
of momentum from the States around the country for the water-
shed approach. Again, it is one thing to say voluntary versus man-
datory, but then you have to read on through the bill and listen to
others talk about all the other hooks that are going to catch you if
you want this to be mandatory. Then you have a one-size-fits-all ap-
proach to watershed management and I think it will doom the
process almost from a guaranteed standpoint.
Senator Graham. Ladies and gentlemen, I am afraid that we
have another vote. Let's take 5 or 6 more minutes.
Ms. Stickel?
Ms. Stickel. I would agree with Mr. Tedder in terms of — I would
say a qualified no. That was real good about taking my arguments
and flipping them around to the other side. I agree that you could
read it both ways. But I think my arguments were to say that it is
happening anyway. I suppose you could say, "Well, since it is hap-
pening anjrway, why not make it happen?" I guess I tend to feel
that it isn't just an issue. Watershed planning is not just water
quality oriented.
That is the point I was trying to make, particularly in western
issues, that they are quantity related. They are supply related,
meeting changing demands, and actually continuing to meet the
demands you already have. So I think that if you want this pro-
gram to work, you give it the right incentives and it will be used.
And if it is not—and I think States are really willing to put this on
the line. I think States are sayiiig, "We are willing to step to the
738
table. Hold our feet to the fire. Test us. Monitor us. Make us come
back and tell you whether this thing is working or not. If it is not,
fine. Then we understand."
But I think we want a chance and an opportunity to show that
this can work without it being a top-down requirement for it to do
so unless we choose it to get the incentives you have built in. And
there are some substantial incentives here, as I see it.
Senator Graham. I am going to ask a couple more questions and
then I will have to leave. I am going to ask the staff director, Wil-
liam Leary, to ask the balance of the questions which we have so
that we can complete the record without undue further delay.
One of the reasons that was given for the 208 program's lack of
success was that it did not properly tie planning to implementa-
tion. If you want to editorially disagree with that assessment, you
are at liberty to do so, but if you do agree with it, it seems to me
that there are several implementation issues which we need to be
thinking of.
This is not a complete list, but some of those would include the
questions of cross-State boundary issues. Should we set up a proc-
ess that would recognize that there are going to be multi-State wa-
tersheds and lay out how those are to be dealt with?
Also the questions of non-structural response exist. I will state a
bias. Florida has had many years of experience with what we call
our Save our Rivers program, which has as its goal acquiring the
flood plains around our major rivers as the principal line of de-
fense against nonpoint pollution. Should there be a non-structural
implementation strategy in here, such as a Federal/State partner-
ship for land acquisition? Or what else would you recommend? And
are there other implications for implementation of adopting either
a permissive or a mandatory watershed planning process?
In 5 minutes or less, let's talk about those issues.
Mr. Spalding. I think your non-structural approach is a valid
one and a good way to go because ultimately structures tend to
create as many problems as they solve. You are concentrating pol-
lutants. Then you typically have to slow them down and let the
pollutants sink out or treat them. If you can acquire areas, that is
a much better way to go.
In Rhode Islands, most of our rivers we built right up to, so we
are going to have to come up with something else, like plow into
pavement and create some wetlands. But I think that is a good ap-
proach.
Senator Graham. Any other comments on the implementation
implications of watershed planning?
Mr. Gauvin. In the nonpoint context, I would downplay the sig-
nificance of the multi-State or interstate problems and look much
more closely at the conflicting jurisdictions, particularly in the
west, where you have Federal land and non-Federal land and look
at how you can develop standards that really look at watersheds
and seek to fix habitat no matter what part of the river reach it
happens to be located in.
One of the things that is unique about the Clean Water Act and
one of the things that we need to bear in mind when we look at
nonpoint controls and how they apply is that the Clean Water Act
is the only vehicle of general jurisdiction to deal with the checker-
739
board in the west. It is in many respects the only firebreak be-
tween the problems we have today and the Endangered Species
Act.
Ms. Stickel. I would add that if there were a tie between States
dealing with interstate issues and Federal programs, including con-
sistency of Federal actions, funding, and flexibility with regulatory
programs, I think you would find a much greater use of the inter-
state issue.
I know in the northwest, timber issues — but in particular, endan-
gered Salmon issues — have forced States to come to the table
whereas before they had very little incentive to do so. They certain-
ly see a lot of incentive to do that today.
I think that if there is one thing that would be beneficial, it is
for the Federal Government to set the parameters for what the
Federal interest is, and then get States to step up to the table to
work out how those issues are to be resolved.
Mr. Tedder. I would agree to downplay the cross-State bound-
aries issue because I am not sure that is really an issue here with
the watershed. I do not really care if my neighbors disagree with
our approach or if I disagree with theirs. If we are looking at a wa-
tershed approach on a voluntary basis to improve the programs in
selected areas where you need the effort, let those move forward.
Once you start trying to mandate or set in motion something with
the act that will settle cross-State boundaries — again, I keep em-
phasizing— what you have done is made a one-size-fits-all approach.
I do not think that will do anjrthing to push this management
concept forward by pushing that approach.
Mr. Anderson. I would like to address the issue of one-size-fits-
all. I think some of the interstate issues are an excellent argument
for a mandatory program. Look to the Great Lakes, the Mississippi,
the Gulf Coast, the Columbia River, the Chesapeake — it could go on
and on about major water systems that require interstate coopera-
tion, which also implies that you are going to have to have some
State evenness in how public policy is applied.
It does imply a tremendous amount of cooperation that I think
can only go forward when everyone is at the table. There are many
special interests who have a stake in the status quo. If they are not
at the table and they are not dealing with issues, then the prob-
lems they are generating to be solved are not going to be evenly
addressed.
I really think it is essential for the process to move forward and
that it has to be mandatory. But once you have said that, the ap-
proaches that are taken by the individual commissions — the size of
the table — there is some flexibility that can be applied to that. But
you have to get everybody to the table.
Senator Graham. Ladies and gentlemen, I apologize, but I am
going to have to leave again. But rather than recess, I am going to
ask Mr. Leary if he would take the Chair for purposes of asking
the remaining questions we had identified for panel one. When we
return, we will move to panel two on enforcement.
Mr. Leary [assuming Chair]. I want to follow-up on the question
of interstate issues and address more specifically intrastate juris-
dictional problems.
740
Insofar as the bill authorizes the Governor to create a manage-
ment entity — it could be the State, local, or regional — in Florida we
have water management districts that already exist that pretty
much follow watershed boundaries, but a lot of States don't have a
regional structure set up.
In your State where you have gone to watershed planning, how
do you deal with the jurisdictional disputes that would invariably
occur when a watershed doesn't adhere to those boundaries?
Mr. Tedder?
Mr. Tedder. I am not sure we really have one that does not
adhere. My problem with the designation of a management entity
within North Carolina for water issues — those are so delegated
from the Governor already to the agency. That would allow, based
on a watershed, is numerous management entities which may lose
the consistency of the planning process, lose some of the expertise
involved in basin-wide and watershed approaches, and in some
cases — probably not in North Carolina but it could happen in other
situations — the wrong entity being designated to address the prob-
lem. I know that is a fear in many States right now.
I think that might be a bit of a time bomb sitting there, for that
flexibility to be in the act.
Ms. Stickel. I guess one of the things that I would point out is
kind of a cliche, but it is that form follows function. I think if you
want to dictate form first without thinking about function first,
you may well wind up with new layers that you hadn't thought
through in terms of what their objectives are. I think one of the
things that we're looking at is in the use of integrated resource
planning, for instance, to help solve very difficult, complex, inter-
jurisdictional water problems.
One of the things you have to do is an institutional analysis to
begin with and factor that into the kinds of alternative answers
that you wind up coming up with. So then you wind up creating
institutions that answer questions, that get at objectives, that deal
with actual implementable programmatic things that you want to
do. You don't start the other way around and then make the proc-
ess work to sort of fit it into a square hole.
I would echo Mr, Tedder's comments. We have some concerns
over the use of that management entity and would suggest that
you make that a bit more flexible and broad so that you can have
coordinating entities. So long as you are accomplishing objectives
by using the multiple agencies that are already out there who have
authority and responsibility and funding to solve problems — which
works all the way from a landowner all the way up to a Federal
program that is passing through Federal dollars — you should do
that. But don't do it in a shackled kind of a way that says that you
must do it this way.
Mr. Leary. Mr. Anderson, your proposal is the creation of a com-
mission?
Mr. Anderson. Right, a commission that would, among other
things, recognize existing entities and existing programs. For those
that are already on the ground and operating, you would attempt
to add to the governing board to include some of the spectrum of
interests I mentioned earlier.
741
From a local perspective, in those areas where active watershed
planning is not now occurring, we see an incredible amount of grid-
lock. In my watershed, the Santa Ana River, which is about 1,700
square miles, there are three county governments, three State
agencies, four Federal agencies, 35 wastewater treatment plants, 50
cities, 2,000 miscellaneous direct discharges, and then all the other
miscellaneous interests of agriculture, urban, mining, gravel oper-
ations— all of those in a very uncoordinated fashion.
So the Santa Ana River is not being managed. There are these
puddles of programs here and there that address wastewater treat-
ment plants, stormwater, but it is not all unified in one clear pro-
gram for managing that river.
That is probably the situation in most parts of the country. I
think North Carolina should be complimented for how progressive-
ly they have moved on this plan. AMSA is saying that we should
not throw out the North Carolina approach or what is going on in
Oregon, but to use those as examples of moving forward on a na-
tional scale.
Mr. Leary. Let me move on to the issue of designating impaired
waters because the bill does mandate that States designate im-
paired waters.
The legislation, however, does not give States a great deal of
guidance in that. Is there reason to be concerned that the vari-
ations from State to State in the designation of watersheds requires
greater guidance? Or do the States need the flexibility that the bill
seems to provide?
Mr. Anderson. I think if everjrthing is a priority, then nothing is
a priority. So it is important that whatever criteria are used in es-
tablishing what you're going to do first, you take into account
those major issues of importance.
We believe that you must set priorities. Using an impaired
waters designation or some other designation is rationally based is
certainly the way to go.
Mr. Tedder. Just as a comment, I don't think there is an3^hing
wrong with looking at impaired waters. I am not sure that we need
expansive criteria. I think the States have done a fairly good job.
What we do not need is a third list or a fourth list of impaired
waters. When you look at 303(d) and 303(e) and 3050)), pretty soon
we are going to run out of waters to put on the list.
I think we need to be careful with redundancy in the act if we
are going to come up with another impaired waters list.
Mr. Spalding. I think it is usually pretty clear what is impaired,
at least in our situation in Rhode Island, because we do have some
seriously impaired water. But we do have inconsistencies between
the two States that are the Narragansett Bay Watershed. It would
be good to clear that up. But I think that can be done on a regula-
tory level. I think if EPA was working harder toward making
water quality standards consistent and adding some of the good
standards they are using in North Carolina and moving those ideas
around we wouldn't have the problem that we have now.
Mr. Leary. Looking at the time line in the bill, the bill provides
that States would designate impaired waters within 2 years and
then there be two 5-year rounds, so to speak. In the first round,
within watersheds, the State could use site-specific plans or nation-
742
al best management practices. However, in the second round, the
site-specific plans would only apply in watersheds where there has
been an approved watershed plan. This is seen as an offensive to
the States to engage in watershed planning.
In the hope and expectation that over that period of time these
watersheds would attain water quality standards, then the national
best management practices would not apply. On the other hand, if
they failed to, some farmers in these areas would lose site-specific
plans and be subject to national BMPs and are concerned about
this.
Do you agree with the concern they are raising? Do you believe
that States will be able to attain water quality standards in that
time? , , /.
Mr. Anderson. It is tough to ask anybody to be accountable tor
somebody else's actions or inactions.
Mr. Gauvin. I think one of the other problems is that we have
very little information on the effectiveness of many BMPs, even
though we have been using them for years. As we acquire addition-
al information, and as we start looking very closely at these water-
sheds, we are going to discover that the BMPs — ^by accident or
design have been quite effective in some places and not effective
in others. It is going to seem very irrational to someone who is
phased-in control suddenly to find that the thing doesn't work and
that you are losing that turtle species or frog species or fish species
and you have a big problem on your hands. Suddenly you have to
then go to a radical rationing down.
I think a much better objective is to look at changing the thresh-
old for determining what impairment is. Right now, current water
quality standards are way off the mark for most nonpoint source
pollutants in a number of cases. What you need to do is empower
the States and authorize the States — direct them to redefine the
standard for determining impairment and to adopt water quality
standards that specifically address the pollutants of concern in the
dynamics of nonpoint source pollution.
Mr. Leary. Then getting back to an earlier question I had, do
you think the legislation needs to give States greater guidance in
the designation of impaired waters?
Mr. Gauvin. Yes.
Mr. Leary. Mr. Spalding?
Mr. Spalding. Could you repeat the question? I am a little lost
here. .
Mr. Leary. I would go back to my original question, which re-
garded national BMPs versus site-specific plans and whether you
agreed with the concern of farmers that this was a penalty upon
them if the State fails to get an approved watershed plan.
Mr. Spalding. I guess I am somewhat skeptical about any of
these time lines, if that is what you're leaning toward.
The record is that these clean water time lines are not real time
lines in the long-run. We go by them and set new ones, and we go
lay them and set new ones.
There are a lot of reasons for that. A lot of is what Charles just
talked about, that there are a lot of unknowns out there. Achieving
water quality standards within 10 years — you think it is doable
from here and we are all talking about it, but there are a lot of
743
unknowns about how to really control a lot of this nonpoint pollu-
tion, especially in heavily urbanized estuaries like Narragansett
Bay.
You talk to a city planner and ask him what he is going to do
about stormwater runoff in Cranston down at the lower end of the
Patuxent River and he says, "There is nothing we can do. It is all
built out. It all goes into the river. Where do I send the stuff? What
do I do with it? How do I treat it?" It is a huge load because there
is a bunch of paved area.
This will ultimately end up being the best-we-can-do type of ap-
proach and we all have to push hard for that. But we shouldn't
back away from trying to achieve those goals, because that is the
incentive. We can't lose that enforceability. It is a tough thing. I
don't know how else to put it, but I am jaded by the real world
experiences of trying to achieve water quality standards in heavily
polluted northeast rivers.
Mr. Leary. Any other comments?
Mr. Tedder. When you mentioned meeting water quality stand-
ards, I would have a concern — whether an individual farmer or
anyone else — when I am not sure what those standards are. Now
we are talking new water quality standards that may be promul-
gated for sediment standards, biological standards — I am not sure
what set of standards we are talking about having to be met in 10
years. I am not sure anyone does.
Mr. Leary. I have just one more question. We will probably be
submitting additional questions for you.
Just to get back to a question that Senator Graham touched on,
in the State of Florida, there are a number of State programs that
are designed to acquire land. One of the mechanisms that has been
used to protect river basins has been public ownership.
The legislation puts a registration on the amount of 319 money
that can be used for land acquisition. I am curious what your view
is of land acquisition generally as a tool in watershed planning,
and second how much flexibility the States should have to use that
tool. Or is there concern that they could dry up all the money just
for that one purpose?
Mr. Tedder. I think there is a concern £is far as impacting the
programs. I think as you read through the bill, you can see that it
is reaching in and robbing different parts of the program right now
for watersheds.
The concept itself of public ownership for protection — there is
nothing wrong with that. How you pay for it and what suffers to
pay for it I think is of concern.
Mr. Spalx)ing. Our experience is that there is a tremendous
amount of work being done on land acquisition. There are other
sources of Federal money. There are foundations and organizations
devoted to it. The problem is in deciding what land to acquire, stra-
tegically, and where it is important. There isn't a lot of work spent
on that. I would argue that the 319 money should be there helping
us make those strategic decisions and recommendations, and then
local resources and other Federal resources can be brought to bear
to actually acquire that land. There are other sources out there.
Mr. Gauvin. I don't think the States ought to be allowed to
spend it all in one place or in one basin, but I think we shouldn't
744
deny States the flexibility to be able to demonstrate that they can
acquire, at least through conservation easements or other restric-
tions, the kind of control over the flood plains, the wetlands, the
perennial and ephemeral tributary streams that really go into the
watershed that affect the water quality of that watershed.
If a State can demonstrate that and can do it, and wants to pro-
ceed in that way, I don't think there should be a restriction. I do
agree, though, with Mr. Spalding's statement that there is a tre-
mendous amount that needs to be done on the basic knowledge and
information, particularly on the strategic side, to come together.
Unfortunately, I think States have largely squandered that kind of
money in the past. I guess it would be refreshing to me if you can
have a State regulator come in and show you on a big map that he
or she can control the nonpoint source problems in a basin through
land acquisition or development rights acquisition — all power to
them. Let's do it.
Mr. Anderson. I would like to also add that I think if we take a
lesson from the page of the 1972 Clean Water Act that much of the
early advances that we had in water quality, which was related to
point sources, had a lot to do with the Federal Clean Water funds
that fueled those programs. I think S. 1114 goes a long way toward
identifying many other programmatic areas that need attention
today, and those Federal funds will help jump start those kind of
approaches.
I think we have to become far more unconventional in how we
address water quality problems in the future. There was the men-
tion of what was going on in Rhode Island with grease balls on the
beach and those kind of issues, but we are not to those kind of
gross levels today. So as we fine-tune water quality, as we go after
habitat restoration and other programs like that, we have to have
a wide spectrum of opportunity to address the problems that are
going to be very site-specific to each watershed.
Senator Graham [resuming Chair]. Ladies and gentlemen, I
apologize that we are going to have to call panel one to a close.
There may be some additional questions which we would submit
and would appreciate your response in writing.
We appreciate your participation, intelligence, and indulgence.
I would ask panel two to please come forward.
The second panel, which will focus on the question of enforce-
ment, consists of: Mr. Ed Lloyd of the Rutgers Environmental Law
Clinic, who is representing USPIRG; Mr. Steve Herman, Assistant
Administrator for Enforcement, United States Environmental Pro-
tection Agency; Ms. Marlen Dooley, director of enforcement coordi-
nation, commissioner of New Jersey Department of Environmental
Protection; and Mr. Roger MarzuUa, who is a partner in Akin,
Gump, Strauss, Hauer & Feld in Washington, D.C.
We appreciate all of your participation and I thank you for your
patience in the time that it entailed in completing the first panel's
testimony and questions.
We are joined by the distinguished Senator from New Jersey,
Senator Lautenberg, a senior member of this committee and sub-
committee.
745
Senator Lautenberg, if you have an opening statement or any
questions or comments you would like to make, we would be
pleased to receive them.
OPENING STATEMENT OF HON. FRANK R. LAUTENBERG, U.S.
SENATOR FROM THE STATE OF NEW JERSEY
Senator Lautenberg. I appreciate that, Mr. Chairman. I com-
mend you for holding this hearing, as you have on several other
occasions, to deal with the Clean Water Act and the subject,
though complicated, is important. I also commend you for the in-
terest in getting this legislation to a point where it can be consid-
ered and perhaps we can get it reauthorized.
This is an issue that I have followed for several years. More than
20 years have passed since the Clean Water Act was enacted. Its
intent was to end the horrifying degradation of our Nation's lakes,
streams, and oceans. While water quality has improved since the
act, our waters are still not clean, as you and I, Mr. Chairman,
know from the coastal character of the States that we represent.
One of the reasons is that the Clean Water Act is not being ade-
quately enforced. The GAO has issued a number of reports finding
that the EPA and State enforcement efforts were weak and sporad-
ic. EPA data for fiscal year 1992 indicate that 21 percent, almost
1,500 of the Nation's major industrial, municipal, and Federal fa-
cilities were in significant noncompliance with the act at some
point during the year, and that 40 percent reported some type of
violation.
These are only the worst violators of the largest facilities. The
EPA Inspector General has said that the number of facilities re-
ported as being in significant noncompliance is vastly understated
compared to the number of permitted facilities. Further, the IG
found that in 46 of 69 audits conducted in 1991, penalty assess-
ments were insufficient to recover the economic benefit gained by
the violator as a result of noncompliance.
This type of policy promotes, as you would imagine, a pays-to-pol-
lute mentality. An effective enforcement program must provide
that those who violate the act cannot benefit. As a general princi-
ple, penalties have to recover any economic benefit gained by the
violator for noncompliance. These statistics underscore the point
that a law is only as good as its implementation. The role of effec-
tive enforcement in achieving the goals of the act cannot be over-
stated. Not only does effective enforcement deter violations, it also
helps to ensure that appropriate corrective actions are taken in a
timely manner when violations do occur.
Coming from the most densely populated and highly industrial-
ized State in the country. New Jersey has taken a lead in Clean
Water Act enforcement. Through State legislation enacted in 1990,
the State has sent a clear message to polluters that the mandates
of the Clean Water Act must be taken seriously.
I am pleased to have with us Ms. Dooley, the enforcement chief
of New Jersey's Department of Environmental Protection, here to
discuss New Jersey's experience since enacting its tough Clean
Water Act enforcement law. I am proud that my home State is
746
here to share with us some of the lessons it has learned through its
implementation of this law.
I hope, Mr. Chairman, the committee will carefully examine New
Jersey's act and take from it some of the experiences and some of
the details that have been developed over the years. I think it will
help us as we review plans for the reenactment of the Clean Water
Act to use the experience factor as an indicator of what can be
done, and further, what should be built upon.
I thank you, Mr. Chairman. I welcome the witnesses and I am
glad to be here with you.
Senator Graham. Thank you very much. Senator.
Normally, we would call on the witnesses in the order that they
were listed in the agenda, but as the Senator has spoken about the
program in New Jersey, Ms. Dooley, if you would be willing I
would like to call upon you first for an introductory statement.
As we asked of the first panel, we would appreciate an emphasis
on succinctness. Your full statement will be printed in the record,
and we will turn to questions and I hope the same type of dialog
that we had with the first panel.
Ms. Dooley?
STATEMENT OF MARLEN DOOLEY, ASSISTANT COMMISSIONER
FOR ENFORCEMENT, NEW JERSEY DEPARTMENT OF ENVIRON-
MENTAL PROTECTION AND ENERGY
Ms. Dooley. Thank you, Mr. Chairman.
My name is Marlen Dooley and I am the assistant commissioner
for enforcement at the New Jersey Department of Environmental
Protection and Energy. Thank you for this opportunity to partici-
pate in this hearing and present a State's perspective on enforce-
ment of the Clean Water Act.
In 1990, the New Jersey State Legislature unanimously approved
and Governor Florio signed into law the New Jersey Clean Water
Enforcement Act. The Clean Water Enforcement Act has strength-
ened enforcement of the State's water pollution control and preven-
tion program by substantially amending the Water Pollution Con-
trol Act to require that permits be taken seriously and to ensure
that enforcement actions are adequate to effectively deter potential
violators.
The Clean Water Enforcement Act was designed to enhance the
Department's enforcement scheme in a number of ways. The act
attempts to identify the most egregious violators by establishing
two special classes of offenders: those responsible for serious viola-
tions and those committing a series of violations to be known as
significant non-compliant.
To ensure that appropriate enforcement action is taken for seri-
ous offenses, the act requires the assessment of mandatory mini-
mum penalties, $1,000 for each serious violation. These penalties
may not be waived or compromised. Permitees determined to be in
significant noncompliance are subject to minimum penalties in the
amount of $5,000.
The act also limits the Department's discretion to compromise
penalties beyond 50 percent of the assessed amount. In addition,
the act requires the imposition of minimum penalties of $100 per
747
day per pollutant for each item omitted on a discharge monitoring
report. Further, as a means of bolstering compliance monitoring,
the act requires that all major facilities be inspected by the Depart-
ment at least annually, including the sampling and analysis of the
discharge.
We think we have seen compliance in New Jersey that we be-
lieve we would not have seen without these measures.
In addition, the Department adopted a uniform penalty policy in
accordance with the act establishing exclusive criteria applied to
determine the amount of civil administrative penalty assessment.
The adoption of this policy ensures consistency in our penalty as-
sessment among similar violations accompanied by similar circum-
stances.
This no-nonsense enforcement approach appears to have sent a
clear message to the regulated community that penalty assess-
ments are fair, not arbitrary, reflecting all relevant factual and
legal considerations known to the Department, and therefore are
litigation worthy. The greater certainty now associated with penal-
ty assessment is to better facilitate settlement negotiations as well
as successful litigation when penalties are contested.
The Department firmly believes that compliance is enhanced by
establishing precisely defined requirements and clearly articulating
the way in which compliance is measured by the Department. We
are here today to offer our experience implementing the New
Jersey act.
In conclusion, our enforcement philosophy is fair but firm with
compliance as the primary goal. The DEP strongly supports any
Federal action to reauthorize the Clean Water Act that incorpo-
rates the same processes and goals of New Jersey in the Federal
act.
Senator Graham. Thank you very much, Ms. Dooley.
Mr. Ed Lloyd?
STATEMENT OF EDWARD LLOYD, GENERAL COUNSEL, NEW
JERSEY PUBLIC INTEREST RESEARCH GROUP
Mr. Lloyd. Thank you, Mr. Chairman.
I would like to thank you for holding this hearing and for taking
the time today to listen to our views on these important issues.
We would like to first commend Senators Baucus and Chafee for
introducing S. 1114. It goes a long way toward improving the en-
forcement under the Clean Water Act, specifically with respect to
citizen suit provisions which attempt to remedy the problem cre-
ated by the Supreme Court decision in Gwaltney — and I am going
to come back to that because we think it needs to go further — in
addressing the question of when a State can preclude citizen and
Federal Government enforcement, which the bill does, and in re-
moving the provision allowing that a single operational upset be
considered one violation instead of many violations.
We would also like to commend Senator Lautenberg and the
State Department of Environmental Protection in New Jersey for
urging this committee — and I want to join in those requests — to use
the act that was passed in New Jersey unanimously as a guide to
help us bring the beneficial provisions of that act into Federal law.
748
We are working with Senator Lautenberg to develop a bill to do
just that and hope to have that bill before this committee.
There are two major provisions that Ms. Dooley touched on that
I would like to expand on a bit in the New Jersey law that we
think are critical and ought to be part of the Federal law. The first
is the mandatory minimum penalty provision. The mandatory min-
imum penalty, in certain instances where there are serious viola-
tions, as those violations are defined in EPA regulations, requires a
mandatory penalty for those violations. It sends a signal to the reg-
ulated community that there is the certainty of a penalty and we
have had remarkable success with it in New Jersey.
I have appended to my testimony the executive summary of the
second annual report of the New Jersey Department of Environ-
mental Protection under the act. It shows that under the act com-
pliance is up and penalty assessments — perhaps surprisingly — are
down. I think that is a good sign. We want more compliance. When
we talk about effective enforcement, we are looking for increased
compliance and not necessarily increased penalties. That is what
we have seen under the New Jersey act.
Just to throw out a few figures from that report, between 1991
and 1992, when the act was in effect, there has been a 36 percent
reduction in unacceptable ratings based upon inspections of facili-
ties. There has been a 300 percent reduction in the failure to
submit discharge reports from dischargers. There has been a 200
percent drop in violations related to DMR reporting.
The number of penalty assessments has gone up by 50 percent,
but the average amount of assessments has gone down by 25 per-
cent. Collected penalties are down 15 percent. Yet, a substantial
number of penalties are still collected and those penalties are used
to run the program in New Jersey.
So we think the New Jersey program with mandatory minimum
penalties has been a very successful program in increasing compli-
ance and reducing penalties. We would urge the Congress to incor-
porate those provisions into the Federal act.
The second provision in the New Jersey act that we think bears
important lessons for us nationally is the question of economic ben-
efit, which Senator Lautenberg elaborated on.
Just very briefly, we believe that if you don't, in assessing a pen-
alty, take away the economic benefit from having violated the law,
there is really no penalty at all. I think the best example I have
heard of that is that if I am going to go out and rob a bank for
$10,000 and the penalty imposed upon me is a $5,000 pay-back and
that is the only penalty, there is no disincentive for me to go out
aigain and rob that bank.
First, I may not get caught the next time. But even if I do, I am
still ahead of the game. That is exactly what economic benefit is all
about. In assessing a penalty, you must make sure that any profit
the violator has made, that benefit has to be taken away. Then we
start to talk about a penalty.
The other important reason for having economic benefit is in
fairness to those who are complying with the law. To the competi-
tors of that violator who have gone out and spent the money, they
should not be placed at a competitive disadvantage for complying
749
with the law. So we think economic benefit is a critical component
of the law and ought to be required in every penalty assessment.
Let me come back for a moment to some of the provisions in the
act regarding citizen suits. As I mentioned, S. 1114 does address the
Gwaltney problem, that is, allow citizens to sue not only for past
violations but provides that we can sue for past violations only if
they are repeated.
Let me suggest to the committee that the language, by requiring
that the violations be repeated — I am afraid we may not be curing
the Gwaltney problem. I think by requiring that it be demonstrat-
ed that the violations are repeated, we are going to generate per-
haps £is much litigation around what is a repeated violation as we
have with respect to what are past violations. I am afraid there
will be litigation about whether we have to show that the viola-
tions are repeated for every parameter that we seek a penalty on,
that we must show they are repeated for every outfall we seek a
penalty on.
I would encourage the committee to go further and further ex-
amine this issue and perhaps not include that language about "re-
peated" in the Act because I believe what we were doing was just
changing the game to a different game, which will prevent enforce-
ment from being certain and swift. If the enforcement is not cer-
tain and swift, I am afraid it is not going to be effective. I think we
need effective enforcement.
With respect to standing, I think the Congress' intent was clear
when it enacted the Federal Clean Water Act in 1972 that citizens
should have standing to the full extent allowed constitutionally.
We think that some of the court interpretations have begun to
limit the ability of citizens to bring these suits. We would urge that
citizens should not have to demonstrate any more in showing they
have standing to bring these suits than they do to find a violator
liable for discharges.
The standard for standing should be no more difficult than the
standard for liability. We would urge the Congress to incorporate
such provisions in the bill.
Congressman Pallone has introduced a bill, H.R. 2727, which in-
corporates our recommendations, and we would urge the commit-
tee to examine that bill.
Thank you again very much for holding the hearing today. I am
certainly happy to answer any questions.
Senator Graham. Thank you very much, Mr. Lloyd.
Mr. Herman?
STATEMENT OF STEVE HERMAN, ASSISTANT ADMINISTRATOR
FOR ENFORCEMENT, ENVIRONMENTAL PROTECTION AGENCY
Mr. Herman. Thank you, Mr. Chairman.
If I might, I would like to say on a personal note that this is a
particular pleasure for me to be here today for several reasons.
Senator Lautenberg was kind enough to introduce me at my confir-
mation hearings. My parents still live in New Jersey and are great
admirers of his.
For the past 5 years I have had the pleasure and privilege of
working on the everglades litigation in Florida. Although my home
750
is here, my family thought I Hved down there. I became well aware
of all the fine work you have done with regard to the environment.
Mr. Marzulla was the assistant attorney general at the Justice
Department when that lawsuit was filed. I attended Rutgers Law
School. So I feel quite at home here.
[Laughter.]
Mr. Herman. I would like to commend Senators Chafee and
Baucus for introducing the bill and you for holding these hearings.
I would like to highlight today several of the matters in the bill
that we think are of particular importance. I will try to do that
briefly.
With regard to the waiver of sovereign immunity in Federal fa-
cility enforcement, section 313 of the Clean Water Act should be
amended to waive prospectively the United States sovereign immu-
nity from penalties for all Clean Water Act violations by Federal
facilities and to allow States to obtain penalties for violations of re-
quirements in State laws that govern the control and abatement of
water pollution.
We will need additional time to work with the committee staff
on the details of this provision, but the committee amendment
would parallel the policy of Federal Facility Compliance Act, en-
acted in 1992, which clarified the waiver of sovereign immunity
under the Resource Conservation and Recovery Act.
The amendment to the Clean Water Act should not alter in any
manner existing agreements, permits, compliance agreements, or
administrative or judicial orders. Furthermore, the amendment
should not affect existing provisions that Federal employees are
not personally liable for civil penalties resulting from acts or omis-
sions within the scope of their official duties. Federal employees
but not Federal departments or agencies should be subject to crimi-
nal sanctions.
For effective enforcement at Federal facilities under the Clean
Water Act and consistent with the Federal Facilities Compliance
Act, Federal facilities should be subject to the same administrative
compliance orders and penalties as non-Federal parties. The appli-
cable department or agency should have the opportunity to confer
with the Administrator before the administrative order becomes
final.
By adopting the same enforcement scheme for Federal facilities
under both the Clean Water Act and RCRA, actions can be more
easily combined into one action, as appropriate, thereby simplify-
ing enforcement for both EPA and Federal facilities and conserving
scarce enforcement resources.
The bottom line is that the Federal Government wants to be
treated the same as other parties and the Federal Government
should comply with the law the same as other parties.
With regard to the administrative penalty cap, one of the great
successes of the 1987 amendments to the Clean Water Act was the
grant of administrative penalty authority to EPA. The result has
been an increase in the overall level of enforcement activity. In ad-
dition, an administrative enforcement action requires only a frac-
tion of the resources that are needed to bring a judicial case. We
are examining with the Department of Justice possibilities for
greater use of our Clean Water Act administrative enforcement
751
provisions with the goal of creating a more efficient, effective en-
forcement program.
The Clean Water Act should also be amended to provide author-
ity for the £igency to seek administrative penalties for violations of
administrative compliance orders with appropriate due process pro-
tection for defendants.
With regard to citizen enforcement, citizen suits are an impor-
tant component of the overall Clean Water Act enforcement effort.
Unfortunately, the ability of citizens to maintain a suit under the
Clean Water Act has been substantially eroded by the courts since
1987 when the Clean Water Act was last reauthorized. In particu-
lar, the United States Supreme Court in 1987 held that citizens
could not seek penalties for wholly past violations of the act, but
were limited to filing suits for ongoing violations of the statute.
In 1990, Congress clarified that citizens can file suits for past vio-
lations of the Clean Air Act. We strongly support the provisions of
S. 1114 that would allow citizen suits for past violations of the act.
The agency does not have the resources to enforce against every vi-
olator of the act. Citizen suits have augmented the Government's
limited resources and have created an additional deterrent to non-
compliance.
With regard to criminal enforcement, I would refer you to my
submitted testimony. There are several provisions which we believe
are in need of some technical adjustments. We are four-square for
a very strong criminal enforcement program. We think the sugges-
tions we make will tighten the provisions and enhance that effort.
Finally, with regard to the emergency powers provision, the abil-
ity to take action in response to environmental emergencies is a
critical component of our agency's enforcement authority under all
major statutes. However, the emergency authorities provided to the
Administrator under the Clean Water Act are more restrictive
than those provided under other environmental statutes.
The amendments to the emergency powers provisions proposed
in S. 1114 will largely meet the agency's concerns. Very briefly, we
would like to be able to initiate administrative actions rather than
having to go to court for a preliminary injunction or a temporary
restraining order. We think there should be an emergency action
permitted when there is a threat posed to the environment and not
just to public health. We believe the act should explicitly provide
that the emergency powers provision applies to any person and not
just to those presently identified in the act.
Also, the Clean Water Act should be clarified consistent with
other statutes, such as RCRA, to allow EPA to invoke the Clean
Water Act emergency provision when the discharge from a pollut-
ant source may present an imminent and substantial endanger-
ment and not just "is presenting".
The improvements to the enforcement provisions that have been
made by previous amendments to the Clean Water Act have en-
hanced the agency's ability to undertake a fair and effective en-
forcement effort. Adoption of the suggestions I have outlined today
and those set out in my written testimony would again improve
our enforcement capabilities and assist us in doing the best job we
possibly can.
752
I appreciate this opportunity to present the agency's views and I
look forward to your questions, Mr. Chairman.
Thank you.
Senator Graham. Thank you very much, Mr. Herman.
Mr. Roger Marzulla?
STATEMENT OF ROGER MARZULLA, PARTNER, AKIN, GUMP,
STRAUSS, HAUER & FELD, WASHINGTON, D.C.
Mr. Marzulla. Thank you, Mr. Chairman.
I am indeed honored to appear before this subcommittee today. I
beUeve I was added to the panel for diversity because, alas, I have
never lived in New Jersey.
[Laughter.]
Senator Graham. Mr. Marzulla, looking at you, you seem to have
an extended life expectancy ahead of you with opportunities to
redeem you still available.
[Laughter.]
Mr. Marzulla. I shall look forward to that.
Let me also note for the record, Mr. Chairman, that I am not ap-
pearing on behalf of any of my clients or clients of my law firm,
but I was invited here — I think — to offer such benefit of the experi-
ence as I may based upon my having served, if you will, both sides
of the table, as a prosecutor and enforcer of the environmental
laws, including the Clean Water Act. During my service in the En-
vironment and Natural Resources Division of the U.S. Department
of Justice from 1983-1089, and now as head of the Environment
Law Section in the Washington, DC office of Akin, Gump, Strauss,
Hauer, and Feld, L.L.P., I defend such cases brought against my
clients.
Fundamentally, it is my view that the Clean Water Act is the
greatest success story among the major environmental statutes.
This is due in no small part to aggressive enforcement of that stat-
ute. In point of fact, those entities which comply with the Clean
Water Act want a level playing field. They want to see that the act
is going to be enforced fairly and across the board so that there
will not be cheaters and so that there will not be an opportunity to
profit from failure to comply with the act.
For that reason, I join Mr. Herman in his suggestion that the
focus on smaller cases be handled through the field citation propos-
al through the increase of administrative penalties which may be
awarded precisely in order to free up resources of both government
enforcement agencies and the resources of private industry to focus
on major and stubborn issues of non-compliance.
Let me pass, then, to the citizen suit provisions of the Clean
Water Act and suggest perhaps a slightly different perspective
from that of Mr. Lloyd.
Citizen suit provisions of this statute are more wide open than
their brethren in the Clean Air Act, Those citizen suit provisions
allow for the recovery of attorneys fees by environmental groups
whom bring cases. Those attorneys fees are allowed to be recovered
at the rate of private law firms even when the suit is prosecuted by
modestly — compensated environmental group lawyers. Moreover,
the Clean Water Act permits, and this bill would allow in even
753
broader terms, environmentally beneficial projects in lieu of penal-
ties for violations. Beside depriving the U.S. and State treasuries of
funds, these projects often represent the individual whims or hobby
horses of the entities which brought the cases.
The cases that are generally concentrated upon by citizen suit
actions are not the difficult ones, but are the simple ones, the slam
dunk cases in which the entity has already reported non-compli-
ance. The non-compliance is not an issue, so the only question is
the amount of penalties and/or the amount of environmentally
beneficial project that is to be created.
The result is that the resources of the Government — both the En-
vironmental Protection Agency and the Department of Justice —
are diverted to the examination of those ongoing actions, both at
the outset to see whether they are meritorious and thereafter, to
examine consent decrees for compliance with governmental stand-
ards. And the resources of individual companies are once again di-
verted to what may not be major priorities under the Clean Water
Act.
Moreover, the large groups who bring those cases — usually
Washington-based — tend to have their own alternative agenda to
that of the government agency, both State and Federal. Indeed, the
only reason for bringing a citizen suit is because the Government
has declined to bring that very action.
With that background, then, I suggest that it is not an enhance-
ment of the citizen suit provision to allow the bringing of actions
for wholly past violations of the statute. The Gwaltney opinion
found Congress to have accomplished sound public policy: to pro-
vide that litigation under the Clean Water Act ought to be ad-
dressed at current, persistent, ongoing violations, or violations
which are capable of repetition, and that the resources of all con-
cerned ought not be spent upon addressing wholly past violations
where those violations have no ongoing opportunity to impact upon
the environment.
Note, of course, that the Government can bring cases for wholly
past violations and can, of course, recover those penalties.
Second, the Congress correctly addressed the question of environ-
mentally beneficial projects in the Clean Air Act Amendments of
1990 by limiting the amount of a penalty that could be expended or
allocated to such projects. I suggest a similar cap for the Clean
Water Act.
Fundamentally, the statute allows for injunctive relief and it
allows for the assessment of penalties. Penalties are intended for
punishment. That makes sense. Environmentally beneficial
projects often minimize the sting of those penalties and they divert
funds from the appropriate allocation to the Nation's Treasury.
I would just like to note in closing two other provisions of con-
cern. One is the open-ended reference to restoration of natural re-
sources. The statute has thus far provided ample authority for ad-
dressing the contamination that has been created by violations of
the Clean Water Act and it is my concern that the use of this kind
of open-ended liability circumstance in effect turns the Clean
Water Act into another Superfund which will be litigated over the
next several years as to what the standard of liability is, what the
reach of the natural resource damage is, what kind of restoration
754
is important, what are the appropriate remedial actions, and so
forth.
And finally, as you do explore the civil and criminal penalty pro-
visions, as Mr. Herman mentioned, I suggest that the Congress
may wish also to focus upon the failure to provide any guidance,
either to industry or to Government, as to which cases ought to be
brought civilly versus which ought to be brought criminally. In
fact, most civil violations of the act may also be prosecuted crimi-
nally creating, I think, an uncertainty with respect to appropriate
deterrent.
Thank you.
Senator Graham. Thank you very much.
I would like to start the questioning with the comments that Mr.
MarzuUa just made relative to citizen suits.
The current judicial restrictions, as several of the witnesses have
stated, limit the use of citizen suits to currently ongoing violations.
The proposal in this legislation would extend that to some past vio-
lations.
What have seen the practical consequences of this restriction on
citizen suits to the ability of violations to be identified and remedi-
ated? What effect has it had, Mr. Herman, on the actions of the
EPA through its agency enforcement?
Mr. Herman. Our view, Mr. Chairman, is that citizen suits com-
plement and enhance our own program and that they are an essen-
tial part of the program. Our view is that given the diminishing
nature of our resources and the great extent of area to be covered
in terms of inspections and enforcement, that neither we nor the
States are fully capable of handling the entire load. In fact, if you
review the docket of citizen suits, my own view is that they have
made an extremely salutary and constructive contribution to the
development of the Clean Water Act.
There are many very, very significant cases that have been
brought over the years. I would say that to the extent that past vio-
lations have resulted in, for some reason, lack of action by the Fed-
eral Government or by the State government that the same pur-
pose for which you would allow the State or Federal Government
to take an action would justify allowing a citizen to take that
action.
Senator Graham. Any other comments on that statement?
Mr. Lloyd. Mr. Chairman, I believe that by not allowing citizens
to sue for past violations, you are really allowing those violations
to go unpenalized. I think that is against the intent of Congress
and defeats the purpose of trying to create the level pla5dng field.
The problem the Gwaltney case has created is that it has encour-
aged a whole new set of motion practice in Federal court in these
cases where it has totally wasted the resources of both the citizen
groups and the defense bar. It has certainly made a lot of lawyers
much richer than they otherwise would be, but I don't think that is
what we want in an enforcement scheme. I think we want swift,
certain and effective enforcement.
We would support a provision in the bill that allows citizens to
sue for those past violations. As I indicated in my opening state-
ment, I think we have to focus on the question about repeated vio-
755
lations as well because I am afraid that will set up a new kind of
motion practice that could be just as time consuming.
I think we need to work on that languEige somewhat to clarify it
if we can.
Senator Graham. Mr. MarzuUa's testimony indicated the sense
that citizen suits might distort the enforcement priority, focusing
on a violation that might be of a relatively lesser nature and in
some ways creating political or other public pressures on EPA to
take enforcement where it might otherwise have not found that to
be necessary or appropriate.
Could you comment on that potential distortion?
Mr. Lloyd. Certainly, Mr. Chairman.
I frankly don't think there is a distortion. The complaints that
citizens file must be filed with the Department of Justice and with
EPA. So there is an opportunity for them to review them.
Frankly, I am not aware — maybe Mr. Herman is in a better posi-
tion to answer this — I don't think there are many staff people, if
more than one, devoted to that issue. In fact, I think what citizen
suits do is allow EPA to direct their resources to other concerns.
The citizen suits are bringing effective enforcement. I think there
is no question about that. I don't think we are directing or misdir-
ecting Government resources.
The other role the Government would have in citizen suits is to
review consent decree settlements when they are consummated in
these cases. Again, EPA and the Department of Justice routinely
file one set of what I would call boiler plate comments with the
Federal district judge saying, "This is our position in general," and
then sometimes they file additional comments on the specific provi-
sions of the consent decree.
I think that is probably an appropriate role for Government, a
limited one, and one that does not take an inordinate amount of
resources at all.
Senator Graham. Mr. MarzuUa?
Mr. Marzulla. Mr. Chairman, may I expand on the point I tried
to make in my testimony?
Although I would not disagree with Mr. Herman that citizen
suits have played an important role — the vast majority of those
suits do not focus on the hard issues. Moreover, the principal con-
cern, from the point of view of those who are the targets of these
suits, is that the privatizing, if you will, of enforcement results in
two sets of standards for approaching cases, assessing penalties, de-
termining economic harm, and other factors: one set of standards
for EPA, and another set of standards for private groups which
have no accountability, and which may be different than govern-
ment standards, and may enforce entirely different rules.
Tliat is my concern, that there is no appropriate dividing line be-
tween that which Mr. Herman is doing at EPA and that which Mr.
Lloyd is doing with citizen suits. To say that they are basically
interchangeable and that either of them can bring the suit and it is
really the same thing is sort of like saying that not only can the
policeman issue a speeding ticket but that any citizen can also
issue that same traffic ticket.
Senator Graham. Mr. Herman, and then my time is up.
756
Mr. Herman. My own view is that the citizen suits really allow
us to cover a broader spectrum of cases. EPA cannot do it all. To
the extent that we can concentrate on larger, more systemic mat-
ters, that is a great advantage. To the extent that citizen suits
hone in on some more local matters, I think that is a great advan-
tage to those communities.
I would say that the citizen groups are subject to all the over-
sight that courts have. If the suit is frivolous, it will be thrown out.
If they do not prevail, their attorneys will not get attorneys fees.
EPA does review and the Justice Department does review settle-
ments. We do comment on whether or not the economic benefit or
whatever other penalty is being assessed is appropriate.
I really don't have the sense that the citizen groups and their
suits are really off the reservation. I think they are very much in
the mainstream of the area.
Ms. DooLEY. I would just like to echo Mr. Herman's comments
that hasn't been our experience in New Jersey that these suits are
frivolous. We work hand in hand with the citizens bringing the citi-
zen suits on many cases. We haven't found the suits to be frivolous
or to focus on areas that are unimportant.
I don't want to leave an impression that because we are taking
some actions no others are important. We do have limited re-
sources.
Senator Graham. Senator Lautenberg?
Senator Lautenberg. Very briefly, Mr. Chairman, I want to
thank the witnesses.
And Mr. MarzuUa, don't feel deprived, not having spent part of
your life in New Jersey. There is still hope, there is still opportuni-
ty, and I promise you a personal welcome when you arrive.
[Laughter.]
Senator Lautenberg. Mr. Chairman, New Jersey having had the
industrial concentration that it had caused us a lot of problems,
also because we are the most densely populated State in the coun-
try, we wanted to correct those problems as quickly and as effi-
ciently as we could.
Your very beautiful State, Mr. Chairman, despite relatively
speaking wide open spaces, has had a problem with its manage-
ment of one of the great national resources, the Everglades, and is
hard at work to try to correct the problems there. All of us have a
stake.
Again, New Jersey is a State with a great environmental con-
cern. Thus, Mr. Chairman, I came from the corporate world right
to the Environment Committee because it was I believed — and I
think the citizens of New Jersey share my views — this is the place
where we can get things done that will affect not only the quality
of life in New Jersey but throughout our country.
I would just like to be sure that we are not at odds on this citizen
suit action. I heard Mr. Herman's response and Ms. Dooley's re-
sponse to Mr. Marzulla's comments that citizen suits somehow or
other pick up where Government fails to make its case known and
take the action. Do I correctly characterize your view, Mr. Mar-
zuUa?
757
Mr. Marzulla. My suggestion was certainly that there are ap-
propriate circumstances for citizen suits. I have not suggested that
in all circumstances they are inappropriate.
Senator Lautenberg. And we have heard from Mr. Herman and
Ms. Dooley. I just wanted to make sure that the record reflected a
fairly clear view about that. There may be shades of difference.
Would anyone disagree with the fact that penalties ought to re-
cover any economic benefit derived from a violation?
[Chorus of noes.]
Senator Lautenberg. Mr. Herman, what has EPA done to re-
spond to the IG's 1991 report that EPA wasn't recovering the eco-
nomic benefit from violators?
Mr. Herman. Senator, that report, as I understand it, found that
the recordkeeping penalty was very, very inadequate on that. We
have a policy at headquarters with regard to civil judicial cases
that requires the recovery of economic benefit. We are seeking to
ensure that is done.
We are also encouraging the regions in their administrative
cases to recover the economic benefit at a minimum.
Senator Lautenberg. Is it fair to say that EPA has developed
the criteria for determining economic benefit, which can be put in
place fairly quickly?
Mr. Herman. EPA has an economic benefit model which is ap-
plied and available and which we use to judge various settlements,
penalty assessments that we either develop or that come to us.
Senator Lautenberg. States have similar models? Does New
Jersey?
Ms. Dooley. New Jersey is attempting to develop a rule on its
own economic benefit model. We started a round table approxi-
mately a year ago with environmental groups, industry, members
of the legal community, and the department to come up with an
economic benefit model for New Jersey. Right now, it is very simi-
lar to the model that EPA uses, but we do have two major differ-
ences in terms of company-specific return on equity, in terms of
what we're using now on a case-by-case basis. We don't know what
our eventual rules will look like. We plan to propose something in
the fall.
Senator Lautenberg. Mr. Herman, should there be more oppor-
tunities for measurement of economic benefit than simply EPA? Or
should EPA with its far larger resource than any of the States try
to develop a yardstick or a means of measurement on economic
benefit that would be uniform throughout the country?
Mr. Herman. Senator, our relationship with the States I think is
very, very important. I think having consistency between EPA and
the States is very important both for us and for the regulated com-
munity and for the public at large.
My hope and my intent would be to reach out to New Jersey and
to other States with regard to the work on an economic benefit
model so that we can have as much consistency as possible. This
seems like the kind of thing that we should be able to reach some
consensus on so that everybody knows where we stand.
Mr. Lloyd. The EPA model is the model the citizens use in our
lawsuits as well and seek to ask the judge to impose penalties
758
based upon that model. We are working with the State of New
Jersey on their regulations.
I think it is important to go beyond just the model, though, and
it would be very helpful both on the Federal level and the State
level to have a uniform regulation in effect that says, "Here is the
model, here is the data we need to put into the model, here is how
we are going to collect it," so that when enforcement actions are
taken — whether they are administrative, judicial, by State, Federal
Government, or citizens — that is all in place.
One thing it would do, I believe is that — one of the things that is
litigated now in both the citizen suits and the other enforcement
cases — we litigate over what goes into the model and what the fac-
tors are. If we have a uniform policy that lays all that out, we can
cut down on that litigation and enhance the ability to enforce at
all levels.
I would encourage the promotion of such a uniform policy and
detailed policy.
Senator Lautenberg. One of the things that I find particularly
onerous and difficult to deal with is invitations by various States to
attract businesses, to retain businesses based on different environ-
mental standards. It is just the worst kind of competition for eco-
nomic investment. Wherever possible, I would like to see uniform
standards for making judgBients on conforming or enforcement of
law. It is not fair to the citizens of the State that is making an invi-
tation for them to close their eyes to violations of Clean Air or
what have you.
I would like uniform standards all across the country so that we
are all dealing with the same material.
Mr. Herman. Senator, if I just might for one second — ^we are
taking steps at EPA to try to require States to recover economic
benefit from violators. Earlier this month we issued final revisions
to the 1986 policy framework for State/EPA enforcement agree-
ments. The revisions set the recovery of economic benefit as a mini-
mum goal in State enforcement cases.
I think that addresses your final point. Then I would reiterate
that we would want to work with the States to come up with a
common model.
Senator Lautenberg. Mr. Chairman, I thank you very much. I
thank the witnesses for the opportunity to have this exchange. I
may submit a few questions to our witnesses for the record.
Thank you very much.
Senator Graham. If I could follow this line of questioning that
Senator Lautenberg initiated relative to economic benefit recovery,
there are several places in the current law in which there are caps
generally expressed in fines per day or some other similar method
on what can be recovered, whether it is administratively or
through injunctive relief.
Do you find those penalty caps to be inconsistent with the goal of
full recovery of economic benefit?
Mr. Herman. In some cases, they may be, Mr. Chairman. They
also have several other effects. With regard to the cap on adminis-
trative proceedings, that forces cases in many cases into court
which otherwise could be handled and disposed of at less expense
to the regulated community and less expense to the Government.
759
We are going to work with the committee and with the Justice De-
partment on trying to rectify that.
With regard to the cap that I believe is being proposed in the leg-
islation with regard to the value of injunctive relief that might be
ordered for natural resource damage, there especially in the a of
the Clean Water Act that may result in insufficient recovery to
cover the damage that was done.
You might have a spill which took place on one day which did
terrible, terrible damage, but the maximum fine might be $25,000.
We would urge the committee to review that and to provide for a
recovery of the economic benefit and the cost of repairing the
damage.
Senator Graham. Mr. Marzulla, do you have any comments on
the proposal to eliminate or decrease the amount of the maximum
penalty cap?
Mr. Marzulla. As I indicated, Mr. Chairman, with respect to the
administrative penalty cap — I think that makes a good deal of
sense. The $50,000 cases ought not be brought in Federal district
court, but should be handled instead by field citation. Just how
high that number should go is not entirely clear. I don't know
whether Mr. Herman suggests that it ought to be a higher number.
Still, it does make a good deal of sense to dispose of relatively
minor cases administratively.
With respect to the so-called natural resource damage injunctive
power, as I indicated — I find that provision troubling in part be-
cause it implies that such power has not heretofore existed when in
fact there are many consent decrees in which the Justice Depart-
ment and EPA have used their injunctive power to require that
contamination resulting from acts by the defendant be cleaned up.
I am not sure what natural resources authority adds. I am fear-
ful, as I suggest in my written statement, that because it barkens
back to the natural resource damages provision in CERCLA that in
fact it is going to be seen as some sort of massive new authority
and it is going to end up in a great deal of litigation.
Senator Graham. Any other comments on this?
Mr. Lloyd?
Mr. Lloyd. Mr. Chairman, just with respect to the cap in the
statute.
We had at least one case in New Jersey where the maximum
statutory penalty was lower than the economic benefit. The judge
assessed the maximum penalty, but the result there was perverse
in that the penalty was lower than the economic benefit. There-
fore, even though the courts assessed the maximum penalty, the vi-
olator had benefited.
So I would ask the committee to consider an exception to that
cap where economic benefit exceeds the statutory maximum to
allow the penalty to go up to at least the economic benefit. Of
course, if it is just at the economic benefit, there still has been no
penalty, but at least we have recovered the benefit.
Senator Graham. Any other comments on this issue?
There are two other questions I would like to cover before I have
to leave for this vote, at which time we will adjourn the hearing
today.
69-677 n - Qzi _ oc
760
One is the issue of civil or criminal penalties for beneficial miti-
gation of a project. There is a proposal that the courts be given the
discretion as to whether to direct the penalties to a mitigation fund
or as currently to the Federal Treasury.
Any comments to that proposal?
Mr. Lloyd. Mr. Chairman, we certainly support that proposal.
We have had fairly good success with those projects in New Jersey.
I have to take exception to some of the thmgs that Mr. Marzulla
said earlier. Frankly, in my experience — and I have been involved
in some 60 cases in New Jersey and am aware of other cases else-
where— it is not the plaintiff that determines the project. In the ne-
gotiations we have had it has been a joint determination. Those
projects are, of course, ultimately reviewed by a Federal judge.
They are also reviewed by the EPA and the Department of Justice.
I think that they are not pet projects, if you will, of the plain-
tiffs. In fact, it is often that the defendant will come up with a
project and the plaintiff will accept it.
So I think they are appropriate and helpful. We have had cases
where we have had money go directly to the New Jersey Depart-
ment of Environmental Protection for their water program. We
view this as sort of getting a double benefit. You get a penalty and
you get a beneficial project.
With respect to one point that Mr. Marzulla made, let me agree
with him. It is our view of the law that money paid to these
projects is not tax-deductible to the company paying for the project.
Perhaps the best way to clarify that is an amendment to the Inter-
nal Revenue Code that makes it clear that mitigation projects paid
for either in a settlement or court-ordered judgment are not to be
tax-deductible. We certainly don't want to see tax deductions for
mitigation projects that result from enforcement actions.
That may cure at least one of the problems that Mr. Marzulla
has with these projects.
Mr. Herman. Mr. Chairmzin, I would like to comment on two
things.
One is that the pending bill, S. 1114, does not have a minmium
cash penalty along with the supplemental environmental project.
We think that it must. It has to provide for at least the cash recov-
ery of economic benefit.
Second, we think that the nexus between the violation and the
supplemental environmental project possibly should be broadened
some to cover multimedia problems at the facility — in other words,
if there are both air and water problems, even if it is a water case,
that you could address the air problem also. If there are other fa-
cilities owned by the same company that have the same problems,
they could be addressed with this. But we think that supplemental
environmental projects can be extremely constructive.
We do not favor, however, setting up a separate fund into which
the penalty money would go. We think it should go to the Treas-
ury.
Mr. Marzulla. Mr. Chairman, to return to the issue that I
raised in my initial testimony — an environmentally beneficial
project is less valuable as a deterrent and an enforcement program
than is a monetary penalty. It strikes me as rather unique to view
the citizen suit provisions of environmental statutes as part of a
761
governmental enforcement program which imposes penalties if
those provisions can be used to decrease the penalties — perhaps
well below the economic benefit, for example — in return for per-
forming some so-called good act.
It is too often the case in these cases to start off by saying, "OK,
the penalty is $1 miUion. How much of this can I put into a
project?" Then the question is, "What is the project?" I have seen
projects that involved creating parks, creating an environmental
Chair at a university, dedicating money to teach people how to do
water testing, and so on and so forth, some of which may be valua-
ble projects.
But when you start with the notion, "Let's decrease the penalty
and substitute something else," it seems to me that the question is,
"Why? How does that fit into an enforcement program?"
Senator Graham. I apologize, but I am going to have to leave.
Ms. Dooley, we would like to receive your comments on this. I
am going to ask Mr. Leary, however, to assume the Chair and then
he will have at least one other question he would like to ask. At
the conclusion, we will adjourn the hearing.
Again, I wish to thank all of you who have participated so gener-
ously. I apologize that democracy is not a smooth-running oper-
ation, at least in the United States Senate. We have had these dis-
ruptions and I particularly appreciate your understanding and co-
operation under those circumstances.
Thank you very much.
Mr. Leary [resuming Chair]. Ms. Dooley?
Ms. Dooley. I guess I am a little confused by the comment. It
hasn't been my experience that a beneficial payment for a benefi-
cial project is somehow less of a deterrent than payment of a penal-
ty. I think they go hand in hand. Again, we have gotten some of
the projects in New Jersey through money being used for these
projects through citizen suits.
Mr. Leary. The only follow-up question I had with respect to
that was something that again Mr. MarzuUa raised in his state-
ment, which was that funds that go into these beneficial projects
are funds diverted from the Treasury. I believe EPA's statistics
showed in excess of $9 million over 4 years going into the U.S.
Treasury. One doesn't know how much that might detract from
that.
The only question I had has been touched on in your opening
statement. We took a lot of comments in your opening statements
regarding minimum mandatory penalties. The only thing I didn't
have that I wanted on the record, Mr. MarzuUa, was your reaction
to the concept of minimum mandatory penalties.
Mr. Marzulla. It depends, of course, on what the amount of the
minimum mandatory penalties are, Mr. Leary.
The concern that I have about those numbers is that — to the
extent that you tie the hands of a judge and require the imposition
of an amount which may be inappropriate in the case of a bank-
rupt company, where in fact you end up taking the money out of
the pockets of creditors rather than punishing the violator — in
those marginal circumstances there ought to be some opportunity
for the judge to depart from those penalties. That is not unlike the
762
authority to depart from sentencing guidelines with respect to
crimes.
Mr. Leary. If there are no other comments, on behalf of the sub-
committee, I thank you all for being here. We may be submitting
additional questions.
The hearing is adjourned.
[Whereupon, at 6:05 p.m., the committee was adjourned, to recon-
vene at the call of the Chair.]
[Statements submitted for the record follow:]
TESTIMONY BY BLAKE P. ANDERSON, DIRECTOR OF TECHNICAL SERVICES
FOR THE COUNTY SANITATION DISTRICT OF ORANGE COUNTY
INTRODUCTION
Mr. Chairman and members of the Subcommittee, I am Blake Anderson, Director
of Technical Services for the County Sanitation Districts of Orange County, Califor-
nia. I appear before you today representing the Association of Metropolitan Sewer-
age Agencies (AMSA). AMSA's members represent the nation's largest wastewater
treatment agencies. We serve the majority of the sewered population in the United
States, and collectively manage over 14 billion gallons of wastewater each day.
AMSA had the honor of testifying before the Subcommittee on June 23rd of this
year. In that testimony, we addressed the issues of funding, combined sewer over-
flow control and stormwater management, and provided an overview of the signifi-
cant role AMSA believes comprehensive watershed management should play in the
reauthorization of the Clean Water Act.
AMSA is pleased to be here today to provide our perspective on the reauthoriza-
tion of the Clean Water Act and the Water Pollution Prevention & Control Act of
1993
S. 1114. We sincerely appreciate the opportvmity to share our thoughts and recom-
mendations as environmental practitioners dedicated to protecting and improving
the quality of the nation's waters. , «- ,
AMSA supports the reauthorization of the Clean Water Act and its goal of fish-
able and swimmable waters. AMSA believes that this reauthorization must use an
integrated and comprehensive strat^y that establishes new priorities for achieving
water quality goals. The reauthorized Clean Water Act must recognize the wide
range of conditions present in our nation's watersheds and provide flexibility to de-
cision makers so that they can address site-specific conditions. It must target all im-
pediments to ecosystem health. It must develop mechanisms for control that proper-
ly balance environmental gains and their cost^ffectiveness. And it must provide the
funding to implement its clean water mandates.
From our initial review of S. 1114 we believe that the Senate legislation goes a
long way toward realization of these goals. Many of AMSA's concerns and priorities
are present in the bill and reflected in its language. We commend Senators Baucus
and Chafee for introducing legislation that clearly moves our national clean water
program forward. . , » .
In previous testimony, AMSA has entmierated its perspectives by focusmg on
three overarching concepts: 1) putting the reauthorization into perspective; 2) recon-
ciling our constraints, our expectations and our needs; and 3) the search for a solu-
tion. My remarks today will touch briefly upon each of these concepts, but focus
primarily upon our collective search for solutions. AMSA believes a national pro-
gram of comprehensive watershed management is the most effective way to protect
our nation's 20 year investment in clean water, and allow us to successfully respond
to the next 20 years of water quality improvement.
Putting the Reauthorization into Perspective
First and foremost, it is important to put reauthorization of the Clean Water Act
into an historical perspective. This nation, its states, cities and towns have made
enormous progress in the more than 20 yeeirs since the passage of the 1972 Clean
^Vfltcr Act.
In 1972, national standards that targeted point sources made sense because we
had identifiable problems traceable to readily controlled sources. Congress provided
funding, necessary deadlines and enforcement mechanisms. Coupled with a consid-
erable amount of public support and motivation, this set the stage for our nation to
successfully address many of its clean water challenges. As a result, upgraded mu-
nicipal wastewater treatment facilities and source control of industrial wastewater
763
have significantly reduced the discharge of pollutants from point sources to the na-
tion's waters.
Today we face new challenges. While public support for environmental progress
and improvement continues, the new and emerging issues we must address are
more complex and costly. Nonpoint source pollution remains a continuing problem.
The control of combined sewer overflows, the management of stormwater and man-
aging agricultural sources of pollution provide excellent examples of new clean
water priorities. Today, budget shortfalls at every level of government are unprece-
dented, which make dollars harder to get.
Reconciling our (Constraints, our Expectations and our Needs
In a reauthorized Clean Water Act we need to reconcile the constraints of the
1990's with our continued high expectations and the need to make continuing
progress. Reconciling constraints with expectations within the context of the Clean
Water Act will involve several things, the first of which is an increased and ongoing
Federal financial commitment, in partnership with state and local governments.
The next step in this reconciliation is for all of us to refocus our concerns and
priorities. We need to determine where problems still persist, establish priorities,
use site-specific solutions, set realistic deadlines and maintain flexibility to solve
local problems. Prescriptive national solutions do not, by their nature, provide the
level of flexibility needed to consider site-specific circumstances and cost-effectively
attack our priority problems.
I have talked to many interests around the country and I believe there are seven
major themes that are consistently heard from Congress, EPA, environmental
groups, and my colleagues throughout the nation. Here are the seven:
1. We need better science and field data for developing water quality objectives.
2. We need to manage nonp>oint sources of pollution.
3. We need to use site-specific management techniques.
4. We need multi-agency cooperation.
5. We need to use nontraditional approaches to solve today's continuing water
quality problems.
6. We need public involvement and stewardship to protect our watersheds.
7. We need national leadership, not national command and control.
The Search for a Solution
There is a very important temptation that we — as a nation — must resist. I speak
of the propensity to attempt to fix programs that aren't broken. The Clean Water
Act is possibly the nation's most effective environmental statute — a real legislative
success story. AMSA was gratified to see that approach taken by the drafters of S.
1114 reflects an appreciation of the solid foundation, provided in the Clean Water
Act, upon which to buUd. The Committee and staff are to be commended.
'The recognition demonstrated in S. 1114 to fine tuning many long standing pro-
grams, as well as the need to focus attention on important areas such as pollution
prevention, water conservation and, of course, comprehensive watershed manage-
ment offers an excellent basis for discussion and evaluation. While AMSA will have
constructive recommendations to improve and strengthen the bill, the legislation
represents a significant step forward.
AMSA believes the solution for which we search is comprehensive watershed
management. Comprehensive watershed management is our best opportunity to ad-
dress water quality into the next century. In its ideal form, comprehensive water-
shed management puts all the people together who can properly plan, execute, en-
force and pay for a plan, places local interests in a co-partnership with State and
Federal agencies, and provides the flexibility and accountability necessary to cus-
tomize a watershed plan.
COMPREHENSIVE WATERSHED MANAGEMENT
Support for a National Program of Comprehensive Watershed Management
AMSA, the U.S. Conference of Mayors and many other national organizations
view a national program for comprehensive watershed management as the best way
to effectively integrate successful Clean Water Act programs and ensure that limit-
ed resources will result in continued environmental improvements. Our Association
spent much of the last two years coming to one clear conclusion — that comprehen-
sive watershed management, as a means to achieve our national water quality
goals, makes a lot of sense. AMSA was gratified to see, in provisions of S. 1114, that
the leadership of the Senate Environment & Public Works Committee shares this
significant conclusion.
764
Should the Subcommittee need additional support for establishing a national pro-
gram of watershed msmagement that is flexible and addresses site-specific condi-
tions, AMSA offers the following:
Every watershed is unique. Picture if you will, the Florida Everglades; the deserts
of the Southwest; the forests of coastal Washington; the Great Plains of the Mid-
west; the river valleys of Ohio; the Mississippi delta; and the New England states.
Varying conditions abound in these regions of the country — each with different
rainfall, temperatures and topography.
Sources of pollution are also unique — within each watershed, from region to
region. For example, treated municipal wastewater comes from small midwestern
towns and from large urban coastal areas like Los Angeles and New York. Our Na-
tion's communities discharge their treated wastewaters not only into the Platte
River or the deep near coastal waters of the Pacific — or into the Hudson River, but
also into the dry river beds of Arizona — into Long Island Sound — into the Mississip-
pi River— into the Great Lakes — and into the Qords of Alaska. Every one of these
areas and all the others you can possibly ngune have site-specific conditions that
make them unique and nearly impossible to generalize.
We must also recognize that great tracts of this country are not metropolitan at
all, but are instead rural and heavily agricultural. Here too, major differences
abound. The dry wheat growers of eastern Washington, the sugar growers in the
delta country of Louisiana, the cranberry growers in the bogs of New England, the
corn growers of the Midwest and the cattle ranchers of Montana and Texas all have
unique conditions and unique challenges. It's hard to conceive that there are water
pollution control practices that could be applied equally and evenly to all of these
farming activities.
The resources we must protect are significantly different from watershed to wa-
tershed as well. The unfiltered public drinking water supply of Portland, Oregon,
the wetlands and estuaries of the Sacramento River delta, the fisheries of the Great
Lakes and the crab fisheries of the Chesapeake — all require site-specific plans for
protection and preservation.
It is based upon those realities that AMSA advocates a national program of com-
prehensive watershed management. Our vision, contained in AMSA's proposed legis-
lation, the Comprehensive Watershed Management Act of 1993, calls for the devel-
opment of comprehensive watershed management plans with the participation of all
point sources, nonpoint sources, users of the watershed, citizens and levels of gov-
ernment. We have provided with our testimony our Principal Tenets that guided
the development of AMSA's Comprehensive Watershed Management Act of 1993.
As we see it, the process for restoring watershed ecosystems follows rationally
from a scientific analysis of site-specific conditions and the technologies available to
improve those conditions. Priorities are established based on the quality and use of
receiving waters, ecosystem health, and the sources of pollutants that legitimately
threaten the watershed. AMSA believes that comprehensive watershed management
planning must emphasize establishing priorities, maintaining flexibility and empow-
ering local, regional and state government and the affected community-at-large to
solve their unique problems.
Watershed Management in S. 1114— An Important Step in the Right Direction
Title III of S. 1114 expands existing authority for monitoring of waters, modifies
the nonpoint source management program enacted in 1987, £md establishes new pro-
cedures to comprehensively manage all sources of pollution in watershed areas. In
this regard the legislation represents a significant step in the right direction. In par-
ticular, AMSA would like to comment specifically on several key concepts included
in Section 321., Comprehensive Watershed Management, of the Water Pollution
Prevention & Control Act of 1993.
Incentives for Watershed Planning
Mandatory vs. Voluntary Approaches
AMSA strongly supports the incentives for watershed management planning con-
tained in S. 1114. The incentives described in the legislation make as compelling as
possible the voluntary implementation of watershed management.
AMSA would suggest, however, that in order to be truly effective, a national pro-
gram of comprehensive watershed management must provide sufficient national
leadership to ensure consistent implementation and evaluation of programs, while
at the same time offering the maximum amount of local and regional flexibility. For
765
this reason, we believe that watershed management provisions, as an essential part
of the Clean Water Act reauthorization, must be mandatory.
AMSA views a mandatory program as essential for two reasons. First and fore-
most, to facilitate the achievement of the goal of meaningful environmental benefits
from water quality improvements, and secondly to define the specific components of
a comprehensive watershed management program that is national in scope — and
local in focus.
We recognize mandatory comprehensive watershed planning will be a large un-
dertaking requiring careful allocation of limited personnel and monetary resources.
Planning activities cannot start simultaneously and, for this reason, AMSA recom-
mends the phased implementation of assessment and planning activities. A staged
process would provide for the staggered initiation of watershed planning activities
and will provide thus for the deliberate, measured initiation of the watershed plan-
ning process.
AMSA feels strongly that while the 20 years since the 1972 Clean Water Act have
produced significant benefits, the future application of technology-based standards
will not result in the same level of water quality improvements. Achieving tomor-
row's water quality successes will be far more challenging and a change in our na-
tional paradigm is essential.
We must look at the next 20 years of water quality improvements from a new
perspective. AMSA believes a shift in our collective approach to this issue must
occur. While watershed management is ongoing in some areas of the country, and
certainly possible in many others, it is only a national shift in our approach to ad-
dressing water quality issues that will provide the information and tools we need to
truly make a difference in our nation's water quality over the next 20 years.
Local Government Delivers — ^A Bottom-Up Approach is Essential
Comprehensive watershed management, in the context of the Clean Water Act,
should offer a "bottom up" approach to achieving water quality improvements. S.
1114 moves in this direction by recognizing the need for "management entities".
AMSA urges that the legislation go further in this regard by establishing Water-
shed Management Commissions. Such a Commission would provide the basis for the
difficult decisions that must be made to protect and improve the watershed, to be
made by those most closely involved — the stakeholders.
AMSA believes that local stakeholders must have a significant role on the Com-
missions. And special consideration should be given to those regional and local agen-
cies within the watershed that now have, and will have, planning, implementation
and enforcement responsibilities under the watershed management plan. This ac-
knowledges the need for local interests to share in a partnership with State and
Federal representatives.
At first glance, such a Commission could be viewed as "just another layer of gov-
ernment." However, AMSA would argue that it is the make-up and active participa-
tion of the Commission that makes the comprehensive watershed management con-
cept truly effective. Today, there already exists multiple layers of local, regional,
State and Federal agencies with varying jurisdictional responsibilities regarding a
particular watershed. Often these agencies do not meet in a coordinated and system-
atic way to address the policy, operational, regulatory and fineuicial issues of a wa-
tershed. The Commission would act as a "bureaucracy-buster" by providing the set-
ting for these agencies to meet and to systematically address problem solving for the
watershed. AMSA feels certain that the success or failure of watershed manage-
ment will be determined by the type of institutional setting through which the proc-
ess occurs.
More Mandates . . .
Or a Move Toward an Integrated, Comprehensive Approach?
Headlines from across the nation decry both the need for environmental protec-
tion and the desire to keep costs at a minimum. In recent years, local govern-
ments— and in turn their citizens — have paid an ever increasing share of the clean
water burden. In AMSA's needs survey, entitled "Cost of Clean", we found that
local government currently provide 80-90% of total capital funding.
Environmental mandates have increased in both their number and cost, and Fed-
eral financial support of the nation's cleem water program has diminished. Compel-
ling national interests, not only environmental and public health, but economic,
social and political, make necessary an aggressive and comprehensive effort to pre-
serve existing water resources and restore polluted waterbodies and sjrstems as rap-
766
idly as possible. This massive task means that we must intelligently and successful-
ly target our clean water resources to give priority to the most serious problems and
identify where we get the most environmental benefit for the least cost. This means
first things first because if everything is a priority, then nothing is a priority.
We must use the reauthorization of the Clean Water Act to establish processes
that will give the country an integrated and comprehensive strategy that estab-
lishes new priorities for achieving water quality goals. A national program of com-
prehensive watershed management will do just that.
As envisioned by AMSA, the concept of comprehensive watershed management
integrates several other concepts which already exist in the Act. There are links to
Section 402 permitting, Section 309 permit enforcement activities and Section 303
water quality standards, to name a few. We commend S. 1114's authors for estab-
lishing a new Section 321 in the Act, rather than proposing amendments to all re-
lated sections. Section 321 provides needed prominence for watershed planning and
emphasizes the manner in which its provisions join together concepts already exist-
ing in the Act. As provisions in S. 1114 are revisited, AMSA calls upon the Subcom-
mittee to make a serious effort to provide increased integration of Clean Water Act
programs under the watershed management "umbrella".
In conclusion let me suggest the following:
AMSA believes that comprehensive watershed management should be the new
foundation for the future direction of our Nation's clean water program. AMSA
looks forward to working with you to broaden, strengthen and make more respon-
sive, the watershed provisions in S. 1114. We hope to share additional recommenda-
tion's via detailed written comments that we will provide to the Subcommittee in
We need to consistently search for better ways of doing things— more flexibility
and more attention to site-specific conditions, improved public awareness of our
problems and solving our problems with the best solutions. Local consensus-building
must become an essential step in the framework for reaching the environmental
milestones we set. j. cc j.- j
In short, we must strive toward a better understandmg of the most effective, and
efficient, means through which we can accomplish our national clean water goals.
As we' shift our attention toward fully restoring our watershed ecosystems, we all
recognize that we have a long way to go. No one ever suggested that the task of
improving and protecting the nation's waters would be an easy one— however, work-
ing together, I know we can succeed. With 20 years of success behind us, we can
look to the next 20 years with confidence.
This concludes my testimony. I would be pleased to answer any questions you
may have.
PRINCIPAL TENETS
AMSA's leadership adopted the following principal tenets to guide the develop-
ment of the Comprehensive Watershed Management Act of 1993:
PRINCIPAL TENETS OF THE COMPREHENSIVE WATERSHED
MANAGEMENT ACT OF 1993
Adopted by AMSA's Board of Directors
February 4, 1993
1 The overall objective of comprehensive watershed management planning is to
make cost-effective, site-specific decisions that achieve water quality objectives
that protect the designated beneficial uses of a watershed.
2. Science must be the basis for public policy decisions.
3. All players must be at the table to equitably address future water quality objec-
4 Local government and publicly-owned treatment works must have an active
role in establishing water quality objectives for the watersheds in the which
they are located. ^ . , j • ^ r
5 Local stakeholders (government entities, sources of watershed unpacts, users of
the resources within the watershed, the public and others with a specific mter-
est in how the watershed is managed) must have the clearly stated opportunity
to provide recommendations and direct advice and counsel to the Governor re-
garding the designation of their watershed boundaries and the makeup of its
Commission.
767
6. Progress on water quality improvement, including minimum standards of oper-
ation (MSOs), must continue as comprehensive watershed management plan-
ning moves forward. Until a watershed management plan is completed, permit-
ting agencies that are responsible for National Pollutant Discharge Elimination
System (NPDES) permits must take into account those sources within a water-
shed that cause water quality impairment and must accordingly exercise flexi-
bility and discretion in exerting their regulatory authority in setting effluent
limits and compliance schedules, and in conducting enforcement activities.
7. Time frames for completing a comprehensive watershed management plan
must be realistic.
8. Implementation of elements of the comprehensive watershed management plan
must be verified and enforced to assure equity among all sources or categories
of sources of pollutants of concern in a watershed.
9. The scheduling of compliance with Clean Water Act requirements and prioriti-
zation of resources to achieve water quality objectives shall be guided by water-
shed plans. One expected outcome of an approved watershed management plan
is that NPDES terms, conditions and limits shall be modified as appropriate to
cost-effectively achieve the water quality objectives of the plan.
10. Ck)mprehensive watershed management planning and the federal/state legisla-
tive and regulatory framework shall be compatible and fully integrated.
TESTIMONY OF CHARLES F. GAUVIN, PRESIDENT, TROUT UNLIMITED,
VIENNA, VIRGINIA
Mr. Chairman, members of the Subcommittee, I appreciate the chance to appear
today to give you Trout Unlimited's (TU) comments on S. 1114's watershed planning
and management provisions. TU is a national coldwater fisheries conservation orga-
nization of over 70,000 members in 435 chapters nationwide. Dedicated to the pro-
tection and restoration of trout and salmon resources, TU is vitally concerned with
improving water quality and protecting and restoring aquatic habitats. Improving
and strengthening the Clean Water Act (CWA) through the current reauthorization
process is one of our highest priorities.
Let me start by saying that, if the great effort which this Committee undertook in
drafting the original Clean Water Act had gone just a step further and addressed
our nation's water quality problems on a watershed-wide basis, I would not be here
today. The 92nd Congress, under Senator Muskie's able direction, correctly realized
the task before it when it set out to restore and maintain the chemical, physical,
and biological integrity of our nation's waters. Unfortunately, however, it did not
provide the federal and state agencies with sufficient direction to accomplish that
task. As a result, despite considerable unprovement in the chemical and physical
integrity of our nation's waters, our estuaries, lakes, rivers, and streams remain in
the throes of a biological deficit.
When I use the term "biological deficit," I refer to situations such as the follow-
ing:
• An estimated 106 Pacific salmon stocks (locally adapted populations that are re-
productively isolated) already have gone extinct and scores of others (an esti-
mated 214 stocks) are in jeopardy of extinction throughout the range of their
habitat in the Pacific Northwest ^;
• six other native salmonids are threatened or endangered throughout the Inter-
mountion West; and
• In all, a recent study found that one-third of all our native freshwater fish spe-
cies are threatened or endangered, and one-fifth of all our aquatic species are
now threatened 2.
In totality, this amounts to a potential loss of unprecedented and unconscionable
biological, economic, social, and cultural dimensions. For even though our waters
are degraded in many areas, they still yield considerable bounty: in 1990, fish
caught in U.S. waters exceeded $3.5 billion in direct dockside value, and served as
the base of a processing and sales industry generating $26.7 billion in consumer ex-
penditures; in 1991, freshwater recreational fishing exceeded $15 billion dollars
while saltwater recreational fishing contributed close to $5 billion; and according to
' Nehlsen, W., J. E. Williams, and J. A. Lichatowich. 1991. Pacific salmon at the crossroads:
stocks at risk from California, , Oregon, Idaho, and Washington. Fisheries 16:4-21.
2 Williams, J. E.; Johnson, J.E.; Hendrickson, D. A., [and others]. 1989. Fishes of North Amer-
ica endangered, threatened, and of special concern. Fisheries. 14(6) 2-20.
768
the U.S. Fish and Wildlife Service, over 35 million people (age 16 or over) fished
over 511 million days in 1991 ^.
Obviously, the human value underlying this potential loss of biological diversity is
enormous. At the risk of sounding apocalyptic, let me say that it portends a whole-
sale and wholly negative change in our nation's aquatic and terrestrial ecosystems
and the myriad human activities — commercial, recreational, and cultural — that
depend on the integrity of those ecosystems.
This biological deficit is being fueled by aquatic habitat destruction that is not
being controlled by the Clean Water Act. Some of the following facts illustrate this
clearly:
• water quality standards are not being achieved in over one-third of our nation's
waters, most of these failures are caused by nonpoint (polluted runoff source
pollution ■*;
• wetlands loss continues at an unacceptable rate, 290,000 acres per year accord-
ing to the most recent, best estimate ^;
• large, deep pools, critical to the health of Pacific salmonids, have decreased by
58% in the National Forests of the Pacific Northwest because of habitat loss
from timber harvest and associated road construction; 80% loss has occurred on
private lands of coastal Oregon ^;
• fishing bans or advisories caused by the presence of contaminants in fish were
in force in over 720 locations in the U.S. from 1990-1992;
• throughout the U.S., inadequate flows and ineffective fish passage caused by
dams and other water diversions continue to destroy fish habitat and thwart
fishery restoration efforts.
We can continue to finance our biological deficit much as we have our budget def-
icit, but for how long? This is a matter of disquieting uncertainty, especially in the
biological context. In human terms, bankruptcy may be only temporary, but extinc-
tion is forever.
Comments on the Watershed Planning Provisions of S. 1114
Let me now turn to S. 1114 and begin by saying that, while it points in the right
direction, it also contains serious flaws. The bill correctly points in the direction of
watersh^ management and planning, but it fails to provide the direction necessary
to restore and maintain the chemical, physical, and biological integrity of our water-
sheds.
Watershed planning should provide a better way for EPA and the state agencies
to identify and address all sources of pollution and other forms of physicEil and bio-
logical impairment, such as instream flow problems. It should emphasize identifica-
tion and protection of waters that meet water quality standards and remaining high
quality waters for inclusion in antidegradation programs and prioritize reduction of
pollution threats to these areas. It should identify and prioritize restoration projects
for various waters, including wetlands and key riparian zones. It should not facili-
tate downgrading of stream uses, lowering of water quality standards, or grant ex-
tension of permits in the name of "flexibility" for local or regional areas.
Most importantly, it should be a comprehensive state-wide and nationwide ap-
proach to water pollution prevention and control," the very essence of S. 1114. It
should not be a rarely-used, completely voluntary, ineffective tool that sits idly in
the federal/state water pollution control toolbox.
I am concerned that the watershed planning provisions of S. 1114 are not strong
enough on the positive elements listed above, but do allow opportunities for too
much slippage on existing water quality standards and designated uses.
Sections 301
Section 301 would replace existing Section 305(b), which currently requires water
quality reporting every two years. Monitoring of waters, and associated 305(b) re-
» U S Department of the Interior, Fish and Wildlife Service and U.S. Department of com-
merce bureau of Census. 1991. National Survey of Fishing, Hunting, and Wildlife-Associated
Recreation. U.S. Govermnent Printing Office, WMhington DC im ^ ,.^ . ^ ,._.
* U.S. Environmental Protection Agency (EPA). 1992. National Water Quahty Inventory: 1990
«Dahl T E and C.E. Johnson. 1991. Status and Trends of Wetlands in the Conterminous
United States, Mid-1970's to Mid-1980's. U.S. Department of the Interior, Fish and Wildlife Serv-
ice, Washington, D.C. 28 pages. . j „ . n
* Thomas J W., et. al. 1993. Appendix 5-K from Viability Assessments and Management Con-
siderations for Species Associated with Late-Successional and Old-Growth Forest of the pacific
Northwest. U.S. Forest Service, U.S. Department of Agriculture.
769
ports, are critical to the achievement of CWA goals. Extending reporting require-
ments to five years will only serve to reduce pressure on states to improve their
water quality control programs, and reduce the amount of information that citizen
conservationists have available to use in their water quality advocacy efforts. TU
opposes this change unless Section 301 's monitoring and reporting provisions are
strengthened, including the changes recommended below.
First, I suggest the goal of Section 301(b)(3) should be to develop monitoring re-
quirements that fully assess the chemical, physical, and biological integrity of sub-
ject waters. This requires monitoring for all known or suspected pollutants in the
water column, sediment, and biota. It also requires assessing the effects of instream
flow modifications from hydropower projects and other diversions. I know that the
Clean Water Act's overall jurisdiction here is limited, but no watershed planning or
monitoring program is worth much if it does not address instream flows.
In addition, we have seen a troubling tendency on the part of states to classify
waterbodies as "fully" in attainment despite clear evidence (fish and shellfish and
bathing advisories and aquatic species loss) to the contrary. Section 301 thus should
direct EPA to develop uniform standards to guide state attainment decisions.
Finally, in Section 301(b)(2)(A)(i), use of the term "balance" is insufficient. Even
severely damaged habitat eventually recovers some biological balance. For restora-
tion and maintenance purposes, however, the goal should be "balanced and diverse"
populations of shellfish, fish, and wildlife.
Section 302
Section 302 provides the guts of the new watershed planning and management
provisions of S. 1114. Again, while we support the concept and direction of Section
302, several problems are immediately apparent. First, Section 321(aXlXc)'s refer-
ence to "long-term social, economic, ad natural resource objectives" is deeply trou-
bling. This could be interpreted as somehow allowing states, in their management
plans, to downgrade water quality standards and criteria without complying with
existing Section 303's requirements and applicable regulations. Although economic,
social, and natural resources objectives are clearly relevant considerations in defin-
ing water quality goals, the provisions of existing 303 and EPA regulations should
control the process.
Second, Section 321(b)'s designation provisions barken back to the problems which
have arisen with Section 208 under the 1972 Act and Section 319 under the 1987
Act. Allowing states to designate watershed management units on a voluntary basis
ignores the simple rule that all land area is part of a watershed, and all parts form
an integral whole. Making the program voluntary means that it is likely to feiil. Al-
lowing states to redraw watershed boundaries means that we will continue to see
abuse and destruction of wetlands, floodplains, and perennigd and ephemeral tribu-
tary streams. If there is any lesson in the Pacific Northwest salmon story it is that
we cannot allow land disturbances to degrade instream and riparian areas.
To make Section 302(b) effective, you must make it mandatory. To make it scien-
tifically sound, you must make it apply to the landscape in a manner that protects
all wetlands, floodplains, and tributaries. In this regard, I commend to your atten-
tion to Appendix 5-K of the Forest Service's recent report (referenced above), which
is the aquatic/fisheries basis for the Administration s recent Forest Plan for old
growth/ late successional forest ecosystems.
Third, in Section 321(bX2), use of the terms "water and sediment quality" fails to
address what we have witnessed over the past 20 years: attainment status for water
quality standards with concomitant species depletion or extinction. If "biological in-
tegrity" has any meaning, it is not that species diversity remains relatively con-
stemt. In many cases, this will not even occur even if the habitat in question meets
water and sediment standards. Therefore, we request that you include the words "or
other impairment of the chemical, physical, and biological integrity" of subject
waters in Section 321(bX2). Further, I recommend that each designation under this
provision should also identify opportunities for restoration of degraded physical and
biological habitats, including wetlands, riparian areas, and instream habitats.
Fourth, opportunities for citizen conservationist participation, through public
notice and comment, petitioning authority, and opportunity for judicial review,
should be added to the watershed management provisions to be at least equivalent
to other CWA programs. For example, in Section 302(bX4), EPA approval of a water-
shed designation should require public notice and comment. Also, citizen conserva-
tionists should be given the opportunity to petition Governors to designate water-
shed management units. Further, in Section 302(g), approval of watershed plans is
subject to public notice and comment, but unlike Section 303, it is not clear that
EPA approval is subject to judicial review. Language should be added to this section
770
to clarify that EPA approval of a watershed plan is an action that does allow judi-
cial review.
Fifth, protecting waters currently meeting water quality standards £ind remaining
high quality waters should be a major point of emphasis of watershed plans. Unfor-
tunately, lines 20-24 of section 321(g) refers to Tier I antidegradation only. Either
here or elsewhere in the criteria for plan approval, there must be a requirement for
development and implementation of a full antidegradation progrsmi for the water-
shed, with cross-reference to the new antidegradation section of the bill.
Sixth, EPA must maintain a strong role in development and oversight of water-
shed plans. Therefore, TU does not believe that it is appropriate for EPA to delegate
to the state any aspect of watershed planning for which EPA currently has review,
oversight, or approval responsibilities, such as water quality standards, wasteload
allocations, and NPDES program elements, including Section 402(c) permit veto au-
thority.
Finally, language in Section 321(g) Subsection 3 appears to substantially weaken
existing point source requirements. This provision allows waivers or lengthy exten-
sions from water quality-based requirements for point sources. This provision may
wipe out the net gain in water quality improvement that is intended to be a product
of watershed management TU opposes this provision and recommends that it be
narrowed significantly or deleted.
I have addressed the basic problems we have uncovered with respect to Sections
301 and 302. I will conclude by noting that the Ck)ngress has a tremendous opportu-
nity in Sections 301 and 302 to direct the course of much more than future water-
shed planning and management. Depending on how it frames Sections 301 and 302,
Congress can truly determine the success of future watershed protection and resto-
ration.
We at Trout Unlimited have some experience with watershed protection and res-
toration, a good example being our recent work on protecting and restoring author
Norman McLean's beloved Big Blackfoot River in Montana Success in these endeav-
ors depends on having scientifically accurate information, protecting the remaining
best habitat and water quality, and restoring key habitat in the watershed. Based
on our experience, I believe that, although directionally correct, the watershed man-
agement and planning provisions of S. 1114 have serious flaws and, unless strength-
ened, will not yield effective watershed protection and restoration results.
Thank you for the opportunity to appear before the Subcommittee today.
TESTIMONY OF CURT SPALDING, EXECUTIVE DIRECTOR, SAVE THE BAY,
PROVIDENCE, RHODE ISLAND
Save the Bay is Southern New England's largest non-profit environmental organi-
zation. We are dedicated to a clean and healthy Narragansett Bay that people enjoy.
The Narragansett Bay Watershed extends far into Massachusetts and covers most of
the State of Rhode Island. For twenty-three Save the Bay has aggressively advocate
ed solutions to environmental problems throughout the Narragansett Bay Water-
shed. We appreciate the opportunity to forward our perspective on Watershed Plan-
ning and the Watershed Planning Provisions in S. 1114.
During Save the Bay's twenty-three year history, the organization has consistent-
ly promoted a strategic plemning approach for the prevention and reduction of
water pollution. Save the Bay h£is advocated this approach recognizing that im-
provements in the water and habitat quality will not easily be solved with any
single action.
In this testimony I will summarize our experience with strategic environmental
planning in the Narragansett Bay Watershed, present Save the Bays' view on how
Watershed Planning can advance the protection and restoration of waterbodies, and
comment on the Watershed Planning Provisions of S. 1114, to amend and reauthor-
ize the Federal Water Pollution Control Act.
STRATEGIC ENVIRONMENTAL PLANNING IN THE NARRAGANSETT BAY
WATERSHED
As point source discharges have been reduced, non-profit pollution sources have
increased. More and more land is being converted to roads, highways, malls, subdivi-
sions and industrial parks with little though about their cumulative effect on water
and habitat quality. In Narragansett Bay, we have seen considerable reconvert in
upper bay water quality because of improvements in sewage treatment. At the same
time Greenwich Bay, one of the largest and most productive shellfish areas in Nar-
ragansett Bay, has been closed to shellfishing due to polluted runoff.
771
Our organization has been involved with dozens of Watershed Management Plan-
ning efforts. These Watershed Planning efforts have varied exponentially in com-
plexity, watershed size, and success. Several of these Watershed Planning efforts are
highlighted below.
Upper Bay Watershed
• Before the Federal Water Pollution Control Act was enacted, planning efforts
were well underway to solve gross p>ollution problems in upper Narragansett
Bay. In response to these initial efforts, primary and then secondary treatment
plants were built in the urban centers of Providence, East Providence and Paw-
tucket.
COASTAL WATERSHED MANAGEMENT
• Issues involving coastal access and land development became paramount in the
early 1970s and a plan was developed to manage Rhode Island's coastal re-
sources. The Coastal Resources Management Plan (CRMP) has been adopted
and amended over the years to include "special area management" plans or
sam plans. These plans were created to deal with sensitive coastal watersheds
that needed site specific management. The Sam Plans have been adopted and
revised over the past five to ten years.
SECTION 208: AREA WIDE WATER QUALITY PLAN
• Beginning in 1975, Rhode Island also attempted to develop a Comprehensive
State Water Quality Management Plan. The plan took more than five years to
develop and was known as the Section 208 Plan. It took its name from the sec-
tion of the Clean Water Act that described the method and federal require-
ments of State water quality planning. The section 208 plan did identify the
need for a significant improvement in the operation of the field's point sewage
treatment plant in Providence which was implemented. However, dozens of
other priority items were never accomplished.
SCITURATE RESERVOIR MANAGEMENT PLAN
• The State has recently (1990) completed a Comprehensive Watershed Plan for
its largest public drinking water reservoir. Implementation of the is going for-
ward and recommendations for state and local actions are being supported.
NARRAGANSETT BAY WATERSHED MANAGEMENT
• In 1985, Narragansett Bay was accepted into the National Estuary Program
and the most recent Watershed Planning effort began in Rhode Island. This
time the planning effort would cross State lines (60 percent of the Bay Water-
shed is in Massachusetts). The final Comprehensive Conservation and Manage-
ment Plan was issued in late 1992. Since that time, implementation of the plan
has been slow largely because the planning process failed to galvanize support
for the plan's recommendations.
Distilling this experience, the most successful strategic Environmental Manage-
ment plans in Rhode Island are characterized by successfully building support for a
clear action agenda. The priorities and action items of these success stories are as
dynamic as the systems they seek to restore and protect. Save the bay believes that
unsuccessful or semi-successful Watershed Management Plan lacked one or more
key elements. The key success element are:
• A governance/ planning committee that truly represents all groups with politi-
cal, regulatory or resource protection/use interest;
• A clear and open process that decides which resource protection issues are
being adequately addressed and which are not;
• The endorsement and support of most regulatory/planning agencies required to
implement strategies and work plans is secured;
• The plan is updated and reviewed periodically, preferably on a five year sched-
ule; and
• Updates and reviews are based on continuous strategic water and habitat qual-
ity monitoring
UTILIZING STRATEGIC WATERSHED PLANNING
A Comprehensive Watershed Management approach is the best approach when
the emplo)Tnent of established point source and non-point source programs prove to
be inadequate to achieve water and habitat quality goals. An example best illus-
trates this point.
772
Dividing Warwick and Cranston is the Patuxent River. This River is severely de-
graded. To restore the Patuxent, save the bay supports a strategy that:
1. Controls point sources using wasteload allocation analysis.
2. Maximizes low technology management practices (i.e. cleaning storm drains,
sweeping parking lots etc.) To reduce polluted runoff.
3. If after pursuing these strategies, it is unlikely that the water quality standards
for the Patuxent cannot be achieved, a Comprehensive Watershed Management
Plan should be developed and implemented focusing on more polluted runoff
control, or other strategies, such as in-stream airation and habitat restoration
projects.
Polluted runoff is more diffuse, cumulative in effect, and is directly related to
local, state and regional land use decisions. Regulating non-point sources of pollu-
tion cannot be done by writing a thousand permits. Controlling and mitigating non-
point sources encompassing everything from educating individuals about consumer
choices to restoring and protecting riparian wetlands. Watershed Management
clearly is the appropriate tool for this job.
A good Watershed Management Plan not only contains the key elements listed
above, it must also have the support of the stake-holders and sufficient funding to
be implemented. This does not imply that a new bureaucracy needs to be created to
implement and enforce a plan. If a plan is created by all interested parties (political
and governmental players, public interest groups, resource protection advocates,
and resource users), implementation can be carried out through coordinated but sep-
arate local, state and federal actions. Naturally, some portions of a good watershed
plan will need the cooperative effort of one or more agencies.
This type of implementation and enforcement requires appropriate federal and
state incentives and dis-incentives. Incentives should be similar to those found in
section 6117(g) of the Coastal Zone Management Act and the Clean Air Act of 1990.
For instance, section 106 funding, and most other federal assistance provided
through the Clean Water Act, should be tied to successful Watershed Management
Implementation. A very effective approach would be to withhold federal funding
(under any program) from any responsible agency for nonperformance under the
management plan.
Federal transportation funding to states should be linked to successful Watershed
Management Plan implementation. The allocation of federal transportation money
has a significant influence on local land use decisions which contribute to non-point
source pollution in watersheds, not to mention the increase in runoff from the road
construction itself.
As stated. Watershed Management Planning should be used to identify additional
strategies to reduce non-point source pollution. The majority of non-point source pol-
lution is caused by stormwater runoff, whether it runs off a interstate highway or a
300 acre cornfield. Not all stormwater discharges can be (or should be) regulated
through the new stormwater discharge permit program.
Save the Bay believes Watershed Management Plans can build local consensus to
allow more comprehensive actions to deal with stormwater runoff Just as utility
districts were established for sanitary sewerage service, so can they be established
for stormwater runoff. Stormwater utility districts have been establish in at least 50
major cities and counties in the United States. Small annual fees (typically 24 dol-
lars per year per household) provide funding for water quality improvements, flood
abatement projects, and infrastructure maintenance. New or increased stormwater
discharges must be approved by the district. These stormwater programs have
worked well in the areas where they have been implemented. Save the bay believes
that stormwater utility districts must be an essential component of a watershed
management plan.
In addition. Save the Bay believes that Watershed Management Plans should con-
tain minimum land use standards and performance criteria. The guidance document
issued for the coastal 6217(g) program — the blue book — would be acceptable as a
minimum standard. Save the bay stresses that this guidance document should be
used only as a minimum. Watersheds that already have water quality problems due
to non-point source pollution should require stricter performance criteria such as
mandatory minimum setbacks from wetlands, streams and rivers of at least 250
feet, regulatory street sweeping and catachbasin cleaning, wastewater management
districts for unsewered areas, reduced pavement area and parking space require-
ments for new developments, and village or cluster zoning for residential areas. A
Watershed Management Plan should also create state and local policies that encour-
age reinvestment in urban infrastructure rather that subsidizing suburban sprawl.
773
PROBLEMS WITH WATERSHED PLANNING AS PROPOSED IN S. 1114
Save the Bay is concerned about the proposed approach to Watershed Manage-
ment Planning contained in S. 1114. Our concerns are:
1. Federal subsidies for doing Watershed Planning are too large. "Ownership"
of a Watershed Management Plan is encourage by local investment in both
time and dollars. Large amounts of federal funding should be reserved for plan
implementation.
2. Watershed Management Plans are not mandatory for £dl waterways and wa-
terbodies that are classified as "non-attainment" or "partial attainment" areas.
Where the established strategy of point and non-point source control will not
achieve water quality goals, Watershed Management Plans should be done.
Other Watersheds should qualify for Management Planning efforts only after
these priority Watershed Management Plans were approved.
3. There is no requirement to incorporate previous Watershed Management
Planning efforts. As noted above, Rhode Island has produced many Watershed
Management Plans for a variety of Watershed areas. The Narragansett Bay
comprehensive conservation gmd Management Plan and the Scituate Reservoir
Watershed Management Plan are two examples of valid Watershed Manage-
ment Plans. These plans need to implemented, not redone. Over the course of
time they should be updated and revised, not relegated to the scrap heap and
recreated with new federal funding.
4. The requirements for public participation are not well defined. Public partici-
pation should be defined beyond "maximum extent practicable". More language
should be added defining public participation and establishing how issue are
identified and priorities are set.
5. In some circumstances. Watershed Planning may lead to less aggressive
point-source permit requirements. As mentioned earlier, we have an entire
river watershed in serious nonattainment — the Patuxent River Watershed. The
watershed hosts three sewage treatment plants and one major industrial pollut-
er. The three sewage treatment plants are under a court ordered consent decree
to improve their sewage treatment facilities to tertiary standards. It is clear to
all Patuxent stakeholders that this action will not be enough to attain fishable/
swimmable water quality standards. Save the Bay know that the non-point
source pollution will have to be mitigated and prevented. Aware of this prob-
lem, congress included a 13 million dollar federal grant in the Intermodal Sur-
face Transportation Efficiency Act (ISTEA) to remediate a large stormwater dis-
charge from interstate 95.
If the Watershed Planning approach proposed in S. 1114 was in place five years
ago, the three sewage treatment plants may not have been required to upgrade
their facilities. Instead, there may have been a four year Watershed Planning proc-
ess with a possible ten year implementation schedule. The process would have been
heavily politicized because of the serious fiscal problems in the three cities.
The Watershed Planning provisions in s. 1114 may represent an almost irresisti-
ble temptation to local governments to delay upgrading sewage treatment plants.
Aggressive requirements for nonpoint source pollution load reductions should not be
used as an excuse not to reduce point source pollutant loading. Instead, Watershed
Planning should encourage further innovations in point source treatment technolo-
gy as well £is work towards a better understanding of non-point source pollution con-
trol and mitigation, to do any less would be a betrayal of every citizen's right to
clean water and a healthy environment.
774
July 26, 1993
THE WESTERN GOVERNORS' ASSOCIATION TESTIMONY
ON
CLEAN WATER ACT AMENDMENTS
s-ni4
Btfors th« Senate Envlrozunent and Public Workf Clean Watery FUherie*,
and Wildllfft Subcommittee
INTRODUCTION
Good afternoon. I am Lonu Stickel, Chair of the Oregon Water Reeourcea
Commiaslon^ and Chief Planner at the Pordand Water Bureau. I am also a
member of die Weitem SUtei Water Coundl (WSWQ. I have been asked to
testify today on behalf of Governor Barbara Roberts, who is co-lead governor
for water for the Western Governors' Assodttton (WGA). TbM WGA and
WSWC work together to provide strong leadership in developing regional
solutions for water Usues in dw eighteen western states, and I have been
involved in most of those activities. I am pleued to represent Oregon, the
Western Governors' Association and the Western SUtes Water Coundl in
testifyteg on "Htle m of S-1114, WATERSHED PLANNING AND NONPOINT
POLLUTION CONTROL.
Oregon has been cm the forefront for testing watershed based nahiral resource
management pracdces and watershed planning. We are proud of recent
programs inltUted to promote integrated watershed plaxming and watershed
restoradon. The program in Oregon is evolving rapidly, and psssage of
S-1114 could give the state an addidonal boost to make tt\e program a success.
In a series of broadly representative workshops over the last three years, the
Western Governors' Assodation and Western States Water Coundl have
cxpkved ways to inwove western water management broadly. These
workshops lead to a series of prlndples which endorse "bottom-up," broadly
representadvs/ flexible approadtes to problem solving at the watershed or
"problemshsd' level. These "Park Qty Prlndples" srs expressed in the
attadved WGA policy resolution (Resolutfon 92-007).
The Park Qty Prlndples strongtv simport Oie concept of comprdunsive
watershed management under the Qean Water Act. To provide greater
definition to the concept, the WGA and WSWC have developed poddon
papers regarding watorshed management under the Clean Water Act
which are endosed. In parttcular they emphaslM that water maiugement is
coB^lcx witti many Interests and values needing to be considered: water
775
quAUty, water quantity, habitat wetlanda, riparian araaS/ flood oontrol,
hydropower gancratlon, and rtaeational, cultural, commercial, agricultural,
industrial and municipal uaei. Titty view watershed management aa an
approach that offer* great opportunldee by allowing a focui on die tnoat
aitical problemi that affect a watershed. Further watered management has
the potential to foster cooperative problem solving to Improve the
environment in a cost-effective maimer. It provides a means of developing
an "ecosystem approach" relative to the protection of water quality and
related values.
Although the Clean Water Act will focus on water quality Issues, WGA's
paper emphasizes that watershed management in states is not likely to be
limited to discrete water quality issues, but instead may ultimately be used by
the states to address the pmut of Interconnected quality and quantity isfues
that arise from the use of this valuable resource. Tlierefort, ttie amendments
to the Oean Water Act should allow the states to maintain flexibility to deal
with all of the other interests and values, and should fodUtate states' ability to
address the issues hoUstically.
To encourage the benefits of a watershed approach under ttie Qean Water
Act, the WSWC position paper states that Ae Clean Water Act should:
(1) encourage, but not mandate, a watershed approach to water axul lutural
resource management and protection; (2) aUow flodbllity to states and local
entities to aaft basln-spednc goals and programs that are prioritized on the
basis of risk to quality^f-Ilfe, human healilv and ecological ooneems;
(3) emphasize performance, not fanning; (4) lust latcrfert with Ihe rights of
states to allocate water supplias; (5) allow states to um existing authorltiei
and programs to establish watershed entitiee to meet their needs u diey
imderstand themj (6) require EPA to provide technical, llnandal, and
research assistance; and P) provide federal fui\dlng to support watershed
management
Tide m as propoeed addrewes Ac piind^cs Usttd Ttry wefl. Therefore I am
here to speak tii wppoit of A« proposed amendment
OVERVIEW OFTTTLB m • SBC 302 COMPREHENSIVB WATERSHED
MANAGEMENT
In S>1114 Tide HI SEC 302, Ae propoeed new SEC 321 seta out an excellent
TUxdlngs and Purpose' statement Aat stresses Ae need to Integrate water
quality with oAer natwal resource management objectives. The biU
establishes a finamework thAt is very similar to one developed in Oregon last
year. It estabUshee dear guidance and incenttvat, f^Ule remaining voluntary
and flexible. It reoognlJM Ae is^Mrlance of locally developed onHhe-ground
solutions. Programs need lo set measurable short and long term targeta.
776
impltmcnt both projects and actions and monitor retulta to thow wKtth«r
programs n««d to b« ad)uat»d.
The bill calls for a statewlda watershed asMssment Independent of S 1114,
Oregon is preparing to conduct a geiveral statewide aisesament of watershed
hfltlth uiing a method prepared by EPA staff. We belicye the assessment wlU
to help set priorities for state attention and fiuiding allocations. Our work
could probably serve as a prototype for other states.
The funding and incentives provided would be of real uilstance to Ihe statH
in carrying out watershed programs. However, in Ihe long run, fl\«
restoration of watershed health is Ukely to require a far higher level financial
commitment from all of diose involved in the solutioni than is provided in
^ long range funding level
THE OREGON EXPERIENCB
Oregon has a long history of water (Quantity and quality planning on a basin
and subbasin leveL Most of those eiudy plana are oriented to rtgulationi
rad\er than a broader range of actions. The state is impUmcntinf, as the
result of a court decree, %^ter quality oriented plans In 15 water quality
limited watersheds. Oregon has taken the lead in developing a waste load
allocation program in water quality limited wattrshedi. lUa wtterahed
approach is an essential part of coming into oompUance vriA water quality
standards. Other watersheds ift Oregon are the subject of planning largely
because of endangered species Ibtinf or proposed Ustliigs. In these watersheds
the whole watersned ecoeystam is often of concenv, induding in many cases,
water quality staiulard violations, inadequate streeianflow, hiMtat loss and
failure of altered watersheds to provide natitfal functions.
Watershed planning lor water quaUtf^fotirce control Is the strategy followed
in several otfier programs Inrhidlng^ tts CoquUls Near Coutal Water
Project, the Tillamook Itural Oeaa Water Pragraot the Columbia River Bi-
stats Study, ^ Willamette Blvsf Watar Quality Studv^ and numerous Clean
Lake projeds. Uany recant watershed programs emphadzt partnerah^ and
use demonstration projects, educitloiv ooQaboratloa and cooperation to
achieve results.
A reading of the Oregon documents will damot\strate to Ifae committee that
this state is wcH on the way to a voluntary program that malchss very well
the Title m proposal Some of the key aspects to keep endiusiaim and
support have been:
• Tlut tils program Is locally based;
• Powvs tor implementadorw however, are not transfsired;
777
• Th« stata alrMdv has a number of good raguladooa and programa to
prevent addldonal problcma for tha envlroiux\«nt;
• Ptople ara fauful o£ tha potentiAl economic and social iiiq»act of
condnuing to Implonent fha Endangered Spedaa Act apedaa by
spedaa;
• The program daTelopmant ta voluntaiy ax\d flexlbla.
Key elements of a comprehenaivc waterahed approadi Indudr
• Involvamant of all ftakaholden;
• Attention to all watershed functions and conditions relating to Its
health;
• Adequatt resources for planning and implementation;
• Qear goals and defiiUte time frames to achieve them;
• Adequate support for research that shows the relationship between
practices and problems /solutions;
• Incentives and sanctions.
Some of our cxperiexvces are briefly described here.
• The legislature eataUiahed the Governor's Watershed Enhancement Board
in 1987. The Board includes decision makers from 10 sbite and federal
agencies. It provides grants for demonstration projects that enhance
watersheds du-ough non-structural means and grants for education projects
that promote sound watanhed management Stoce dian, nearly 2 mflUon
dollars have been awarded for 62 major projects and many mo?e small grants.
(Program status report endosed).
• The Governor's Forest Planning Team, established in 19S7 bw executive
order, hu been reviewing National Forest and Bureau of Land Kianagement
plans since then. Th4 stale has sent a consistent meesap to the USPS and
BLM planners of die need to assamUe dale and make dedsiona on a
watershed beaia rather dun other adminiatirattve Hues. For tiM most part aU
Forests and BLM districts revised at least the data and many dedsiona to
reflect watanhed conditloaa and Impacts of propoeed management activities
on watershed health. The new Ointon Forest Flan strongly promotes die
watershed approadt
« The Nordiwest Power tlanning Coundl, during the eighties, set a goal of
doubling fish runs in the Columbia basin, and as a result Bonneville Power
Administration (BFA) funded stream enhancement projects through out the
northwest Projects were not developed on a watershed bails and aa • result
many failed to produce the eiqpeeted results. Aa a next step die Power Coundl
re<{uested dut Subbaaln plana be prepared diroughout die Cduanfaia to target
778
high priority kcticta to tnlunct fUheriti. However, BPA funding fooued on
uutrum project!, wh<n ouny of the root cauiee of hebltat problem* are due
to Und management practices and impacts.
A/ter the Snake River aalmon apedee were listed uzwicr the Endaxvgered
Species Act, die Northwest Power Planning Coundi called for BPA to fund
model watershed programs in each of the affected states. Oregon selected the
Grande Ronde Basin. An active locally based program Is now underway with
full participation also by state and federal agencies. The Grande Ronde Model
Watershed Program is idendfying several early actions to begin the recovery.
• In 1990, following a legisladve session that debated but did not resolve the
issue of needing more locally based water resource planning, itate agendes
developed a pilot stream restoration program. The program was tested in a
watershed of d\e John Day Basin. A stream restoration coordinator worked
wid\ a locally appointed basin coundi, state and federal agendee, tribee,
landowners and Interest groups to develop an action plan for the Middle Fork
John Day Basin. Because of ttie many prior plaxvning efforts in the basin, this
program was assembled in only six months. It uses a watershed approach to
stream restoration and has served as the basis for implementation since then,
with several successes. Additional action plans are now being prepared in the
basin with the help of SoU and Water Conservation Districts and the Bureau
of Redamadon.
• In 1992 die slate's S&ategic Water Management Group (SWMG) chaired
from the Governor's ofBce end composed of agency directors of twdve
resource agendee and the Oregon Executive Department, formally developed
a new watershed management strategy. The strategy call* for a statewide
assessment of watershed conditions, pubUc values in each watershed* and
likelihood of watershed program Bucceu. It pr omotei voluntary foematioft of
watershed councils especially in hi^ priority watersheds of the sute. The
coundls would operate ae local organizettons, with parmershlp agreements
with all partidpatlng government tribel, end organttadonal intereeta.
Organizational and procedural nexibiUty U written into ttie framework. The
Councils win conduct more sp«afic watershed aMeaements, devel^
management gods and an action plan that Indudes site-spedflc measures to
protect end restore watershed health while, to the greatest degree, meeting
economic sodal and cultural objective*. SWMG vrould review and stfK off
on the ectton plana. The SWMG Watershed Management Strategy report i*
endosed.
This process is being formally recognized by the Legialahire in HB 2215
(endMed) diis seesion. It has passed both house* and has only to go through
conference committee and the Governor to become law. The lew do« not
779
codify the procMi, but sets it up at • four y^u pilot program. Tha proposal
gained wide ii;qpport among intereat groups, but in fairness there was also a
high level of nervousness about whether this would create another layer of
government and whether a voluntary program could achieve results. We are
confident these concertu wUl be allayed ai the program is implemented.
Based on line item funding throu^ EPA^ one local cotmdl has already
formed, the McKenzie River watershed. The Grande Ronde Model
Watershed Board will also likely follow this process.
• In a major effort to manage resources holisdcaUy, nine state natxiral
resource agencies teamed together to prepare a funding proposal to restore
watershed health and sustainable production in two cridcal basins of the state.
The proposal provides funds to support watershed eouzidls, implsmentabon,
and state agency staff to parddpate in the program. Sute staff from six
agencies would be housed together in the Aeld, to help develop the database,
watershed objectives^ implementadon options, project proposals/ technical
assistazvce and monitoring needed to accomplish the progxmm. Thif proposal
is likely to receive at least 73 million in funding for Che coming biennium.
(Description endosed).
SUGGESTIONS TO IMPROVE THE BILL
The coordination of potential federal funding sources to implement water
quality and watershed health restoration ia critical The proposed Interagency
committee to support comprehensive watershed management and planning
is not given any spedAc charge. One key role could be to evaluate tihe
adequacy of the combinad federal funding sources lo support and promote
tivis voluntary program.
One area of concern it the use of the term "management entity" for both
planning ■«<< <i«pii»ii»«*4ftti on page 85 and wording of tiie EPA approval
aiteria on page 90 Unci 4 - 6. bi me Oregon program, power is not transferred
to a single entity. A walanhed council coordinates planning and ovcni^ of
Unplemeniatton, but fiie actual implementation will be eariled out by the
partners who retain legal authority and funding. Based on federal and typical
state organizational ttructUN/ watershed planning wlU indude multiple
agendee. It is not realistic to require one entity to haive full Implementing
responaibUlty. We would prefer wording fud\ as "entity dLIBtttlii" or insert
the notion of an entity responsible for coordinating implementation and
funding of the plan.
Axu>ther concern relates to tiie plaiming standards and time frames on
wstersheds when planning is prompted by BSA Ustinp or otter reasons. In
these eases, water quality violations may or may not have the moct urgent
780
nMd for attantlon. Currtnt (new) nvlsdom it to build «Avlroiuntnt>l
improvements out from the r«mtinlng good quality "refusei" in • wittrsh«d
rather thAn working on the worst problems flnt If poestbre the lew should
recognize end endorse this strategy and perhaps In some faistences ellow
dif^rent time frames for meeting standards in Ihe "worst" areas provided
that the refuge strategy is being bx^lcmented and a trend toward eompUanee
is measured. The ten year time frame appears reasonable. We suggest that In
SBC. 304. NONPOINT POLLUTION CONTROL, the implementadoA
provision on page 104 should allow flie three year tinite freme or tfie iehe4ula
as approved within a waterahf d p^n 4tY*»flPfd Vfidy ^B^ ^^'
CONCLUSION
The proposed TITLE m - COMPREHENSIVE WATERSHED PROGRAM
articulates an appropriate and constructive program end role for the EPA in
the Clean Water Act States and the federal agovdes are ell on a rapid
leemlng curve for watershed management In recognition of Ae &ct that
many cndties are tumlixg to watersheds because they make sense as a focus of
managtment, WGA and the Western States Water Coundl are planning a
meeting this fall of representativee of those entitles to share thmr plans and to
devek>p ways to coordinate. Representatives will be Invited from EPA» tiw
Soil Conservation Service, the Forest Service, the Bureau ai Land
Management, the Rsh and Wildlife Service, the Bureau of Reclamation, the
Corps of Bng^eers, ttie power marketing adminlsirationi, tfie Federal Energy
Regulatory Commission, state agendes (water, wildlife, agriculture, and
environmenO local entities, and non-profits focused on resource
management
We heven't always done a good job in devising mechanisms which will
accommodate such a diverse group of interests. This Act deserves credit for
bying to do so. It is important to maintain At flexibfUt/ tf\at will promote
solutions tailored to vaiTbvg state issues, management structures and laws.
The answers lie within tiie specific targeted watersheds and developing Oiem
at the watcrahed level will provide the local buy-in that can achieve lasting
results. Addressing environmental Issuu on a watershed basis holds creat
promise because It fosters the most efficient use of public resources and
participants.
781
WESTERN GOVERNORS' ASSOCIATION
PROPOSED WATERSHED APPROACH TO THE CLEAN WATER ACT
Rationale
Effective water management is complex. There are many interests and values that need to be
considered: water quantity, water quality, habitat, wetlands and riparian areas, flood control,
hydropower generation, and recreational, cultural, commercial, agricultural, industrial and municipal
uses. A watershed approach to water management involves integrating decision making processes
and actions so that a more holistic view of the resource can be taken and so that individual artions
are coordinated and work together. A watershed approach does not involve derogation of federal
or state authority. However, it is grounded upon the idea of concrete local invoh^ement. At its
most basic, watershed management involves coordination between all levels of govenunent, with the
primary responsibility for crafting the details of a management scheme reserved to local actors, with
substantive guidance and assistance from the state and federal leveb.
The rationale for approaching water and related resource questions on a holistic watershed basis
is the gains that can be made in terms of protecting and enhancing water quality and other social,
economic and ecological values simultaneously.
This briefing paper will outline a potential scheme for incorporating watershed management
authorities in the Qean Water Act. Although the paper will focus on water quality issues and the
CWA, it is crucial to note that watershed management should not be limited to discrete water
quality issues, but should ultimately be used by states to address the gamut of interconnected quality
and quantity issues which arise from the use of this valuable resource. Therefore, amendments
should not obstruct the ability of states to deal wiOi all of the other interests and values beyond water
quality, and ideally should fadUtate states' ability to deal hoUsticalfy with Otem.
Watershed Management under the Clean Water Act
The CWA already provides the statutory encouragement, as well as some iiKentives, for localities
to undertake water quality-based watershed management activities. However, some changes to the
CWA may be necessary. These include the development of inclusive processes which involve a
broad range of players; greater coordination between federal statutes; greater statutory flexibility
to allow the developmrat of innovative, local management strategies; funding for watershed proUem
solving forums, planning activities and solutions; and greater emphasis on a geographic focus for
resource management and problem solving. A "bottom-up" watershed approadi provides forums
to convene federal agenciea, sUtes, tribes, local governments and other stakeholders around a
problem or set of problenia. It also provides an incentive to dtizens within the watershed to
become involved in finding solutions and managing the resource.
The Structure
The proposed watershed approach would look like the following:
1. Using the current framework rather than a separate new program, authority should be
provided to sutes under the CWA to undertake a holistic watershed approach to water
quality control and to other watershed issues identified by sUtes. Funding and technical
assistance or incentives wiQ be needed
782
2. The governor of each state starts the process by conducting an assessment process which
leads to the identification and prioritization of watersheds. The scale of the watersheds
identified will vary depending upon the goals of the state. For example, the USGS
delineates watersheds ranging from first order (a local watershed) to sixth order watersheds
(major river drainages). Depending on the problem, the appropriate order watershed can
be targeted, or watersheds can be aggregated to yield the appropriate scale. These can be
reaggregated to address different problems.
Prioritization of watersheds would be based on threats from point and nonpoint source
pollution problems, opportunities such as those to mitigate and/or restore wetlands and
riparian areas, and protection of watersheds which are ecologically healthy.
3. States are then responsible for facilitating or enabling local problem sohdng. This bottom-up
process must involve all key interests including agriculture, urban interests, industry, and
environmentalists. Participation in watershed forums may vary depending upon the problem
or goals being addressed.
4. After there is a firm commitment to a bottom-up system, it is critical that affected federal
agencies work with state and local interests using a watershed focus. They may be asked
to help with watershed plans, and should ultimately coordinate their activities around these
local plans.
5. Federal money should be made available on a cost-share basis. Funding should be availaUe
to sutes, localities and motivated citizens within a watershed to begin addressing problems
within a priority watershed. Federal incentives may be appropriate to engage all necessary
parties, including other federal agencies. Federal technical assistance should also be
available.
Federal Flexibility and State Responsibilities
Once states have identified and prioritized their watersheds and are committed to local problem
solving processes, flexibility, with regard to meeting the goals of the CWA, should be provided to
sutes. Flexibility is needed so that states can act in the face of uncertainty to protect their
resources. A watershed approach can provide a framework for adaptive management so that states
can readjust their efforts as they learn more about the resource and how it responds to past and
present poUution control actions. Examples of areas in whidi sutes need greater flcxibiUty include:
• encouragement and removal of constraints to bargaining and other creative solutions that
can provide mechanisms for effective pollution control on a watershed basis. Sutes may
need extensive flexibility in designing cleanup and/or protection strategies. For example,
this might include specific authority to allow point source dischargers to provide financial
assistance to nonpoint source poUuters to help reduce NPS loadings in exchange for offering
relief from compliance deadlines in order to allow adequate time to demonstrate results.
The purpose of this would be to produce more cost effective results watershed-wide. It may
also invoWe some changes in permit conditions, or the creation of other incentwes for
polluters or other parties to participate or to fund efforts.
• removal of federal barriers to solutions. For example, there are liability obstacles to
cleaning up abandoned mine drainage under Superfund.
783
* acceptance of abbreviated or less frequent reporting such as the total maximum daily load
(IMDL) reviews and permitting reports. The rationale for this is that the current
framework of reviews, reprorts, penrdt renewals are time consuming, resource intensive, and
would be cumbersome and "out of sync" in the context of watershed programs because they
run contrary to more comprehensive approaches. Allowing flexibility through abbreviated
reports and extended deadlines would free up resources for watershed programs.
In exchange for the fedeml government removing barriers, providing greater flexibility, and providing
funding and technical assistance, states will accept ecological restoration as a goal, adhere to watershed-
specific timeframes for action, and become the accountable level of government. States will deal with
TMDLs, develop monitoring programs, develop an integrated system for point and nonpoint source
pollution control, and adopt EPA-approved basic criteria for watershed programs and evaluation
of results. Broadly defined state standards should be the guide for assessing progress including
performance measures or measurable standards related to the status of soils, water, and habitat.
Since each watershed solution may be unique, the development of contracts between states and the
federal government may be an appropriate enabling tool for allowing individualized watershed
approaches while ensuring accountability.
Principles
The federal government should:
* Work with the current institutional, management, technological and scientific framework.
* Encourage coordination and integration of existing programs at all levels of government.
* Work through states toward local solutions.
* Allow for any array of stakeholders to participate.
* Mandate goals, but allow states to develop the processes necessary to meet those goals.
* Facilitate targeting and priority setting through comparative risk assessment which includes
not only health risks but ecological risks, and not only physical but social endpoints.
* Provide guidance to states to assist them with classifying their watersheds and determining
overall goals.
* Work with states and localities to create watershed-relevant water quality standards.
* Insist upon complianoe by all federal agencies with the CWA and the watershed plans
developed under it
The federal government should not:
* Mandate a new watershed approach or program.
* Hinder or inhibit current state-based initiatives and programs.
784
Overemphasize planning at" the expense of action and implemenution.
Unduly defer or delay improvements in water quality control of point sources.
Violate the principle of sute primacy over water resources. EPA should not be put in the
business of allocating and reallocating water resources.
Classify watersheds at the federal level
Develop a one-size-fits-all approach.
julia\wenfeila)4
785
TESTIMONY OF MARLEN DOOLEY, ASSISTANT COMMISSIONER FOR EN-
FORCEMENT, NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTEC-
TION AND ENERGY
Good afternoon. My name is Marlen Dooley. I am Assistant Commissioner for En-
forcement for the New Jersey Department of Environmental Protection and Energy
(DEPE). I thank you for this opportunity to participate in this hearing and present a
state's perspective on enforcement of the Clean Water Act.
In 1990, the New Jersey State Legislature unanimously approved and Grovemor
Florio signed into law the New Jersey "Clean Hater Enforcement Act" (CWEA). The
CWEA has strengthened enforcement of the State's water pollution control and pre-
vention program by substantially amending the Water Pollution Control Act to re-
quire that permits be taken seriously and to ensure that enforcement actions are
adequate to effectively deter potential violators.
The enactment of CWEA was prompted by a rising frustration within the Legisla-
ture over lagging progress in improving surface water quality throughout the State.
Additionally, there was concern regarding the DFPE's response to the nature and
extent of violations of New Jersey Pollutant Discharge Elimination System
(NJPDES) permits. In particular, the DEPE's practice of compromising the amount
of penalty assessments was being questioned. Frequently, the department would
assess penalties for the maximum amount allowed by law, and then significantly
compromise or reduce the actual penalty in exchange for written, legally binding
commitments by the permittee to bring the facility into compliance within a specific
Period of time. These compromises, as they were intended, usually resulted in a sub-
stantial investment of capital by the permittee towards improvements in its treat-
ment processes. The practice of significantly compromising penalty assessments,
however, contributed to the perception that penalty assessments, like effluent limi-
tations, were so flexible that the regulated community weis not taking them serious-
ly-
Moreover, in addition to the rising concern over non-compliance and inadequate
enforcement, the enactment of the CWEA was prompted by a recognition that mu-
nicipal wastewater treatment plants or publicly owned treatment works (POTWs)
lacked the necessary tools to effectively implement and enforce industrial pretreat-
ment programs and that a greater local role was necessary to appreciably improve
water quality.
The CWEA was designed to enhance the department's enforcement scheme in a
number of ways. The Act attempts to identify the most egregious violators by estab-
lishing two special classes of offenders: those responsible for serious violations and
those committing a series of violations to be known as "significant noncompliers".
To ensure that appropriate enforcement action is taken for serious offenses, the
Act requires the assessment of mandatory minimum penalties of $1,000 for each se-
rious violation. These penalties may not be waived or compromised. Permittees de-
termined to be "significant noncompliers" are subject to minimum penalties in the
amount of $5,000. The Act also limits the department's discretion to compromise
penalties beyond 50% of the assessed amount. In addition, the Act requires the im-
position of minimum penalties of $100 per day per pollutant for each item omitted
on a Discharge Monitoring Report (DMR). Further, as a means of bolstering compli-
ance monitoring, the Act requires that all major facilities be inspected by the de-
partment at least annually, including the sampling and analysis of each discharge.
The Act empowers POTWs with more extensive monitoring and enforcement
tools. It also requires the POTWs to conduct annual on-site inspections and sam-
pling for each major industrial discharger into its treatment works.
Based upon New Jersey's experience implementing the CWEA during the past
two years, the Act appears to have helped achieve greater compliance. Inspections
conducted in 1992 resulted in 505 facilities being rated as "unacceptable", reflecting
a sharp decrease from 1991 in which 792 facilities were rated as "unacceptable."
These demonstrated improvements in compliance may be attributed to the imple-
mentation of a fair, but firm enforcement philosophy adopted by the department in
response to the Act.
'The main objective of the Clean Water Enforcement Act is to improve water qual-
ity through greater compliance. While the assessment of penalties is effective as a
deterrent tool, it is only a means to achieve the goal of compliance. Accordingly, the
DEPE measures success based not upon the amount of fines assessed, but upon the
diligence of our efforts to achieve compliemce.
In accordance with this philosophy, the department initiated an extensive out-
reach program with the regulated community in advance of the CWEA's implemen-
tation date urging that Steps be taken to ensure compliance. Rather than wait for
786
the deadline and begin penalizing would-be violators, the department worked with
the regulated community to resolve actual and potential compliance problems. As a
result of this outreach effort, the department executed 84 Administrative Compli-
ance Orders (AGO's) with permittees during the six months prior to the CWEA's
effective date. It should also be noted that, in anticipation of the implementation of
the enhanced enforcement scheme, the regulated community in New Jersey made
changes on its own initiative to better meet the CWEA's requirements.
Further, the department adopted a uniform penalty policy, in accordance with the
Act, establishing the exclusive criteria applied to determine the amount of a civil
administrative penalty assessment. The adoption of this policy ensures consistency
in our penalty assessments among simUar violations accompanied by similar cir-
The department also established internal protocols to ensure that the specific
facts of each violation are individually examined to ensure the proper application of
the penalty criteria. This intensive fact-specific review of each violation results in
civil administrative penalty assessments that are fair and legally sustainable. As a
result of this new enforcement approach, the amount of civil administrative penalty
assessments has markedly decreased from $56.9 million in 1990 to $23.7 million in
1991 to $17.5 million in 1992.
The corollary to this new enforcement approach is that the department no Longer
offers significant reductions of the assessed penalty count during settlement negotia-
tions. This approach follows the proscription of the CWEA which prohibits the de-
partment from compromising or reducing a penalty by more than 50 percent of the
assessed amount (except for POTWs). Consequently, the regulated community is on
notice that the penalty assessments are fair and rational, and the department is
prepared to vigorously litigate a penalty assessment.
This no-nonsense enforcement approach appears to have sent a clear message to
the regulated community that penalty assessments are fair, not arbitrary, reflecting
£dl relevant factual and legal considerations known to the department, and are
therefore, litigation worthy. The greater certainty now associated with penalty as-
sessments appears to have better facilitated settlement negotiations as well as suc-
cessful litigation when penalties are contested. The department's collection of penal-
ties increased from $5.9 million in 1990 to $10.8 million in 1992.
The department firmly believes that compliance is enhanced by establishing pre-
cisely defined requirements and clearly articulating the way in which compliance is
measured by the department. Accordingly, throughout 1991 and 1992 the depart-
ment continued its outreach to the regulated community by working with permit-
tees to develop better guidance explaining the specific steps necessary to comply
with the sampling and reporting requirements of the Act.
In conclusion, our enforcement philosophy is fair but firm with compliance as the
primary goal. The DEPE strongly supports any federal actions to reauthorize the
Clean Water Act that incorporates the same philosophy and goal into the Act.
I am available to discuss specifics of the state's experiences with CWEA and en-
forcement of the Clean water Act at the federal level. Thank you.
TESTIMONY OF EDWARD LLOYD, GENERAL COUNSEL, NEW JERSEY
PUBLIC INTEREST RESEARCH GROUP
I.) INTRODUCTION
My name is Edward Lloyd. I am General Counsel to the New Jersey Public Inter-
est Research Group (NJPIRG) and Director of the Rutgers Environmental Law
Clinic. I am testifying today on behalf of NJPIRG and the US. Public Interest Re-
search Group. NJPIRG is the state's largest non-profit, non-partisan environmental
and consumer research and advocacy organization with over 70,000 members.
U.S.PIRG is the national lobbying office for state PIRGs in over 30 states with over
1 million members nationwide.
For over two decades. State PIRGs have fought to clean our waterways. PIRGs
have played a key role in helping to pass pollution prevention and toxics use reduc-
tion laws in Massachusetts, New Jersey, Vermont and Oregon. NJPIRG has filed
over 60 Clean Water citizen suits and helped to pass the country's strongest Clean
Water enforcement law in New Jersey.
We urge Congress to bring some of these lessons learned at the state level up to
the national level and incorporate them into the federal Clean Water Act. We sup-
port legislation introduced by Representative Frank Pallone, the Clean Water En-
forcement and Compliance Improvements Act of 1993 (H.R.2727), and are working
with Senator Frank Lautenberg to introduce similar legislation in the Senate.
787
II.) STRENGTHENING ENFORCEMENT OF THE CLEAN WATER ACT
A.) THE PROBLEM: CLEAN WATER ENFORCEMENT IS "WEAK AND
SPORADIC"
Strong enforcement of the Clean Water Act is fundamental to the success of the
program. Unfortunately, studies conducted by the Greneral Accounting Office, the
Inspector General's office, states and environmental groups demonstrate that dis-
charge violations are routinely ignored even for serious and chronic violators. In ad-
dition, economic benefits are often not taken into consideration when penalties for
violations are determined.
This lax enforcement of the Clean Water Act greatly reduces incentives to comply
with the law. Richard Hembra, Director of Environmental Protection Issues at the
U.S. C3reneral Accounting Office (GAO), testified before the House Subcommittee on
Water Resources of the Public Works Committee during the 102nd Congress. In de-
scribing GAO's findings regarding enforcement of the Clean Water Act, Mr. Hembra
said the following:
"Our work . . . clearly indicates that enforcement of our Nation's water quality
laws continues to be weak and sporadic. Despite serious and longstanding viola-
tions, most enforcement actions are informal slaps on the wrist rather than
formal actions, such as administrative fines and penalties. Further, even in the
relatively few cases where penalties have been assessed, they are often signifi-
cantly reduced or dropped without adequate documentation." (May 14, 1991)
Mr. Hembra concluded by stating:
"the abUity of our Nation's environmental laws to protect health and the envi-
ronment depends greatly on effective enforcement programs. Without enforce-
ment, dischargers have little incentive to incur the cost of pollution control. At
the same time industrial discharges that do abide by program requirements are
unfairly placed at a competitive disadvantgige with those who choose not to
invest in pollution control equipment and practices."
John Martin, Inspector General (IG) of the U.S. Environmental Protection Agency
testified before the Senate Environmental Protection Subcommittee of the Environ-
ment and Public Works Committee 102nd Congress (July 18, 1991) on enforcement
under the Clean Water Act. The Inspector General's office conducted a series of
audits to examine the effectiveness of the NPDES permit enforcement program and
"concluded that enforcement actions taken by the EPA and the States were fre-
quently ineffective in returning major municipal and industrial violators to compli-
ance." Some of the examples of serious and chronic violators from the IG's audit are
startling:
"... a wood preserving operation in Virginia had a history of environmental
problems that caused surface and groundwater contamination. Although five
enforcement orders were issued for violations of its NPDES permits, not one
penalty was assessed in 13 years of operation. Eventually, this facility was
listed as a Superfund site, but it was not until two years later that its discharge
permit was finally revoked."
... a municipality paid only $7,800 for numerous NPDES permit violations
over several years. This included $3,200 for two instances in which more than
1600 fish are killed because of the violations. For exceeding a discharge limita-
tion, this municipality was fined $1,000; we estimated the penalty could have
been $390,000."
This is not to say that the maximum penalty is always in order, but that the pen-
alty must reflect the severity of the violation and create and incentive to comply
with the law. The IG's audits found that in 46 of the 69 NPDES cases evaluated, the
penalty assessments were not sufficient to recover the economic benefit gained by
noncompliance. The Inspector General concluded that "[w]hen penalties are reduced
to below what it would cost to comply with the environmental laws, they encourage
rather than deter noncompliance. Small fines and lengthy time limits to achieve
compliance promote a pay-to-poUute mentality."
The Clean Water Act enforcement program should be strengthened to create
greater incentives to comply with the law by setting mandatory minimum penalties
for serious and chronic violators, prohibiting profits from polluting, strengthening
the reporting and inspection requirements, and strengthening the citizen suit provi-
sions in the law.
788
B.) TOUGHER ENFORCEMENT IS WORKING IN NEW JERSEY
In May 1990 Governor Jim Florio signed into law the New Jersey Clean Water
Enforcement Act. We believe that this law provides a model for improved enforce-
ment of the federal Clean Water Act and are working with Senator Frank Lauten-
berg and Representative Frank Pallone (both D-NJ) to introduce legislation mod-
eled on the New Jersey law.
The New Jersey Clean Water Enforcement Act requires —
• The New Jersey Department of Environmental Protection and Energy
(NJDEPE) to increase inspections at permitted facilities and assess mgrndatory
minimum penalties for certain violations; and
• Permittees to submit monthly discharge monitoring reports.
Just last month, the NJDEPE released their "Second Annual Report of the Clean
Water Enforcement Act." The Executive Summary of this report is attached at Ap-
pendix I of this testimony. The NJDEPE report found the following:
Inspections of facilities show that more facilities are attaining compliance. The
number of facilities which inspections found "unacceptable" decreased from 792
in 1991 to 505 in 1992.
The average penalty assessed in each formal enforcement action has decreased.
Because the Act requires the NJDEPE to conduct more frequent inspections of
facilities operated by "significant noncompliers," the agency finds violations
more quickly and takes timely action. This results in reduced average penalties.
Compliance with the self-reporting requirements is improving. The number of
violations for failure to submit discharge monitoring reports (DMR) decreased
from 59 in the last six months of 1991 to 38 for all of 1992.
C.) THE SOLUTIONS
Enforcement of the Clean Water Act should be strengthened to improve govern-
ment accountability and remove current obstacles to citizen suits.
1 ) IMPROVE GOVERNMENT ACCOUNTABILITY
a) SET MANDATORY MINIMUM PENALTIES
Noncompliance must be addressed quickly rather than waiting for patterns of
chronic violation to develop. Uniform minimum responses to violations by regula-
tors will decrease average penalties assessed and bring violators into compliance
more rapidly. Uniform minimum penalties which do not favor some discharge meth-
ods over others also reduces incentives to shift discharges from surface or ground
water or sewage treatment facilities, for example.
To address the issue of chronic significant violations of the Clean Water Act we
recommend that state programs be required to establish mandatory minimum pen-
alties for "serious violations" of and for "significant noncompliance" with the Act
based on the current U.S. EPA definition.
Congress should amend the Clean Water Act to require that a mandatory mini-
mum penalty of $1,000 per violation be assessed for "serious violations" which in-
cludes—
(1) discharge violations of a hazardous substance that is 20% or more over the
permitted limit or
(2) discharge violations of a pollutant (other than a hazardous substance) that is
at least 40% over the permitted limit.
In addition, the Clean Water Act should be amended to require that any facility
determined to be in "significant noncompliance" be assessed a mandatory minimum
penalty of $5,000 per day per violation. We recommend that the definition of "signif-
icant noncompliance" be based on EPA's current criteria ^ and would apply if any
of the following occur:
1) Two serious violations of any pollutant during any 6-month period;
2) Four exceedances of a monthly average limit for any pollutant, by any amount,
in any 6-month period; or
3) Two instances of failure to submit Discharge Monitoring Reporting within any
6-month period.
1 The criteria used by EPA to define "significant noncompliance" are: 1) two exceedances of a
monthly average limit in any 6-month period that meet the following criteria: 40% over limit
for conventional pollutants and nontoxic meteds, 20% over limit for toxic pollutants; or 2) four
exceedances of a monthly average limit in any amount in any 6-month period.
789
b.) PROHIBIT PROFITS FROM POLLUTING
The existing Clean Water Act allows "economic benefits" to be taken into consid-
eration in assessing penalties. Unfortunately, this authority is greatly underutilized.
In June 1991, the GAO released findings fi"om their review of the use of economic
benefits in penalty assessments which found that "in nearly two out of three penal-
ty cases concluded in fiscal year 1990 in EPAs air, water, hazardous waste, and toxic
substances programs, there was no evidence that economic benefits had been calcu-
lated or assessed." ^
To recoup economic benefits and create disincentives to violate the law, we recom-
mend that the Clean Water Act be amended as follows:
i) Amend section 309 by adding the following at the end the section:
"(h) GENERAL RULE. — Notwithstanding any other provision of this sec-
tion, any civil penalty assessed and collected under this section must be in
an amount which is not less than the amount of the economic benefit (if
any) resulting from the violation for which the penalty is assessed"
u) Amend section 309 to require the Administrator to issue regulations estab-
lishing a methodology for calculating the economic benefits or savings resulting
from violations of the Act. Pending issuance of these regulations, economic ben-
efits shall be calculated on a case-by-case basis,
iii) Amend section 309 as foUows to limit compromises of civil penalties:
"Notwithstanding any other provision of this section, the amount of a civil
penalty assessed under this section may not be compromised below the
amount determined by adding the minimum amount required for recovery
of economic benefit under subsection (h), to 50 percent of the difference be-
tween the amount of the civil penalty assessed and such minimum
amount."
c.) IMPROVE DISCHARGE REPORTING AND INSPECTIONS
Access to accurate and consistent reporting is fundamental to the success of the
Clean Water Act's permitting and enforcement programs. Without accurate moni-
toring and reporting of discharges, protection of waterways is impossible.
Currently, there are great discrepancies between the National Pollutant Dis-
charge Elimination System (NPDES) for direct dischargers to surface waters and
the National Pretreatment Program requirements for industrial users of publicly
owned sewage treatment plants (POTWs). Monitoring and reporting requirements
are often less stringent for indirect discharges to POTWs This creates incentives to
discharge to POTWs to avoid reporting and monitoring. In addition, public access to
both types of reporting is poor.
NPDES permit holders file their monitoring reports with the states. Filing of
these reports occurs months after they are submitted, and are filed in district offices
rather than in one central location. Indirect dischargers to POTWs generally file
monitoring reports with the relevant municipality, and the data is not compiled in a
national computerized database.
The lack of adequate information on discharges remains a problem for regulators
and citizens. All dischargers to surface waters, ground waters, and publicly owned
treatment works should be required to increase frequency of data reporting. This
would serve to increase timeliness of the data and prevent violators from masking
the severity of their violations through averaging of data points over long periods of
time.
To improve access to discharge reporting, Congress should amend the Clean
Water Act to require —
(1) all "major" facilities discharging to ground waters, surface waters or treat-
ment works facilities to submit discharge monitoring reports (DMRs) on a
monthly basis; Any other permit holder, should submit DMRs on at least a
quarterly basis;
(2) DMRs be signed by the highest ranking official at the plant with day to day
operational responsibilities;
(3) all Significant Industrial Users (SIUs) of POTWs should be required to file
DMRs monthly with the treatment works, states and with EPA regional offices.
In addition, states should be required to input this data into the EPA Permit
Compliance System; and
^ Environmental Enforcement: Penalties May Not Recover Economic Benefits Gained by Vio-
lators, GAO/RCED-91-166, June 1991.
790
(4) EPA to make compliance data on EPA's computerized Permit Compliance
System available to the public by computer telecommunication, similar to the
existing citizen access to Toxics Release Inventory data under the Emergency
Planning and Community Right to Know Act.
Inspections of permitted facilities tend to be superficial "walk throughs" that do
not require independent sampling to verify the accuracy of discharge data submit-
ted by the permittee. In some instances, facilities receiving permits for the first time
are not even inspected before the permit becomes effective. The reliance of the
Clean Water Act on self-reported information makes verification and important
component of successful implementation.
Congress should amend the Clean Water Act to require that —
(1) Major industrial or municipal facilities be inspected once a year and that the
inspection should, at a minimum, include a review of housekeeping measures,
sampling techniques, maintenance records and independent sampling of the
permittee's effluent;
(2) If a facility is in "significant noncompliance" with the Act or is renewing a
permit, an inspection should be conducted within 6 months of the facility be-
coming' in significant noncompliance with the Act or renewing a permit; and
(3) If a facility is being permitted for the first time, an inspection should be con-
ducted prior to the effective date of the permit.
New Jersey has implemented an improved inspection program and has credited it
with helping to bring compliance up and average penalties down because the most
serious violations are caught earlier.
d.) LIMIT ISSUANCE OF PERMITS TO "BAD ACTORS"
"Significant noncompliers," as defined in the discussion on mandatory minimum
penalties, should be considered "bad actors" under the Clean Water Act and as
such. Congress should prohibit issuance of new permits to any person who has been
identified as a "significant noncomplier" until the Administrator or the States in
which the violations occur determine that the conditions giving rise to such viola-
tions have been corrected.
2.) REMOVE CURRENT OBSTACLES TO CITIZEN SUITS
Citizen suits are a tried and true method of bringing polluters into compliance
with the Clean Water Act. The 1972 Clean Water Act included authority for citizens
to sue polluters, thereby, recognizing that the U.S. EPA and states might be unable
or unwilling to aggressively pursue all violators.
In 1985, Congress again recognized the importance of citizen suits.
"Citizen suits are a proven enforcement tool. They operate as Congress intend-
ed-to both spur and supplement to government enforcement actions. They have
deterred violators and achieved significant compliance gains." [Senate Report
No. 50, 99th Cong., 1st Sess. 28 (1985)]
The U.S. Department of Justice's Statistical Report for Fiscal Year 1992 acknowl-
edges the "dedication, hard work and effort put forth by the private citizen groups
and others who sue non-government polluters for violating the nation's environmen-
tal laws." The report goes on to say —
These groups perform a valuable public service by joining the Federal Govern-
ment in seeking compliance with a host of environmental statutes particularly
the Clean water Act. Over the past 4 fiscal years, they have collectively recov-
ered for the United States Treasury over $9 million in penalties and interest.
Over 60 percent of the penalties were recovered from NJPIRG initiated suits. The
penalties recovered are listed Table I.
While the existing citizen suit provisions have allowed significant enforcement ac-
tivity, they contain a number of obstacles to citizen enforcement that should be re-
moved.
a.) CITIZENS SHOULD BE ABLE TO SUE FOR PAST VIOLATIONS
A 1987 Supreme Court case, Chesapeake Bay Foundation v. Gwaltney of Smith-
field. Ltd., 484 U.S. 49 (1987), seriously v/eakened the deterrent effect of civil ac-
tions. , . .
Section 505(aXl) of the Clean Water Act provides that any citizen may commence
a civil action against any person "alleged to be in violation of the Act. The Supreme
Court, in Gwaltney, interpreted those words to mean that citizens cannot sue for
"wholly past" violations, i.e., a case in which all violations occur before the com-
791
plaint is filed and citizens can not allege in good faith that violations may be con-
tinuing.
The result of Gwaltney is that companies have an incentive to delay compliance
until citizens notify them of intent to sue. The company then has 60 days to get
itself into compliance and avoid all penalties and keep any economic benefit from
the violation. This greatly undermines the deterrent effect of citizen suits.
The Congress amended the Clean Air Act in 1990 to allow citizens to commence
action against any person "who is alleged to have violated (if there is evidence that
the alleged violation has been repeated) or to be in violation" of the Act. ^
Members of the Senate and Environment and Public Works Committee strongly
supported this amendment to the Clean Air Act as the following comments demon-
strate:
"The outcome [in Gwaltney] is inappropriate because it provides no penalty to
sources that have violated the act in the past." [Senate Majority Leader Mitch-
ell, 136 Cong. Rec. S3239]
"There is no justification for allowing polluters to enjoy the unjust enrichment
gained by failing to comply in the past even if they comply in the
present."[Senator Baucus, id. at S3237]
Citizens should have authority to sue for wholly past violations. "[Senator Lie-
berman, id. at S3174]
Under Gwaltney, "[t]here is no penalty for being caught . . . The Gwaltney
problem can be fixed. It is not a defect in every environmental statute." (Sena-
tor Durenberger, id. at S3 183]
We urge Congress to make similar amendments to the Clean Water Act. The
Clean Water Enforcement Act would amend the Clean Water Act to allow citizens
to sue for past violations and remedy the effects of Gwaltney. [See section III below
for comments on the Gwaltney fix contained in S. 1114]
b.) DEFINITION OF CITIZEN STANDING SHOULD BE CLARIFIED
The definition of "citizen standing" determines who has the authority to sue vio-
lators. Congress intended to confer to citizens standing to the limits of the Constitu-
tion. Section 505(g) of the Clean Water Act provides that the "term 'citizen' means a
person or persons having an interest which is or may be adversely affected."
The court in PIRG v. Powell Duffryn Terminals [913 F.2nd 64 (3rd Cir. 1990), Cert,
denied, lllS.Ct 1018(1991)] held that plaintiffs must show that defendants dis-
charged a pollutant which "causes or contributes to the kinds of injuries alleged by
the plaintiffs." [931 F2nd at 72-73] This standard not only places an improper
burden on plaintiffs to demonstrate harm to water quality but is also contrary to
both congressional intent and Supreme Court decisions.
The Congress decided in 1972 that government regulators "need not search for a
precise link between pollution and water quality." [S.Rep.No. 414, 92nd Cong., 1st
Sess. 7 (1971)] Congress determined that all pollution is harmful, no one has a right
to pollute and pollution is temporarily permissible only because of technological lim-
itations. Citizens should not have to meet a test for standing that is more stringent
than the test for holding polluters liable for permit violations.
The Supreme Court held in Valley Forge Christian College v. Americans United
for Separation of Church and State [454 U.S.464, 472(1982)] that, under Article III of
the Constitution, a plaintiff must show (1) injury in fact (2) which is fairly traceable
to defendant's illegal conduct and (3) which is likely to be redressed by a favorable
decision. Courts have found that the "injury in fact" requirement has been met by
evidence that persons use the water downstream from the defendant's discharge, or
would use the water if it were not polluted. In addition, courts have held that the
"fairly traceable" requirement does not mean that plaintiffs must show to a scientif-
ic certainty that defendant's pollution caused plaintiffs injuries.
"To clarify Congressional intent. Congress should add the following "finding" to
the statute:
Congress finds that a discharge which results in a violation of this Act or a reg-
ulation, standard, limitation, requirement, or order issued pursuant to this Act
interferes with the restoration and maintenance of the chemical, physical, and
biological integrity of the water system into which the discharge flows (either
directly or through a publicly owned treatment works), including any waters
into which the receiving waters flow, and, therefore, harms those who use or
enjoy such waters and those who use or enjoy nearby lands or aquatic resources
associated with those waters.
^ 1990 Clean Air Act Amendments, section 304(a).
69-677 0-94-26
792
In addition, Congress should amend the definition of "citizen" in Section 505(g) of
the Clean Water Act by adding the following language:
a person or persons having an interest (including a recreational, aesthetic, envi-
ronmental, health, or economic interest) which is or may be adversely affected
and includes a person who uses or enjoys the waters into which the discharge
flows (either directly or through a publicly owned treatment works), who uses
or enjoys aquatic resources or nearby lands associated with the waters, or who
would use or enjoy the waters, aquatic resources, or nearby lands if they were
less polluted."
c. COURTS SHOULD HAVE GREATER FLEXIBILITY IN DETERMINING THE
DISPOSITION OF PENALTIES AND SETTLEMENT FUNDS
The Department of Justice has objected to numerous settlements on the ground
that payments have been made to environmental projects rather than the U.S.
Treasury. Congress intended there to be greater flexibility in determining the dispo-
sition of penalties and settlement funds. The conference report on the 1987 amend-
ments to the Act states that these mitigation projects "preserve the pimitive nature
of enforcement actions while putting the funds collected to use on behalf of environ-
mental protection." [H. Rep. No. 1004, 99th Cong., 2nd Sess.139 (1986)]
The Clean Water Act should be amended to clarify the intent of Congress. The
following language should be added to Section 309(d) and 505(a): "The court may, in
the court's discretion, order that a civil penalty be used for carrying out mitigation
projects which are consistent with this Act and which enhance the public health or
the environment."
3.) INCREASE CITIZEN'S RIGHT-TO-KNOW THROUGH WATER POSTINGS
Citizens have a right to know when significant threats to their health or environ-
ment are present in their communities. The public should have access to informa-
tion regarding the discharge of toxins and other pollutants into the waterways in
which they swim and fish. One-third of the nation's remaining productive shellfish
waters are closed on £my given day because of pollution. * In addition, in 1991, U.S.
ocean and bay beaches were closed or advisories issued against swimming on more
than 2,000 occasions in the coastal states that monitor beach water quality. High
levels of bacteria — primarily from raw human sewage — are responsible for the over-
whelming majority of these closures and advisories. ^
Despite these facts, there are no federal requirements that the public be notified
when water quality standards are violated. Nor are there uniform requirements for
determining the nature eind extent of fish and shellfish bans, advisories and con-
sumption restrictions. (Congress should amend the Clean Water Act to —
(1) Require public postings at waterways that do not meet applicable water
quality standards or are subject to a fishing or shellfish ban, advisory or con-
sumption restriction;
(2) Require NDPES permit holders to maintain clearly visible signs indicating
that the facility discharges into waterways and other information helpful for
gaining greater information regarding those discharges, including the permit
number and location of the permit;
(3) Require POTWs to include, in customers' quarterly bills, information regard-
ing their permit including a list of their violations over the preceding 12-month
period; and
(4) Require the EPA to develop uniform standards for posting bodies of water
£ind requirements for determining fishing and shellfish advisories.
m.) COMMENTS ON ENFORCEMENT RELATED SECTIONS OF THE WATER
POLLUTION PREVENTION AND CONTROL ACT OF 1993 (S. 1114)
This testimony comments on provisions contained in S. 1114 related to enforce-
ment, including provisions contained in Title V (Permit Program and Enforcement),
section 2 (FintSngs and Purpose), and Sections 201, 204 and 503 (provisions related
to pretreatment).
* Stemming the Tide: Conservation of Coastal Fish Habitat in the United States, summary of a
National Symposium on Coastal Fish Habitat Conservation, Baltimore Maryland (March 7-9,
1991).
* Testing the Waters: A National Perspective on Beach Closings, NRDC, Kailen Mooney and
Ashley McLain, July 1992.
793
It also addresses a number of issues that we believe are critical to improving en-
forcement under the Clean Water Act but that are missing from S. 1114. 'Diese
issues are discussed in detail above.
A.) TITLE V of S. 1114— ENFORCEMENT
1. PAST VIOLATIONS— We support a modified version of section 503(a) of S.
1114.
Section 503(a) would effectively overrule Gwaltney of Smithfield Ltd. v. Chesa-
peake Bay Foundation, 484 U.S. 49 (1987), by allowing citizens to sue for wholly past
violations "if there is evidence that the alleged violation has been repeated." the bill
correctly recognizes that the Gwaltney decision is bad enforcement policy because it
allows polluters to escape accountability for their actions and undermines the deter-
rent effect of civil penalties. The requirement for repeated violations contained in S.
1114 parallels the change in the 1990 Clean Air Act amendments.
The requirement that violations be repeated correctly recognizes that a single, iso-
lated, past violation is not likely to warrant enforcement action. However, such
suits will rarely, if ever be brought. When isolated violations are involved, the per-
mittee may invoke EPAs "upset' defense as a defense to liability. 40 CFR 122.41(n).
Even if liability is established, the courts are not likely to impose significant pensd-
ties since, under section 309(d) of the Act, they must consider the history and seri-
ousness of the violations in setting a penalty.
On the other hand, the "repeated violations" requirement contained in S. 1114 is
likely to be raised as a defense by defendants in many cases with multiple violations
simply because it blurs the bright line of liability and provides an opportunity for
dela5dng tactics, for example, defendants are likely to argue that repeated violations
must be established on a pollutant by pollutant basis and that a violation is only
enforceable when no corrective action is taken to prevent the specific cause of that
particular violation. It would therefore increase the cost and complexity of citizen
enforcement in the same way that the Gwaltney decision has led to costly and com-
plex litigation over whether violations are continuing. For these reasons, we recom-
mend that the requirement that the violations be repeated be deleted from S. 1114,
as in section 10(a) of the Pallone "Clean Water Enforcement Act" (H.R. 2727).
2. USE OF PENALTIES FOR BENEFICIAL PROJECTS— We support section
503(bXl)ofS. 1114.
Section 503(b)(1) of S. 1114 would clarify existing law by specifically authorizing
courts to order that civil penalties be used for beneficial projects that enhance
public health or the environment. This change reaffirms the statement in the con-
ference report on the 1987 amendments to the Act that such projects "preserve the
punitive nature of enforcement actions while putting the funds collected to use on
behalf of environmental protection." H. Rep. No. 1004, 99th C!ong., 2d Sess, 139
(1986).
3. RESTORATION OF DAMAGED NATURAL RESOURCES— We support section
503(bX2) of S. 1114.
Section 503(b)(3) properly expands the scope of injunctive relief in government
and citizen suits to permit courts to order polluters to restore naturS resources
damaged £is a result of their violations of the Act.
4. OFFSETTING PENALITIES— We support a modified version of section
503(bX5) of S. 1114.
Section 503(bX5) of S. 1114 properly amends Section 309(d) of the Act to provide
that the court may offset p>enalties imposed in prior government actions involving
the same violation. This change is necessary to allow citizen suits to proceed when
EPA or states do not act within the 60-day notice period and file their suit after
citizens do but settle their suit first. Two circuit courts have held that, in these cir-
cumstances, citizens cannot continue their action for the same violation even
though they sued first. Work v. Tyson Foods, Inc., 921F.2d 1394, 1404 (8th Cir. 1990),
cert denied, 112 S.Ct. 414 (1991); ASLF v. Eastman Kodak Co., 933 F.2d 124,127 (2d
Cir. 1991). Contra NRDC v. Loewengart & Co., Inc. 776 F. Supp. 996,1000 (M.D. Pa.
1991); PIRG V. Elf Atochem North America, Inc., 817 F.Supp. 1164, 1171-1172 (D.NJ.
1993).
Section 503(bX5) of S. 1114 appears to be intended to clarify that citizens are not
precluded from seeking additional, nonduplicative relief in their action after a later-
filed government action is concluded. However, to make this principle effective, it
should be stated not only in the penalty provision (Section 309(d) of the existing Act)
but also in the jurisdictional section (Section 505(b) of the existing Act). S. 1114
794
should therefore be amended to add the language in Section 10 of the Pallone
"Clean Water Enforcement Act" (H.R. 2727).
5 FEDERAL FACILITIES ENFORCEMENT— We strongly support Section 503(c)
of S. 1114.
This section of S. 1114 grants the EPA, States and citizens the authority to sue
federal facilities to enforce the Clean Water Act. Congress made a similar amend-
ment to the Resource Conservation and Recovery Act during the 102nd Congress.
Similar legislation has been introduced in the House of Representatives by Reps.
Peter DeFazio and Dan Schaefer. One significant difference, is that the House bill
considers radionuclides pollutants that would be regulated. We urge the Senate to
include similar language.
6 STATE ADMINISTRATIVE ENFORCEMENT— We support Section 503(eX2) of
S. 1114.
Section 503(eX2) of S. 1114 would delete the existing subparagraphs of section
309(gX6) of the current Act under which certain state administrative penalty actions
can preclude EPA and citizen enforcement. This is an important and needed
change. As EPA has explained in its workgroup report under section 314(b) of the
1987 amendments to the Act, courts in recent years have construed the preclusion
provisions so broadly that almost any state administrative action, no matter how
inadequate, has preclusive effect. As a result. Section 309(gX6) and the Gwaltney de-
cision have become the two most troublesome obstacles to citizen enforcement. This
change conforms to that proposed in section 5(g) of the Pallone "Clean Water En-
forcement Act" (H.R. 2727).
By making this change, it is unnecessary to make the technical amendment set
forth in section 503(bX5)(B) of S. 1114. This technical amendment assumes that state
administrative penalty actions will continue to have preclusive effect, and would
merely ensure that state actions have no greater preclusive effect than EPA admin-
istrative penalty actions.
7 RECOVERY OF ECONOMIC BENEFIT— We support a significantly modified
version of Section 503(bX6) of S. 1114.
Section 503(bX6) of S. 1114 would authorize EPA to sue violators which have paid
state penalties that do not recover the violators' economic benefit. Section 503(bX7)
of S. 1114 would authorize EPA to withhold funds to states which do not have ade-
quate authority to impose administrative civil penalties Eigainst violators. While
these provisions improve existing law, they do not go far enough.
First, section 503(bX6) should authorize citizens, as well as EPA, to sue when state
penalties do not recover economic benefits. Second, section 503(bX7) assumes that
the problem with state administrative enforcement is lack of authority, while GAO
and EPA IG reports show that the real problem is lack of will to enforce the Act
effectively. To address the latter problem, S. 1114 should be amended to contain the
language in section 5 (h) and (i) of the Pallone "Clean Water Enforcement Act"
(H.R. 2727), which require states to assess and collect penalties which, at a mini-
mum, recover economic benefit. In addition, those bills require EPA to issue regula-
tions which establish a uniform methodology for calculating economic benefits.
8 SINGLE OPERATIONAL UPSET DEFENSE— We support Section 503(eX3) of
S.1114.
Section 503(eX3) properly deletes the single operational upset defense. This de-
fense was added in 1987 because Congress apparently wanted to limit penalties
when there are multiple simultaneous violations from a single "upset" event. How-
ever, the single operationsd upset provision contained in S. 1114 is ambiguous and
difficult to apply. The court is already required to consider the seriousness of the
violations in assessing penalties [33 U.S.C. 1319(d)]. S. 1114 therefore properly re-
peals the single operational upset provisions in Section 309(cX5), (d) and (g) of the
existing law. This conforms with section 5(b) of the Pallone "Clean Water Enforce-
ment Act" (H.R. 2727).
9. JUDICIAL REVIEW OF STATE-ISSUED PERMITS
Section 501(d) correctly provides that states must provide an opportunity for citi-
zens to obtain judicial review of state-issued permits. This amendment is necessary
to counteract a decision by the Virginia courts that only the permittee has standing
to seek judicial review of its permit. This change corresponds to that in section 6(b)
of the Pallone "Clean Water Enforcement Act" (H.R. 2727).
795
B. SECTION 2 OF S. 1114— FINDINGS
Paragraphs (a)(2) and (a)(9) of this section contain several findings that discharges
of pollutants are harming human health and the environment and that the author-
ity of the government and citizens to enforce the Act need to be strengthened. These
findings are helpful and appropriate.
However, the connection between the existence of environmental harm and the
right of citizens to bring enforcement actions should be stated more clearly. Courts
have suggested that citizens must show that illegal discharges cause me£isurable
harm to downstream waters. NRDC v. Watkins, 954 F.2d974, 980-981 (4th Cir. 1992).
However, Congress decided in 1972 that, in setting effluent limits, EPA "need not
search for a precise link between pollution and water quality." Senate Report No.
414, 92d Cong., 1st Sess. 8 (1971). Citizens should not have to meet a standard of
harm for standing which is more stringent than that for liability.
Congress has the power to define what type of harm confers standing to sue. As
Justice Kennedy stated in Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2146-2147
(1992), "Congress has the power to define injuries and articulate chains of causation
that wUl give rise to a case or controversy where none existed before, and I do not
read the Court's opinion to suggest a contrary view."
Congress should make a finding that any pollution which is discharged in viola-
tion of the Act harms users of the waters related to that violation. This will reduce
the potential for protracted disputes over the standing of citizens to hold polluters
liable for their violations. S. 1114 should be amended to add the findings in Section
2(b) and the definition of citizen standing in section 10(g) in the Pallone "Clean
Water Enforcement Act" (H.R. 2727).
C. PRETREATMENT provisions in S. 1114.
S. 1114 takes a number of positive steps forward in the area of enforcement of
pretreatment programs. However, these improvements alone do not go far enough
in correcting deficiencies in current pretreatment programs.
First, they do not require EPA and States to issue permits for all significant in-
dustrial users (SIUs). Second, they do not require indirect dischargers to monitor
and report their discharges more frequently to determine whether they are in com-
pliance. Without these changes, it will be dif^cult for citizens and WPA to monitor
and enforce compliance with pretreatment programs. We recommend that S. 1114
be amended to add language from sections 6 (d) and (e) of the Pallone "Clean water
Enforcement Act" (H.R. 2727).
Third, S. 1114 section 503(b)(3)(A) does not authorize citizens to enforce local limits
established by POTWs. The addition of the words "pretreatment requirement" alone
could be read to exclude local limits, because section 503(b)(3) contains an expansion
of EPA and State authority which distinguishes between requirements of pretreat-
ment programs and local limits. To address this problem, section S03(bX3)(A) should
be changed to either (1) define pretreatment requirement to include local limit or (2)
add the words "local limit" after "pretreatment requirement." Section 3 and 10 of
the Pallone "Clean Water Enforcement Act" (H.R. 2727) offer a similar method for
fixing this problem.
Fourth, S. 1114 does not take the additional necessary step of declaring that a vio-
lation of a pretreatment requirement, including local limits and monitoring and re-
porting requirements, is a violation of federal law. Section 3 of the Pallone "Clean
Water Enforcement Act" (H.R. 2727) would correct this problem by revising section
307(d) of the existing law to make it unlawful to violate pretreatment standards, re-
quirements, £md local limits.
On the positive side, section 201(c) of S. 1114 strengthens pretreatment programs
by requiring pretreatment standards for indirect dischargers be no less stringent
than the effluent standards for direct dischargers. This will discourage the current
practice where direct dischargers faced with enforcement actions have tied in to
POTWs to obtain less stringent control requirements. We support this provision.
Section 204(a) of S. 1114 authorizes EPA and the States to issue permits to indi-
rect dischargers which are not subject to a pretreatment program. It will thereby
increase the universe of dischargers subject to regulatory control and enforcement,
and we support this provision.
Section 503(bX3) of S. 1114 authorizes citizens to enforce "pretreatment require-
ments" as well as pretreatment standards. This will allow citizens to enforce moni-
toring and reporting requirements against indirect as well as (under current law)
direct dischargers. We support this provision.
796
D. PROVISIONS MISSING FROM S. 1114
1. MANDATORY MINIMUM PENALTIES
As discussed above, we believe that mandatory minimum penalties for "serious
violations" and for "significant noncompliance" will bring the most serious violators
into compliance more quickly, strengthen the deterrent effect of the law, and ensure
that states that take tough action against violators of the Act are not penalized by
creating a more level "pla3dng field."
These provisions are contained in the Pallone "Cleem Water Enforcement Act"
(H.R. 2727) and language from these bills should be added to S. 1114.
2. RIGHT TO KNOW ABOUT TOXICS IN WATERWAYS
As discussed above, we urge the Senate to include provisions in their Clean Water
Act amendments which will inform the public about toxics and other hazardous ma-
terials in waterways and establish a national program for testing and posting water-
ways.
We urge the Subcommittee to adopt the language contained in the Pallone Clean
Water Enforcement Act.
3. IMPROVED DISCHARGE REPORTING AND INSPECTIONS
As noted above, access to accurate and consistent reporting is fundamental to the
success of the Clean Water Act's permitting and enforcement programs. Both the
Pallone and Lautenberg bills contain expanded reporting and inspection programs
However, the Pallone bill provides greater direction to the EPA on how often the
inspections must occur and what must be included in the inspections. We urge the
Subcommittee to adopt the Pallone version of this provision.
4. PUBLIC ACCESS TO COMPLIANCE DATA
We support language contained in S. 1081 introduced by Senators Baucus and
Chafee during the 102d Congress.
The Baucus-Chafee bill introduced in the last session of Congress (section 13(g) of
1081, 102d Cong., 2d Sess.) provided that compliance data on EPA's computerized
Permit Compliance System wovild be made avEiilable to the public by computer tele-
communication, similar to the existing citizen access to the Toxics Release Invento-
ry data under the Emergency Planning and Community Right to Know Act. It
would have also required EPA Regional Offices to publish lists of significant viola-
tors in local newspapers on a quarterly basis. As Senator Chafee noted in his com-
ments on that bill, "this provision is based on the idea that citizens have a right to
know when significant threats to their health or environment are present in their
communities."
These provisions would significantly improve existing law concerning public
access to compliance information. However, they are absent from S. 1114. They
should be restored, as in the form set forth in section 4(b) of the Pallone "Clean
water Enforcement Act" (H.R. 2727).
CITIZEN ENFORCEMENT SUITS
The Division gratefully acknowledges the dedication, hard work and effort put forth
by the private citizen groups and others who sue non-government polluters for vio-
lating the nation's environmental laws. These groups perform a valuable public
service by joining the Federed Government in seeking compliance with a host of en-
vironmental statutes, particularly the Clean Water Act. Over the past 4 fiscal years,
they have collectively recovered for the United States Treasury over $9 million in
penalties and interest. These groups are recognized below with our thanks and ap-
preciation.
797
Table I— from the U.S. Department of Justice Statistical Report FY 1992.
Public Interest Research Group of New Jersey $5,915,161.97
Sierra Club Legal Defense Fund 1,184,214.00
Atlantic States Legal Foundation 1,039,133.25
Natural Resources Defense Council (NRDC) 645,500.00
Chesapeake Bay Foundation 299,822.00
Public Interest Research Group of Massachusetts 122,650.00
Public Interest Research Group of Ohio 100,000.00
State of Missouri 100,000.00
Westchester Fish, Game & Wildlife Association 60,000.00
Friends of the Earth 27,013.70
Hudson River Fishermen's Association 25,000.00
Public Interest Research Group of Illinois State 25,000.00
Save the Bay (Rhode Island) 22,450.00
Pennsylvania Environmental Defense Foundation 20,000.00
Ohio Environmental Council 15,000.00
Connecticut Fund for the Environment 10,000.00
Village of Kildeer 10,000.00
Braxton Citizens for a Better Environment 8,000.00
Arkansas Wildlife Federation 5,000.00
State Line Fishing & Hunting Club 5,000.00
Tennessee Environmental Council 5,000.00
National Environmental Foundation 2,000.00
American Littoral Society 1,000.00
City of New York 1,000.00
State of Rhode Island 1,000.00
TOTAL: $9,648,944.92
APPENDIX I
Second Annual Report of the Clean Water Enforcement Act
Pursuant to NJSA 58:10A-14.1
EXECUTIVE SUMMARY
New Jersey's Water Pollution Control Act ("WPCA") is intended to restore, en-
hance and maintain the integrity of New Jersey's waters. Under the WPCA, the De-
partment of Environmental Protection and Energy ("DEPE" or "the department")
administers the New Jersey Pollutant Discharge Elimination System ("NJPDES")
to regulate discharges of pollutants to these waters. The United States Environmen-
tal Protection Agency ("EPA") has approved the NJPDES program and thereby del-
egated to New Jersey the authority to implement the water pollution permit system
required under the Federal Clean Water Act
In 1990, Governor Florio signed substantial amendments to the WPCA, known as
the Clean Water Enforcement Act ("CWEA"). The CWEA strengthened enforcement
of New Jersey's water pollution control and prevention program by requiring the
department to assess mandatory minimum penalties for certain violations, increas-
ing the accountability of NJPDES permit holders and operators of publicly-owned
treatment works, and providing for greater citizen participation in water pollution
prevention and enforcement activities. The requirements of the CWEA which are
relevant to this report became operative on July 1, 1991.
This executive summary presents the highlights of the Department's implementa-
tion of the WPCA in 1992 and the plans for further improvements in 1993 and
beyond.
798
Enforcement
The department seeks to improve New Jersey's water quality by encouraging in-
creased compliance with the water pollution control laws. The department's enforce-
ment efforts have several facets designed to serve that goal, such as inspecting and
monitoring dischargers; working with dischargers to identity id resolve potential
and actual compliance problems; taking enforcement action when those efforts
reveal violations of the law; and frequently negotiating resolutions of enforcement
actions so that the permittees agree to upgrade their treatment works and processes
to prevent future violations. The following findings show that these efforts are bear-
ing fruit in the form of greater compliance.
Inspections of facilities show that more facilities are attaining compliance
The 1992 data concerning inspections show a trend toward compliance by more
facilities. The department performed 2,919 inspections of facilities in 1992, compared
with 1,406 in the last six months of 1991 (as noted above, the CWEA did not become
operative until July 1,1991). Following an inspection, a facility receives an "accepta-
ble" or "conditionally acceptable" rating if it has valid permits for all of the dis-
charges which require permits; it performs the monitoring required under the per-
mits; it submits completed discharge monitoring reports ("DMRs"); no serious viola-
tions have occurred; it is not considered a "significant noncomptier" as a result of
its record of recent violations; and a licensed operator operates the facility's treat-
ment works. The number of facilities which the inspections found "unacceptable"
decreased significantly in 1992. In 1991, 792 facilities earned "unacceptable" ratings,
compared with 505 facilities in 1992.
(Compliance with the self-reporting requirements which are the heart of the
NJPDES permit system is improving.
The NJPDES permit system is based upon each permittee's own timely and accu-
rate reporting of compliance with permits through the submission of discharge mon-
itoring reports ("DMRs"). Compliance with DMR requirements is therefore central
to compliance with the WPCA.
In 1992, permittees moved toward more substantial compliance with the DMR re-
quirements The number of violations for failure to submit DMRs decreased from 59
in the last six months of 1991 to 38 for all of 1992. The bulk of the DMR violations
in 1992 consisted of omissions in otherwise complete DMRs, rather than failures to
submit DMRs at all.
In addition, during 1992 a trend toward better compliance with all aspects of the
DMR requirements began to develop. The number of DMR-related violations
dropped from 301 in the first half of 1991 to 107 in the second half of the year.
The average penalty assessed in each formal enforcement action has decreeised.
The department undertook 339 penalty assessment actions in calendar year 1992,
compared with 233 in calendar year 1991. At the same time that the department
increased the number of penalty assessments; the total dollar amount of the penalty
assessments decreased from $23.7 million in 1991 to $17 million va. 1992. According-
ly, the average penalty assessed in each formal enforcement action decreased. The
decrease continues a trend reported in the 1991 CWEA Annual Report.
The continuing decrease in penalty assessments reflects the department's applica-
tion of the statutory criteria established in the detailed in revised penalty regula-
tions. The revised penalty regulations promulgated in August 1991 establish the
imiform penalty policy required under the CWEA. In implementing that uniform
penalty policy, the department employs penjalty assessment procedures which re-
quire fact-specific determinations of penalty amounts. Through these measures, the
department works to assess penalties which are rational, tailored to the facts of par-
ticular violations, and legally sustainable.
The department expects the application of this approach to penalty assessments
to affect penalty collections in two ways. The decrease in penalty assessments tends
to decrease total penalty collections. At the same time, however, the percentage of
penalty assessments which the department actually collects should increase; as pen-
alty assessments are viewed as more legally sustainable, the incentive to contest the
assessment decreases, and a larger percentage of those penalties which are contest-
ed will be upheld on appeal. The net effect of these two influences in 1992 was to
decrease penalty collections to $10.8 million, compared with $13.1 million in 1991.
799
The efforts of the Attorney General and the C!ounty Prosecutors continued to con-
tribute to effective enforcement.
The Attorney General and the County Prosecutors are responsible for criminal
enforcement of the WPCA 1992 saw the resolution of several criminal actions filed
under the WPCA Most prominent, Ciba-Geigy Corporation and two of its officials
entered into a plea agreement under which the company agreed to pay $3.5 million
in fines id the officials were each fined $25,000.
Permits
In addition to an effective enforcement policy an efficient and thorough permit
process is also essential to achieving the WPCA goal of improved water quality. The
following findings describe improvements in the NJPDES permit process that serve
this goal.
The department increased its total number of permit actions by nearly 140% over
1991.
In 1992 the department substantially increased the pace of its actions on NJPDES
permits. The total number of permit actions (issuing new permits; renewing, modify-
ing or terminating existing permits; and issuing discharge allocation certificates.for
new discharges or major expansions of municipal facilities) increased by nearly
140% over 1991, from 265 in 1991 to 630 in 1992. This increase included more than
twice as many new permits (162 in 1992 compared with 73 in 1991) and more than
four times as many permit modifications (317 in 1992 compared with 75 in 1991).
The department expects environmental benefits to result from the substantial in-
crease in the number of new, modified and renewed permits issued. When action on
a permit is completed, the permittee becomes subject to the most current standards
available. Incorporating the most current standards into the permit generally re-
sults in the permit becoming more protective of water quality. In contrast, when a
permit renewal or modification is delayed, the permittee may be operating in ac-
cordance with less stringent standards adopted several years earlier.
The department expects the increase in permit actions to bring economic benefits
as well. Using more permits provides the permittees with greater certainty concern-
ing regulatory requirements, and enables them to anticipate expenditures that they
will need to undertake to improve water quality.
The department is developing an extensive restructuring of the NJPDES permit
system.
The current NJPDES permit regulations have remained largely unchanged since
they became effective in 1981. The regulations have not kept pace with developn
ments in the Federal and State statutes, rules, policies and procedures affecting the
issuance of permits. To address this problem, the department made substantial
progress during 1992 in readjdng a substantial overhaul of the regulations govern-
ing the NJPDES permitting system
The primary goal of the restructuring is to enable the department to address
water quality issues comprehensively, with particular concentration upon issues
which affect water quality over an entire watershed or basin The primary means to
this end is a watershed approach to permitting (rather than the existing site-specific
approach) which will enable the department to focus attention upon specific pollut-
ants in each water body and better evaluate the impact of control measures. On
February 1, 1993, the department requested public comments regarding the policies,
technical issues and administrative reforms that this restructuring entails.
Another goal of the restructuring of the NJPDES rules is to improve the efficien-
cy of the permit application and permit issuance procedures. Some of the changes
upon which the department has requested public comment include the following:
1. Allowing permit applicants to submit their applications in the form of draft
permits to here viewed and revised by the department. This change eliminates
one step from the permit process in which the department prepares a draft
permit based upon a traditional permit application;
2. Expanding the scope of changes to existing permits which can be accomplished
through minor modifications;
3. Providing for automatic permit renewal when a new permit review would pro-
vide no environmental benefit;
4. Allowing concurrent review and processing of water quality management plan
amendments and NJPDES permit applications; and
5. Increasing the use of general permits and permits by rule, instead of individual
permits for each applicant.
800
The department eliminated duplicative NJPDES permits for 87 permittees.
Twenty-three delegated local agencies in New Jersey operate municipal treatment
works under pretreatment progreims approved by the department. Under these pre-
treatment programs, the delegated local agencies regulate discharges to their treat-
ment works.
In December 1992 the department adopted amendments to the NJPDES rules to
comply with the mandates of CWEA and the Federal pretreatment regulations. One
important goal of those amendments was to eliminate the duplication of permitting
and enforcement efforts between the department and the delegated local £igencies.
The CWEA granted the delegated local agencies enforcement powers equivalent to
those of the department; the department therefore determined that it was unneces-
sary to require industries with permits issued by delegated local agencies to obtain
permits from the department as well.
As a result of this rule change, 87 permittees had their NJPDES permits termi-
nated and no longer pay fees to the department for those permits. In addition, elimi-
nating the duplicative permits enabled the department to concentrate its permitting
and enforcement efforts more efficiently and more effectively in those areas in
which there was no duplication of effort.
Delegated Local Agencies
A significantly smaller proportion of the violations reported by delegated local agen-
cies were serious violations.
The delegated local agencies have reported information showing that they are
continuing to perform compliance monitoring and inspections of their permittees ac-
tively and in a highly visible manner. The delegated local agencies reported a total
number of violations in 1992 which was proportional to the number of violations
they reported in the last six months of 1991. However, a significantly smaller pro-
portion of the 1992 effluent violations qualified as "serious violations. ' The percent-
age of effluent violations which were serious violations decreased from 50.5% in
1991 to 41.4% in 1992.
Water Quality Assessment
The department will analyze the effects of permitted discharges upon water quedity.
In its first eighteen months implementing the department focused upon the per-
mitting, enforcement, criminal and fiscal aspects of the law. To evaluate how those
efforts have affected water quality, in 1993 the department is commencing a study
of water quality both upstream and downstream of selected discharge sites. The
study will enable the department to evaluate the effect of those selected discharges
upon water quality. The study will encompass both surface waters and ground
waters. The results of the study will assist the department in gauging the effective-
ness of its entire NJPDES program and in planning future initiatives.
Use of Penalty Revenues
The funding of the NJPDEIS permit program has been the subject of ongoing dis-
cussion and debate. In July 1992, DEPE Commissioner Weiner. convened a task
force to evaluate the system under which NJPDES fees are assessed, with a view
toward making that system more fair and rational. Former Senator Laurence Weiss
chairs the task force, which includes representatives of the Chemical Industry Coun-
cil, the Association of Environmental Authorities, local governments and other in-
terested parties. The department will continue to engage in dialogues with Senator
Weiss and others in an effort to keep improving the NJPDES program.
CWEA penalty revenues contributed substantially toward the cost of the NJPDES
program.
The NJPDES program is funded primarily from fees paid by permittees. However,
the provides for penalty revenues to be used exclusively for enforcement and imple-
mentation of the WPCA, except when otherwise specifically provided by law. Penal-
ty revenues applied to enforce and implement the WPCA reduce the amount which
must be raised through fees, dollar for dollar. The result is a reduction in the por-
tion of the Program costs funded by those permittees who comply with the law, and
a shift of a substantial portion of the cost to permittees who do not attain compli-
ance.
As a result of the application of penalty revenues, there will be no increase in the
portion of NJPDES permit program costs funded with fees in the year ending June
801
30, 1993. For the majority of NJPDES permittees, 1993 fees have been reduced, with
the average reduction amounting to five percent.
As noted above, the department expects penalty revenues to continue decreasing
as compliance with the WPCA increases. For this reason the department cautions
against relying upon penalty collections to continue providing this level of funding
toward the permit program over the long term.
The report which follows this Executive Summary presents detailed information
under the following subject headings: Enforcement, Permitting, Delegated Local
Agencies, Criminal Actions, Fiscal, and Water Quality Assessment. The report also
includes an Introduction which outlines the relevant requirements of the WPCA
and the CWEA.
TESTIMONY OF STEVEN A. HERMAN, ASSISTANT ADMINISTRATOR FOR
ENFORCEMENT, ENVIRONMENTAL PROTECTION AGENCY,
Good afternoon, Mr. Chairman and Members of the Subcommittee. I am Steven
A. Herman, Assistant Administrator for Enforcement of the Environmental Protec-
tion Agency (EPA). I appreciate the opportunity to testify before you today on Clean
Water Act (CWA) reauthorization. Although the Act is one of our oldest environ-
mental statutes, it is presently facing new challenges as we gain further knowledge
of the disparate sources of water pollution in this country. We believe that the com-
plexity of the water pollution problems requires a sophisticated and ever-vigilant
water enforcement program, both to ensure the continuation of environmental gains
already achieved and to ensure that the goals embraced by the Congress in this re-
authorization translate into further gains during the years ahead.
My testimony today is limited to the enforcement provisions of the Act, both £is to
how the existing provisions have worked and what new water enforcement £unend-
ments would help us make further environmental gains. I will quickly review the
enforcement authorities that are now available to us under the CWA, as well as the
water programs that these authorities enforce. I will then look at what has been
achieved in water enforcement, and outline our future water enforcement objec-
tives. Finally, I will suggest some changes to the Act which would help us achieve
those objectives. I am pleased to note that some of the enforcement cheinges that we
support are already included in S. 1114.
CLEAN WATER ACT PROGRAMS AND ENFORCEMENT AUTHORITIES
The CWA establishes several distinct programs, the requirements of which are en-
forceable: (1) the National Pollutant Discharge Elimination System (NPDES) pro-
gram, for controlling the discharge of pollutants from point Sources (defined as a
"discernable, confined and discrete conveyance" such as a pipe or a ditch); (2) the
Industrial Pretreatment Program, for controlling industrial discharges to publicly
owned (sewage) treatment works (POTWs); (3) the § 404 program, for controlling the
discharge of dredge and fill materials to wetlands and other waters of the United
States; and (4) the Oil Pollution Act, § 311 of the CWA, for controlling and respond-
ing to spills of oil and hazardous substances.
None of these programs is enforced by EPA alone. In each case Congress has pro-
vided that EPA enforce in partnership with the States, or with local municipalities,
and in some instances with another Federal agency. Citizens have also been provid-
ed enforcement authority for most instances in which EPA could enforce.
National Pollutant Discharge Elimination System
Pursuant to § 301 of the CWA, it is unlawful for any person to discharge any pol-
lutant from a point source into the waters of the United States except in compliance
with various enumerated sections of the CWA. To comply with the Act, one must
obtain an NPDES permit authorizing and regulating the discharge of pollutants.
The NPDES permit, issued either by EPA or by a State under a program approved
by EPA, establishes permissible levels of pollutants that may be (Uscharged. The
permits also establish monitoring, testing, and reporting requirements.
EPA and approved States have issued approximately 64,000 NPDES permits con-
trolling point source discharges of pollutants. Of these, approximately 7,100 permits
are issued to "major" dischargers, either large industries or municipal operators of
larger POTW. EPA also has a general NPDES permitting program applicable to
specific programs, e.g. stormwater and feedlots.
802
Industrial Pretreatment Program
The NPDES permitting program, described above, applies only to facilities that
discharge directly into surface waters, e.g. lakes, rivers, wetlands, or oceans. Facili-
ties that discharge into a sewerage system that leads to a POTW, rather than direct-
ly into a surface water, are regiilated under the CWA Industrial pretreatment pro-
gram. This program requires that controls be placed on the discharge of pollutants
to POTWs as necessary: (1) to prevent pollutants from interfering with the function-
ing of the POTW; (2) to prevent those pollutants from causing the POTW to violate
its NPDES permit; and (3) to assure compliance with, the POTW's sludge use or dis-
posal practices.
Generally, municipalities that operate POTWs with a daily flow of more than 5
million gallons are required to operate an industrial pretreatment program. This
program is incorporate! into the municipality's NPDES permit and is enforceable
under the CWA The Industrial pretreatment program at smaller POTWs is general-
ly implemented either by the EPA or by an approved State. To implement the pro-
gram, significant industried users must be issued permits or orders regulating their
discharges. These permits or orders, similar to NPDES permits, set out limitations
on pollutants and other requirements which must be met in order to comply with
the CWA.
Wetlands
Section 404 of the Act establishes the primary Federal regulatory program pro-
tecting wetlands. Pursuant to this section and §301 of the Act, discharges of
dredged or fill material into wetlands and other waters of the United States are ille-
gal, unless permitted or exempted from regulation. This section is jointly imple-
mented by EPA and the Army Corjis of Engineers. The Corps has issued general
permits for categories of activities having only minimal environmented impacts as
well as activities in certain categories of waters, such as small, isolated wetlands.
Other regulated discharges to waters of the United States must, be authorized pur-
suant to an individual § 404 permit. Activities in waters that are typically regulated
under § 404 include fills to create residential, commercial and industried develop-
ment sites, infrastructure development, water resource projects, and conversion of
wetlands to uplands for farming and forestry. Like the NPDES permitting program.
States may be approved to operate the § 404 permitting program.
Oil Pollution Act
Section 311 of the CWA, as amended by the Oil Pollution Act of 1990 (OPA), pro-
hibits discharges of harmfiil quantities of oil and hazardous substances into waters
of the United States. This provision differs from the permitting programs under the
Act described above in that it is intended to deal with spill situations, where the
discharges could not be anticipated in advance. This provision therefore contains
measures intended to prevent spills from occurring, and to cope with spills once
they have occurred. Preventative measures include the requirement that immediate
notification be provided to the government upon discovering that a spill has oc-
curred, and a requirement that owners and operators of non-transportation facilities
handling oil prepare and comply with a spill prevention, control, and counter-meas-
ure (SPCC) plan. In addition, § 311, as amended by the OPA, now requires certain
facilities and vessels to prepare and submit to the government response plans for
cleaning up oil £uid hazardous substance spills. Finally, section 311 establishes a five
year felony penalty for failure to report a spill of a hazardous substance or oU.
In the context of clean-up, § 311 makes owners and operators of vessels or facili-
ties from which oil or a hazardous substance is discharged liable to the United
States for costs incurred in the removal of the spill (subject to certain defenses).
Costs can include expenses incurred by the United States in assessing damage to, as
well as restoring and replacing, natural resources harmed by the spill.
EPA and the Coast Guard jointly administer the spill penalty and response pro-
grams under §311. Although States do not administer the program, §311 does not
preempt any State or municipality from imposing additional requirements or liabil-
ity related to spills.
Clegm Water Act Enforcement Authorities
Congress has provided EPA with several enforcement mechanisms for responding
to violations of the requirements of the Act. These authorities fall into four general
categories: administrative enforcement, civil judicial enforcement, criminal enforce-
ment, and Federal facilities enforcement.
803
Administrative Enforcement
Administrative Compliance Orders
Section 309(a) authorizes the Administrator to issue, upon finding that a person is
in violation of the Act or a permit under the Act, an order requiring compliance
with the Act. These orders are not subject to review in an administrative hearing or
court except upon enforcement of the order by the Agency. Compliance orders are
the Agency's first level of formal enforcement.
Administrative Penalty Orders
In 1987, when last reauthorizing the CWA, Congress added a new § 309(g), author-
izing the Agency to impose penalties in administrative actions for violations of the
Act. These actions can be brought for essentially the same set of violations for
which civil judicial actions could be brought, but at a much reduced cost in terms of
Agency resources. However, unlike the civil judicial authority, administrative penal-
ties are not authorized for violations of an administrative compliance order.
Two classes of administrative penalties are established under § 309(g). Class I pen-
alty actions, subject to, an expedited hearing process, are limited to $10,000 "per vio-
lation", and a totsd penalty of no more than $25,000. Class II administrative penalty
actions, subject to more elaborate Administrative Procedures Act (APA) hearing
procedures, are limited to $10,000 "for each day during which the violation contin-
ues" and a maximum penalty amount of $125,000.
Section 311 Administrative Orders
Under § 311 of the CWA, as amended by the OPA, Congress has established an
administrative penalty scheme similar to that under § 309(g) of the CWA. The Coast
Guard or EPA may assess a Class I administrative penalty of $10,000 per day of
violation, up to a maximum of $25,000, or a '^lass II administrative penalty of
$10,000 per day of violation, up to a maximum penalty of $125,000.
Civil Judicial Enforcement
Pursuant to section 309 of the Act, the Administrator is authorized to commence
an action in Federal district court to seek to enjoin a violator of the CWA to comply
with the Act and to obtain penalties. EPA may commence a civil action against any
person who is regulated under the water pollution prevention programs of the CWA
described above. Violators are subject to civil penalties of up to $25,000 per day for
each violation. Clourts are required to consider specific factors in determining an ap-
propriate penalty amount, including, among others, the seriousness of the violations
and any economic benefit that accrued to the violator as a result of the violations.
Section 311 Civil Judicial Enforcement
Section 311 of the CWA establishes a separate civil judicial penalty authority ap-
plicable to spills of oil and hazardous substances. Any person who is the owner, op-
erator or p)erson in charge of any vessel or facility from which oil or hazardous Sub-
stances are spilled is subject to civil penalties of up to $25,000 per day of violation or
$1000 per barrel of oil or unit of reportable quantity of hazardous substance spilled.
If the spill was the result of "gross negligence" the minimum penalty is set at
$100,000 and the maximum at $3000 per barrel of oil or unit of reportable quantity
of hazardous substance spilled.
Section 311 Removal and Cost Recovery Authority
While § 311 does not provide the court with authority to order injunctive relief,
any person, including the owner or operator of a vessel or facility, can be subject to
equitable relief in the event of an imminent and substantial threat from an actual
or threatened discharge. Any person who fails to properly carry out removal of a
discharge under an order is subject to a fine of $25,000 per day of violation or an
amount up to three (3) times the costs incurred by the Oil Spill Liability Trust
Fund.
Criminal Enforcement
In its present form, the CWA provides for both misdemeeinor and felony viola-
tions. Negligent criminal violations of the Act are misdemeanors, subject to fines of
up to $25,000 per day of violation and jail for up to 1 year. These sanctions are es-
sentially doubled for second of fenders. Knowing violations of the Act are felonies,
subject to fines of up to $50,000 per day of violation and jail for up to 3 years for a
first offense, again essentially doubled for second offenders. The Act also provides,
in recognition of the importance of the self-reporting and monitoring scheme of the
804
Act, that knowing false statements are punishable as felonies, subject to jail sen-
tences of up to two (2) years. Finally, the CWA provides that a person who knowing-
ly violates provisions of the Act and also knowingly places another person in immi-
nent danger of death or serious bodily injury may, upon conviction, be punished by
a fine of up to $250,000 and fifteen (15) years in jail.
Since 1972 the CWA has also included a provision which prohibits the Federal
government from contracting with any person who is convict«i of a criminal viola-
tion under the Act. This requirement that mandatory financial consequences flow
from the fact of criminal convictions has proven to be a very effective adjunct to
the. criminal enforcement of violations of the Act.
Federal Facilities Enforcement
(Compliance at Federal facilities is monitored by EPA primarily through facUity
inspections and the analysis of self-monitoring reports which are required to be sub-
mitted by certain CWA permittees. Upon the discovery of a violation at a Federal
facility, EPA may initiate an enforcement action pursuant to the CWA administra-
tive compliance order authority and Executive Order 12088. Typically, the facility is
notified in writing of the violation and given an opportunity to respond to the notice
within a specified period of time. EPA and the Federal agency then negotiate a
"Federal Facility Compliance Agreement" or an "Administrative Order on consent"
regarding compliance matters at the violating facility. These agreements/orders
may be enforced in Federal district court under the citizen suit provision of the Act.
CLEAN WATER ACT ENFORCEMENT ACCOMPLISHMENTS
A vigorous enforcement pr<^ram is essential to the successfiil implementation of
the water pollution prevention programs established under the CWA. EPA's CWA
enforcement program has been increasingly effective over the past decade. For ex-
ample, in 1987, only 74% of municipal facilities had installed treatment equipment
necessary to meet technology-based requirements. That number is now 97%. As a
result of our enforcement efforts, the niunber of municipalities operating their
POTW in significant non-compliance with the Act in any one quarter of a year has
decreased from an average of 15% in 1986, to 8% in the second quarter of 1993.
In Fiscal Year 92, EPA took 1,450 enforcement actions under the CWA, obtaining
over $23 million in penalties. In the first three quarters of FY 93 alone, $947„000 in
criminal fines, and 288 months of criminal incarceration had been imposed against
criminal violators of the CWA as a result of criminal enforcement action taken by
EPA and the Department of Justice. Currently, we have 103 open cases being inves-
tigated as potential criminal cases under the CWA.
A number of recent civil judicied cases illustrate the importance of enforcement in
the effort to protect the environment. Our multi-media enforcement action against
the Inland Steel Company, in East Chicago, Indiana, which settled earlier this year,
is a recent example of an enforcement and environmental success. The Inland facili-
ty is located on a peninsula that the company created on the shore of Leike Michi-
gan. The peninsula itself is contaminated, as well as the sediments surrovmding it
on the floor of the Lake. The United States filed suit against Inland Steel in October
of 1990 under the CWA, the Clean Air Act (CAA), the Resource Conservation and
Recovery Act (RCRA), and the Safe Drinking Water Act. This case is the largest
multi-media enforcement action brought by the Agency to date. The settlement we
achieved in this case provides for a $3.5 million cash penalty, and $26 million in
sediment clean-up and other environmental projects, over and above the injunctive
relief necessary for Inland to attain compliance with the environmental statutes.
In the multi-media case U.S. v The Dexter Corporation, EPA and the Department
of Justice negotiated a civil settlement in 1992 that requires Dexter Corp. to pay $9
million in civil penalties, $7.2 million of which were CWA penalties. In addition to
paying this penalty, and engaging in extensive corrective action at its facility,
Dexter is required to conduct £m extensive multi-media environmental compliance
audit at its facility. The United States also brought a criminal enforcement action
against Dexter Corporation for its CWA and RCPA violations to which Dexter pled
guilty and was fined $4 nuUion.
In September of 1992, in the case of U.S. v. Louisiana Pacific Corp., Louisiana Pa-
cific ("LP") agreed to implement an all chlorine free bleaching process at its Samoa,
California pulp mill. LP also paid a civil penalty of $2.9 million (plus interest) and
agreed to implement treatment measures to abate toxicity in the mill's effluent. The
use of chlorine at LP's Samoa mill after September 1, 1995 is strictly prohibited,
and LP will incur stipulated penalties of $25,000/day, if it uses chlorine at this mill
after the 1995 deadline. The elimination of chlorine from the miU's bleaching proc-
ess is a major pollution prevention innovation, and is expected to yield significant
805
environmental benefits. The dioxin and other highly toxic chlorinated organic com-
pounds generated in the chlorine bleaching process should be virtually eliminated
from the mill's wastewater. When LP complies with the terms of this modification,
it will be, to our knowledge, the first pulp mill in the country to convert to a 100%
chlorine free bleaching process, and could set a new standard for environmental
stewardship in the pulp and paper industry.
Under an agreement reached, with the United States in U.S. v. Chevron U.S.A.,
Inc., Chevron U.S.A., Inc. agreed to pay $6.5 million in criminal fines (3rd largest in
EPA history) and $1.5 million in civil penalties, to resolve past CWA violations at
Chevron's Platform Grace oil production facility, located in federal waters in the
Santa Barbara Channel. A civil complaint filed against Chevron on December 29,
1988 alleged numerous violations of the CWA. Chevron had consistently violated the
effluent limitations established in its NPDES permit from 1982 until 1987 as well as
the monitoring and reporting requirements of its permit. The criminal case dealt
with the failure to report, as well as illegal dilution and other discharges which
were committed by Chevron at the Platform Grace facility. The criminal action ex-
emplifies the Agency's commitment to the integrity of the self-monitoring system
under the CWA.
CITIZEN ENFORCEMENT OF THE CLEAN WATER ACT
When discussing enforcement of the CWA, mention must be made of the crucial
contributions made by citizens in enforcing against polluters. The Agency does not
have the resources to enforce against every violator of the Act, not even against
some serious violators. By helping to fill these gaps that the Agency and states have
been unable, to fill, citizens have played a very important role under the CWA by
creating an additional deterrent to noncompliance. Violators of the CWA must
worry about not only Federal and State enforcement, but also about a vigorous citi-
zen enforcement presence.
Citizens have also played an important role in assisting CWA Federal enforce-
ment by developing extremely favorable legal precedent under the Act. Many judi-
cial decisions interpreting the statute contain language that makes it easiei for he
United States to resolve its CWA enforcement actions on favorable terms. The
Agency has provided assistance in citizen enforcement actions, particularly in appel-
late matters. We look forward to continuing a positive, mutually beneficial relation-
ship with citizen enforcers.
ADMINISTRATION THEMES FOR CLEAN WATER ACT ENFORCEMENT
As the water pollution prevention programs under the CWA have matured, the
Agency has refocused its energy to better confront old and new water pollution
problems. These new approaches are being incorporated into the Agency's enforce-
ment strategies. I want to talk about three themes of this Administration for con-
fronting water pollution in the enforcement context.
Theme 1: Pollution Prevention
Until recently, the Agency has primarily focused on attedning reductions in the
amounts of water pollutants discharged by applying "end-of-the-pipe" wastewater
treatment. The NPDES program relies largely on the use of technology-based and
water quEility-based standards in determining the amounts of treated pollutants that
an industry or a municipality may legally discharge. The Agency is now focusing
more of its attention on "pollution prevention" as a means of reducing the amounts
pollutants discharged to the environment. Under the pollution prevention approach,
a discharger achieve a reduction in pollutants released to the environment by pro-
ducing less of each pollutant in the first place rather than simply by treating the
wastewater. Source reductions in the quantities of pollutants used, produced, and
disposed of may be achieved through a variety of means, including improved oper-
ation and maintenance of a facUity to changes in the processes employed at a facili-
ty-
There are three ways in which pollution prevention is ,becoming an important
component of CWA enforcement. First, and perhaps most important, our vigorous
enforcement program has created a strong incentive for industry to embrace pollu-
tion prevention as a way to reduce their environmental liabilities. Companies have
told EPA that a key reason that they invest in pollution prevention is to reduce the
environmental liability associated with waste generation. A company that produces
less wastewater containing fewer pollutants will greatly reduce its, risk of violating
the CWA.
Second, when EPA brings a CWA civil enforcement case we always require the
violator to attain prompt compliance with the Act. In appropriate instances, we may
806
also encourage violators to implement creative pollution prevention techniques as a
way to remedy the violations. Further, as part of a settlement of a CWA enforce-
ment case, EPA may accept a smaller settlement penalty if the violator is willing to
commit to implement supplemental environmental projects that uicori)orate pollu-
tion prevention principles and practices and compliance auditing that move the vio-
lator beyond compliance with the Act.
Third, as part of the settlement of a civil enforcement action; E3*A may require
the violator to conduct an environmental compliance or maneigement audit. Such
audits will often give the companies additional information to use in implementing
a pollution prevention program and identifying compliance problems that must be
addressed. EPA also may require companies to conduct, as part of the settlement of
a case, a pollution prevention facility assessment in which the company must identi-
fy all wastestreams and investigate pollution prevention options for reducing or
eliminating these wastestreams.
Theme 2: Multi-Media Ecosystem and Geographic Enforcement Targeting
Ecosystem enforcement targeting is one of the most important new directions the
Agency is 'taking in its efforts to remedy water quality problems. The Northwest
Indiana/Grand Calumet River Ge(^raphic Enforcement Imtiative has been a model
for addressing sensitive environmental areas with targeted enforcement. The coordi-
nated enforcement actions taken in the Grand Calumet River basin provide an ex-
cellent example of the advantages of the ecosystem approach to enforcement. EPA
has taken seven enforcement actions against various polluters as part of this initia-
tive, under five environmental statutes including the CWA; most actions cite viola-
tions of more than one statute. The objective of this coordinated approach is the
clean-up of the Grand Calvunet River, including the removal of tons of sediments
that have been contaminated by discharges and releases of toxic chemicals over the
past century. It is by using all of our environmental enforcement tools, and by tar-
geting all of the polluters in the river basin, that the Agency has been able to
achieve such a high level of remediation of the Grand Calumet.
Theme 3: Environmental Justice
The Clinton Administration is committed to assuring that our environmental pro-
tection programs are equally protective of our citizens, regai-dless of their, race or
class. To tins end, we have begun to consider environmental justice concerns in our
inspection and enforcement targeting. Environmental equity concerns played a role
in our Grand Calumet River Initiative, which I mentioned previously in the context
of ecosystem targeting. As is often the case in situations involving particularly egre-
gious ecosystem contamination, the residential eureas surrounding the industrial fa-
cilities in the Grand Calumet River Basin are some of the poorest areas in North-
west Indiana. Cleaning up the Grand Calumet River Basin will assist in alleviating
the is proportionate environmental effects suffered by poor and minority communi-
ties surrounding these industrial facilities.
The Agency is also developing an enforcement initiative that will target water-
ways for which fish consumption advisories have been issued by States. Several
studies have demonstrated that economically disadvantaged Native Americans,
Latin Americans, Asian Americans, and African Americans may consxime larger
quantities of fish than is assumed in EPA'S current risk assessment evaluations.
These populations may therefore be at increased risk from polluted waterways.
Cleaning up contaminated waterways in these communities is therefore of great im-
portance to the health of these disadvantaged populations.
SUGGESTIONS FOR IMPROVING THE CLEAN WATER ACT ENFORCEMENT
MECHANISMS
In general, the enforcement scheme established under the CWA works well. This
scheme has been revised during successive reauthorizations of the statute and has
been improved on each occasion. There is still room for improvement, and there are
some areas that are of particular concern to the Agency that need attention.
1. Waiver of Sovereign Immunity and Federal Facility Enforcement
In April 1992, State and citizen enforcement of the CWA against Federal facilities
was adversely impacted when the U.S. Supreme Court ruled in Department of
Energy v. Ohio, 503 U.S.—, 118 L.Ed.2d 255 (1992), that Congress had not waived
Federal sovereign immunity from liability for civU, "punitive" penalties imposed by
a State for past violations of the CWA (or RCRA). The Court determined that penal-
ties are unavailable for past violations of the CWA conmiitted by Federal facilities
under the citizen suit provision of the Act and under penalty provisions of State
807
clean water statutes that are part of a federally approved state NPDES program. A
subsequent decision, Sierra Club v. Lujan, 972 F.2d 312 (10th Cir. 1992), further held
that penalties for past violations are unavailable whether EPA or the state issued
the NPDES permit.
The Department of Energy v. Ohio decision made it clear that Federal facilities
are not subject to the same enforcement threat which faces non-Federeil entities reg-
ulated under the Act. We are concerned about this limited enforcement threat
against Federal facilities, particularly in light of the 1988 General Accounting Office
report that found that State enforcement actions against non-compliant Federal fa-
cilities result in increased priority of environmental compliance and prompt correc-
tive action. (See, General Accounting Office (GAO) report, Water Pollution: Stronger
Enforcement Needed to Improve Compliance at Federal Facilities (December, 1988)).
This report also indicated that the significant noncompliemce rate for Federal facili-
ties was twice that of non-Federal facilities. Despite improvements since 1988, Fed-
eral facilities have consistently demonstrated higher significant noncompliance
rates than non-Federal facilities under the CWA.
In October 1992, partly in response to the DOE v. Ohio decision, Congress passed
the Federal Facility Compliance Act which 1) prospectively waived the Federal gov-
ernment's immunity from penalties for violations of RCRA occurring after the Com-
pliance Act's effective date, and 2) provided EPA with the same RCPA administra-
tive enforcement authority against Federal facilities as for private parties. However,
this legislation did not address sovereign immunity under the CWA. The recently
introduced S. 1114 provides for an expanded waiver of the United States' sovereign
immunity under the CWA to overturn the results of DOE v. Ohio, and would estab-
lish Federal administrative enforcement against Federal facilities.
A. Waiver of Sovereign Immunity
We agree with the principle that section 313 of the CWA should be amended to
prospectively waive the United States' sovereign immunity from penalties for all
CWA violations occurring after the amendment's effective date by Federal facilities,
and to allow states to obtain penalties for Federal facility violations occurring after
the amendment's effective date of requirements in state water laws respecting the
control Euid abatement of water pollution, but we need additional time to work with
the Committee on the details of this provision. This amendment would parallel the
poUcy of tee Federal Facility Compliance Act (FFCA), which clarified the waiver of
sovereign immunity under RCRA. The amendment should not alter in any manner
existing agreements, permits, compliance gigreements, or administrative or judicial
orders. The amendment should not affect existing provisions that Federal employees
are not personally liable for civil penalties resulting from acts or omissions within
the scope of their official duties. Federal employees, but not Federal departments or
agencies should be subject to criminal sanctions.
B. Federal Facilities Enforcement
For effective enforcement at Federal facilities xmder the CWA, and consistent
with the FederEil Facilities Compliance Act, Federal facilities should be subject to
the same administrative compliance orders and penalties as non-Federal parties.
The applicable Department or agencies should have the opportunity to confer with
the Administrator before the administrative order becomes final. By adopting the
same enforcement scheme for Federal facilities under both the RCRA and the CJWA,
RCRA and CWA actions can be more easily combined into one action, as appropri-
ate, thereby simplifying enforcement for both EPA and Federal facilities and con-
serving scarce enforcement resources.
2. Administrative Penalty Cap
One of the great successes of the 1987 amendments to the CWA was the grant of
administrative penalty authority to EPA. The result has been an increase in the
overall level of enforcement activity. In 1986, prior to the amendments, EPA
brought 119 civil judicial enforcement actions under the CWA. In 1992, the number
of CWA actions brought was 77 judicial actions and 238 administrative penalty ac-
tions.
Further, administrative actions under the CWA are usually completed in about
six months versus severed years for judicial cases. Now, more than 80% of the pen-
alty actions taken by the Agency under the Act are brought administratively, not
judicially. They use only a fraction of the Agency resources required to bring a judi-
cial case, generally require no resources from the Department of Justice, and, of
courses use up none of the precious judicial calendar. We are examining possibili-
ties, including discussion of the penalty cap, for greater use of our CWA administra-
808
tive enforcement provisions with DOJ, with the goal of creating a more efficient,
effective enforcement program. In addition, we would like the statute amended to
provide authority for EPA to seek administrative penalties for violations of adminis-
trative compliance orders, with appropriate due process protections for defendants.
3. Field Citation Authority
As we have gained experience with water administrative penalties, we find a
number of situations which warrant small penalties most appropriate to a field cita-
tion system. Examples that might be dealt with under a field citation system are
small penalties for failure to submit a permittee's NPDES discharge monitoring
report on time or for failure to submit a required stormwater permit application. A
typical field citation program would involve the issuance of a citation with the spec-
ified dollar penalty to be paid by the violator. Under our existing authority, we
must request public comment before the administrative penalty amount can become
final, thereby preventing our inspectors from issuing a field citation at the time the
violation is detected. We commend S. 1114 because it would establish field citation
authority, recognizing that public comment is not needed for certain administrative
penalties under $25,000. (Review procedures, however, would be maintained, or the
violator would retain all appeal rights.)
4. Remove State Enforcement Bar to Federal Actions
As presently written, the Administrative enforcement provision of the CWA pro-
vides that certain state administrative enforcement actions may serve to bar Feder-
al enforcement. Specifically, the Act provides that a Federal penalty action, as well
as citizen penalty action, is prohibited if a State has already "commenced and is
diligently prosecuting" or has concluded an administrative penalty action against
the same violator for the same violations. Unfortunately, this preclusion of Federal
and citizen enforcement of the Act has been broadly interpreted by some courts and,
especially as interpreted, is limiting the Agency's ability to assure that violators are
adequately deterred. In North and South Rivers Watershed Association v. Town of
Scituate, 949 F.2d 552 (1st Cir. 1991), the appellate court held that an administrative
order issued by the Commonwealth of Massachusetts barred a subsequent citizen
suit. The court so held in spite of the facts: 1) that Massachusetts is not approved to
operate the point source control program under the CWA, 2) that the Common-
wealth's order did not assess any penalty, 3) the Commonwealth lacks authority
under that section of Massachusetts law to impose a penalty, and 4) the citizen
sought injunctive relief as well as penalties. The citizens were consequently barred
from seeking penalties or injunctive relief for the violations of the Act covered by
the State's order. A court could find the United States to be barred as well.
The administration believes that a strong and effective partnership must be the
foundation of any enforcement scheme that is to be effective. Thus, while preserva-
tion of the ability of the United states to bring a civil action against a violator, even
where a state has taken an enforcement action, is an important component of an
effective enforcement scheme, state enforcement efforts are fundamental to the
scheme underlying the CWA. Unfortunately, State resources for enforcement are
not always sufficient to assure future compliance. In some c£ises, the State does not
have adequate enforcement resources or is unable to muster the will to adequately
confront and penalize a major industry. When this is true, it is crucial that the
power of the Federal government is available to insure that the violations are
halted, that the violator is adequately penalized and does not profit from the viola-
tions, and that the violator addresses any environmental damage caused by the vio-
lations. , , o
Therefore, we support the goal sought in S. 1114 as mtroduced by Senators
Baucus and Chafee to assure that deterrence is achieved through adequate enforce-
ment, and to promote adequate enforcement by the States, the Agency seeks revi-
sion of the statute to remove the limitation on Federal enforcement in the face of
State enforcement. We will work in the weeks ahead with the staff to ensure that
scarce Federal and State enforcement resources are optimally deployed where they
are needed.
5. Strengthen Citizen Enforcement
As noted earlier, citizens' actions are an important component of the overall CWA
enforcement effort. Unfortunately, the ability of citizens to maintain a suit under
the CWA has been substantially eroded by the courts since 1987, when the CWA
was last reauthorized. A 1987 decision of the U.S. Supreme Court, Chesapeake Bay
Foundation v. Gwaltney of Smithfield, 108 S.Ct. 376 (1987), held that citizens could
not seek penalties for wholly past violations of the Act, but were limited by the Ian-
809
guage of the statute to maintaining suit for "ongoing" violations of the statute. To
be ongoing, the Court ruled, there must be a reasonable likelihood, at the time the
citizens file their complaint, that the violator will continue to violate in the future.
We believe this should be changed to allow citizens to sue where violations are seri-
ous or the environmental consequences need to be addressed.
The decision of the Supreme Court affected not only citizen suits under the CWA,
but also potentially impeded citizen suits under the CAA and RCRA. The CAA con-
tained the same wording as the CWA. In 1990, in response to the Supreme Court
decision. Congress amended the CAA citizen suit lemguage to limit the preclusive
effect of that decision by explicitly allowing citizens to maintain suit for past viola-
tions, when those violations have been repeated.
Because citizen suits are an important component of the CWA enforcement
scheme, and because requiring proof of an ongoing violation has unduly complicated
citizen enforcement and lessened its deterrent effect, the EPA supports amendment
of the CWA to allow citizen suits for past violations of the Act. We are pleased that
this amendment is proposed in S. 1114.
6. CWA Criminal Enforcement Authority
A. Knowing Endangerment
Criminal enforcement under the CWA has been very effective in punishing viola-
tors and deterring violations. Experience gained over time, however, suggests that
some of the criminal enforcement provisions require clarification, refinement or up-
grading to make them more consistent with other environmental statutes.
The CWA currently provides for up to 15 years of imprisonment for committing
certain knowing violations of the Act and ''thereby" knowingly endangering per-
sons. (Similar knowing endangerment provisions exist in the CAA and RCRA.)
There are three clarifications and modifications to the CWA's knowing endanger-
ment provision that we recommend (none of which are addressed in S. 1114):
First, we recommend that all knowing violations of the CWA that are felonies
under § 309(cX2) be made predicate offenses for knowing endangerment under
§ 309(cX3). This would ensure that all types of knowing violations of the Act may be
punished appropriately. .
Second, we recommend the deletion of the affirmative defense, m CWA
§ 309(cX3XB)(ii), that the conduct charged was consented to and that the danger and
conduct charged were reasonably foreseeable hazards of an occupation or scientific
experiment. (Similar provisions in the CAA and RCRA also should be deleted).
Third, we recommend that the language of the knowing endangerment provision
be clarified to provide that any knowing endangerment "in connection with, or in
the course of a felony violation is punishable as a knowing endangerment. This
clarification is needed in order to overturn an adverse judicial opinion (United
States V. Borowski, 977 F.2d 27 (1st Cir. 1992), rehearing denied, _ F.2d _ (1st Cir.
January 7, 1993)), in which the court gave an overly restrictive, technical reading to
the knowing endangerment provision, which severely limited its application in a
manner we believe Congress did not intend. (In Borowski, the First Circuit over-
turned the knowing endangerment conviction of a person who ordered employees to
pour dangerous, toxic chemicals down company drains that were connected to a
publicly owned sewerage system, in knowing violation of CWA pretreatment re-
quirements. There was proof at trial that company employees actually were harmed
in the course of this illegal activity, but the court ruled that their harm was not
within the purview of the knowing endangerment felony because it occurred before
the chemicals reached the sewer system.
B. False Statements and Cover-ups
The CWA currently provides felony sanctions for the knowing falsification of re-
quired documentation and tampering with compliance monitoring devices
[§309(cX4)]. We recommend two modifications to this provision. First, we recom-
mend that this provision be extended (consistent with provisions already in the CAA
and RCRA) to include sanctions for a knowing omission or failure to maintain mate-
rial information required to be filed or maintained by the Act, and of a knowing
failure to install or use required monitoring devices or methods. Second, we recom-
mend that there be a higher penalty (5 years rather than 2 years of imprisonment)
when the purpose of the knowing false statement or omission is to conceal a sub-
stantive, d^charge-related violation of the CWA.
C. Citizen Awards
The Agency seeks new authority to allow monetary awards to be made to those
who report violations or provide information which leads to the criminal conviction
810
(or civil liability) of those who violate the CWA. Similar provisions already exist in
other environmental statutes {e.g., Comprehensive Environmental Response, Com-
pensation and Liability Act, the CAA, the Endangered Species Act, and the Act to
Prevent Pollution from Ships), serving as an additional deterrent to violations.
D. Enhance CWA Felony Sanctions
Both the CAA and RCRA provide for up to 5 years of imprisonment for a first
felony conviction (for certain knowing violations). Although knowing violations of
the CWA are just as serious as knowing violations of these other laws, currently the
CWA provides for only 3 years of imprisonment for first felony convictions. We be-
lieve the felony sanctions in the CWA should be enhanced in order to make them
consistent and equivalent with those in the CAA and RCRA.
7. Contractor Listing
CWA § 508 currently provides that no Federal agency may enter into a contract
with any person who has been convicted of any criminal, offense under § 309(c), if
such contract is to be performed at any facility or site at which the violation oc-
curred, and if such facility or site is owned, leased or supervised by such person; this
prohibition continues until the Administrator certifies that the condition giving rise
to such conviction has been corrected. (As Assistant Administrator for Enforcement,
I am the EPA official to whom authority has been delegated to determine when the
condition has been corrected, so that the violator may be removed from the List of
Violating Facilities.) . ,^
S. 1114 proposes a number of significant improvements to this "contractor listing
provision. For example, S. 1114 extends the prohibition to convictions under the
Rivers & Harbors Act of 1899, which will help prevent convicted violators from en-
tering into plea agreements admitting guilt under other acts to avoid listing conse-
quences for their acts which pollute waters of the United States. S. 1114 attempts to
clarify that the prohibition may extend to more than one facility or site owned or
operated by the person subject to listing and requires applicants for Federal con-
tracts, grants, or loans to disclose affirmatively any conviction giving rise to listing
under this provision. Some of the changes recommended by S. 1114 reflect policies
already being implemented by EPA or are consistent with changes already made to
contractor listing as a result of the amendments to the CAA which also contains a
mandatory listing consequence for criminal violators.
We would also like to explore with the Committee an extension of the listing au-
thority in accordance with the CAA listing provision, to allow the Administrator to
extend the listing prohibition to other facilities owned, operated or supervised by
the person subject to listing.
8. Clean Water Act Emergency Powers Provision
Each of the environmental statutes provides the Administrator of the EPA with
authority to take action in response to environmental emergencies. In several re-
spects, the emergency authorities provided to the Administrator under §§ 504 and
311(e) of the CWA are more restrictive than those provided under the other statutes.
The Administration supports revisions to the CWA emergency authorities that in-
corporate the provisions from the other statutes. The amendments to the emergency
powers provision at § 504 of the CWA proposed in S. 1114 largely meet the Agency's
concerns. S. 1114 does not address the provision at § 311(e) of the CWA. S. 1114 also
does not provide judicial or administrative penalties for violations of emergency
orders. . .
EPA's most significant concerns with the CWA emergency powers provisions are
that:
• § 504 does not provide EPA with the authority provided under other environ-
mental statutes to issue enforceable emergency orders; rather, the Administra-
tor must initiate an action in Federal court. While we support preserving emer-
gency order enforcement authority in Federal district court, the process of initi-
ating a court action is cumbersome and may be inadequate for responding to
emergency situations;
• Present law does not explicitly provide EPA with the authority to initiate an
emergency action in response to a threat posed to the environment (the current
CWA emergency provision authorizes an action based primarily on threats to
the public health and the welfare);
• We would also ask the Congress to clarify the law to allow EPA to invoke the
CWA § 504 emergency provision of the Act when the discharge from a pollutant
source "may present an imminent and substantial endangerment even when it
is not currently presenting such an endangerment. Other statutes' emergency
811
provisions, such as § 7003 of the RCRA, have been amended to allow an action
where the pollution "may present" an endangerment. § 504 of the CWA cur-
rently allows an action only where the pollution "is presenting" an endanger-
ment to human health or welfare;
• We also believe that the Act should explicitly provide that the emergency
powers provision applies to any person, not just to those presently identified in
§§ 504 £uid 311(e). In many instances, the source of the pollution causing the en-
dangerment may be other than those specifically identified.
• We support edlowing citizens to bring actions to address imminent and substan-
tial endangerments.
• We favor judicial and/or administrative penalties for violations of emergency
orders.
The Administration supports amending the CWA to adopt these elements that
will assure the public that the Agency can respond to emergency situations in the
water context as effectively as we are able in imder the other environmental stat-
utes.
9. Minimum Penalties
At present, the CWA does not establish a minimum penalty amount a court or a
hearing officer must impose upon a person found liable for violations of the Act.
The Act requires that the court or hearing officer consider certain factors that are
set out in the statute, including any economic savings that accrued to the violator,
any history of violations, good faith on the part of the violator, and the seriousness
of the violations, but does not expressly state any minimum amount that must be
imposed. We recommend that Congress amend the penalty provisions of the Act to
require the imposition of a penalty of the economic benefit that accrued to the viola-
tor. We would suggest that a narrow exception to this rule be established, for ex-
traordinary circumstances, including in appropriate cases, economic heu-dship, based
on the violator's ability to pay the penalty.
Establishing a minimum penalty of economic benefit ensures that violators do not
profit from their failure to install the necessary pollution control equipment that
would have enabled them to comply with the Act. Economic benefit is t5rpically cal-
culated by determining the savings a defendant realized by delaying capital expend-
itures and avoiding operation and maintenance expenditures that would have been
necessary for the violator to have complied. By assuring the imposition of a penalty
of at least economic benefit, we will assure that this violator is not better off for
having violated the Act, and consequently, not realizing an advantage relative to
others in the same industry that made the necessary expenditures and complied
with the Act.
The recovery of a penalty of at least economic benefit is fundamental to the Agen-
cy's approach to resolving its enforcement action. This approach should be made ex-
pressly applicable to the courts and hearing officers as well. S. 1114 does not address
the issue of minimum penalties under the Act.
10. Environmental Audits
In 1986, EPA issued an Environmental Auditing Policy statement in which the
Agency acknowledged the value of environmental auditing ". . . by regulated enti-
ties to help achieve and maintain compliance with environmental laws and regula-
tions, as welt as to help identify and correct unregulated environmental hazards."
This document also suggested the use of environmental audits in the enforcement
context. Also in 1986, EPA's Office of Enforcement issued guidance on the inclusion
of environmental auditing provisions in enforcement settlements. EPA has contin-
ued to consider the appropriate use of environmental auditing for enforcement pur-
poses. The possible uses of these audits are many, but in the enforcement context
the Agency has identified two uses that would prove extremely valuable. First, envi-
ronmental audits may be used to determine the causes of CWA non-compliance. In
many federed CWA enforcement actions, EPA has successfully negotiated environ-
mental audits of the defendants facility as a term of settlement. These audits are
generally intended to determine the causes of the past non-compliance and to assure
that the means are identified and implemented to assure future compliance. EPA
has also examined the potential for auditing to be used as a tool for identifying op-
portunities for pollution prevention. In this context, the audit would be used to iden-
tify opportunities for pollution prevention within production and treatment process-
es and operation and maintenance practices at the facility.
812
11. Civil Injunctive Relief
Under the enforcement authorities of the CWA, the United States and citizens
are authorized to seek injunctions to redress violations of the Act. Given the struc-
ture of the enforcement provisions of the Act, however, we would recommend clari-
fying this authority. Specifically, we would recommend enumerating in the statute
itself the scope or nature of the measures that a court may order in an injunction to
remedy environmental harm. The United States takes the position that a court may
order the discharger to undertake all necessary measures designed to bring the fa-
cility or sin into compliance and to remedy the harm caused by a violation. This
position could be strengthened if the CWA provisions authorizing courts to issue in-
junctions were more specific on this point. We suggest amending these injunctive
relief provisions to specifically authorize courts to order clean-up of environmental
harm caused by violations, and include examples such as removal of contaminated
sediments.
S. 1114 provides for restoration by injunction of natural resources damaged by
pollution. We support this concept but are concerned by the proposal in this ball
that could set an artificially low dollar cap on the cost of restoration that a court
may order equal to the maximum CWA civil penalty that may be awarded. It is our
view that the cap should be at least the total cost of restoration plus up to the maxi-
mum civil penalty. Also, we recommend clarif5dng language in the bill that these
provisions do not in any way affect the existing authority of EPA and the Corps to
obtain restoration in response to violations.
12. Supplemental Environmental Projects
EPA supports amendments to the CWA which would clarify that courts and the
Agency have authority to approve Supplemental Environmental Projects, projects
negotiated as terms of settlement of a CWA enforcement action that are intended to
benefit the environment. It is also our position that these projects should be allowed
only upon the consent of the parties, and that in any case a substantial civil or ad-
ministrative penalty be paid of at least the amount of economic benefit obtained
before a project is allowed. We also suggest that any provision for supplemental en-
vironmental projects (SEPs) written into the statute require a "nexus' between the
violation and the SEP, while not undulv restricting the scope of SEPs. S. 1114 in-
cludes provisions which authorize court s to impose SEPs in both Federal and citi-
zen enforcement actions. Our goal with SEP's is to promote pollution prevention.
We support modifying this provision so that courts are authorized only to approve
consent judgments that contain SEP's, not to order them directly and not to unduly
tighten the nexus requirement, precluding SEPs involving public awareness
projects, environmental auditing projects, and projects that would address similar
violations at other facilities or sites owned by the company, or environmental prob-
lems at the violating facility in different me(fia.
13. Information Gathering Authorities
As provided for in S. 1114, we concur in expanding EPA's information gathering
authority under § 308 of the CWA to make express the Agency's authority to obtain
information from all persons who are or may be subject to regulation under the
CWA, not just "the owner or operator of any point source." The Agency regulates
many entities that are not point sources from whom we need to obtain information.
The most glaring examples are industries that do not discharge wastewaters and
therefore have achieved the zero discharge goal of the Act, and industries that dis-
charge their wastewater to a POTW rather than to surface waters. While we believe
these sources are subject to the information gathering authorities of the Act, these
entities could claim that they are not point source dischargers. Our need for infor-
mation concerning these entities treatment processes and compliance status is no
less than for other dischargers.
We also agree with the provision in S. 1114 that would amend the Act to increase
the Administrator's subpoena authority to cover any person who is or may be sub-
ject to regulation under the Act and to require such persons to give testimony or
produce documentation. This provision is particularly necessary, as the scope of the
CWA is broadened beyond traditional point source permittees to include other pollu-
tion sources.
14. Nonpoint Sources
Carol Browner testified before this subcommittee that one of our guiding princi-
ples for crafting a strengthened nonpoint source program should be to continue to
focus on voluntary, targeted approaches supplemented by backup enforceable re-
quirements to be triggered when necessary. We are now examining a range of mech-
813
anisms, including backup federal enforcement, which bay address my concerns in
this regard, and we look forward to working with the subcommittee members smd
staff to fmd the best solutions.
CONCLUSION
In large measure, the success of the CWA is attributable to a scheme that lends
itself to simple, straightforward, reasonable enforcement, and to both strong and
fair Federal, State and citizen enforcement provisions that effectively deter would-
be violators. This success is also attributable, of course, to an increasingly effective
CWA enforcement program at the EPA.
The improvements to the enforcement provisions that have been made by previ-
ous amendments to and reauthorizations of the statute have enhanced the Agency's
ability to undertake a fair and effective enforcement effort. The amendments made
in 1987, particularly the creation of an administrative enforcement scheme and an
increase in the civil penalty amount from $10,000 per day to $25,000 per day, and
the addition of felony sanctions for criminal violations, greatly increased our ability
to deter violators. Adoption of the suggestions outlined above as amendments to the
CWA would again improve our enforcement capabilities and assist us in doing the
best job we can with the limited resources we have. The amendments we support
also provide fundamental procedural safeguards to potential defendants.
I appreciate having had this opportunity to present the Agency's views on en-
forcement to you, Mr. Chairman and Members of this subcommittee, and I look for-
ward to working closely with you in the upcoming months to meet the challenge of
reauthorizing an improved CWA.
RESPONSES FROM MR. HERMAN FOR ADDITIONAL INFORMATION
QUESTION:
Do we have enough data now to be able to identify the state of impairment of
watersheds, and therefore be able to pursue the kind of prioritization of efforts that
this legislation will call for?
ANSWER:
Being able to establish priorities for watershed protection programs is an impor-
tant first step. In some cases, States and federal agencies do have the information
needed. However, in a number of areas we do not have adequate, consistent infor-
mation. Federal agencies and the States invest considerable resources in monitoring
water quality. However, we have not yet developed ways to ensure that all these
monitoring efforts complement one another to produce a consistent nationed picture
of watershed protection needs. Moreover, withm and among States, some have con-
sistent State-wide monitoring efforts, while others do not. To address these and
other monitoring coordination needs, U.S. Environmental Protection Agency (EPA),
the U.S. Geological Survey (USGS), other relevant federal agencies and a number of
State representatives have formed an Intergovernmental Task Force on Monitoring
Water Quality, which will be making recommendations over the next two years on
ways to better coordinate on-going monitoring. Until this is done, prioritization of
efforts under the new watershed Initiative, based on assessing where needs and op-
portunities are greatest, cannot be entirely consistent across the country as a whole,
or within those States that currently lack consistent State-wide water quality as-
sessment efforts.
Various sections of the Clean Water Act require States to report information
needed in Watershed Management, and the EPA has consistently refined its guid-
ance and procedures for these reports. We need to continue to refine our informa-
tion to reflect recent monitoring efforts and to fill in the data gaps to satisfy our
most current assessment techniques such as those needed for better aquatic biologi-
cal assessments.
Briefly described below is the current status of some of the data available to wa-
tershed managers, and the efforts to provide refined or additional data:
• Several major data bases such as EPA's STORET and NWIS-II program of the
USGS have considerable historical water quality data. Both of these systems
are being modernized, with a key goal of being able to share information easily.
These data are critical to watershed managers as they define workplans, identi-
fy impaired areas, and set priorities. EPA is working with other agencies to
ensure that additiongil water data bases, such as those of the National Oceginic
and Atmospheric Administration (NOAA), and the Fish and Wildlife Service
and EPA's Environmental Monitoring and Assessment Program (EMAP) also
contribute data to Watershed Management efforts.
814
• EPA's Waterbody System contains State Eissessment data — that is information
about the impairment of waterbodies and whether they are meeting the uses
designated by the States. (STORET contains the actual water quaUty data, the
Waterbody System facihtates the interpretation of that data against existing
State standards). EPA has been working with States to "georeference" their wa-
terbodies so the Waterbody System can give not only information about how
many waterbodies meet standards (which it can do now) but identify which
actual waterbodies fall into various use attainment categories. This is critical
for watershed managers and should be done over the next year. Most States
have this site-specific information available, but it is not now stored in a nation-
ally-available system.
• The USGS conducts the National Water Quality Assessment (NAWQA) Pro-
gram. The goals of the program are to: (1) describe the status and trends in the
quality of a large representative part of the Nation's surface and ground water
resources, and (2) develop an understanding of the natural and human factors
affecting the quality of these resources. This information, obtained on a con-
tinuing basis, will provide sound nationally-consistent water-quality information
on which water resources decision-making at all governmental levels can be
based. To meet its goals, the program will integrate water-quality information
at local, regional, and national scales.
• Newer data techniques such as remote sensing and aerial photography provide
data, though in many cases not on a watershed managers. Several agencies in-
cluding EPA's EMAP, USGS, Fish and Wildlife Service have combined funding
to buy detailed thematic mapper data for the entire country which they can
then share and make available to others as allowable.
• EPA is working to make available other "backbone data" that watershed man-
agers, and indeed, any water quality managers need to implement their pro-
grams. These backbone data include:
• A taxonomy system, which will organize the scientific names of taxa for con-
sistent use in inventories, is being implemented through the joint efforts of
NOAA, Biological Survey is seriously considering using the system, and addi-
tional agencies and States, will be urged to use it as well.
• Further specificity for Unit Codes (HUG), effort which EPA is supporting, to
break the existing codes into smaller units, which will be of great help to wa-
tershed managers. Many watersheds are identified on a hydrologic unit basis.
• Reach File 3, which EPA developed using USGS maps that depicts in detail
the waters of the country. EPA, USGS, and States are working to jointly
maintain and refine this data as necessary.
QUESTION:
Do you have any comments, either for today of for supplementation, on how the
reauthorization of the Clean Water Act could facilitate advancing our abUity to be
able to get the kind of information that this new approach of Watershed Planning
will require?
ANSWER:
The major reason we are moving to the watershed approach is that we must begin
to tailor our management to the needs of specific watersheds. This will, as you have
noted, require more information than we have needed in the past. The information
management tools that EPA, after conferring with other federal agencies, can pro-
vide include criteria that can be used to help determine watershed targets, data
standards to promote the collection and reporting of high quality data, and, in some
cases, tools for its analysis.
The Clean Water Act currently provides for development of criteria for water and
sediment quality by EPA. Other federal agencies can provide comments to EPA
when EPA develops these criteria. These criteria will be central to watershed plans
in the future. The pollutant concentrations and interrelationships reflected in crite-
ria need to expand to guide the judgments of watershed managers. A specific exam-
ple of additional need is the area of biological criteria. Criteria are being developed
as we learn more about how to frame them. While much needs to be done in this
regard, the Clean Water Act already gives EPA adequate authority for this work.
Data standards are being developed through a variety of mechanisms in conjunc-
tion with other federal agencies and States, local agencies and Indian Tribes
through mechanisms that the administration has put into place to improve inter-
governmental coordination.
815
Better watershed-based information collection sind reporting will need these im-
proved standards, but we must also strengthen State programs, and consolidate the
process used to report water quality.
Stronger and more comparable State data would allow better assessment of trends
in ambient water quality, better assessment of the effectiveness of water quality
programs, and better targeting of waters needing attention for remediation or pres-
ervation. We believe that the Clean Water Act should direct EPA to work closely
with the States and other federal agencies to ensure effective minimum monitoring
and reporting requirements.
As we integrate EPA and State programs in support of a watershed approach, it
is essential to have a single consistent and consolidated process to report water
quality status of all waters, identify problem areas, set priorities for management,
and identify areas which are not being comprehensively monitored. States and EPA
should be encouraged to use data of acceptable quality from federal agencies and
other data collectors such as municipalities, dischargers, and volunteer monitoring
groups in this inventory. A single consistent and consolidated inventory would also
enhance the Public's ability to participate and facilitate EPA review and approval
of water quality programs.
TESTIMONY OF ROGER J. MARZULLA, PARTNER, AKIN, GUMP, STRAUSS,
HAUER & FELD, WASHINGTON, DC
Mr. Chairman and members of the Committee:
I am pleased to accept this subcommittee's invitation to discuss the enforcement
provisions of the prop<sed Federal Water Pollution Prevention and Control Act of
1993, S. 1114. I offer to this Committee a perspective gained over many years as
both a government attorney responsible for prosecuting such cases, and as a private
attorney defending them. From 1983 to 1989 I served in the Environment and Natu-
ral Resources Division of the U.S. Department of Justice, heading the division from
1987-1989. While at the Department of Justice, I personally prosecuted and defend-
ed several Clean Water Act cases (including citizens suits), and was responsible for
overall enforcement strategy under the Clean Water Act (as well as the other major,
environmental statutes). Now, as head of the environmental law section in the
Washington office of Akin, Gump, Strauss, Hauer and Feld, L.L.P., I defend such
cases brought against my clients. My experience also includes litigation of civil and
criminal enforcement cases, and the defense of citizens suits brought under all of
the other major federal environmental statutes.
Success of the Clean Water Act
The dramatic improvement in the quality of our nation's waterwaj^s, lakes and
coastlines over the past 20 years qualifies the Clean Water Act as perhaps the most
successful of our nation's environmental statutes. The rates of compliance with stat-
utory requirements are h^h, due in no small part to the deterrent effect of the fed-
eral clean water enforcement program. The existing enforcement provisions of the
Clean Water Act have enabled the United States to impose significant monetary
penalties that far outweigh the economic benefit of noncompliance, to obtain injunc-
tive relief that ensures future compliance, and to sanction habitual non-compliers
by disqualifying them from obtaining government contracts and other benefits. The
enforcement provisions of the Act have enabled EPA and the Department of Justice
to institute coordinated nationwide and regional initiatives to address stubborn
areas of noncompliance: metal finishers, combined sewer overflows, industrial pre-
treatment and municipal sewage treatment, to name a few.
This is not to say that no improvement of the enforcement provisions can be
made; however, such changes must be made very carefully to avoid injuring an en-
forcement system that has to date performed well.
Administrative Enforcement
Increasing the maximum allowable administrative peneilties and field citations
will enable EPA to address the myriad of minor technical violations of the Clean
Water Act expeditiously. The heart of the Clean Water Act enforcement program is
the requirement that a permittee perform self-monitoring and self-reporting of vio-
lations, leaving only the issue of penalty to be decided. Where those violations have
a negligible effect on the environment and are not persistent, the enforcement pro-
gram is best served by the informal processes of field citation or administrative pen-
alty assessment. This streamlined enforcement program for minor offenses frees in-
vestigators and enforcement attorneys to concentrate upon major violations, while
816
increasing substantially the number of minor violations that the Agency is able to
address. Industry and municipalities, too, avoid the substantial costs of lawyers and
litigation by bringing minor violations to resolution promptly and informally
through direct discussions with EPA.
Citizens suits: Abuse and Misdirection
The citizens suit provisions of the Act (section 505) have, in contrast, encouraged
misuse which has diverted the attention and resources of both the government and
private industry from critical water pollution priorities. Section 505 creates signifi-
cant financial incentives for the bringing of actions based upon technical violations
whose impact on the environment is negligible. Those incentives include:
• Substantial awards of attorneys' fees at rates charged by major law firms even
where the case is prosecuted by modestly-compensated environmental group
lawyers;
• The diversion of penalty amounts into "environmentally beneficial projects,"
often benefiting the plaintiffs in the lawsuit directly or indirectly.
• Recordkeeping and strict liability provisions, insuring that the plaintiff has won
the case before it is filed and requiring very little work to prepare and pros-
ecute.
The majority of these c£ises are brought against industrial facilities (usually large
companies) who have self-reported permit violations, so that the only issue is the
appropriate amount of penalty. Industry, anxious to resolve the case, usually negoti-
ates a generous attorneys' fee award to the plgiintiff group, together with a signifi-
cant reduction in penalties payable to the U.S. Treasury in return for an "environ-
mentally beneficisd project" frequently an outright monetary contribution to a des-
ignated group or university" chosen by the plaintiff. In recognition of this abuse,
Congress in 1987 amended the Clean Water Act to require that proposed consent
decrees in Clean Water Act citizens suits be submitted to the Department of Justice
for review forty-five days prior to court approval (FWPCA § 505(c)(3), 33 U.S.C.
§ 1365).
Such citizens suits divert substantial resources (both private and governmental)
from addressing true water pollution priorities. First, the threat that the case will
be brought as a citizens suit if the government does not bring it as an enforcement
action tempts EPA to dedicate scarce enforcement resources to actions it might oth-
erwise not bring, since EPA knows that it will suffer embarrassment and lose much
of the penalty if the citizens group brings the case instead. Second, private financial
resources (often in the millions of dollars) are spent on these suits rather than ad-
dressing more pressing environmental concerns. Third, the incentive for industry is
to "pay off" the plaintiffs and resolve the litigation even where this leaves pollution
control problems inadequately addressed. Fourth, EPA emd the Department of Jus-
tice must invest substantial personnel resources in reviewing these cases and, on oc-
casion, objecting to proposed consent decrees which violate government policies and
priorities.
Finally, and most importantly, citizens suits pull against government priorities
and enforcement strategies. By definition, a citizens suit is a claim of violation of
the Clean Water Act which, in the opinion of EPA, did not merit filing. Out of many
thousands of potential cases, the government must choose those best aimed at
achieving and maintaining the integrity of our nation's waters, and at deterring vio-
lations by others. The citizens suit provision authorizes the bringing of cases which
do not fit into this enforcement strategy and which, in many instances, detract from
it. 'The large environmental groups who bring the vast majority of these cases —
Sierra Club, NRDC, PIRG, and Atlantic States Legal Foundation — have their own
environmental agenda different from that of the government, which they attempt to
implement as "private attorneys general." The result is like several horses each
tr3dng to pull the carriage in a different direction — and that direction is not the one
carefully mapped out by EPA and the Department of Justice pursuant to the direc-
tion of Congress and answerable to the public. A consequent jumble of priorities,
strategies and inconsistent resolutions characterize the history of the Clean Water
Act's citizens suit docket.
The Clean Water Act's citizens suit experience is not unique among environmen-
tal statutes. To avoid precisely this kind of disruption in the government's program.
Congress adopted section 113(j) of the Superfund Amendments and Reauthorizion
Act of 1986, depriving federal district courts of jurisdiction over Superfund citizens
suits brought while a remedial action is in progress. This subcommittee may wish to
consider similar restrictions upon the unbridled bringing of Clean Water Act citi-
zens suits.
817
The "Gwaltney Fix"
An excellent example of this misdirection of enforcement policy and misallocation
of resources is the proposed revision to the citizen suit provision of the Clean Water
Act to permit the bringing of actions based wholly upon passed violations which
have ceased and are not likely to be repeated in the future. Of course, in such cases
the federal or state government has complete authority to recover penalties. Howev-
er, where the government has declined to pursue such a case, little reason appears
for allowing a private party to bring the action.
First, the case raises significant constitutional issues under the Article III "Case
or Controversy" clause of the U.S. Constitution. Where the violation exists entirely
in the past and the only remedy sought by the plaintiff is a penalty payable to the
U.S. Treasury, there would appear to be no injury to the plgiintiff redressable by the
federal district court. In contrast to a case involving current or threatened viola-
tions which may be abated by injunctive relief, such a "passed penalties only" case
is moot, and the plaintiff lacks standing to pursue this presently nonexistent dis-
charge in federal court. Second, such cases are a vivid example of citizens suits
which divert resources and energy from legitimate environmental priorities, serving
principally as a vehicle for enriching the plaintiff group. Where the cause of the
violation no longer exists because the permittee has remedied it, and where the gov-
ernment has declined for good reason to prosecute the case itself, there exists small
reason for a private party to bring the case other them to profit from the substantial
attorneys' fees and diversion of penalties into an "environmentally beneficial
project. '
Although the abatement of current or threatened violations of the Clean Water
Act may be said to legitimately support a citizens suit, the filing of a "passed penal-
ties" case (forbidden by the Supreme Court's Gwaltney decision) vindicates no legiti-
mate environmental protection objective. Accordingly, a provision allowing such
suits shovild not be adopted by Congress.
"Environmentally Beneficial Projects" Should Not Be Authorized
The Clean Water Act authorizes the recovery of civil penalties of up to $25,000
per day for each violation of the Act, together with injunctive relief to abate the
violation. The Act does not authorize the diversion of these penalties from the U.S.
Treasury to privately-run activities or projects. Allowing a plaintiff group to trade-
off fimds owing to the U.S. government in the form of penalties in return for de-
fendant's contribution of funds or property to an activity of the plaintiff group's
choosing is poor policy which is ripe for abuse.
First, the diversion of tens of millions of dollars per year in funds otherwise pay-
able to the U.S. Treasury in the form of Clean Water Act penalties undercuts our
nation's efforts to resolve its serious budgetary problems. For this reason. Congress,
in the 1990 Clean Air Act amendments limited such "environmentally beneficial
projects" to a maximum of $100,000.
Second, "environmentally beneficial projects" minimize the financial sting intend-
ed by Congress' authorization of stiff civil penalties. Companies often enthusiastical-
ly agree to perform improvements on their own facilities, donate property for parks
or refuges, or make financial donations to environmental groups in return for the
groups' agreement to give away penalties otherwise owed to the U.S. Treasury. The
company often gains a tax deduction and the ability to tout its environmental sensi-
tivity, while avoiding significant cash outlays for penalty payments.
Third, such projects represent the whim of the individual or group bringing the
action, disconnected from legitimate public policy considerations. At a minimum,
Congress should require some nexus between the violation and the project to ensure
that large sums are not wasted on useless or foolish imdertakings.
In short, since environmentally beneficial projects often represent "hobby horses"
of those bringing the suit, they should be discouraged. Since the true purpose of
pensdties is to punish violators of the Clean Water Act, using the threat of such pen-
alties to obtain funding for pet projects undercuts rather than serves the fundamen-
tal deterrent function of the enforcement provisions.
Natural Resource Restoration: A Black Hole
The bill's provisions for injunctive authority to restore natural resources raise the
specter of another Superfund debacle clothed in Clean Water Act provisions. The
historic power of the federal government to obtain remediation of contaminated
sediments, shellfish beds, marshes, injured vegetation, wetlands and similar envi-
ronmental damage has proved quite sufficient over the years. No reason exists for
creating a sweeping and nebulous new authority, devoid of standards or legislative
purposes.
818
First, the natural resources restoration provision, section S. 1114^ § 503, contains
no requirement for regulations defining the damage to be remedied, or the process
by which the damage is to be assessed. Statutes such as CERCLA, MPRSA and the
Oil Pollution Act contain carefully structured processes, and definitions for defining
natural resource damages which must be remedied.
Second, the bill contains no liability standards or burden of proof. It could be read
to suggest that an injunction may be obtained requiring a single violator to restore
an entire lake, marsh, or riverine system, without contribution from other polluters
of the same aquatic system. It might also be read to authorize vast actions against
thousands of non-point sources {e.g., farmers or homeowners) to require restoration
of aquatic ecosystems such as the everglades.
Third, the inclusion of such language would appear to call into question existing
governmental authority (successfully used for the past two decades) to require clean-
up directly traceable to the violator.
Fourth, the provision's lack of specificity portends years of litigation (similar to
that surrounding CERCLA) in which issues such as joint and several liability, strict
liability, definition of "natural resources" and definition of "restoration" are fleshed
out at huge expense in tame and litigation costs over several years.
In short, current authority is entirely adequate. Adding the natural resources res-
toration provision will only confuse the program without providing any benefit.
Other Issues
Finally, I would address briefly three additional issues:
(1) Black listing. The bill would disqualify from government contracting any com-
pany convicted of a single criminal violation or three civil violations of the Clean
Water Act. Such automatic disqualification would capture a company which was
merely negligent, or even a non-negligent company held liable for a strict liability
violation of the Clean Water Act which is, nevertheless, criminal (S. 1114 § 503). Dis-
qualification from government contracting (which may be tantemiount to bankrupt-
ing a company dependent upon government contracts) should not occur on the basis
of an unpermitted discharge that was unintentional and, in effect accidental.
(2) Upset provisions. S. 1114, § 593 would require that an upset (i.e., an unintended
malfunction of the waste water treatment system) be treated as a violation of all of
the parameters of the permit rather than as a single violation of the permit, since
each violation is punishable at up to $25,000 per day, and a permit may easily in-
clude a dozen or more parameters, the daily penalty in such an accidental upset
case could be astronomical. There appears no good reason for changing existing law.
(3) Criminal enforcement. The Clean Water Act provides insufficient guidance re-
garding what is criminal and what is not. In addition to the strict liability and neg-
ligence crimes discussed above, the Act provides essentially that any violation of the
permit requirements may be prosecuted criminally. In the context of wetlands pros-
ecutions especially, this statute has provided prosecutors with no guidance whatever
regarding those acts which Congress deems sufficiently egregious to be prosecuted
criminally and those acts which are merely punishable by a fme. Congress should
undertake a better definition of criminal activity so as to avoid uncertainty and ar-
bitrariness.
In conclusion, I appreciate the Subcommittee's invitation to testify today, and I
would be happy to respond to any questions.
STATEMENT BY ADRIAN FREUND, DIRECTOR OF THE LOUISVILLE-JEFFER-
SON COUNTY DEPARTMENT OF PLANNING AND ENVIRONMENTAL MAN-
AGEMENT
Chairman Applegate and distinguished members of the Subcommittee on Water
Resources of the House Committee on Public Works and Transportation. I am
Adrian Freund, Director of the Louisville-Jefferson County Department of Planning
and Environmental Management in Louisville, Kentucky. Prior to assuming my
present position in July 1992, I served as Chief of Water Management for the Con-
necticut Department of Environmental Protection. I have 21 years of experience in
urban and regional planning, environmental planning and environmental manage-
ment, with a concentration in water quality management. I hold a Bachelor's degree
in Urban and Regional Planning from the University of Illinois.
On beheilf of the American Planning Association (APA), I am here today to
present the Association's views on reauthorization of the Clean Water Act. I respect-
fully request that the complete text of my statement be included in the official hear-
ing record.
819
APA is a national public interest and professional organization consisting of
public and private planners, elected and appointed officials at all levels of govern-
ment, as well as educators, students and interested citizens. Our 28,000 members
belong to 45 chapters covering every state and Congressional district.
APA was formed in 1978 when the American Institute of Planners, established in
1917, and the American Society of Planning Officials, founded in 1934, were consoli-
dated. The Association's primary objective is to advance the art and science of plan-
ning for the improved development of the nation and its communities, states and
regions, as well as to preserve its valuable natural resources. Within APA is the
American Institute of Certified Planners (AICP) which focuses on professional devel-
opment.
The American Planning Association £md its 28,000 members have a great interest
in the wise protection of our nation's water resources. Our testimony is based, in
part, on APA's adopted policy on Environmental Quality. APA has also developed
policies on: Comprehensive Surface Water Management, Groundwater Quality and
Quantity Protection; and Wetlands. APA's policy on Environmental Quality seeks to
achieve:
• the conservation of non-renewable resources — such as mineral petroleum and
agricultural lands—and the protection of renewable natural resources, such as
surface and groundwater, air, topsoil, forests, and fisheries from further degra-
dation or destruction.
• the integration of environmental protection and environmental policies and
programs into comprehensive and functional planning and implementation pro-
grams at all levels of government throughout the nation.
• special protection for sensitive areas: wetlands; floodplains; areas supporting
unique or endangered plant and animal sp>ecies; sites of special scenic, histori-
cal, and archaeological significance; and lands or waters that would lose their
value or be permanently impaired by human changes.
Specifically, in relation to water, APA 's adopted policies include the following pro-
visions:
1. Areawide planning and implementation of water quality management and
water supply are critic. Federal funds should be provided to regularly update
areawide plans. Because waters are not confined by local, state, or national bound-
aries, purely local efforts to improve water quEility and/or supply are ineffective.
2. Federal funding for the construction and upgrading of publicly owned
wastewater treatment plants must be continued. Publicly owned plants often sup-
port new growth and development and their construction provides jobs. Unlike scat-
tered, private wastewater plants, public facilities often reinforce centralized growth
and in fill, and prevent urban sprawl and water quality degradation. Furthermore,
Federal construction funds should be consistent with areawide water quality plans
which stipulate that any new growth and development to be served is necessary and
environmentally sensitive.
3. Data collection and analysis of existing conditions should be supported by feder-
al funds. There can be no sound decision on how to maintain and enhance water
quality ard supply without adequate data collection and analysis. Locally funded
monitori' ^ programs fail due to competition for scarce resources.
4. Federal funds should be available to small and financially-strapped communi-
ties to avoid geographic inequities and to prevent economic hardship. Areas of the
nation with exceptionally sensitive bodies of water, large concentrations of waste
producing industry, or large low-income populations should not suffer diminished
environmental quality because of an inabiUty to pay.
5. Research on the effects and magnitude of nonpoint source pollution and the ef-
fectiveness of control strat^es should be continued. The Section 319 program
should be expanded beyond demonstration. Integrated Watershed Planning ap-
proaches to point and nonpoint source control should be promoted. Proposed
projects and land use activities should be evaluated for their contribution to non-
point source pollution; and efforts to minimize adverse effects should be encouraged.
A Planning Perspective on the Clean Water Act
Two years ago, the American Planning Association came before your Subcommit-
tee to present a planning perspective on the Clean Water Act reauthorization. In
our testimony, we stressed four basic premises that underlie our positions on the
Clean Water Act and our adopted policies on water management. Those premises,
equally valid today, are:
1. Water quality is fundamentally related to land use and land management.
"The business of planners and planning is to apply foresight to the way land is
used and managed. Increasingly, environmental protection is an integral part of the
820
process of developing comprehensive plans at all levels of government. Our commu-
nities' use of land directly impacts water quality. Some impacts come from point
sources while others come from broadly dispersed or "nonpoint" sources. Land use
planning is undertaken by nearly all units of government and used to establish the
basis for zoning and development regulations. Increasingly, infrastructure invest-
ments in wastewater facilities are used as a tool to help shape and guide urban
growth and reduce the negative impacts of urbanization on water quality.
2. Efforts to clean up polluted water require extensive capital investments.
Long-range capital planning of at least five to six years is needed at every level of
government. Stable funding of infrastructure programs at the federal level is essen-
tial to secure large and stable capital commitments from state and local govern-
ments.
The benefits of local and regional clean water accrue to the nation as a whole.
Financing of water management facilities and programs is a federal as well as local
and state responsibility. The state revolving fund (SRF) program has been highly
successful in stimulating the construction of new facilities to attack water pollution.
Without the SRF, state and local governments could not afford to make the massive
investments required to achieve water quality standards. The 1987 Clean Water Act
Amendments introduced nonpoint sources, combined sewer overflows, sludge man-
agement, stormwater and toxics as new needs to be addressed by the states. Ad-
dressing these problems will require large new capital investments throughout the
next two decades. Stable federal funding is essential.
3. Water quality and water quantity are directly interrelated. Water quality is ir-
revocably tied to the amount of clean water available for drinking, industrial and
agricultural uses.
Polluted water is not readily available for drinking and must often be subjected to
costly treatment processes to make it suitable even for industrial and other uses.
Since surface and groundwater are closely interrelated, the quality and quantity of
groundwater can directly impact surface water as springs feed the streams and
rivers, especially in time of drought. Surface and groundwater withdrawals for con-
sumptive use reduce flows in rivers and streams and may seriously compromise the
achievement of aquatic life and recreational use goals in large areas of the nation.
4. Wetlands in their natural state perform ecological functions that are impossible
or costly to replace and are vitally important to the environment and economic
health of the nation.
Wetlands protect the quality of surface waters by retarding the erosive forces of
moving water, and by intercepting and reducing waterborne sediments, excess nutri-
ents, heavy metals and other poUutemts. Several states in our nation have developed
outstanding wetland protection programs that recognize the criticEil functions that
wetlands play in maintaining water quality and providing habitat for wetland de-
pendent and transitional plant and animal species. Wetlands protection is a funda-
mental land use management function in which the federal government must pro-
vide leadership. State and local governments must play supporting roles.
Last year, APA came before this Subcommittee to testify on the merits of H.R.
5070, the "DeLauro-Lowey Water Pollution Control and Estuary Restoration Financ-
ing Act." In our testimony, we noted that the outstanding work of your esteemed
colleagues offered an opportunity to better integrate planning £md development de-
cisions at an ecosystem or "bioregional" level. Commenting on the work of Repre-
sentatives DeLauro and Lowey in a recent letter to APA, Majority Whip David E.
Bonior noted that the "Congresswomen . . . recognized early that careful planning
can help to maximize the environmental and economic benefits of expenditures on
environmental infrastructure." Congressman Bonior, commenting on Congresswom-
en DeLauro and Lowey's recent efforts to develop a strategy for expediting infra-
structure funding, notes that the proposal "will focus on giving priority to projects
that emerge from sound planning efforts.
President Clinton's budget contains a major economic stimulus package that fo-
cuses on infrastructure investments as a way to create jobs, promote economic de-
velopment and meet environmental goals. Those projects that are "ready to go"
under the administration's program will undoubtedly be the same projects that
have benefited from careful planning.
The Merits of a Watershed Planning Approach
There are many signs that the benefits of sound planning are becoming more
widely recognized. The National Estuary Program requires "Comprehensive Conser-
vation and Management Plans" as a basis for making decisions about investments
and regulatory programs that are needed to clean up waters of special national sig-
nificance. Under Section 319 of the Clean Water Act, states create nonpoint source
821
maneigement plans to establish priorities for investments in best management prac-
tices, land msinagement programs and land use initiatives. Wastewater facilities
plans have been part of the clean water vocabulary since the 1970's.
Throughout America, hundreds of watersheds provide examples of the application
of planning approaches to watershed and water quality management. I have devel-
oped watershed programs in places as diverse as Austin, Texas; Madison, Wisconsin
and the State of Connecticut. In my own area of Louisville and Jefferson County,
Kentucky, a unique and sensitive watershed known as Floyds Fork has been pro-
tected from the pressures of urbanization. The Floyds Fork Program was led by
David Armstrong, County Judge/Executive and uses zoning and development stand-
ards and policies to protect the character of the watershed and prevent water qual-
ity degradation.
In 1991, the State of North Carolina's developed a Whole Basin Approach to
Water Quality Management. Throughout 1991 and 1992, state water managers,
water interest groups, APA and several federal agencies began to focus upon the
concept of a watershed basis or basin approach to water quality management as a
new organizing framework for the Clean Water Act. Last week, over 900 persons
participated in an EPA conference on the subject of Watershed Planning and man-
agement. Sound, integrated planning of ecosystems or "bioregions" is at the heart of
the watershed approach.
The American Planning Association has developed a conceptual framework for a
watershed approach to clean water (copy attached) and strongly supports the con-
cept as a effective tool to coordinate and integrate the may programs required by
the Clean Water Ad National Pollutant Discharge Elimination Systems (NPDES)
permitting, monitoring, water quality modeling, nonpoint source assessment, waste
load allocation, best management practices and planning requirements can be inte-
grated throughout a watershed. Water quality and aquatic resources cem be assessed
simultaneously throughout an entire river basin.
The benefits of whole basin or Watershed Planning and management fall into
three major categories: (1) improved program efficiency, (2) increased clean water
program effectiveness, and (3) consistency and equitabUity. By focusing on specific
areas of concern each year, monitoring, modeling, and permitting efforts can be fo-
cused; as a result, more can be achieved for a given level of funding and resource
allocation. The whole basin approach is consistent with basic ecological principles of
Watershed Management, leading to more effective water quality assessment and
management. Linkages between aquatic and terrestrial systems are addressed (e.g.,
contributions from nonpoint sources) and all inputs to aquatic systems, and poten-
tial interactive effects are considered.
Watershed Management will facilitate the incorporation of nonpoint source pollu-
tion assessment and controls, since these diffuse pollutant sources extend to the wa-
tershed boundaries and accumulate from a basin s headwaters to its mouth. Water-
shed plans will provide a focus for management decisions. By clearly defining long-
term goals and approaches, these plans will encourage consistent decision-mgiking.
Consistency, together with greater attention to long-range planning, in turn will
promote a more equitable distribution of the assimilative capacity of a water body,
explicitly addressing the trade-offs among pollutant sources (point and nonpoint)
and allowances for future growth.
North Carolina is but one of many states that are exploring or have implemented
watershed-based water quality management programs. Currently, many of the
Clean Water Act requirements for reporting and planning can be satisfied through
a whole basin or Watershed Management approach. Some of the Clean Water Act
requirements that could be more effectively addressed through a whole basin ap-
proach include:
• Section 302 — Water Quality based effluent limits. Under a watershed approach,
alternative effluent control strategies could include approaches such as assimi-
lative capacity "banking."
• Section 304(1) — Impaired Waters. A watershed approach would include a com-
prehensive analysis of all the inputs to a watershed that may cause degrada-
tion. More objective priority setting and improved management strategies are
the benefits.
• Section 305(b) — Water Quality Inventory. A comprehensive assessment of water
quality in each watershed is generated through a whole basin approach.
Sections 201, 303, and 319 of the Clean Water Act require or strongly encour-
age a watershed approach to water quality management. However, a piecemeal
approach to implementation of the Act, a fragmented approach to funding and
grants and a variety of separate reporting requirements have discouraged states
and localities from pursuing integrated watershed-wide approaches.
822
It is the position of the American Planning Association that barriers to carrjdng
out watershed-based planning should be identified by Congress and removed during
the reauthorization process.
Additional Recommendations for the Reauthorization
The American Planning Association has developed several additional recommen-
dations for the reauthorization.
1. The planning process for controlling nonpoint source pollution needs to be im-
proved.
We recommend consistency between local land use plans and state water quality
plans including nonpoint source reduction. The federal nonpoint source program
must shift its emphasis from demonstration to long term msmagement of nonpoint
sources.
The Clean Water Act should require that localities receiving or qualifying for fed-
eral assistance establish a nonpoint source management strategy. The statewide
(Section 319) nonpoint source plans should reflect participation by regional planning
Eigencies and local government in nonpoint source planning. The Act should either
set forth in detail the criteria that the Environmental Protection Agency (EPA)
must use in certifying that a state plan is adequate, or require EPA to promulgate
regulations setting forth such detailed criteria. The program could follow the model
established by the requirement for a coastal area water qu£ility element in the
Coastal Zone Management Act.
States should require regional agencies and local governments to certify that their
existing plans are consistent with state nonpoint source management plans, or re-
quire regional and local governments to prepare and implement new nonpoint
source management plans consistent with the state plan. States should certify to
EPA that they have reviewed both regional and local plans and found them consist-
ent with state plans. Consistency of federal projects should be required before cap-
ital improvement funds are released for major federal facilities, including federally
assisted highway projects.
Congress should appropriate sufficient funds to allov/ EPA, states, and local gov-
ernments to successfully administer the nonpoint source control program. Such ad-
ministration should go beyond the current situation to anticipate meeting future
needs.
Grants are also needed so the states and local governments can prepare and im-
plement high quality nonpoint source reduction plans. The Section 319 nonpoint
source program should emphasize institutionalizing nonpoint source control, as con-
trasted with the current focus on demonstration.
2. We support providing opportunities for joint management of ground and surface
water supplies and believe that state water plus that address surface and ground-
water quality and quantity should be required.
Federal grants are needed to fund research on strategies for joint maneigement of
ground and surface water that also integrate principles from the Safe Drinking
Water Act. We need to start looking at the resource on an ecosystem basis.
The Clean Water Act should take first steps toward requiring state water plans,
that address surface and groundwater quality and quantity. The plans should pro-
vide for in-stream flow quality and quemtity standards for the purpose of preserving
and enhancing fish and aquatic life. The revised Act should also contain special pro-
visions for ephemeral and intermittent watercourses with standards appropriately
based on the sources of water.
Federal funding for any water project should be approved only when state water
plans can demonstrate consistency with other state planning programs such as
growth management, clean air and solid waste management. Local wastewater facil-
ity plans submitted to the state for funding under the state revolving fund must be
consistent with local air, water, solid waste management and growth management
plans (where they exist). Local land use planning needs to take into account water
quality and quantity. The plans should guide development to be compatible with
protection of recharge areas, conservation of aquatic habitats, surface water quality,
stormwater runoff and take into account cumulative and sjmergistic effects.
3. The federal government should establish a long-range capital planning budget, at
least live five to six years inscope, as a basis for appropriating funds to the State
Revolving Fund (SRF) for building and upgrading the many public works projects
necessary to achieve the objectives of the Clean Water Act. For communities in eco-
nomic hardship, additional SRF funds should be made available and payback peri-
ods should be extended.
823
The large unmet need for construction and upgrading of wastewater treatment
plants requires additional investment by the federal government in the state revolv-
ing fund (SRF). The SRFs must also address new needs such as combined sewer' cor-
rection, stormwater, nonpoint sources and sludge management. The federal govern-
ment should give special consideration to assistance for public works projects that
are included in adopted local and state capital improvement programs of state and
local governments that are linked to longer-term state development plans and local
comprehensive plans.
4. The State Revolving Fund (SRF) program should be continued at least through
1999, with federal capitalization funds of at least $2 billion annually. Additional
funding comprising a total of $5 billion annually should be provided as part of an
economic stimulus program targeted at infrastructure. The continuation of funding
should address the unmet needs included in the 1987 Clean Water Amendments.
The 1987 Clean Water Act Amendments introduced nonpoint sources, combined
sewer overflows, sludge management, stormwater and toxics as new capital needs to
be addressed by the states. Continuation of capitalization grant appropriations at
the current level of approximately $2 billion annually through 1999 will allow SRFs
to address many of these unmet needs mandated by the 1987 Act. Additional funds
should be appropriated and any program that also addresses drinking water needs
should be funded at levels of up to $5 billion.
5. A goal of no overall net-loss of the nation's remaining wetlands resource base as
defined by acreage, volume, location, type and function should be adopted. Where
feasible, federal legislation should support actions to enhance, restore and create
wetlands using a "partnership" approach that incorporates private stewardship and
federal, state, and local cooperation.
APA supports language in the new Clean Water Act to protect wetlands and to
promote the development of EPA-assisted, funded and approved comprehensive wet-
land management plans at the state, regional and local levels. These plans must
ensure intergovernmental coordination and achieve the no net-loss goal. That also
means that federal activities must be consistent with EPA-approved state and local
wetland management plans.
We recommend allowing and encouraging states, regional and local government
entities to assume responsibility for specific portions of the Section 404 program and
other future legislated programs so long as they demonstrate a capacity to further
the national goal of no-net loss and adopt approved state wetlands management
plans. Local governments should be allowed more direct participation in both the
regulation and management of wetlands based upon a clearly defined wetlands in-
ventory and classification system.
We urge you to establish a comprehensive program that supports tax-based and
other financial incentives to encoureige landowners, land trusts, states, and local
governments to protect wetlands, and provide funds for public and semi-public ac-
quisition of wetlands in full or in part, as appropriate. Planning techniques such as
cluster zoning and transfer of development rights and other innovative land use in-
centives need to be encouraged to accomplish the preservation of wetlands.
The Clean Water Act should encourage states and locEil governments to establish
mitigation banks for unavoidable losses of wetlands. Federally funded projects, espe-
cially transportation facilities, including those funded by the Intermodal Surface
Transportation Efficiency Act of 1991 (ISTEA), should be designed to avoid unneces-
sary wetland losses. Mitigation for unavoidable losses should be eligible for federal
funds.
6. To further the intergovernmental partnership that implements the Clean Water
Act, we support adequate federal funding for the states and local governments to
carry out and manage significant new mandates.
States have a key role in the federal Clean Water strategy. States have carried
out the basic requirements of the Act for nearly 20 years with considerable progress.
Federed support of state program management, however, has dwindled in recent
years, and states must now take on new responsibilities for stormwater permitting,
nonpoint sources, toxics and other mandates of the 1987 Act.
The management needs of states are estimated to be at least $700 million annual-
ly. Federal appropriations for Section 106 must be dramatically increased from their
current level. Local governments also need more money and support from the feder-
al government so they can carry out their role under the Clean Water Act as well.
CONCLUSION
Let me conclude by thanking the Chairman for inviting the American Planning
Association to testify before your Subcommittee, thus providing the planning profes-
69-677 0-94-27
824
sion an opportunity to share with the Subcommittee our thoughts and expertise on
the Clean Water Act. I would also like to recognize the Government Affairs staff of
APA here in Washington, D.C. for their fine efforts in focusing greater attention on
the importance of sound pleinning. We believe that the Congress can substantially
improve the Clean Water Act by integrating the planning approaches advocated by
APA into the Act.
Other recent models, such as the Intermodal Surface Transportation Efficiency
Act (ISTEA), demonstrate the merits of a participatory, integrated federal/state/
local planning partnership.
I would be more than happy to address any questions you may have.
WATERSHED BASIS FOR CLEAN WATER
Prepared for the American Planning Association, by Margot W. Garcia, PhD, AICP,
Department of Urban Studies and Planning, Virginia Commonwealth University, in
consultation with Charles Wolfe and Keene Callahan of Robinson & Cole, Hartford,
Connecticut and Arlan Colton, State Land Department, Tucson, Arizona.
Despite massive efforts at point-source pollution control which has resulted in
considerable improvement, the rivers and lakes of the United States still are not
fishable and swimmable. Non-point source pollution from urban, agricultural £md
industrial runoff has become the greatest problem. The waterways and wetlands of
our nation are an indispensable and irreplaceable but fragile natural resource with
which the citizens of the nation have been endowed. These are an interrelated web
of nature essential to an adequate supply of surface and groundwater; to hydrologi-
cal stability and control of flooding and erosion: to the recharge and purification of
groundwater; and to the existence of many forms of animal, aquatic and plant life.
The quality of our nation's water is a historical reflection of land uses which re-
quires new and innovative solutions to address the problem. What follows is a con-
ceptual model for watershed beised plemning and management to reach the nation's
goal of the protection of the physical, biological and chemical integrity of our na-
tion's waterways.
L General Assumptions
— ^We need to approach this problem from a "systems" point of view, meaning
dealing with the complete hydrologic system of precipitation, surface and
groundwater, wetlands, lakes and ponds, eind estuaries. "The systems approach
forms one of the references for planning and management.
— The definition of "clean" needs to come from a risk-based analysis.
— With very few exceptions, land use decisions have been historically made at the
local level with active and informed citizen participation. This process is strong-
ly supported by citizens.
— Definition and em£d3rsis of problems and forecasting of trends needs to be based
on the best science available. A basic inventory of ecosystem characteristics and
functions is essential as well.
— ^Water quality and water quantity are interrelated. Upstream activities deter-
mine the limits within wWch downstream activities may be carried out. The
quantity of water cannot be divorced from quality for purposes of beneficial use,
and quality is conditioned by the quantity available.
— In order to adopt and implement this "systems" approach, all the parties who
will be affected need to be at the table to agree on the definition of the problem
and to negotiate the strategies to resolve the issues identified.
— The Water Resources Planning Act of 1965 by creating a cooperative framework
between the federal government, states, local governments and private enter-
prise established a Federal-State framework to manage and protect river basins.
We need to buUd on that experience.
— ^While there is a need to establish institutions based on watershed or ecological
boundaries, creating new governmental structures should be avoided. One way
to avoid creating new structures is to modify existing ones.
— The existing point and nonpoint National Pollutant Discharge Elimination
System (NPDES) permit system should stay in place. The Section 404 and 401
permits system of the Clean Water Act should be modified. Flexibility of these
systems during transition to a watershed-based approach is necessary.
n. A Conceptual Framework
The watershed systems approach provides the basis to (1) analjrze water quality
and quantity problems, (2) implement land use and environmental planning strate-
gies to overcome these problems, tmd (3) monitor the progress and success of the
825
watershed system approach in order to adjust the strategies as needed. To be effec-
tive and compi-ehensive, watershed boundaries would overlay existing political
boundaries of states, counties and municipalities. These political jurisdictions within
one watershed would need to work together under new institutional arrsmgements.
The watersheds systems approach is an attempt to achieve the goal of "fishable
and swimmable" under the Clean Water Act.
The U.S. Geological Survey (USGS) has a system for classifying watersheds £is
they aggregate into larger systems, which was used in part by the Water Resources
Council CV^C). There are 21 river basins in the U.S. which would report to EPA.
The "river basins" would form the largest regional areas. Planning and coordinat-
ing of watershed plans would occur at this level. They would also be responsible for
setting water quality standards and administering the NPDES permit system in ac-
cordance with approved watershed plans.
The next level of management or coordination of watershed activities would be
"planning subregions." Th^ is an area dredned by a river system, a reach of a river
and its tributaries in that reach, a closed basin(s) or a group of streams forming a
coastal drainage area. The WRC had set up 222 of these planning subregions (later
consolidated to 106 assessment subregions).
The "accounting unit" is nested within or equivalent to a planning subregion. It
is used by the USGS for designing/managing the National Water Data network.
The WRC had set up 352 accounting units. In a small riverine basin these might be
equivalent to the planning subregions. This is the level that would be responsible
for issuing Section 404 and 401 permits for development projects, making sure that
the permit issuance is consistent with the metropolitan planning organization
(MPO)/council of governments (COG)/hydroregion plan and its Best Management
Practices (BMPs).
Representing part or all of a surface drainage basin, a combination of drainage
basins or a distinct hydrologic feature is the local hydroreglon. Called "cataloging
unit" by the USGS, they have about 2100 of these areas and use them in acquiring
and cataloging water data. In an effort not to create new layers of government,
there should he an effort to use the MPOs or COGs in creating the local institution.
One might need to adjust the boundaries of the MPOs or COGs to coincide with wa-
tershed boundaries. At this local level or MPO/COG/hydroregion is where the
major planning and implementation of the strategies (including site-specific Best
Management Practices) would occur.
Each watershed level river basin would have a citizen committee to guide the
work and recommend policies. The committee would be made up of 20 percent in-
dustry representatives (including agricultural industry and agriculture), 20 percent
environmentalists, 15 percent from the professional organizations, 15 percent aca-
demics, and 10 percent representing local governments, 10 percent from state gov-
ernment, and 10 percent from federal agencies. The actual size of the committee
would depend on the size of the watershed and population of the area. The group
would work by consensus and plenty of time to work through the issues would be
allowed in building the plan. The membership of the MPO/COG/hydroregion citizen
committee would be appointed by the MPO/COGs. The citizen committees for the
unit and planning subregion would be made up of representatives from the MPO/
COG/hydroregion citizen committee. The citizen committee for the riverine basin
would be appointed by the governors of the states involved.
The loc^ MPO/COG/hydroregion plan would be sent to the accounting vmit
group. That unit citizen committee would work to integrate the different pleins
coming from the local MPO/COG/hydroregion committees in their area. The unit
citizen committee would negotiate with the local MPO/COG/hydroregion commit-
tees as well as among themselves to set consistent strategies to handle the identified
problems and priorities for funding. The Unit plan would then be sent to the plan-
ning subregion citizen committee for similar action. Their plans would go to the ri-
verine basin citizen committee for integration with the other planning subregion
plans. The riverine citizen committee would negotiate with the planning subregion
committees, as well as among themselves, to set consistent strategies to handle the
identified problems and set priorities for funding. They would set the general poli-
cies and water quality standards that must be met for the entire riverine basin. The
river basin plan must be approved by the U.S. Environmental Protection Agency.
Based on approved plans and priorities, budgets would be set and funding allocat-
ed for implementing the plans.
m. The Watershed Plan
The goal of each local MPO/COG/hydroregion, accounting unit, planning subre-
gion eind riverine watershed plan is to protect the physical, chemicsd and biological
826
integrity of the hydrologic system and to have all the waters of their watershed in
fishable and swimmable condition.
A plan at the local MPO/COG/hydroregion must contain an inventory of the eco-
system, hydrologic system Gakes, ponds, springs, aquifers, streams, rivers, wet-
lands— tidal and non-tidal — and estuaries). Appropriate and defensible water quality
standards will need to be developed based on the best scientific information avail-
able. The following topics need to be analyzed and strategies developed to overcome
problems as defined in the plan:
• quality of surface and ground water
• quantity of surface and ground water
• assimilative capacity of streams and rivers in the area
• wastewater treatment facilities
• instream flow
• quality of drinking water
• flooding and floodplain management
• erosion and sedimentation
• reuse of treated effluent
• septic tank regulations
• dredging and dredged material disposal
• wetlands
• quality of bay, estuary and coastal waters
• drainage
• stormwater management
• urban emd rural runoff, including agricultural and animal waste
• comprehensive plans, 'zoning ordinances, and subdivision regulations
• transportation plans
• injection and dry wells
The plan also needs' to deal with water demand from the following sectors:
• domestic and commercial
• manufacturing
• energy production
• mineral production and mining
• agriculture and ranching
• recreation
• navigation
• fish and wildlife
• natural areas, historic and wUdemess areas
The plan must include an implementation plan which will put in place procedures
to ensure that local governments are following the practices outlined in an approved
plan and that violators be prosecuted. Incentives for local implementation may also
be beneficial.
The plan also needs to develop monitoring criteria that will assess the effective-
ness of the strategies (including site-specific BMPs) adopted to resolve the problems.
The plan must mandate consistency of city/county comprehensive or master plans,
zoning ordinances, subdivision regulations and ripariem/wetlands regulations within
the MPO/COG/hydroregion boundaries — and therefore within the watershed.
The plan should be updated every five years.
Public workshops, education and hearings must be part of the planning process.
Only through extensive public education and involvement, so that the consequences
of everyone's individual and collective actions are understood, will there be progress
in cleaning up our water resources and the environment in general.
There needs to be an appeal process from whatever regulatory measures are put
in place. The appeal process should consist first of a hearing by a citizen board. If
that does not result in satisfactory resolution of the dispute, then either party can
request alternative dispute resolution — the use of environmental mediation. If the
mediation is unsuccessfvil, the use of the courts is appropriate. Legal proceedings
should be disallowed until the first two steps have been completed.
STATEMENT OF CALIFORNIA ASSOCIATION OF SANITATION AGENCIES
Mr. Chairman and Members of the Subcommittee, I am Robert Miele, Director of
Technical Services at the County Sanitation Districts of Los Angeles County, which
provides wastewater treatment services to more than 4.8 million people in 79 cities
and the county of Los Angeles. I am here today representing the California Associa-
tion of Sanitation Agencies (CASA).
827
CASA is a statewide association of 90 wastewater treatment agencies that collec-
tively serve more thsm 15 million people throughout the State of California, over
half the sewered population in the State.
Since 1972, when Congress passed the Clean Water Act, and most recently the
Federal Water Pollution Control Act of 1987, CASA agencies have endeavored to
work with EPA and the State of California to implement the requirements of this
law. Thus, we are pleased to have the opportunity to present our experience to this
Subcommittee and recommend revisions to our nation's present clean water pro-
gram that we believe will promote sound water quality protection policies into the
next century.
CASA believes a number of clean water policy issues are ripe for the Subcommit-
tee's review and revision, many of which are addressed in S. 1114. The focus of this
testimony will be on CASA's perspective on the need for a comprehensive Water-
shed Management approach to water quality protection, and our comments on Sec-
tion 302 of S. 1114.
The California Perspective
For years, California has been among the leaders in clean water policy develop-
ment and implementation. CASA is proud of the role that its member agencies have
played in providing clean water throughout the state. Recently, however, we have
observed the implementation of a clean water policy that is misdirected and unre-
lated to the available resources. Therefore, for the past several years CASA has
been promoting the adoption of a new paradigm for water quality protection: a Wa-
tershed Management approach. I am attaching to my testimony (Attachment A) a
report entitled "Watershed Management Approach to Toxicity Control," which was
prepared in 1992 by Tri-TAC, a statewide technical advisory organization composed
of representatives of CASA, the League of California Cities, and the California
Water Pollution Control Association. TriTAC's report provides a vivid case study of
the Sacramento River, indicating that the major point source discharger to the Sac-
ramento River, the city's POTW, contributes a very small percentage of the metals
to the river and yet, under current law may be forced to spend an enormous amount
of money to remove these metals with little attendant water quality improvement.
The report illustrates the need for a Watershed Management approach and provides
an overview of Tri-TAC's ideas regarding how Watershed Management could be im-
plemented. CASA believes that the Watershed Management approach embodied in
S. 1114, while somewhat different from that outlined in this report, represents a
strong step toward a nationwide commitment to Watershed Management. We are
encouraged to see that the debate centers on how, not whether, to design a reasona-
ble Watershed Management policy.
In addition, over the past year, CASA has developed a state-level legislative pro-
posal to implement Watershed Management within California (Attachment B). This
proposal is premised on a strong directive from the federal government to the states
to approach Watershed Management programs with the same commitment that has
been brought to existing Clean Water Act programs. This is vital. Unfortunately,
CASA has witnessed inertia on the part of some state and regional regulatory offi-
cials who prefer existing programs with which they are familiar (and therefore com-
fortable) over innovative and cost-efficient water quality programs that would ad-
dress all sources of water pollution. Therefore, a strong emd clear commitment to
address water quality through Watershed Management must emerge from renewal
of the Clean Water Act. Without this, we are concerned that present regulatory
practices will hamstring any meaningful effort to implement Watershed Manage-
ment programs.
A New Paradigm for Water Quality Protection: The Watershed Management Ap-
proach
Enhancement of water quality and water resources to meet national goals
through the end of the decade requires a policy and programs that differ from those
of past decades. CASA believes a national approach that directs states to implement
innovative solutions to site-specific water quality problems is needed, and that such
an approach must provide the umbrella for all existing point and nonpoint source
water quality programs into the next century. To this end, CASA suggests that S.
1114 be modified to explicitly incorporate other point and nonpoint source programs
into the Watershed Management framework. CASA believes Watershed Manage-
ment is the preferred gdtemative for several reasons:
• It will permit water pollution threats to be considered on a regional basis in-
stead of on the basis of political jurisdictions.
828
• It offers the opportunity for all affected parties to work in a cooperative
manner to identify water quality priorities and develop appropriate, cost effec-
tive strategies for meeting water quality goals within a watershed.
• It offers the chance to target resources toward the real environmental threats.
Rather than mandating that all point source dischargers simply meet numeric
standards regardless of the impact (or lack thereof) of point source dischargers
on a water body, CASA believes that the Clean Water Act should require states
to adopt innovative water quality-based permit requirements on a watershed
basis that recognize the multi-source nature of pollution (point, nonpoint and
atmospheric) and the cross-media impacts that may result from controls. Sec-
tion 302 of S. 1114 provides an excellent start toward accomplishing that objec-
tive. CASA has the following specific comments on Section 302:
1) The Importance of Incentives
While CASA believes that it is imperative for a Watershed Management approach
to be adopted on a national basis, we understand the need for different regions and
states to have flexibility in how they approach water quality protection. Therefore,
we endorse the use of incentives such as those included in S. 1114 to encourage the
widespread adoption of a Watershed Management approach.
The choice of an administrative mechanism to develop, implement and evaluate
Watershed Management Plans is one of the keys to ensuring timely implementation
while minimizing the lag time inherent in any new policy endeavor. CASA supports
the use of existing state organizations as the Watershed Man£igement entity. Cali-
fornia has regional water quality boards and a Statewide water resources control
board. During these times of limited public resources, CASA believes that existing
management systems should be used whenever possible to stretch the public's tax
dollar. At the same time, we recognize that some states may not have a similar
management structure that will lend itself to planning and implementing a Water-
shed Management progremi. Therefore, we believe that it is important to provide a
state with the latitude, as S. 1114 does, to design its own administrative mechanisms
and procedures and to designate the entity that would implement the watershed
program.
In addition, we believe it is appropriate to make additional funding available
under the State Revolving Loan program to assist in the implementation of Water-
shed Management for those states that choose to develop Watershed Management
Plans. In these times of fisced distress at the state and local levels, we regard it as
essential that states be able to use State Revolving Loan finds to cab out Watershed
Planning activities.
The basis of any successful Watershed Management program will rest on how a
state defines the watershed and the sources of pollutant loadings within it. In Cedi-
fornia, we are fortunate that our watersheds are almost completely confined within
our borders. This makes the task of designating watersheds and outstanding nation-
al resource waters much easier. However, CASA recommends that you consider
modifying S. 1114's designation provisions to require EPA and a state to act within
a specified time on a resubmitted watershed designation. This will ensure timely
progress in Watershed Planning.
2) The Need for Sound Science to Ensure the Protection of Water Quality and the
Appropriate Allocation of Resources
The requirements for comprehensive monitoring and assessment contained in S.
1114 are imperative to ensure that an adequate database is available to develop ef-
fective Watershed Memagement Plans. The database provided by such a monitoring
program should be designed to identify the real threats to water quality, which
often have remained unaddressed under the existing "command and control" regu-
latory regime of water quality protection and maintenance.
In general, CASA believes that water quality standards should be based on empir-
ical, site-specific studies and monitoring to guarantee that water pollution mandates
are relevant and provide a reasonable benefit for the costs incurred. During these
times of limited public and private resources, we need to correct the current waste-
ful "command and control" approach that provides a false sense of environmental
improvement at great cost to the public.
Ongoing efforts to address toxics in the San Francisco Bay area provide a good
example of how the existing "command and control" approach fails the public's
need to obtain necessary environmental improvements at the least overall cost.
Since 1960, San Francisco Bay Area POTWs have spent more than $3 billion to up-
grade wastewater treatment systems. These improvements have resulted in 95% re-
moval of conventional pollutants. Pretreatment programs and local limits have fur-
829
ther reduced toxic discharges. Today, POTWs and industrial dischargers contribute
less than 15% of the total metals discharged to the Bay. In fact, our State Water
Resources Control Board estimates that POTWs and other point sources contribute
less that 3% of the entire pollutant loadings to the Bay. Etespite these small load-
ings, the City of Palo Alto will need to spend more than $100 million to build lime
treatment and reverse osmosis facilities to remove metals in its 23 million gallon
per day (MGD) wastewater treatment plant to meet State water quality standards.
Annual operating costs for these facilities are estimated at $21 million. This tremen-
dous capital investment would result in an annual reduction of just 202 pounds of
copper in the plant's wastewater discharge. Looked at another way, this represents
a 0.02% reduction in the 1.2 million pounds of copper that enter the Bay each year.
This situation is not unique to the Bay Area.
Other communities face similar expenditures to meet state water quality plan re-
quirements. For instance, in areas of California and the arid West, such as the Los
Angeles area where my agency is located, POTWs will be required to incorporate
very costly technologies to treat wastewater discharged into water bodies composed
wholly or substantially of wastewater effluent. Applying nationwide or statewide
water quality standards to these effluent-dependent streams will result in tremen-
dous public expenditure without a commensurate environmental benefit to the com-
munity.
For example, it will cost a single POTW discharging into the Santa Ana River in
Southern California $110 million to remove ammonia from its effluent. This addi-
tional treatment will result in a 73% increase in the local community's wastewater
rates. Curiously, this removal effort is intended to protect the estimated 2,600 adult
mosquito fish that are planted for mosquito larvae abatement in the 8 to 10 mile
river segment below the dischargers. Keeping in mind that there are no native fish
in the river because of the physical limitations of the habitat, the question must be
asked: what does this treatment cost mean to the average ratepayer? Simply put,
the cost to remove ammonia is estimated at $37,000 per fish, or about $19 million
per pound of fish. Moreover, there is no requirement for proof that the mosquito
fish are even threatened by the current discharge levels before these new require-
ments are to be imposed. Dischargers are simply required to meet numeric criteria
calculate on a national basis irrespective of local species and water quality.
These examples illustrate the substantial costs local communities will incur to
meet permit limits derived from EPA's water quality criteria, regardless of the net
effect on receiving water quality. A Watershed Management approach, if applied to
these situations, could ensure that water quality standards (and effluent limits) are
relevant to the watershed.
3) Addressing All Sources Through Watershed Planning
While differences may arise on how best to design a Watershed Management pro-
gram, most interested parties would agree that it makes no sense to require compli-
ance with nimieric standards (or effluent limits in permits) imtil all pollution
sources are addressed in a coherent plan. Under such an approach, a point source
would be issued a permit with effluent limitations that recognize the overeill benefit
of controlling pollutants from all sources. Thus, a POTW could be subject to a limi-
tation that is less stringent than attaining and maintaining an existing water qual-
ity standard if a Watershed Management Plan that includes enforceable reductions
in pollutant loadings from urban and rural nonpoint sources can ensure that water
quality standards will be met. CASA applauds the Committee for including in S.
1114 provisions to allow this approach to be implemented.
It is now widely accepted that the majority of impaired waterbodies are being de-
graded primarily nonpoint sources. Hence, we suggest that the Subcommittee
strengthen S. 1114 by linking by Sections 302, 303, and 304. Watershed Management
wiU work only if mandatory controls are imposed nonpoint sources in those water-
sheds in which designated uses are not being met and nonpoint sources are demon-
strated to be a significant source of pollutants.
4) The Need to Coordinate NPDES Permitting and Watershed Management Plan-
ning
One of the most importemt concerns for CASA member agencies heis been the
sense that we are moving down an immutable path toward the adoption of effluent
limitations in NPDES permits that reflect newly adopted water quality standards,
r^ardless of the attainability or environmental relevance of such standards. Hence,
we are greatly encouraged to see in S. 1114 the inclusion of provisions that would
allow NPDES permit terms to be extended while a watershed plan is being devel-
oped. This is the only way we see for permittees to avoid potentially imnecessary
830
expenditures of public resources, given that antibacksliding provisions under Sec-
tion 402(o) of the Clean Water Act would prevent changes in permit limits even if a
Watershed Planning effort determines that less stringent limits are acceptable.
CASA would like to suggest, however, that S. 1114 be modified to ensure that
NPDES permit terms will be extended until a Watershed Management Plan has
been approved by EPA (or a delegated state). Of course, we would agree that safe-
guards, such as continuing compliance with existing standards in permits, are neces-
sary so that this would not become a blank check for point sources.
In conclusion, I would like to commend the Subcommittee for its foresight in in-
cluding a Watershed Management program in S. 1114. CASA looks forward to work-
ing with the Subcommittee in the coming weeks as you refine the provisions of S.
1114.
Mr. Chairman, this concludes my testimony. I would be pleased to answer any
questions you or your colleagues may have on how to ensure timely adoption and
implementation of Watershed Management Plans at the state and local level.
Again, CASA appreciates the opportunity you have extended us to participate in
this important endeavor.
WRITTEN STATEMENT OF THE CHEMICAL MANUFACTURERS
ASSOCIATION
The Chemical Memufacturers Association (CMA) appreciates the opportunity to
submit this written statement on S. 1114's proposed amendments to the enforce-
ment provisions of the Clean Water Act. CMA is a nonprofit trade association whose
member companies represent more than 90 percent of the productive capacity of
basic industrial chemicals in the United States. CMA's members discharge
wjistewaters to U.S. waters in accordance with Nationed Pollutant Discharge Elimi-
nation System (NPDES) permit requirements and to publicly-owned treatment
works in accordance with the pretreatment requirements of the Clean Water Act.
Therefore, these companies will be directly and significantly affected by modifica-
tions to the Act's enforcement provisions.
CMA supports vigorous enforcement of the Clean Water Act's requirements. How-
ever, we believe that ample enforcement authority already exists under the present
Act. As evidence, EPA reports that enforcement activity overall is on the rise. In
fact, there were more civil and criminal penalties assessed during fiscal year 1992
under the Cleem Water Act than under any other environmental statute. Citizen
suit enforcement also continues to increase. The U.S. Public Interest Research
Group (PIRG) recently reported that "existing citizen suit provisions have allowed
significant enforcement activity." In light of these findings, we see no need for ex-
panded enforcement authority — either for EPA or for citizen groups.
The bill before this subcommittee, S. 1114, however, would significantly expand
this authority. We would like to point out some of our serious concerns with these
provisions. Before turning to these specific provisions, however, we would like to ad-
dress what appears to be motivating these proposed modifications, namely the per-
ceptions that significant noncompliance is widespread and that enforcement by EPA
and the states is woefully inadequate. In fact, neither of these perceptions is true.
First, reports of widespread non-compliance are contradicted by EPA's own assess-
ment, as reported by Senator Graham at the July 14 hearing on nonpoint sources.
According to this assessment, 87 percent of industrial and 85 percent of municipal
sources are in substantial compliance with CWA permit requirements. Further, in
evaluating the extent of non-compliance, it is important to understand how EPA de-
velops technology-based permit limits. EPA calculates daily maximum pollutant
limits that it believes can be met 99 percent of the time, smd monthly average limits
that the Agency believes can be met 95 percent of the time. Thus, violations can be
expected to occur 1 percent and 5 percent of the time by the very nature of the
method EPA uses to derive the limits. Facilities like chemical plants that have
permit limits for many pollutants, therefore, can be expected to have exceedances,
even though they may be in compliance with their permit limits more often than
predicted by EPA's methodology.
For ex£unple, an enforcement action involving over 100 violations during a 5-year
period may sound like a lot, but in fact it would mean the company was in compli-
ance with its p>ermit 99.7 percent of the time. This is better them expected by EPA's
methodology. Thus, when reports claim that significant numbers of the nation's
major facilities reported some violation of the Act, what is truly notable is not the
percentage of facilities that rejwrted violations, but rather the fact that a greater
percentage of the facilities reported no violations at all.
831
Second, it is important to understand the nature of the ansdjrtical tools that facili-
ties must use to measure compliance. Even stat«-of-tlie-art, EPA-approved analytical
techniques have a wide range of uncertainty associated with them. As a result,
many reported violations may not in fact be "true" violations if they are within the
range of uncertainty of the analjrtical method.
These factors underscore the need for prosecutorial discretion by government en-
forcement authorities, discretion that is not reflected in simple "bean-counting" en-
forcement reports.
The exercise of enforcement discretion is, of course, not unique to the area of en-
vironmental enforcement. For example, even though there are constant reminders
of speed limits along the roadways and even though we are all aware that "speed
kills," we would all be horrified, and somewhat poorer, if police officers issued tick-
ets automatically to every driver who exceeded 55 miles per hour on the Washing-
ton Beltway. After all, even the most careful driver who diligently seeks to comply
with posted speed limits, occasionally finds that the speedometer has crept up to 58
or 60 miles per hour before quickly releasing the accelerator and returning to 55.
We would all probably agree that the police should not fine such a driver. On the
other hand, drivers who routinely drive well in excess of the speed limit should be
cited and fined. The same is true for violations of environmentsd regulations, includ-
ing the Clean Water Act.
Put simply, not all violations are significant enough to warrant enforcement. The
existing Clean Water Act provides sufficient tools for agencies to enforce against fa-
cilities when it is warranted, while providing for appropriate prosecutorial discre-
tion in cases where it is not.
We conclude, therefore, Mr. Chairman, that there is no need for the additional
enforcement mechanisms proposed in S. 1114, such as field citations or contract
bars.
There is also no need for Congress to overturn the Supreme Court and allow citi-
zen suits for wholly past violations. The objective of citizen suits should be to bring
facilities into compliance. Authority to seek punitive penalties for wholly past viola-
tions properly belongs to governmental officials, who are accountable to the public.
S. 1114's provision authorizing natural resource restoration is also unnecessary.
Natural resource restoration can be obtained under other statutory authorities. It is
still very much in the developmental stages, however, so its successful implementa-
tion is at best speculative. Including this authority in the CWA will only invite
costly litigation, for questionable environmental benefit.
There is also no valid reason for changing how the Act treats violations that
result from a single operational upset. In particular, violations of pollutant limits
that result from a single operational upset should continue to be considered a single
violation.
Finally, there is no need to change the existing provision barring subsequent en-
forcement by citizen groups when a state has brought an administrative enforce-
ment proceeding.
In summary, the proposed enforcement measures in S. 1114 are unnecessary.
They are based on false perceptions about the extent of non-compliemce and the
level of government enforcement activity. Continued improvements in compliance
can and will be accomplished through vigorous application of existing enforcement
authority by EPA, states, and citizen groups.
WRITTEN STATEMENT OF THE NATIONAL ENVIRONMENTAL
DEVELOPMENT ASSOCIATION
INTRODUCTION AND SUMMARY
The National Environmental Development Association's Clean Water Project is
pleased to offer its views to the Subcommittee on Clean Water, Fisheries and Wild-
life on enforcement issues in the reauthorization of the Clean Water Act. The Na-
tional Environmental Development Association is a diverse coalition of companies
united in the belief that it is possible to have both economic growth and a clean
environment.
The NEDA Clean Water Project believes that vigorous law enforcement is essen-
tial to the success of the Clean Water Act. Where individuals or companies violate
the law they should be prosecuted and punished in proportion to the degree of their
offense. Even so, citizens should not be given the right to sue companies for viola-
tions that occurred entirely in the past. Such actions are punitive — they do not im-
prove present compliance or deter future violations — and should remain the prerog-
ative of governments. The government should preserve its authority over such ac-
832
tions to ensure that all societal goals are considered in deciding to pursue any puni-
tive action.
Some have called for Clean Water Act enforcement to be strengthened, and have
looked to the New Jersey Clean Water Enforcement Act as a model for such en-
hanced enforcement. New Jersey's experience, however, is a model of what not to
do. The law has created bureaucratic gridlock, discouraged voluntary action, created
inequities in enforcement, and eliminated flexibility in the Act — all without improv-
ing New Jersey's water quality. The Governor's Economic Summit Committee on
Government Regulations reported to Governor Florio, "While the program (Clean
Water Enforcement Act) is recognized to be potentially disastrous to many areas of
the economy, its impact on improving the environment was known to be negligible
by virtually all professionals who reviewed the bUl." The law has been counterpro-
ductive, and has created barriers to improving the state's water quality. Congress
should not repeat New Jersey's mistake.
CITIZEN SUITS
Citizens should not be given the right to sue for violations that occurred in the
past. Such authority would eliminate the distinction between citizen and govern-
ment action to punish past transgressions. Eliminating that distinction carries a
danger in that individual citizens are not bound by the government's need to pursue
many public policy objectives. Citizens may ignore their effect on other societal ob-
jectives in the single-minded pursuit of one goal, and without the government's con-
straint of public accountability.
Such actions are entirely punitive — they do not improve present compliance or
deter future violations — and are the prerogative of governments. The government
should preserve its authority over such actions to ensure that all societal goals are
considered in deciding to pursue any punitive action.
Moreover, natural resource damages should not be made a part of CWA enforce-
ment. Environmental remediation is already a part of other laws. CWA enforcement
should contain penalties appropriate to the degree of any violation and should be
sufficient to be a deterrent to future violations. The separation between improve-
ment projects and fines should continue to be maintained.
ENFORCEMENT— THE NEW JERSEY EXPERIENCE
Recent attention has focused on the New Jersey Cleem Water Enforcement Act
(CWEA) as a model for the country, and suggestions have been made that elements
of the CWEA should be incorporated into the Clean Water Act during its reauthor-
ization. New Jersey's experience, however, shows that the CWEA is bad public
policy. It is expensive. It is inefficient. It is inequitable. It discourages voluntary en-
vironmental protection, and it does not improve water quedity. It is a model of what
not to do, and should not be followed at the federal level.
New Jersey Water Pollution Control Program Is Unmanageable
The design and operation of New Jersey's water pollution control program, the
New Jersey Pollution Discharge Elimination System program (NJPDES), is disas-
trous. It has the highest fees in the nation, and the longest backlog for issuing per-
mits. The CWEA has substantially and materially added to the bureaucratic quag-
mire in the program's management. While the program has many critics, in the pri-
vate sector and in local government, the strongest voices come from within the New
Jersey Department of Environmental protection and Energy (NJDEPE). "The water
program was recently described by the chief policy planner for the NJDEPE as
almost unmanageable. ^ NJDEPE Commissioner Scott Weiner said on January 8,
1993: "We are all too aware that the NJPDES program has been plagued with ad-
ministrative and technical problems. As a result, few new permits have been issued
and many facilities are operating under expired permits with outdated require-
ments. Without public support and confidence in a regulatory program the state
cannot meet its obligations to protect the environment and natural resources." ^
CWEA Is Part Of The Problem Not Part Of The Solution
Since the CWEA was first proposed in 1988, New Jersey has lost over 100,000
m£mufacturing jobs, and some of the remaining facilities have had to pay millions of
dollars in i>enalties. This inflexible regulatory system has not produced a measura-
ble improvement in the quality of New Jersey's waters. This result confirms the
original analysis by the staff of the NJDEPE that the program would have a severe
economic cost and little environmental benefit. Administrative and legal backlogs
have paralyzed the system at every stage. The bureaucratic nightmare projected
during the legislative debate heis arrived.
833
In analyzing the law, however, one must ask what the CWEA has really accom-
plished.
First, as the examples described below will demonstrate, the law cannot discour-
age non-compliance if the causes of non-compliance are beyond the control of a per-
mittee.
Second, the CWEA has taught industry that it is absolutely necessary to exercise
all legal challenges to permits issued and to object to any permit condition which
may not be fully attainable. Although this is less than an optimal approach, such
legal challenges are a clear result of the CWEA.
Third, companies clearly recognize that they must meet their permit limitations
and extraordinary efforts (often without clear environmental benefit) are being
made to remain in compliance with permit terms.
Finally, an impact of the CWEA which is very difficult, if not impossible, to meas-
ure is the number of companies which are factoring the requirements of the CWEA
into their decisions for locating new facilities in the State of New Jersey. To the
extent such considerations are carefully evaluated, there likely have been disrup)-
tions to business growth in New Jersey.
A Level Plajdng Yield
Some believe that a National Clean Water Enforcement Act would level the play-
ing field for New Jersey companies and municipedities. Imposing these conditions on
the entire nation, however, won't help remaining New Jersey businesses; it would
only hurt the rest of the nation. New Jersey with local officials, employers, union
workers and the State officials who administer this program overwhelmingly con-
demn it. CWEA creates regulatory gridlock that has placed every NJPDES permit
holder in a depressing pit. To place the rest of the nation in the same pit may level
the playing field, but at what cost in terms of jobs, competitiveness, output, and
living standards; and for what benefit to the environment?
A Model For What Not To Do
Regulatory policy should be perceived as effective, efficient and consistent by the
public and the regulated community. For em environmental policy to be judged ef-
fective it must be demonstrated that environmental goals are achieved in the most
cost effective manner. The CWEA has failed these test in New Jersey.
Case studies will demonstrate the problems that have been generated by this pro-
gram. Company names are not used because problems are not unique, but are repre-
sentative of problems with provisions of the New Jersey law. CWEA is a public
policy that has punished many companies and municipal entities that were making
a good-faith effort to meet their water permit requirements by Imposing an auto-
matic enforcement system complete with unjust mandatory fines, and the threat of
criminal prosecution and jail sentences.
Serious Violator: Is This A Meaningful Measurement
CWEA, along with federal enforcement, uses the simplistic proposal for defining a
significant violator as a person who exceeded an individual permit parameter limit
by 20%. This is an unscientific measurement that is unrelated to public health or
environmental harm. It contradicts the fundamental nature of water pollution con-
trol systems, and fails to recognize the seunpling inaccuracies of the existing permit
system. The scientific literature demonstrates that a 20% exceedance of a single
sample for parts per billion measurements can be within the variability of the test-
ing methodology. ^ Many agencies and businesses take these costly samples once per
reporting period. Increasing the required number of reporting periods increases the
chance for statistical variance.
Mandatory Penalties Imply A Level Of Engineering Perfection
A National Clean Water Enforcement Act would result in a regulatory overhaul
that would take professional discretion out of the hands of the EPA and state envi-
ronmental officios and replace it with an inflexible regulatory system. Such a pro-
posal ignores the realities of a permitting system, has little or no relation to actual
environmental harm or cause for such harm, and could actually cause environmen-
tal harm as it forces companies to try to renegotiate permits to higher levels. In
New Jersey, the State does not have the discretion to distinguish between the true
violations and the "false positives" inherent in any scientific monitoring system,
and companies have been forced to take a harder line in negotiating for permit
limits to build in a comfortable "margin of error."
834
CWEA Program Assessment
Industry, local government officials, and state enforcement personnel provide uni-
versal criticism of CWEA at environmental forums and in written reports. In 1991,
a special working group on Governmental Regulations told Grovemor Florio.
"While the program (Clean Water Enforcement Act) is recognized to be poten-
tially disastrous to many areas of the economy, its impact on improving the en-
vironment was known to be negligible by virtually all professionals who re-
viewed the bill. Despite overwhelming data in opposition to the legislation, sub-
stantive comments were ignored by the Administration and the bUl was passed
purely for political reasons. This was a special piece of law designed for the po-
litical benefit of one group at the expense of most of the taxpayers." ■*
A blue ribbon committee that examined the operational problems of the NJPDES
program stated in their report to the NJDEPE Commissioner that the mandatory
actions and penalties in the Act should be reviewed and modified to improve both
their cost and resource effectiveness and to remove barriers for the enhancement of
water quality. *
The task force went on to state, "In the three years that have passed since the
Act's implementation, it has become evident that numerous items in the Act are
counterproductive and create barriers to improving the State's water quality."
In particuleu-, provisions of the Act:
• Delay actions that can achieve improvements in water quality;
• Divert both industrial and Departmental resources toward administrative and
legal issues and away from activities designed to solve problems to enhance
water quality;
• Require duplicative reporting;
• Remove needed Departmental discretion which forces adjudication because of
fear of mandatory penalties even with non-achievable permit limits or no envi-
ronmental impact or benefit. Permittees are forced to litigate permit conditions
£uid limits up front, with accompanjdng high consultant and adjudicatory costs.
Public and private moneys are required for these adjudicatory costs instead of
being expended on upgrading facilities to improve water quality;
• Mandate the Department to pursue penalties for violations of permit limits that
it considers incorrect but has not yet corrected;
• Preclude the use of a common sense approach to solve problems; and
• Affect all sewer use rate-payers through higher fees due to statutory-required
actions. ®
Inflexible Enforcement
The CWEA adopts a "penalty matrix" enforcement strategy which effectively in-
sulates people in the enforcing agency from site-specific mitigating factors in the en-
forcement process. At most, a penalty matrix should be used as a guideline. These
high levels of fines, however, coupled with an inflexible enforcement process, is one
of the main arguments used by those who consider New Jersey a bad place for busi-
ness. '
CITIZEN SUITS: DO WE NEED TO LOOSEN THE REQUIREMENTS (CASE
STUDY)
Company A owns and operates a facility in Flemington, New Jersey, which pro-
duces zirconium compounds. Company A holds a National Pollution Discharge
Elimination System ("NPDES/NJPDES") permit for discharge into surface water.
Company A is presently defending two concurrent lawsuits resulting from its al-
leged violations of its NPDES/NJPDES permit. The first is an enforcement action
by the New Jersey Department of Environmental protection, and the other is a citi-
zen's suit brought by two non-profit corporations, public Interest Research Group of
New Jersey Inc. emd Friends of the Earth Inc. PIRG and FOE seek to recover sub-
stantial civil penalties and costs of litigation, including attorney's fees. The total
amount of penalties sought by PIRG and FOE is in excess of $5 million.
Company A produced evidence to prove that PIRG and FOE could not and did not
suffer any injury as a result of its "technical" violations, which were related to un-
foreseen, uncontrollable, natural, environmental conditions or phenomena, or were
measurement anomalies. However, the United States District Court for the District
of New Jersey granted plaintiffs summary judgment motion concluding that harm
was basically irrelevant in establishing liability, and held Company A liable for civil
penalties in an amount to be determined at trial. Company A filed an interlocutory
appeal in the Third Circuit affirmed the lower court's opinion despite the fact that
835
it realized the injury requirements has become a "complete fiction." In oral argu-
ment on December 8, 1992, the court stated as follows:
"We did a little bit of research and . . . from published reports, the salt content of
the water that was being discharged by this plant is lower than the Sodium con-
tents of some very pricey bottled mineral waters . . .
If that were true, wouldn't that be a fiction that pouring something that is the
equivalent of polinaris (sic) drinking water into a Creek in Hunterdon County gives
(plaintiff) standing to object to it because he drinks the Trenton drinking water that
comes from the Delaware River?"
The consequences of the court's decision to businesses in New Jersey is signifi-
cant. First, the fact that these t)T}es of "technical" violation are subjecting industry,
including small companies such as Company A, to the potential of such enormous
penalties for discharge violations which have no adverse impact on the environ-
ment, is of obvious concern to permit holders across the state. The court's decision
makes it possible for groups to subject companies to significant penalties simply be-
cause a permit parameter was violated even when no harm resulted. Companies will
have to predict permit parameters with absolute certainty in order to avoid liability.
This will make the permitting process more difficult and expensive as perfection
must be achieved to avoid suits. Furthermore, this policy will discourgige the loca-
tion of any new industries who discharge at all since unpredictable excursions could
subject them to massive liability.
Ducks On The Pond
Company A's permit imposes specific discharge limitations upon Company A for
various parameters including total organic carbon (TDC), total dissolved solids
(TDS), total suspended solids (TSS), sodium, temperature and oU.
Company A's manufacturing process produces no TDC. Instead TDC excursions
were caused by geese inhabiting Company A's «tor£ige ponds and dropping feced
matter into the water which, in turn, acted as nutrients for algae which resulted in
higher levels of TDC. The temperature excursions were a direct result of the sun
warming the effluent to the same ambient temperature as the creek which hap-
pened to be warmer than predicted in the permit.
Citizens should be concerned about the design and implementation of a public
policy that is willing to render environmentally conscious companies liable in the
context of these citizen suits for permit violations which do not cause any injury or
environmental harm.
It seems evident that if an ultimate appeal to the U.S. Supreme Court fails, Com-
pany A will be forced into an out-of-court settlement with the plaintiffs. Legal fees
will be paid to the plgdntiffs attorney and Company A will fund an environmental
project selected, recommended or approved by the plaintiffs. A multi-million dollar
settlement would be viewed as a victory for the "environment." The reality is that
100 workers would probably lose their jobs when such a settlement in gdl lil^elihood
forces this business to close.
Parking Lot-$60,000 (Case Study)
A mid-sized New Jersey manufacturer. Company B, has been fined close to
$60,000 with the potential more to come, for permit exceedances resulting from
stormwater runoff from its parking lots. "The permit in question was issued in the
early 1980s. The permit was obtained at the time to regulate the discharge from a
sewage treatment process on the site which is now long gone. Per DEPE's instruc-
tions, all stormwater runoff points were also included in this permit. The param-
eters for stormwater discharge were established in the absence of sufficient data
since EPA was conducting a nationwide stormwater study and nothing was conclud-
ed at the time.
When regular monitoring of the stormwater was undertaken, it became clear that
the quality of stormwater runoff was affected by salt, s£md, dirt, vegetation, pollen,
acid rain, and other environmental factors, many beyond the control of the facility.
Since the limitations were set in the absence of data, the company has had major
difficulties in meeting the permit limits in terms of particulates and pH.
Extensive discussions with DEPE aimed at revising their permit jrielded no result.
DEPE officials cited the "anti-backsliding" provisions of the federal Clean Water
Act, which aims to prevent real polluters from cutting unfair deals.
This facility's otherwise sterling record in environmental control has counted for
nothing with DEPE. They are paying the sort of enormous fines that only malicious
polluters should pay. In addition, they are incurring sizable legal costs to deal with
the administrative process associated with their case.
836
NJPDES Parking Lot^-$l Million (Case Study)
Company C, a paint pigment manufacturer, applied for a non-contact cooling
water discharge permit application in 1977. The original plans (to discharge non-
contact cooling water) that necessitated the application for a NJPDES permit were
never implemented. Nonetheless, the facility received a NJPDES permit which they
never carefully scrutinized. As a result, the only discharge which became regulated
was for stormwater from the facility parking lot. Now, with the adoption of the
CWEA, the rules with regard to NJPDES permits and penalty imposition for non-
compliance with NJPDES permits have changed.
Compemy C can document that off-site sources contribute significantly to the con-
taminants monitored. In fact, stormwater has been monitored before it reaches the
facility £ind high levels of the pollutants regulated by the company's NJPDES
permit have been observed. Unregulated neighboring facilities and the contami-
nants in stormwater flowing onto the facility from city streets are contributing to
the effluent monitored pursuant to the company's NJPDES permit. A single facUity
should not be held responsible for runoff from unregulated neighboring facilities.
Nonetheless, this is precisely what is required by the company's existing permit ef-
fluent limitations. Clearly, no single company can foresee or control what occurs off-
site. As a result of the ofT-site impact and the severe penalty actions initiated by the
NJDEPE, the company has gone to great lengths to reduce the possibility that
stormwater is impacted by its facility. To the extent it has control over stormwater
discharge, the company has, over the years, undertaken substantial efforts to
comply. 'To do so, the company has had in place a Best Management practices
(BMPs) progrsmi. In light of the severe penalties imposed pursuant to the CWEA,
however, the company was forced to develop an Extraordinary Memagement Prac-
tices plan making even more substantial improvements to reduce the presence of
contaminants in stormwater runoff.
The efforts to reduce contaminants levels in stormwater runoff has involved the
expenditure of more than $1 million. Perhaps the most important actions taken by
the company to medntain permit compliance were the purchase of an employee
parking lot across the street and the absolute prohibition of employee parkmg on
the NJPDES regulated peirking lot. Additionally, the company has purchased ma-
chinery to mechanically sweep their regulated parking lot. UntU prospective relief
with regard to its NJPDES permit is obtained, the company faces continued penalty
exposure for circumstances clearly beyond its control. In sum, application of the
CWEA to this particular facility provides no environmental benefit and demon-
strates that the New Jersey regulatory scheme yields perverse results.
Environmental Volunteer — $154,500 (Case Study)
Company D's case involves a company (a commercial truck stop) that was penal-
ized severely because of voluntary efforts to act in an environmentally responsible
memner. The NJPDES permit for this particular company was issued as a result of
its entirely voluntary decision to install an oU-water separator. In an attempt to op-
erate as a good corporate citizen, and in the interest of maintaining a clean, con-
tamination-free facility, the oil/water separator weis installed. There are no rules
and regulations in effect now or at the time that the oil/water separator was in-
stalled that would have required the company to purchase and operate this device.
Moreover, the company was not compelled in any way to place or oi>erate the oil/
water separator. Nevertheless, the company opted for this approach. This wholly
voluntary effort to act in environmentally responsible manner required the compa-
ny to obtain an NJPDES permit. As a result of this permit and exceedances of cer-
tain parameters set forth in it, an enforcement action and severe penalties
($278,500) were assessed (penalties were settled for $154,500).
If this company had not voluntarily chosen to install the oil/water separator, an
NJPDES permit would not have been issued and penalties would not have been as-
sessed. By putting the oil/water separator into place, this company stands out
among the truck stops located in its general vicinity. Indeed, this particular truck
stop is one of the cleanest and most well maintained in the state. Nevertheless,
severe penalties were levied because of its efforts to be environmentally responsible.
Since imposition of the penalty assessment, this particular company has gone a
step further and installed a new oil/water separator which is larger and more effi-
cient than the separator previously used. Thus, not only did this company act ini-
tially as a good corporate citizen, but it has continued to act in that fashion despite
the punitive nature of the penalties which were imposed by the NJDEPE.
These cases are poignant examples of the negative impact of the CWEA. This list
of case studies could continue where the CWEA clearly provides no improvement in
water quality and does nothing more than exhaust the resources of New Jersey
837
businesses. Most such cases involve NJPDES permits which were issued for storm-
water from facilities. Such permits generally impose numerical effluent limitations
which merely monitor non-hazardous pollutants at the end of a pipe, and do not pre-
vent pollutants from entering the waters of the state. It is our understanding that
the effluent limitations established in many NJPDES permits were based on a
United States Environmental Protection Agency Region II policy memorandum
dated in 1978 regarding surface water and cooling water discharges. To our knowl-
edge, no scientific data supports the effluent limitations continued in that memoran-
dum. Nevertheless, the guidance was used by New Jersey to establish many permit
numerical effluent limitations. Additionally, existing permits with numerical efflu-
ent limitations fail to consider the relationship between the cost of attaining a re-
duction in contaminant levels and the environmental benefit of the effluent reduc-
tion.
Effluent measured by many NJPDES permittees is comprised largely of and is
greatly impacted by contaminants emanating from off-site sources. It is clearly
imfair to hold permittees responsible for runoff from unregulated, adjacent facilities
which happen to drain through their facilities.
Five Days Late— No Pollution But A $12,000 Fine (Case Study)
Representatives of Company E, a manufacturing facility in West Trenton, were
appalled to learn that they faced a potential fine of $12,000 for the late submittal of
a routine form related to a quarterly sampling report for stormwater on their prop-
erty. According to the company, they submitted the report five days late and it did
not contain any permit exceedance. The reporting form was misplaced by a clerical
employee of the company. The firm has been submitting this form on time and with-
out permit exceedance since 1985. A departmental employee informed the company
that the penalty for late submittal could be reduced by up to 50 percent. That would
be a $6,000 fine for less than a week delay in filing a report that today wouldn't
even have to be filed if the company was covered by the new general permit for
stonnwfltd"
The company representatives were, not surprisingly, upset about the draconian
nature of this penalty. When they sought the assistance of the NJDEPE in reducing
this penalty to a level that would be compatible with the d^ree and natvu-e of the
offense, they were told that the state did not have any discretion in this matter and
that the actual penalty would be $12,000. This case is symptomatic of an enforce-
ment policy that appears unfair and out of line with a public policy that would have
the penality commensurate with the crime.
Conclusion
CWEA has not helped maintain and restore the chemical, physical, biolc^cal in-
tegrity of New Jersey waters. It has instead hindered the State's efforts to improve
its water quality while creating an vmfair and unworkable administrative structure.
Congress should not use New Jersey's law as a model for the enforcement of the
Clean Water Act.
Footnotes:
1 Rick Binding, Assistant Commissioner NJDEPE, speech before the South Jersey Summer In-
stitute, Woodbury Heights, New Jersey, (July 12, 1993).
2 NJDEPE NEWS, 93/05, January 8, 1993.
3 See Environmental Technology and Science, Vol. 22 No. 1988 p. 1122.
* Report of Governor's Economic Summit Committee on Government Regulations May 2, 1991.
» "Recommendation #9" NJPDES Fee Taskforce.
•Ibid.
' Report of Governor's Economic Summit Committee on Government Reaulations May 2, 1991.
STATEMENT BY TUDOR T. DAVIS, ACTING DEPUTY ASSISTANT ADMINIS-
TRATOR, OFFICE OF WATER, ENVIRONMENTAL PROTECTION AGENCY
INTRODUCTION
We address today a subject of great importance — the critical need to protect our
watersheds in a comprehensive, integrated manner that expands our focus beyond
source-specific chemical pollution to one that addresses aquatic ecosystems in their
entirety. The United States Environmental Protection Agency (EPA) believes that a
watershed approach represents one of the best vehicles by which we can restore and
maintain the physical and biological, as well as chemical, integrity of our Nation's
waters.
838
Since 1972, we have achieved considerable success in substantially reducing the
discharge of pollutants into our lakes, rivers, estuaries, wetlands £ind coastal waters.
These successes have been achieved primarily through the control of point sources
of pollution. While point source discharges continue to present an environmental
threat in some areas, we have come to recognize that the health of our Nation's
waters is endangered by many other activities that are not associated with point
sources. Evidence of these problems can be seen in the decline of the salmon popula-
tions in the Pacific Northwest and the oyster stock in the Chesapeake Bay, in ongo-
ing contaminated fish problems in the Great Lakes, in the declining health of the
Everglades and the coral reef systems in Southern Florida, and in numerous other
small and large watersheds across the country. We discussed the causes and effects
of polluted runoff and other forms of nonpoint pollution in our testimony on July
14, 1993. My statement today will elaborate on the themes expressed in that testi-
mony, and will discuss in greater detail an approach that focuses on the watershed
as a whole, that addresses comprehensively all of the actued and potential sources of
impairment of a waterbody, and that integrates many diverse programs to achieve
fully the goals of the Act.
I would also like to discuss four important ecosystem protection progreuns that il-
lustrate application of watershed principles. Three great waterbody programs deal
with ecosystems that are very large in scale and that cross the boundaries of many
States: the Great Lakes Program, the Chesapeake Bay Program and the Gulf
Mexico Program. One additional program, the National Estuary Program (NEP), is
a similar ecosystem protection approach that works on a smaller scale to protect
water resources. Like the great waterbody programs, the NEP provides examples of
State and local representatives cooperating to identify water quality problems in
their shared water resources and to implement solutions. Each of these four pro-
grams also places considerable emphasis on protecting habitat and guarding the
water resource against impacts to its chemical, biological and physical integrity.
Today, I would like to explain how these four ecosystem protection programs fit into
the watershed approach that the Agency advocates. And, finally, this statement will
offer EPA's comments on a number of bills currently proposed to address problems
within these important ecosystems.
OVERVIEW
The potential causes of impairment of a waterbody are as varied as human activi-
ty itself For example, the health of an aquatic ecosystem may be threatened by dis-
charges from industried or municipal sources, from urban, agricultural or other
forms of polluted runoff, from land disturbance activities and hydromodification,
discharge of contaminated ground water to surface water, from overharvesting of
fish emd other organisms, from the introduction of exotic species, and even from
deposition of pollutants originally emitted into the atmosphere. Many of these ac-
tivities are addressed by programs under the Clean Water Act (CWA) or a veuiety of
other federal laws that provide mechanisms to protect, restore and enhance our
water resources.
Unfortunately, efforts under these programs have been largely fragmented and
piecemeal. Under the constraints of their statutory authority, each of these pro-
grams focuses on particular sources, pollutants, activities or water resource uses
and generally do not take a comprehensive, multimedia approach to water-related
issues based on hydrologic boundaries. As a result, there are significant gaps in our
efforts to protect ecosystems from the cumulative impacts of a multitude of activi-
ties that "stress" our waterbodies.
In an effort to address these complex remaining problems in a cost-effective
manner, the Administration strongly endorses a ' Watershed Management" ap-
proach which looks first to the ecosystem itself, evaluates its needs based on risk, a
of the process. We endorse this approach because we believe that tailored, coordinat-
ed solutions, to which local constituents are committed, can best be achieved within
the boundaries of an identified natured resource or watershed. Our experience re-
peatedly shows that people are most likely to protect what they know and on which
they depend for drinking water, recreation, sustenance or their livelihood. The wa-
tershed provides a logical area within which to build on this local commitment, to
coordinate private sector, regulatory and voluntary programs, and to develop and
implement solutions appropriate to the particular watershed. The watershed also
defines an appropriate area in which to conduct monitoring and to provide a basis
for employing appropriate economic incentives. In short, we can no longer assume
that "national" solutions will, by themselves, solve all local problems, although our
national baseline program will continue to provide the necessary foundation on
which to protect our water resources on a geographic basis. Indeed, we recognize
839
that other levelo of government and the private sector may have expertise, institu-
tional arrangements or legal authorities more appropriate to addressing problems in
these ecosystems than EPA or other federal entities. Finally, by focusing on the
most significant problems specific to each watershed, rather than on trjdng to apply
uniform remedies to all watershed, we believe that we can address our remaining
resource problems more comprehensively and cost effectively.
We believe, therefore, that amending the Act with Watershed Management as a
central organizing principle will help us to realize more fully the objectives of the
CWA and to ensure that our valuable aquatic resources and the living resources
that depend upon them are protected for our children and for future generations.
We commend Senators Baucus and Chafee and their steiff for incorporating into S.
1114 a comprehensive watershed program that rewards State watershed efforts and
for making Watershed Management a central tenet in this reauthorization effort.
As will be explained in greater detail below, in EPA's view, a successful State Wa-
tershed Management program should incorporate certain minimvun elements, which
should be specified in the statute. First, with the help of U.S. Geological Survey hy-
drologic maps, the State should delineate the watershed of all water resources
within the State. Second, the State should identify its impaired and threatened
waters as well as other waters deserving special attention (such as estuaries, drink-
ing water sources, or outstanding national resource waters) when preparing an in-
ventory. Third, the State should ensure that the watershed boundary for each water
in the inventory encompasses significemt activities that threaten or impair the
water resource. Fourth, the State should establish, in order of highest priority, a
ranking of each delineated watershed for subsequent management. Finally, the
State should convene Watershed Management teams for the highest priority water-
sheds, which would be charged with ensuring local participation, identifying the sig-
nificant problems and overseeing implementation of the chosen solution. Ideally,
EPA then shoal have the authority to approve and oversee State Watershed Man-
agement grams if the State wishes to take advantage of various incentives available
upon approval of a State's Watershed Management program.
We also concur with the recommendations of Water Quality 2000, which among
other things advocate incorporating the concept of "nesting^" smaller Watershed
Planning into the management of large water basins. These recommendations were
endorsed by 64 public, private and non-profit organizations. Water Quality 2000 rec-
ommends that, where appropriate, Watershed Planning and management institu-
tions should reflect the progression from small, highly localized watersheds to each
successively larger watershed, culminating in the large water basin that encom-
passes them all. Institutions created to manage smaller watersheds should partici-
pate in planning and management of the large watersheds to which they belong.
Such a nested Werarchy could be organized at the top with an umbrella planning
institution for each major watershed. These institutions could include a mechanism
to plan for protection of grovmdwater resources that cross watershed boundaries. In
order to promote the plemning and managing of large water resources on a regional
basis, we believe that Congress should authorize the establishment of umbrella
interstate regional mechanisms, including joint federal interstate compacts, at the
request of States.
We have identified three opportunities to advance the watershed approach legisla-
tively in the CWA. First, Title I of the Act should be amended to define endorse the
approach, including the concept of establishing interstate regional mecheinisms to
plan and manage water resources and to accommodate progressive hierarchies of
watershed withm a particular river, estuary or lake basin. Second, a new provision,
not unlike the new CWA § 321 which would be added by section 302 of S. 1114,
should be incorporated to reward States that develop State watershed programs.
And third, where appropriate, existing provisions in the Act should be modified to
facilitate the use of the watershed approach to the greatest extent possible. It
should be noted that S. 1114 includes several changes that we believe will enhance
our ability to look hoUstically at ecosystems. Before elaborating on the suggestions
mentioned above, it is important that we first highlight EPA's experiences with the
watershed approach to date and to touch upon some of the lessons we have learned.
THE ADMINISTRATION'S WATERSHED APPROACH
We believe that the watershed approach should be promoted through comprehen-
sive State programs that would be approved by EPA in consultation with other fed-
eral agencies. ^ As a condition for watershed program approval, a State should be
1 Hereafter the term "States" includes eligible Tribes and Territories.
840
required by the CWA to identify all watersheds within its borders and to rank those
watersheds, from highest to lowest priority, according to the level of protection the
State decides to accord to the water resource. This priority ranking or targeting
process should involve key federal. State and local stakeholders sind should reflect
the State's inventory of its impaired, threatened or special waters. In order to facili-
tate more comprehensive inventories, we support the consolidation of the inventory
provisions of ^tions 303(d)l 305(b)l 314(a) and 319(n) into one comprehensive as-
sessment and ranking process.
States should consider a variety of factors when ranking their watersheds. For ex-
ample, a State should consider conferring priority status on those watersheds in
which waterbodies fail to meet water quality standards or are otherwise impaired
by loss of biodiversity or habitat, but also those watersheds containing waterbodies
that are "threatened" or in need of special protection, such as outstanding natural
resources waters or waters with unique or declining aquatic ecosystems. Watershed
rankings should reflect the severity or immediacy of the risks to human health as
well as uses of the watershed in terms of its economic, recreational and aesthetic
importance.
Having defined and rsmked its watersheds, a State seeking approval of its water-
shed program should then be required by statute to develop a management strategy
for its watersheds. That strategy would need to include a schedule by which the
State commits to address its watersheds as necessary to ensure the attainment of
water quality standards gind ecological objectives as required by the CWA. Schedviles
may be influenced by factors other than those considered in initially ranking water-
sheds. These may include, for example: the cost to achieve the goals; the amount of
work necessary to achieve goals; the merits of pollutant reductions to be achieved,
including the severity or immediacy of the risks to human health and living re-
sources; the degree of public interest and willingness of stakeholders to proceed; the
availability of resources (programmatic, technical and funding); and the likelihood
of success.
Watersheds in which no threat, impairment or special need is identified may re-
quire little intervention to maintain the water quality of the river or lake it sur-
rounds (although such water quality should be monitored periodically to verify eco-
system health). Other watersheds may need extensive management over time,
which may involve many levels of government and other organizations. In order to
receive EPA approval, a State Watershed Management program should specify min-
imum requirements, as set forth in the statute, for the management of these water-
sheds. For example, the statute should direct the State to establish for these water-
sheds management entities that would be responsible, at the watershed level, for
the comprehensive assessment and management of the particular watershed. In
order to ensure local involvement, these Watershed Management entities should be
required to consist of stakeholders with an interest in the water resource and its
protection-federal, State and local governments and most especially the sources
whose activities are perceived to contribute to the problem and the general public
who will benefit from the water's restoration. Using the resources and perspectives
contributed by its participants, the Watershed Management entities should then be
required to identify priority problems, their causes, and potential solutions. In addi-
tion, the statute should require each entity to develop expeditiously a management
plan that specifies actions and implementation mechanisms to address those prob-
lems and that establishes watershed-level goals consistent with the CWA (including
State water quali^ standards and biological, habitat and other physical factors such
as flow) and the ^e Drinking Water Act. The statute should also specify that the
management entity (or other organization, such as the State) possesses the authori-
ties necessary to implement the plan and that the plan include a process to evaluate
the success of the actions taken and revise the watershed plan as appropriate. We
also encourage States to enter into agreements with other States, where watersheds
cross State boundaries. The CWA could be amended to promote strongly interstate
management efforts.
Although EPA should play an important role in facilitating the development of
watershed-level management plans, we believe that approval and oversight of local
watershed plans should be vested in States with approved statewide watershed pro-
grams in place. This will afford greater local flexibility and will prevent what could
potentially be an overwhelming administrative burden for the federal government.
Moreover, according this central role to State programs avoids one of the primary
problems experienced with the "Areawide Planning" approach in Section 208, which
was not well integrated with State water quality progrjmas. Legislation could ensure
adequate federal involvement through EPA-published guidance and through EPA
approval and oversight of State programs, with significant involvement of other ap-
841
propriate federal agencies. EPA guidance, published with the assistance from other
federal agencies, could assist States in: designating watersheds; setting priorities;
analysis and predictive modeling; managing the control of point and nonpoint
source pollution to implement the requirements of the Act at least cost; and, pro-
moting the protection of the water resource, including habitat protection and resto-
ration, ecosystem health, species diversity, flood control, recreation and other impor-
tant interests. Guidance could also help States to identify priority problems within a
watershed and to develop monitoring programs to measure environmental changes
and reduction of risk as a result of watershed activities. This watershed protection
approach closely parallels the Agency's initiative in ground water protection. In
May 1991, EPA issued a policy statement, "Protecting the Nation's Ground Water:
EPA's Strategy for the 199C)s, that promotes the development and implementation
of comprehensive State ground water protection programs. Because there is a direct
link between surface water and ground water, the watershed approach, coupled
with comprehensive ground water protection, will truly address the totality of water
resources.
It is also importimt to emphasize the need to maintain and support a strong re-
search program to provide the scientific bases for these ecosystem and habitat pro-
tection efforts. Research on such topics as ecosystem processes and functions; devel-
opment of ecological criteria, environmental indicators, and ecological risk assess-
ment methods; and monitoring of status and trends is essential to the success of eco-
system and habitat protection.
Incentives
Although we believe that Watershed Planning can be an efficient and hence in-
trinsically attractive approach to addressing potential or actusil threats to water
quality, EPA also supports the establishment of incentives to promote the develop-
ment of comprehensive, well-integrated and cost-effective watershed programs in
the States. To be eligible for these incentives. State programs would need to be con-
sistent with certain minimum elements set forth in the statute. Although there is
currently significant enthusiasm for the watershed approach, we recognize that a
great deal of effort may be required to achieve programmatic changes and to imple-
ment a comprehensive approach. For example. State agencies dealing with heedth,
agriculture, fisheries, coastal zone management, land use and other natural re-
sources may need to coordinate and integrate their programs to assist and partici-
pate in Watershed Management efforts. EPA supports the creation of incentives to
encourage States and local entities to undertake the requisite effort. Incentives
should be closely tied to the successfiil implementation of approved State Watershed
Memagement programs, although we should be wary of developing a system of pen-
alties, because these could actually detract from a State's ability to accomplish this
goal. This link between accomplishments and rewards is a critical aspect of using
incentives to ensure widespread application of a voluntary watershed approach.
Incentives can take several forms, notably financial and regulatory. As a financial
incentive to participate, implementation of Watershed Management action strate-
gies could be funded, if eligible, under grants and other financial assistance current-
ly authorized under the CWA, including Sections 104(b)l 106, 314, 319, 320(g) and
604, as well as under other federed statutes. In addition, we would support modifica-
tions to the State Revolving Loan Fund (SRF) to provide that projects developed
under approved watershed plans and eligible under current law should be accorded
priority in SRF funding, and to ensure that SRF projects will not be inconsistent
with such plans.
Incentives could also be offered to States and local watershed entities that would
improve nonpoint source controls, hasten progress toward water quality objectives
and reduce costs. In our testimony to the Subcommittee on nonpoint sources, we en-
dorsed the general approach of S. 1114 towards nonpoint source control, including
the application of best available management measures to existing and new sources
in impaired and threatened watersheds and to new sources (although not existing
sources) in all other watersheds. We proposed that in lieu of these national manage-
ment measures, however. States could defer to strong and broad State watershed
programs that would expeditiously address the stresses in the highest priority areas.
In order to qualify for this exemption, a State management program would need to
include local, tailored nonpoint source management measures for significant pollut-
ants, demonstrate that the nonpoint source controls in combination with point
source controls would achieve and maintain water quality standards within twelve
£ind a half years, and ensure that the nonpoint source controls are backed by neces-
sary implementation mechanisms and enforcement authorities.
842
Regulatory incentives also may be available for point source control. For example,
a State with an approved watershed program (that administers the NPDES pro-
gram) could be authorized to issue a one-time, five-year extension in its NPDES
permit terms in order to enable the State to address all permits within a watershed
simultaneously, and thereby to coordinate permit limits so as to achieve water qual-
ity standards in the most efficient and equitable manner possible. Additionally, in
those watersheds where the Watershed Management Plan provides for the attain-
ment of water quality standards, watershed programs could encourage the greater
use of trading (for other market mechanisms already authorized by law) to meet
water quality standards. Furthermore, States could be granted additional time, per-
haps four years, to adopt biological, ecological, and physical criteria as environmen-
tal indicators that would be consistent with their watershed programs.
States wishing to employ a watershed approach also could be eligible for regula-
tory streamlining of the CWA's assessment, inventory and targeting requirements.
For example, we believe that watershed plans could be allowed to fulfill, or at a
minimum, be coordinated with inventory, ranking, planning and reporting require-
ments under Sections 303(d)l 303(e), 305(b), and 319 and other federal or State pro-
grams such as State Wetland Conservation Plans, USDA River Basin Plans, and
CZARA programs, provided that the State watershed program meets the particular
requirements of these respective programs. A consolidated and expanded priority
listing system, which examines other non-chemical factors such as habitat loss and
degradation, is critical for the establishment of a credible process by which States
decide where to begin work in their watersheds.
In addition, a Watershed Management entity could be granted high priority to re-
ceive federal financial and technical assistance for activities such as wetlands ad-
vance identification, general permits, or mitigation banking under Section 404. Ap-
proved watershed programs or plans that have implemented wetlands advance iden-
tification with the support of EPA and the Army Corps of Engineers or have devel-
oped wetlands components that are generally at least as environmentally protective
and meet other established criteria should be given general deference for Section
404 programmatic permits rather than individual permits. (Programmatic permits
are issued by the Army Corps of Engineers). The Agency looks forward to discussing
these and other wetlands matters with you more fully at this Subcommittee's future
hearings.
Another regulatory incentive could be offered with regard to Safe Drinking Water
Act (SDWA) requirements. Watershed Management entities, including public water
supply systems, in primacy States with approved watershed programs and source
water programs (under the SDWA) could be allowed to tailor prevention, monitoring
gmd treatment gdtematives, provided that the alternatives satisfy source water pro-
tection conditions. Components to be addressed include: delineation of drinking
water protection areas, contamination source inventories, vulnerability assessments,
public education, source controls, enforceable policies and mecheuiisms, ongoing sur-
veillance, and program updates.
It is very important to note that application of the watershed approach does not
imply any retreat from current pollution control requirements. For example, exist-
ing national secondary treatment standards for municipal waste water treatment fa-
cilities. Best Available Technology and Best Conventional Technology for industrial
facilities, and nonpoint source controls would remain in effect, and the focus of Wa-
tershed Management would be on reducing those stressors not addressed by EPA's
"traditional" water quality programs. It is also important to emphasize that we
must continue to maintain and support a strong research program to provide the
scientific basis for the watershed approach. Research on such topics as ecosystem
processes and functions, development of ecosystem criteria, environmental indica-
tors, monitoring of status and trends, and landscape characterization is essential to
the success of the watershed approach.
We commend S. 1114's use of funding, regulatory incentives, and relief from cer-
tain administrative burdens to reward States and local entities that undertake wa-
tershed programs on a volunteer basis. In addition, we applaud the bUl's efforts to
facilitate the use of trading. We believe that this voluntary approach to Watershed
Management with its emphasis on financial and regulatory incentives, rather than
penaltiesl is the appropriate means to promote Watershed Management, while sus-
taining the enthusiasm and commitment that the approach is generating.
Current Watershed Efforts
Recently, we have joined States in experimenting with watershed protection pro-
grams. EPA is working with the Association of State and Interstate Water Pollution
Control Administrators to provide technical and financial assistance to accelerate
843
efforts by several States to adopt State-wide Watershed Management. In its pilot
project, for example, the State of Washington is seeking to make the transition to a
basin approach that will involve synchronizing within each basin the issuance of
permits for surface and ground water protection, the development of Total Maxi-
mum Daily Loads, and the implementation of nonpoint source controls. In a second
phase, Washington plans to broaden its focus to include more stakeholders and to
integrate coastal zones, wetlands, flood control, and habitat and wildlife protection
into basin management.
Although Watershed Management is not a new concept and was the guiding prin-
ciple behind the River Basin Commissions formed in the 1950s and 1960s, the gene-
sis of our current watershed efforts are several geographically targeted programs.
These include: the National EJstuary Program, with 21 estuaries identified in the
CWA as being of "national significance"; and the Great Lakes, Chesapeake Bay and
Gulf of Mexico programs, which are all very large scale, multi-faceted projects. The
Great Lakes and Chesapeake Bay programs, in particular, are moving toward a
"nesting" approach that incorporates a tributary or small watershed strategy into
the larger framework of their programs. Each large water basin, including the Gulf
of Mexico and many of the estuaries in the National Estuaries Program, are com-
prised of numerous smaller watersheds and ecosystems that present Unique prob-
lems. Focused management of those smaller systems — through the watershed pro-
tection approach we have described — often is necessary to achieve many of the envi-
ronmental goals of the larger basin to which they belong. At the same time, man-
agement of the smaller systems needs to occur within the context of the successively
larger systems in the watershed hierarchy. In this way, we believe, the great water-
body programs intersect effectively with the locally-based watershed protection ap-
proach we also endorse.
THE GREAT LAKES PROGRAM
The Great Lakes represent 18% of the world's surface fresh water and 95% of the
surface fresh water foimd in the United States. The lakes are a well-spring of biolog-
ical abundance eind diversity for all North America as well as a source of abundant
fresh water critical to the industrial strengths of the region. The Great Lakes Pro-
gram was established by Congress in 1972 through inclusion of a pollution control
program for the Great Lakes under § 108 of the CWA. The program evolved over
time with a focus on State management programs and included an international
structure to address transboundeu-y pollution issues in the U.S. and Canada. These
international efforts eventually culminated in a U.S. /Canada agreement (the Great
L^es Water Quality Agreement of 1978). EPA also works with the International
Joint Commission (created by the Boundary Waters treaty of 1909) in addressing en-
vironmental degradation concerns that impact the Great Lakes ecosystem.
The Agency's Great Leikes program is a proactive multimedia program to protect
and restore the Great Lakes ecosystem. In 1991, EPA, along with other federal agen-
cies, the eight Great Lakes States, and the Chippewa and Ottawa Tribes, developed
a joint five year strategy to provide a comprehensive, long-range vision to identify
and accomplish environmental goals for the Lakes. The strategy, which established
its priorities on a risk basis, emphasizes three long term goals: reducing toxic load-
ings; protecting and restoring vital habitats; and protecting humem health and the
health of the ecosystem's living resources. The strategy also targets efforts to priori-
ty geographic areas, thereby promoting more localized Watershed Management
within the context of the Lakes as a entire system. Most recently, EPA proposed — in
close concert with and at the request of the Great Lakes States--^reat Lakes Water
Quality Guidance that will result in a unified regulatory approach to water quality
standards among the Great Lakes States.
Through our work in the Great Lakes basin, EPA has also advanced the under-
standing of both contaminated bottom sediment problems and promising technol-
ogies to remedy those problems. In an example of effective Watershed Management,
we have increased our knowledge of the sources and fates of PCBs in the Fox River/
Green Bay watershed to promote the restoration of that important system. We have
also acquired greater expertise in strategic conservation of habitat as a means to
protect biological diversity, which, although local in focus, promotes a broader effect
within the overall strategy of the Program.
As (Dongress considers Issues surrounding reauthorization of the CWA, we wel-
come the clear interest in Great Lakes issues shown by Senator Metzenbaum
through his introduction of S. 1183, the "Great Lakes Clean Water Amendments of
1993.' We support the bill's endorsement of Watershed Management approaches
and applaud those portions of the bill that wUl aid in the identification and imple-
mentation of cost-effective sediment remedial options. We are working to develop
844
and implement a national sediment management strategy for the Great Lakes and
other waterbodies where contaminated sediments contribute to ecosystem impair-
ments.
We also strongly support the protection of the biological integrity and diversity of
the Great Lakes ecosystem. While considerable work remains to be done with
regard to chemiceil pollution, we now recognize that those efforts alone will not be
adequate to restore and maintain the physical and biological integrity of the Great
Lakes ecosystem. Reauthorization of the CWA should build upon the progress being
made under the comprehensive multi-media approach we are now pursuing. For ex-
ample, we believe that a Watershed Management approach, which integrates joint
federal. State, Tribal and local action, is necessary if we are to address successfully
the many non-chemiced stressors on the Great Lakes system, such as physical alter-
ation of the landscape, loss of critical habitat (which is occurring at an accelerating
rate), jmd the introduction of exotic sj)ecies, such as the zebra mussel. Strengthen-
ing the nonpoint source program also will help us to protect the Great Lakes ecosys-
tem. We have the opportunity — and in deed, the responsibility — to protect and re-
store the biological and physical, as well as chemical, integrity of the Great Lakes
ecosystem. Without an integrated watershed approach that addresses the ecological
consequences of human activity on the Great Lakes, the Lakes will experience fur-
ther losses of natural biological diversity and productivity, with concomitant losses
in the economic vitality of the region. We are pleased that these principles are re-
flected in S. 1114.
While we welcome Congressional interest and support of Great Lakes environ-
mental protection, we believe that there are some provisions of 8. 1183 that would
direct limited resources to issues that may not pose the greatest environmental risk
and that in fact could be addressed under existing authorities, such as Section 319
or Section 404 of the CWA. For example, the bill would create a new "permit pro-
gram" similar, but in addition, to the Section 404 program, which would continue to
regulate disposal of dredged material into the open waters and confined disposal
areas of the Great Lakes. EPA does not believe that these new provisions are neces-
sary, and that, indeed, they have the potential to divert resources from the evalua-
tion of environmental impacts in order to conduct this newer, less comprehensive
review.
In addition, EPA believes the authorizing legislation needs to preserve the flexi-
bility afforded to the Program at the regional and local watershed level to imple-
ment integrated approaches to the Leikes' complex environmental problems. For ex-
ample, one of the most pressing environmental problems in the Great Lakes-con-
taminated sediments — will require increased flexibility in order to successfully ad-
dress the issue.
The Agency does not support the use of the State Revolving Fund (SRF) for sedi-
ment remediation due to the inherent restrictions of the SRF and the additional
burdens that such use would place on the fund, which is already overwhelmed by
currently eligible project needs. In addition, we strongly recommend amending Sec-
tion 118 of the CWA to eliminate unattainable deadlines for Agency actions. Such
deadlines unfortunately have the unintended effect of causing EPA to divert scarce
resources from the development and implementation of effective programs to the de-
fense of lawsuits. We are also very concerned about the deadlines for Lake wide
Management Plans (Lamps) contained in S. 1183. Those deadlines are inconsistent
with the management structure of the Lamps, which includes open participatory
public process that addresses the issues and interest of all Great Lakes stakeholders.
THE CHESAPEAKE BAY PROGRAM
Congress directed EPA in 1975 to investigate the causes of environmental decline
in the Chesapeake Bay. To achieve this goal, EPA established a Chesapeake Bay
Program Office that formed partnerships over the years with key Chesapeeike Bay
States, federal agencies and other interested parties such as citizen groups. After
identifying the key ecological health problems of the Bay — such as nutrient over en-
richment, loss of Bay grasses and fisheries resources — EPA along with its partners
has worked towards collectively and effectively reducing these risks. A commitment
to action by the States was evident from the beginning of the progrgun. This led to
strong management programs for point and nonpoint sources within the States to
help restore the health of the Bay.
The Bay Program is an institutional model for a multi-State, ecosystem approach
to protecting and restoring a large complex watershed. In addition to achieving sig-
nificant environmental results, the Progreun has pioneered advances in science and
technology that can be used in other large ecosystems.
845
In 1987, as part of the Chesapeake Bay Agreement, the Program set a goal to
reduce the level of nutrients in the Bay by 40% by the year 2000 and to maintain
that level — or lower — thereafter. To date, phosphorus levels in the main stem of the
Bay have been reduced by 16% and nitrogen levels stabilized since 1985 although
there has been substantial population growth in the basin. In addition, as part of
the 1992 amendments to the 1987 agreement, the Program has achieved caps on nu-
trient loadings to each of the ten major tributaries, effectively limiting nutrient
loads to the Bay. The Program has effectively implemented major pollution preven-
tion efforts for nutrient management for fertilizers, integrated pest management in
agriculture, and phosphate detergent and tributyltin bans.
Non-compliance rates for point source dischargers have been reduced by 70%
since 1990. And finally, the toxic release inventories for the whole watershed indi-
cate a 43% reduction in reported toxic emissions/ releases from 1987 to 1990, com-
pared to a national decrease of 22% from 1988 to 1991.
To support this work, the Bay Program has developed a sound technical and sci-
entific data base to support its environmental targets and its focus. The Program
established the scientific linkages between Bay grasses and water quality and the
role of fin fish and shellfish in the assimilation of pollutants. The Program pio-
neered biological nutrient reduction technology for point source nitrogen and identi-
fied and quantified the contribution of airborne deposition of nitrogen to the Bay,
linking water quality and air models.
The Chesapeake Bay Program has an ambitious and exciting vision for its future
work in the Bay. For example, the Program will heighten its emphasis on tributar-
ies and shallow habitat areas, including the Anacostia and Patuxent Rivers. The
Program will look also into new technologies to assess air/water nitrogen ex-
changes, the interaction between water quality and living resources, and those
interactions between land and water.
Earlier this year, Senators Sarbanes, Mikulski, Warner, Robb, Woiford and Spec-
ter introduced S. 567, entitled the "Chesapeake Bay Restoration Act of 1993." Build-
ing upon the Chesapeake Bay Program authorized in the 1987 Water Quality Act,
the bill addresses priorities set out in the 1987 Chesapeake Bay Agreement and the
1992 amendments to the agreement. We are generally supportive of the concepts
contedned in the bill, in psirticular: the enhancement of federal agency cooperation
and coordination; improvement of federal facility compliance; and, promotion of
local and private sector participation in the development and implementation of
management, conservation and restoration plans. Similarly, we believe that provi-
sions to promote the demonstration and showcasing of various techniques for restor-
ing and enhancing wetleinds, submerged aquatic vegetation and forest riparian
zones in the Bay move in the right direction. We also agree conceptually with provi-
sions in the bill that would provide State and local governments with better tools to
make sound land management decisions.
THE GULF OF MEXICO PROGRAM
The Gulf of Mexico is essential habitat to approximately 75% of North America's
migratory birds, several endangered species, and economically important fisheries
for shrimp, shellfish, and fish. Its coastline is longer than the Pacific Coast and
nearly as long as the Atlantic Coast. Unlike most estuaries in the east and west
coasts of the U.S., Gulf estuaries are primarily shallow and wind-driven. These estu-
aries average only eight to ten feet in depth. They are productive because of the
warm climate, in-flows of nutrients, the balance of fresh and salt waters, and the
vegetated habitat. About one-half of the nation's wetlands are found there and
about one-sixth of the U.S. population now lives in Gulf States and is expected to
increase by 26% over the next 20 years. In addition, the Gulf has four of the top ten
busiest U.S. ports and 90% of all offshore oil and gas production in the U.S.
Some of the environmental challenges facing the Gulf of Mexico are crosscutting
and complex in nature which will require assessment and Gulf-wide solutions while
some issues are more appropriately desdt with on a more local scale. The challenges
include: habitat losses; impaired freshwater inflow; nutrient enrichment from two-
thirds of the continental U.S. and from coastal septic systems and agriculture
among other sources; marine debris; toxics and pesticide contamination; and, coastal
and shoreline erosion. Each of these problems requires long-range solutions involv-
ing many key parties across the Gulf. EPA in partnership with the five Gulf coastal
States and other federal agencies, began the Gulf of Mexico National Program in
1988 to address the cross-cutting, system-wide environmental problems in the Gulf.
In all, over 400 different groups and organizations are represented in an overall
committee structure.
• 846
The Gulf Program is designed to be holistic in its approach and to address risks
that are broad in scale and that extend to the entire ecosystem. A system-wide ap-
proach requires extensive coordination, and the Program has served £is an in-the
field experiment of a full environmental partnership. We have found that the Gulf
is a vast and infinitely complex ecosystem whose collective environmental threats
easily overwhelm the individual capacities of federal and State environmental pro-
grams. Consequently, the Gulf program, if it is to succeed, must remain a collabora-
tive partnership of all of the State, local, citizen and private stakeholders. The fed-
eral government must catalyze and assist in the proper and effective coordination of
these activities.
In this session of Congress, Senator Graham and former Senator Krueger intro-
duced bills to strengthen efforts for environmental protection in the Gulf. These
bills, S. 83 and S. 686 respectively, generally aim to establish a strategic plan for the
Gulf and to create a commission or governing body to help to direct this effort.
Because the Gulf of Mexico Program is a partnership effort among many several
agencies, the best recommendations regarding what is needed in the Gulf are the
principles recently articulated by our federal partners. These include: (1) some legis-
lative recognition of the Gulf of Mexico is appropriate; (2) partnership among feder-
al agencies should be full and shared, although one federal agency can act as the
coordinating hub for cross-cutting Gulf activities; (3) the Program should develop a
strategic plan which assesses ecosystem-wide (not simply local) problems and make
recommendations for actions necessary to collaboratively address these Gulf-wide
environmental risks; and (4) each federal partner agency should support activities
within the strategic plan and implement these actions through their own authori-
ties with funds obtained through their own appropriations process. Each of these
principles will help to ensure success in the Gulf of Mexico. As such, they can serve
as an initial basis for discussions regarding appropriate Gulf of Mexico legislation.
THE NATIONAL ESTUARY PROGRAM
In addition to these large waterbody programs, EPA manages the National Estu-
ary Program under the CWA. The NEP was established in 1987 under Section 320
of the CWA. Its mission is to identify nationally significant estuaries, protect and
improve their water quality, and enhance their living resources. Among the criteria
for national significance is the presence of unique, threatened, or endangered spe-
cies and habitats within the proposed estuarine study area.
The NEP embodies the watershed protection approach by addressing problems
within the watershed as a whole rather than by focusing on one problem at a time.
As a result, this program involves high levels of coordination £unong the many
stakeholders. For each estuary designated, a Management Conference is convened
that includes representatives from the State and local governments, businesses, citi-
zen groups, academia, and environmental and other citizens' groups. The Confer-
ence identifies and addresses environmental risks to the estuary through adoption
of a Comprehensive Conservation and Management Plan (CCMP).
The NEP currently includes 21 programs across the nation. Although each estu-
ary has unique characteristics, many share common environmental problems. These
include eutrophication, toxic substances and metals, pathogens, and changes in
living resources and their habitats. Solutions to a number of these problems are
being developed and tested in individual NEP estuaries.
The NEP is a successful program in a larger sense. NEPs are achieving consensus
and results. They provide an excellent model for collaborative problem solving by
key stakeholders concerned about a local resource. The NEPs have also demonstrat-
ed the vsdue of monitoring. Monitoring is crucial in helping to define estuary func-
tions on an ecosystem-wide basis and to determine the effectiveness of the actions
taken under the CCMPs. Monitoring results can then be used for developing needed
"mid-course" corrections. In addition, volunteer monitoring is often used to achieve
& better understemding of an estuary's functions euid to enlist citizen support in
identifying and managing estuarine problems.
With respect to CWA reauthorization. Congress needs to be aware that, under
current law, the NEP can provide no financial assistance to Management Confer-
ence for the oversight and facilitating of CCMP implementation. Under § 320(b), the
Management Conference must coordinate and facilitate the implementation of the
plan, assess the effectiveness of the plan, and review proposed federal projects for
consistency with the CCMP. These statutory responsibilities cannot be carried out
until the CCMP is completed and implementation begins, yet § 320 provides no
grant authority to support these activities. While we cannot support a new grants
program for implementation, we would not oppose authority to award grants from
847
currently-available funds to Management Conferences to support limited oversight
activities.
We also appreciate the support expressed for the NEP in Senator Lieberman's
bill, S. 815. While we agree that funding implementation of CCMPs is important,
the State Revolving Funds (SRF), construction grants program and nonpoint source
program already provide priority consideration to activities in approved CCMPs.
Thus, we believe that States should revise their SRF funding priorities to reflect
CCMPs instead of requiring a percentage of the State revolving fund to be set aside
for implementation of CCMPs. The virtue of the SRF is the high degree of flexibility
it offers States. Set-asides limit this flexibility and rarely match actual funding
needs for the targeted areas. We believe that the major responsibility for implemen-
tation remedns with the States and localities where the benefits will be realized-
Nevertheless, EPA, the States and the public together have invested millions of dol-
lars in developing CCMPs, and we agree that we must determine how we can best
protect and build on those investments. Accordingly, we support a strong role for
EPA in facilitating implementation.
EPA also does not support the authorization levels of $4 bUlion in FYs 1994 and
1995 and $5 billion in FYs 1996-2000. These levels are higher than national fiscal
constraints will allow. We support the President's investment proposal, which would
provide $7.2 billion in capitalization grants between FY 1994 and FY 1997 to capital-
ize State revolving funds.
CONCLUSION
We believe each program discussed above illustrates the application of the Water-
shed Management approach. Each program is characterized by cooperation among
EPA, other federal agencies. States, local government and the public to identify
problems and implement solutions in a holistic, integrated, cost-effective way. Many
of these programs also exemplify multi-State coordination. By focusing on water-
sheds as a whole — and the valuable ecosystems they contain — these programs at-
tempt to protect not only the water chemistry but also the aquatic habitats for the
systems' Uving resources. As John Muir, the father of our conservation movement,
so eloquently wrote in 1911 in one of his nature journals, "When we try to pick any-
thing out by itself, we find it hitched to everything else in the universe." Muir's
quote captures the very essence of Watershed Management. Watershed Memage-
ment is essential to ensure that we succeed in restoring and protecting our water-
sheds as sources of food, livelihood, recreation, wildlife habitat and aesthetic beauty.
As we embark on a more comprehensive, nationwide approach to Watershed Man-
agement, we believe that these programs can teach us valuable lessons.
REAUTHORIZATION OF THE CLEAN WATER ACT
WEDNESDAY, AUGUST 4, 1993
U.S. Senate,
Committee on Environment and Public Works,
Subcommittee on Clean Water, Fisheries, and Wildufe,
Washington, DC.
REGIONAL ISSUES
The subcommittee met, pursuant to recess, at 9:40 a.m. in room
406, Dirksen Senate Office Building, Hon. Bob Graham [chairman
of the subcommittee] presiding.
Present: Senators Graham, Mitchell, Lautenberg, Chafee, Lieber-
man, Wofford, and Baucus.
OPENING STATEMENT OF HON. BOB GRAHAM, U.S. SENATOR
FROM THE STATE OF FLORIDA
Senator Graham. I call the subcommittee to order.
Today the subcommittee continues its review of Clean Water Act
issues and turns its attention to a number of concerns to the re-
gions of America.
The topics we will cover today will demonstrate the differences
in water issues that face many regions of the country.
At previous hearings we have examined watershed planning as a
means of recognizing variances in ecosystems and types and
sources of pollution. Witnesses have told us that these differences
justify flexibility in the solutions we craft to address water pollu-
tion problems.
There are many programs in the Clean Water Act that already
recognize these regional differences.
In 1987, Congress created the national estuary program to take a
watershed approach to water quality management in the Nation's
estuaries. To date, 21 estuaries are in the program. We will learn
today about the progress the program has made in addressing pol-
lution along our coast. We will also discuss how we can benefit
from those lessons in encouraging watershed planning for the rest
of the country and how these programs can be merged to avoid du-
plication.
Congress also created the clean lakes program, a small but suc-
cessful program aimed at controlling pollution of our Nation's
lakes. The program recognizes the differences between what hap-
pens when contaminants enter lakes compared to free-flowing
rivers and streams.
(849)
850
The clean lakes program also took a watershed approach, recog-
nizing the need to address pollutants at the source rather than
simply eliminating the symptoms in the lakes, themselves.
Today we will learn about the special problems faced by those
arid states in the west whose low annual rainfall pose unique prob-
lems in complying with national standards. We will also examine
continuing problems in several of our Nation's largest ecosystems
and water bodies, including the Great Lakes, Long Island Sound,
and the Chesapeake Bay — all of which have programs currently in
place.
We will also look at other ecosystems such as the Gulf of Mexico
and the Mississippi River, which seek new programs to help them
address their problems.
Finally, we will look at the special problems of some of our
larger cities and other regions of the country as they attempt to
comply with the requirements of the Clean Water Act.
Because of the breadth and sheer number of these issues, today's
hearing will be somewhat different than the others that we have
held in the past. Our hearings have used an informal format to en-
courage dialog. Today's hearing is going to be primarily to receive
information about the specific needs of these variety of programs.
We have over 20 witnesses who have requested to give testimony.
We ask that all of our witnesses be as concise as possible and con-
fine their remarks to five minutes.
It is our intention to receive all of this testimony today, and to
do our best to accommodate the busy schedules of our colleagues in
the House and the Senate who have asked to testify.
The subcommittee appreciates your patience as we attempt to
move through this full agenda.
Before we address some of the specific regional issues, I want to
begin with some of the regional programs.
At this time, I would ask the members of the first panel to come
forward as we receive the opening statements of our colleagues
who have joined us today, beginning with the majority leader of
the United States Senate, Senator George Mitchell of Maine.
OPENING STATEMENT OF HON. GEORGE MITCHELL, U.S.
SENATOR FROM THE STATE OF MAINE
Senator Mitchell. Thank you, Mr. Chairman, for holding this
hearing on the water quality issues facing our coastal waters, estu-
aries, and lakes.
Six years ago the congressional Office of Technology Assessment
reported that.
In the absence of additional measures to protect our marine waters, the next few
decades will witness new or continued degradation in many estuaries and coastal
waters around the country.
Since then, witnesses before this committee and others in the sci-
entific community have reaffirmed this basic conclusion. Coastal
pollution problems range from closed clam flats in New England to
closed beaches in New Jersey to a dead zone in the Gulf of Mexico,
to sediment contamination in Puget Sound.
I have introduced, with Senator Lautenberg, legislation to
expand and strengthen elements of the Clean Water Act related to
coastal pollution. A key first step is to renew the national estuaries
851
program, which has helped many coastal areas address pollution
problems, including communities around Casco Bay in my home
State of Maine.
In addition, we need new authority to take special care of im-
paired coastal waters, to assure that water quality standards apply
to all coast waters, to expand public education, and to assist com-
munities in dealing with overflows of raw sewage from combined
storm and sewer systems.
I look forward to comments on this coast protection legislation
and to working with the committee to include the provisions of the
bill in the Clean Water Act reauthorization.
I also hope that this reauthorization of the Clean Water Act can
provide much-needed attention to the water quality problems of
our Nation's freshwater lakes. Lakes represent an incomparable
recreational resource in many areas of the country. Indeed, many
Americans think of clean water in terms of the quality of the lake
where they swim or boat.
Unfortunately, the EPA has reported that 20 percent of our
lakes are impaired, and an additional 25 percent are threatened
with impairment. When almost half our lakes are in real or poten-
tial trouble, it is time to rethink our efforts to protect lake water
quality.
Section 314 of the Clean Water Act provides for some assistance
to States in protecting lakes, but this effort can be improved.
I have introduced legislation building on the existing clean lakes
program and expanding it in several key areas. My bill would in-
crease research on lake quality issues, provide for development of
water quality standards for lakes, consolidate and refocus existing
grant programs, expand EPA support for volunteer programs for
lake protection, and provide for a gradual phase-out in the use of
phosphate in household laundry detergent.
These measures, in combination with the renewed efforts to con-
trol nonpoint sources of pollution proposed in the bill introduced by
Senators Baucus and Chafee, will take us a long way toward clean-
er lakes and improved recreational opportunities for millions of
Americans.
I look forward to working with you, Mr. Chairman, with Senator
Lautenberg, with Senators Baucus, Chafee, and others on this com-
mittee on these important parts of our clean water program.
I want to apologize in advance to the witnesses that, because of
other duties on the Senate floor, I will not be able to stay for the
testimony, but I look forward to reviewing that testimony, I know
the committee will learn from these witnesses.
Thank you, Mr. Chairman.
Senator Graham. Thank you very much, Mr. Leader.
Senator Lautenberg of New Jersey?
OPENING STATEMENT OF HON. FRANK R. LAUTENBERG, U.S.
SENATOR FROM THE STATE OF NEW JERSEY
Senator Lautenberg. I thank you, Mr. Chairman.
I am pleased that the subcommittee is addressing coastal pollu-
tion issues today. Protecting our coasts should be one of our high-
est environmental priorities.
852
Incalculable is the value to every family that spends a day to-
gether at the beach. More easily measurable, however, is the
income that our States derive from the more than 160 million
people who visited our shores in 1992.
In my home State of New Jersey, $9.5 billion was collected from
tourism expenditures in four coastal counties last year. Further-
more, in 1991 353,000 people provided services to these visitors in
some capacity, making tourism the number one employer in the
State. Such values cannot be overlooked.
Mr. Chairman, I want to focus my comments today on the goal of
the Clean Water Act, which is to make our waters swirximable and
flshable.
While water quality has improved since the act's enactment, we
have no way to measure our progress toward making waters swim-
mable because States do not regularly test beach waters to deter-
mine whether or not they are safe for swimming. And where States
do test their waters, EPA guidelines recommend using a monthly
average to determine whether a beach is safe for swimming. But
monthly averages can mask unsafe water quality that may exist on
any given day.
Today, throughout our Nation, families are splashing in the
waves. They believe that they are engaging in a safe activity and
deriving nothing but joy and recreation. But what if the water they
are swimming in is, instead, contaminated with bacteria at levels
that can make them sick? How do they know that?
This is a case where ignorance is not bliss. All of those enjoying
the ocean this summer have a right to know whether the water
that they are swimming in is clean and safe, and yet many States
use inadequate techniques to measure bacteria levels in beach
water, and others conduct no water quality monitoring at all.
Furthermore, the National Resources Defense Council recently
found that even when the States do monitor water and discover
unsafe bacteria levels, they don't always tell the public.
A high bacteria level can cause a beach closure in one State,
while in another people may be allowed to swim in water, despite
equal health risks.
In an attempt to remedy this problem, Senators Bradley, Boxer,
and Feinstein have joined me in introducing S. 997, the Beaches
Environmental Assessment Closure and Health Act.
The beach bill will help ensure the safety and beauty of coastal
beaches across the country by establishing uniform testing and
monitoring procedures for bacteria and floatables in marine recrea-
tion waters. It will also require that beach-goers are notified
through advisories or beach closures whenever the standard is ex-
ceeded.
A coalition of groups from across the country has written a letter
in strong support of S. 997, Mr. Chairman, and I would ask that
this letter be included in the record.
Senator Graham. Without objection, so ordered.
[See attachment to Dawn Martin's Testimony, p. 922.]
Senator Lautenberg. Mr. Chairman, I, too, have other hearings
and meetings, and therefore will be unable to remain.
853
I urge that the subcommittee add its support to this legislation,
to the Clean Water Act, and in doing so to recognize the impor-
tance of protecting public health at our Nation's beaches.
I thank you once again for holding this hearing.
Senator Graham. Thank you. Senator.
Senator Graham. Our first panel includes Ms. Dawn Martin of
the American Oceans Campaign; Mr. Richard Wedepohl of North
American Lake Management Society; and Mr. George Brinsko,
President of the Western Coalition of Arid States.
I would call on the members of the first panel in the order in
which they were introduced for their opening statement.
Ms. Martin?
STATEMENT OF DAWN MARTIN, AMERICAN OCEANS CAMPAIGN,
WASHINGTON, D.C.
Ms. Martin. Thank you, Senator.
As you said, my name is Dawn Martin, and I am the Director of
the Washington Office for the American Oceans Campaign, and the
Coordinator of the National Coastal Caucus.
On their behalf, I wish to express my thanks to Chairman
Graham for inviting us to testify, and for all the work that he and
the committee staff have done in setting up these hearings.
In addition, I applaud Senators Baucus and Chafee for introduc-
ing S. 1114, which has served as a vehicle for discussion in these
hearings.
Aquatic ecosystems worldwide are being severely altered or de-
stroyed at a rate greater than at any other time in human history.
Protection of the functions of those aquatic ecosystems have been
largely ignored; therefore, we are pleased to see that the committee
has acknowledged that clear hydrological, ecological, and economic
basis for focusing on broader aquatic ecosystems management
through its watershed planning provisions in S. 1114.
Watershed planning, however, is not a completely novel concept.
Attempts have been made at the local. State, regional, and Federal
levels to do successfiil watershed planning for many years.
Created by section 320 of the 1987 Clean Water Act, the NEP is
an excellent example of comprehensive watershed management.
The NEP, itself, is also modeled after the Great Lakes and the
Chesapeake Bay programs.
Estuaries form trainsition zones between freshwater and marine
ecosystems and, as a result, are among the most productive natural
systems. But, in spite of their high value, intense use, and frequent
overuse, estuaries only recently have become recently recognized as
a unique and severely depleted resource.
The NEP is designed to identify estuaries of national significance
and to establish a process for improving and protecting their water
quality, habitat, and living resources.
In the past several years, we have compiled comments on the
NEP and, as a result, we have developed a list of priority problems
and potential solutions to strengthen the program. These sugges-
tions essentially became the basis of Senator Lieberman's Water
Pollution Control and Estuary Restoration Act, S. 815.
854
Similar frustrations with the program were experienced across
the country, and therefore participants have called for a national
solution to address these problems. Essentially, there are five main
provisions which would be strengthened by incorporating the lan-
guage of S. 815, as well as specific parts of the Coastal Protection
Act introduced by Senators Mitchell and Lautenberg. These in-
clude:
Number one: mandating implementation of CCMPs. S. 815 clari-
fies that implementation of CCMPs is a nondiscretionary duty of
EPA. S. 1114, on the other hand, expands section 320 to provide
grants to pay for activities necessary for the implementation of
CCMPs. It also reiterates that implementation activities are eligi-
ble for SRF funding.
S. 1199 also acknowledges the need for Federal involvement in
implementation by extending management conferences to oversee
implementation of improved plans.
Two: requiring strict time frame guidelines. The five-year time
frame allowed under section 320(e) should not be extended simply
to allow the planning process to continue. S. 815 sets forth schedul-
ing deadlines to ensure a timely planning and implementation
process and to discourage the process from stalling.
S. 1199 also adds language to tighten up the plginning process by
requiring that implementation plans include a detailed financial
plan indicating the Federal, State, and local funds needed to imple-
ment identified corrective actions.
Third: increasing the role and visibility of EPA in the program.
S. 815 requires EPA to participate more actively in ensuring full
coordination among the appropriate agency. EPA is also directed to
promulgate guidelines setting out criteria for the development, ap-
proval, and implementation of CCMPs.
S. 1199 requires EPA to review and report on the progress of the
management conferences.
The fourth point is the need to strengthen citizen participation.
S. 815 acknowledges that a public involvement is a vital function of
every conference, and it expands the participation at all levels of
the program.
Finally, we need to include a funding mechanism to ensure im-
plementation. Due to State budget shortfalls and the lack of Feder-
al support, many States have been unable to fully implement their
management plans. It is imperative that additional resources be
provided if implementation is to be successful; otherwise, the Fed-
eral funds expended for crafting the plans will be wasted.
S. 815 increases funding for the SRF program at $4 billion and
then to $5 billion, and creates a set-aside specifically for the CCMP
implementation.
To recap, assuring the development of the most efficient plan for
tackling pollution problems within estuaries is the major theme of
S. 815. Senator Lieberman is to be commended for his focus on the
economic and environmental costs associated with cleaning up
these valuable watersheds.
We encourage the committee to amend section 607 of the bill to
incorporate the Lieberman language.
The committee's version of the Federal Water Pollution Control
Act can easily be amended to address our concerns about the NEP.
855
We strongly support the above-mentioned provisions, but recognize
the need for implementing the CCMPs, and we also recommend
linking the national estuary program with the watershed provi-
sions of the committee's bill.
Title one and title three both provide an opportunity for linking
the national estuary program with watershed provisions.
I am out of time, but I wanted to just quickly mention the Mitch-
ell-Lautenberg Coastal Protection Act also includes several provi-
sions that we are in support of, in addition to the national estu-
aries language, including the creation of a coastal environment
toxics release strategy, focusing on the effect of industrial dis-
charges, development of a national marine water quality education
program, and that the bill significantly strengthens requirement
and enforcement provisions for marine sanitation devices.
It also calls for the development of marine water quality criteria
and standards, and significantly restricts ocean beach discharges.
The final provision or bill that I wanted to mention was Senator
Lautenberg's beach bill. Mr. Lautenberg did a tremendous job in
identifying that for me, so I won't expand on it.
I also was going to ask that the letter that Senator Lautenberg
mentioned be incorporated in the record.
So I'd just like to say that we strongly support the inclusion of
the beach bill, certain provisions of the Mitchell bill, as well as the
Lieberman bill when this committee reauthorizes the Clean Water
Act.
Thank you.
Senator Graham. Thank you very much, Ms. Martin.
We have been joined by the ranking member of the subcommit-
tee. Senator Chafee of Rhode Island.
Senator Chafee?
Senator Chafee. Thank you very much, Mr. Chairman. I apolo-
gize for being a few minutes late.
I don't have a statement, and we've got a long list of witnesses,
so I'll do everything I can to cooperate to move right along.
Senator Graham. Thank you very much.
Mr. Wedepohl?
STATEMENT OF RICHARD WEDEPOHL, NORTH AMERICAN LAKE
MANAGEMENT SOCIETY, MADISON, WISCONSIN
Mr. Wedepohl. Thank you, Mr. Chairman.
Please know that our organization is also very appreciative of
the opportunity you have provided for us to testify.
As you noted, today I am representing the North American Lake
Management Society, which is an international organization that is
comprised of citizens, lake communities, scientists, engineers, lake
biologists, lake management professionals, and many others.
Recently, I have also served as chair of Water Quality 2000's
Urban and Rural Runoff Challenge Team, which focused on defin-
ing solutions to our Nation's water quality problems that originate
from rural and urban runoff.
In my real life I am employed and get my paycheck from the
State of Wisconsin's Department of Natural Resources, where I
oversee the nonpoint source and lake planning program.
69-677 0-94-28
856
I am here today on behalf of our Society to offer to this subcom-
mittee testimony relative to S. 1198, which you heard Senator
Mitchell describe very eloquently; and also S. 1114.
I might add that we are very fortunate that Senator Mitchell
hails from a lake State, and also our chairman hails from a State
that is very rich in lake resources.
Let me begin by stating as strongly as I possibly could our sup-
port for S. 1198, Senator Mitchell's bill. This is without a doubt the
finest piece of legislation our organization has had the opportunity
to comment on. Our compliments to Senator Mitchell and the staff
who have worked hard over the past three years to put this piece
of legislation together.
S. 1198 has many fine provisions — provisions which build upon
the 17 years of experiences and lessons learned through a highly
successful section 314 clean lakes program.
While our Nation's lakes would certainly benefit if this bill were
adopted independently, it would be our preference to see it rolled
in its entirety into the Clean Water Act amendments. It is our
belief that by doing so the many strengths of this piece of legisla-
tion would spill over and help out the other new nonpoint source
and watershed initiatives which are an important part of S. 1114.
The bottom line is we don't feel that it is necessary to start over
again and begin at the bottom of the learning curve. Much of the
lessons have been learned.
You have also heard many of the facts and figures on the quality
of our Nation's resource. I'm sure those figures haven't always
been the same, but the gist of it is there are still a lot of problems.
You also heard about the critical nature of nonpoint source pol-
lution watershed approaches and involving citizens in the effort.
We certainly add our support to this.
However, what has not been stated very well, we don't believe, is
the critical need that exists to target and to focus our newer non-
point source and watershed initiatives on our most sensitive fresh-
water resources, our Nation's lakes and reservoirs.
The success of the section 314 program has never been ques-
tioned. The original model was based on sound science, was driven
by needs identified at the grassroots level, and has been imple-
mented with the principle of the need to build strong State/ local
partnerships to solve watershed problems.
It has received several accolades. NRC recently called it a model
of Federal restoration efforts with regard to its emphasis on the
causes of lake problems and local and State participation.
EPA's former head of Office of Water, Lajuana Wilcher, recently
described the program as a quintessential example of empowering
citizens to work closely with their local, State, and Federal Govern-
ments in achieving a common goal.
And recently an EPA review, which I have copies and will give
you, also highlighted its successes.
Finally, I think it is important to note that this program was ac-
complishments was with very little budget support. There are some
issues there that we can't get into now. But it has operated on an
annual appropriation of less than $10 million per year.
Now, with Senator Mitchell's bill, there exists a wonderful oppor-
tunity to build upon these past successes to revise and fine-tune
857
and broaden the scope of this program. I won't discuss the individ-
ual sections Senator Mitchell did, but I will say that they all are
significant and important, whether it be the research, the water
quality standard components, the national phosphate ban whose
time has certainly come, and program coordination and education
elements of the bill.
Overall, it is an extremely well-conceived and developed and fine-
tuned bill. It has few flaws and is a logical extension of the 314 pro-
gram.
However, given the low funding — and I know you have heard
this before — provided by this bill, we feel it is essential that lakes
be given special attention or given some reference into our new
nonpoint source and watershed initiatives that are proposed in S.
1114. It is important that they be targeted.
Our momentum has been on stream and river focused efforts,
and lakes have not had the attention because most of our lakes
have not had point sources going into them.
In regard to S. 1114, NALMS is certainly supportive, while we
have a general sense the bill is perhaps more top-down than
bottom-up in design and maybe not enough emphasis has been
placed on the need to develop State and local infrastructure.
Certainly some of these weaknesses would be corrected if the citi-
zen-initiated clean lake projects posed in 1198 were effectively in-
corporated into this bill.
As stated earlier, and I can say it again, the State/local partner-
ship structure and model for effective, voluntary local watershed
management has already evolved through the clean lakes program.
Finally, one comment related to section 402(p), the stormwater
element of the bill. I have had the experience of having to work
with the stormwater program and have had the opportunity to go
through its development with EPA and its implementation in the
States.
NALMS and many others of us are still very concerned that
there exists little incentives for State or local programs to address
control of post-development stormwater runoff under section 402(p).
Presently, EPA and State implementation of the permitting pro-
gram does not effect post-development runoff. It is not well under-
stood. A lot of the States already deal with this independently, but
those States that don't have their own legislation are not doing it
very well.
New construction activities greater than five acres in size, for in-
stance, are required to have stormwater permits. These stormwater
permits are for the construction activities. Silt fences are put in,
mulching is done, and whatever, to control sediment. Stormwater
is controlled during construction. However, there are no require-
ments that post-construction development controls be part of this.
For instance, the five-acre site could be completely paved over
and water would run off and go directly into the lake without any
controls whatsoever.
We feel that perhaps another section needs to be added to this
bill to address this weakness.
We sincerely appreciate the courtesy and consideration you have
extended to us.
Thank you.
858
Senator Graham. Thank you very much.
Mr. Brinsko, Western Coalition of Arid States?
STATEMENT OF GEORGE BRINSKO, PRESIDENT, WESTERN
COALITION OF ARID STATES, TUCSON, ARIZONA
Mr. Brinsko. Good morning, Mr. Chairman and members of this
subcommittee.
I am the President of the Western Coahtion of Arid States, other-
wise known as WESTCAS. I am also the Director of Wastewater
Management for Pima County, Arizona.
WESTCAS has requested the opportunity to testify before your
subcommittee in order to inject an arid west perspective in these
discussions in the clean water reauthorization.
The Western Coalition of Arid States was formed in 1992 by a
group of western water and wastewater agencies concerned about
the manner in which water quality and water resource manage-
ment issues were being addressed in states throughout the arid
west — areas with less than 15 inches of annual rainfall.
In the last 18 months, WESTCAS has attracted more than 50
members from five western States — Arizona, California, Colorado,
New Mexico, and Nevada. Our main objective is to assist in the de-
velopment of water quality regulations, policies, and laws which
promote the protection of arid and semi-arid ecosystems through-
out the west.
I moved to Pima County from Pittsburgh, Pennsylvania, 14 years
ago to establish the first regional wastewater treatment system in
Arizona. One of my first, most vivid experiences, upon my arrival,
was standing beside the Santa Cruz River, a river with no water.
Exhibit No. 1 will illustrate that.
The arid west is laced with arroyos and dry rivers such as the
Santa Cruz. They are actually ephemeral streams. These streams
only flow in direct response to one of our periodic powerful rain-
storms, as illustrated in Exhibit No. 2 of our submittal.
I want to emphasize from the outset that WESTCAS supports the
goals and objectives established by the Clean Water Act. Our con-
cerns rise from the application of the act to the arid west environ-
ment. Concepts and regulations that make perfect sense when de-
veloped in terms of wet ecosystems have major flaws when applied
to arid west water and wastewater situations.
WESTCAS members and other water and wastewater agencies
must perform a balancing act between competing forces. On one
hand, we must fulfill our mandated responsibility to protect the en-
vironment by meeting NPDS permit requirements but, on the
other hand, we must convince our elected local officials and rate-
payers that we are spending increasingly limited resources wisely
and efficiently.
It is difficult for us to justify expending millions of dollars to
comply with increasingly stringent standards for effluent dis-
charges when such additional improvements will result in no meas-
urable net environmental benefits.
The west needs the flexibility to adapt water quality programs to
local and regional ecosystems and conditions, particularly in the
absence of federal dollars for these national mandates.
859
When effluent is discharged to certain reaches of these ephemer-
al streams, lush riparian ecosystem is often created, as shown in
Exhibit No. 3. We believe that we have a major responsibility to
protect such ecosystems.
The reauthorization needs to address the issues essential to the
management of the water and wastewater resources of the arid
west. We respectfully request the committee to add an "Arid West"
Section to S. 1114, with a finding that recognizes the unique nature
of arid west ecosystems.
We urge the committee to consider the 14 amendments attached
to our written submittal in drafting the "Arid West" section of the
bill to address these special needs. To name just a few: authorize
and fund research to develop appropriate water quality criteria;
the utilization of reclaimed water; the interaction between the en-
vironmental, social and economic effects of policies, regulations,
and permits; and the use of biomonitoring to act as a warning
signal.
WESTCAS has prepared specific language and comments on
these issues for the committee's consideration in the reauthoriza-
tion process. However, in recognition of the committee's time con-
straints. I will not review all these statements at this time, but I
would like to address the need to emphasize research in a reau-
thorization legislation.
WESTCAS believes that there is only one way we can be certain
of protecting our arid ecosystem, and that is for us to conduct the
basic scientific research and demonstration needed to identify what
is there and what is needed to protect it.
There is a very real danger that current federal policies are
simply shifting the cost of such needed research and demonstration
projects to local jurisdictions. Congress can achieve tremendous
economies of scale by adopting a regional approach to the science
of arid lands/water quality management.
Both the federal government and many western interest would
benefit from a federal partnership on these projects.
WESTCAS urges the committee to add a "Research Section" to
S. 1114, including authorization language and suitable appropria-
tions, to encourage the development and implementation of re-
search and demonstration projects to the arid west.
As part of this "Research Section", WESTCAS requests that this
subcommittee incorporate into the act the authorization for the es-
tablishment of a regional Water Quality Research Project. This
would create a program to conduct the research needed to develop
appropriate water quality criteria documents for arid ecosystems
throughout the west.
Even though we believe this research program is already author-
ized in the act, we would like the subcommittee to give its direct
authorization of this program.
In closing, Mr. Chairman and members of the subcommittee, on
behalf of WESTCAS, I would like to thank you once again for al-
lowing me to appear before you.
Senator Graham. Thank you very much, Mr. Brinsko.
I want to thank all of the members of this panel for an excellent,
concise presentation on programs that are already in effect or pro-
860
grams that you recommend to take account of some of the special
needs of the arid west.
I would like to ask a few questions.
First, Ms. Martin and Mr. Wedepohl, in terms of the national es-
tuarine program and the national lakes program, both of those
were established in response to a set of problems that were seen
within those two particular t3rpes of water bodies in America. How
well do you think the two national programs in their years of exist-
ence have dealt with the problems that lead to their original estab-
lishment?
I guess, to put it another way, if you had laid out the doctor's
di£ignosis of the illness at the time the programs were adopted, has
the prescription those programs were administered helped make
the patient better?
Mr. Wedepohl. Absolutely, with reference to the 314 clean lakes
program. I was around and involved with the program, although I
was barely around when the program first got started. We started
in Wisconsin and the EPA program was adopted after it.
I think the original approach was very sound and recognized the
interdisciplinary problems of lakes and recognized that pollution
sources come from a variety of places, not just point sources, and
recognized that once things get into lakes they tend to stay there
and you've got sediment problems.
It recognized that citizen initiatives are important. If the citizens
are concerned locally and they want to do something, they can
become involved. And if they do become involved, by golly, they
find a way to get the problem done.
Probably one of the strengths of the clean lakes program is that
we didn't have a lot of understanding of the problem back in the
early 1970's. We are still learning. And perhaps as a result of that
the flexibility that the program offered to the States has turned
out to be a very strong asset.
It was not very prescriptive. It said to go out and assess the prob-
lems, find out where they are coming from, and come up with the
recommended solutions, whether it be nonpoint source or point
source control, or whatever — septic tanks, whatever.
As a result of that, there was a great deal of monitoring done.
There was some research, better understanding was accomplished,
citizens got involved, and the program has gone on from there and
has been very successful.
Senator Graham. Could you give an example of a specific water
body in your State or elsewhere that has benefited by this pro-
gram?
Mr. Wedepohl. I sure can. I could give some in Florida, too. But
one I recently finished working on. Lake Delavan, which now Sec-
retary Aspin was very much involved with and took a personal in-
terest in. It was a very large lake in southeast Wisconsin, close to
Chicago, very important to our tourism industry, and so on. It was
sewered as part of the original Clean Water Act requirements, and
point sources of pollution were actually diverted away from the
lake at a cost, I might add, back in the late 1970's, of $40 million.
The lakes program got involved when all the citizens said, "Wait
a minute. Our lake hasn't gotten any better. As a matter of fact, it
has gotten worse."
861
They got involved in the clean lakes program. A cooperative
agreement with the U.S. Geological Survey was set up to actually
measure what is coming into the lake. Detailed watershed invento-
ries were conducted as part of our State nonpoint source program.
A bit of the Corps of Engineers has been involved. A whole variety
of agencies got involved. Citizens took initiative on doing this and
cost-shared the program.
As a result of the monitoring effort, it was determined that we
removed the point sources, and they were the most important
source of the problem at the time, but they weren't the only prob-
lems. The other problems were the nonpoint source problems
which have been corrected.
In fact, every single land owner in this over 15-square-mile wa-
tershed, because of the local initiative, has cooperated and has im-
plemented BMPs on the land. There are still some problems with
the new development, which I mentioned has stormwater to deal
with.
The other thing was that we cooperated with the Fish and Wild-
life program. Because of the degradation that had occurred from
the past point sources, the fisheries had degraded. The lake was
left with a rough fishery rather than the sport fishery it used to
have. These fish had the nasty habit of trying to make their habi-
tat the way they liked it and continued to exacerbate the problem.
They'd stir up the bottoms and they'd recycle nutrients and things
like that, and the algae blooms would continue.
So we cooperated and, through the use of some fish and wildlife
funds the lakes were treated and the fish removed and restocked.
Finally, the lake sediments were treated with alum to lock phos-
phorus in the lake sediments.
It was a comprehensive approach, but the final result is, because
of the citizen involvement again, principally, we have a very, very
successful clean lakes project. The lake has gone from one where
you couldn't swim to one where people are probably swimming in
it too much now. It is almost a problem with the boats.
Senator Graham. Thank you very much.
Mr. Wedephol. You are welcome.
Senator Graham. Senator Chafee?
Senator Chafee. Mr. Wedepohl, in Wisconsin have you banned
phosphates?
Mr. Wedepohl. Absolutely. We originally had a sunset clause,
which everyone was concerned about after we banned phosphates,
because our legislators were concerned that the clothes wouldn't be
as white and all our washing machines would break down. It
wasn't even an issue any more.
Senator Chafee. OK. And do you see the results?
Mr. Wedepohl. The results have shown up mostly in the meas-
urements at our wastewater treatment plants where phosphorus
loads to the treatment plants have been reduced approximately 30
percent.
I think the national average is something like 20 percent reduc-
tion where States have adopted bans. I think 20 States have adopt-
ed bans.
862
Senator Chafee. What do the principal detergent manufacturers
say? How do they do it? Do large manufacturers just do it, not in-
clude it any more?
Mr. Wedepohl. Absolutely. I have the good fortune of having a
brother-in-law who is in the upper echelons of Proctor & Gamble,
and we talk about this all the time, so we have something to talk
about.
Senator Chafee. You bore from within, do you?
Mr. Wedepohl. He says the bill
Senator Chafee. So what do they do? We've got to make these
answers crisp, because I don't have much time..
Mr. Wedepohl. I'm sorry. There are other builders in the deter-
gents and the new detergents are just as effective. The distribution
problem is
Senator Chafee. So it works? And then, in the States that don't
ban it, does somebody like Proctor & Gamble still have it and sell
it in those States?
Mr. Wedepohl. I'm not sure if they still maybe have a few prod-
ucts.
Senator Chafee. In other words, it would seem to me if, because
of the national distribution system, if you've got several key States
you'd think it would be simpler for the manufacturer just to ban
them all
Mr. Wedepohl. Absolutely.
Senator Chafee. — and not have any of it for the distribution pur-
poses. Well, I guess that's up to us to find out the answer to that.
But outside of what you see within the treatment plants, do you
see the results of it in your lakes with less algae and so forth?
Mr. Wedepohl. It is hard to measure because of the nonpoint
sources and other things that are still dominant.
Senator Chafee. At any rate, it is a major step that we could
take.
I must say I'll tell Senator Mitchell what you said about his leg-
islation. That will please him. Any witness that comes before one
of these committees and says about a Senator's legislation, "This is
without doubt the finest piece of legislation our organization has
ever had an opportunity to comment on," I think Senator Mitchell
would do about anything you want for that.
I would also just briefly comment on what Ms. Martin said. This
is coming home to us right now when she talks about the value of
wetlands for flood overflow areas. Certainly that has come home to
us in the tragedies that are taking place in the middle of our coun-
try right now.
You say, "Protection of the functions of our aquatic ecosystems
such as pollution control, fisheries, and wildlife support, floodwater
storage, and groundwater recharge have been largely ignored."
That's tragically so, and it is coming out increasingly with this ter-
rible situation that is occurring in the middle of our country.
Thank you very much, Mr. Chairman.
Senator Graham. Thank you, Senator Chafee.
We have been joined by the chairman of the Environment and
Public Works Committee, Senator Baucus of Montana.
Senator Baucus?
863
OPENING STATEMENT OF HON. MAX BAUCUS, U.S. SENATOR
FROM THE STATE OF MONTANA
Senator Baucus. Thank you very much, Mr. Chairman. I have a
statement to submit for the record and some questions.
Senator Graham. Your statement will be included in the record.
[Senator Baucus' statement follows:]
STATEMENT OF HON. MAX BAUCUS, U.S. SENATOR FROM THE STATE OF
MONTANA
Good morning ladies and gentlemen.
I want to commend Senator Graham for the development of a very informative
series of hearings on key issues related to the core programs of the Clean Water
Act, including sewage treatment funding, toxic control, and nonpoint pollution con-
trol.
Today we look into a range of the very impoitant regional clean water issues.
From Boston Harbor to the Gulf of Mexico and from San Diego to the Great Lakes,
citizens and local governments are working to clean-up and protect water quality.
I am especially pleased that we will hear from witnesses on the progress of the
clean-up of Chesapeake Bay. It is almost impossible to overstate the environmental
and ecological importance of the Chesapeake Bay. It is also almost impossible to
overstate the seriousness of the threats to the quality of the Bay.
The Chesapeake Bay program has been a valuable model for the development of
regional water quality initiatives. I look forward to hearing from our witnesses on
the successes and any failures of the Bay program to date and any suggestions of
lessons learned from this effort.
Efforts to protect Chesapeake Bay lead directly to the National Estuary Program
and the many successful projects to protect these vital coastal waters. We need to
continue the National Estuary Program and expand existing authorities of the Act
to protect coastal waters and I look forward to hearing the ideas of witnesses in this
area.
I know first hand how valuable to facused effort to protect an impaired or threat-
ened waterbody can be. In my home State of Montana, we have made substantial
progress in protecting the Clark Fork River and Lake Pend Oreille. Our clean water
reauthorization must build on these constructive regional projects.
I am also pleased that we will be learning more about the single most outstanding
freshwater resource in the world — the Great Lakes. While we have clearly made
progress in improving water quality in the lakes, we have a very long way to go.
This effort is complicated by the special problem of persistent and bioaccumulative
toxics in the lakes.
We will also be hearing suggestions on steps to expand protection of freshwater
lakes around the country. Lakes provide an exceptional recreational resource for
millions of Americans. I have many fond memories of times spent on Flathead Lake
in my home State of Montana. I hope that our clean water legislation can expand
and strengthen our clean lake program.
Thank you, Mr. Chairman.
Senator Baucus. I would just like to ask Mr. Wedepohl about
water quality standards in lakes. I assume it is your view that we
need to develop one?
Mr. Wedepohl. Absolutely.
Senator Baucus. In addition to rivers and streams and so forth,
could you just expand on that point, please?
Mr. Wedepohl. Absolutely. This is an issue that our organization
worked on for almost the last ten years because we became so frus-
trated with the lack of water quality standards for lakes. How do
you tell if you have problems or not if you don't have clear stand-
ards? What should we be expecting in this lake?
How do you give 305(b) reports any credibility if you don't have
any standards or criteria on which to base them on? How do you
control stormwater runoff? How do you deal with new development
864
and set limits on such? How do you do TMDLs if you don't have
criteria or standards to base them on?
That's absolutely essential. You need water quality standards for
lakes. They haven't been developed yet because most of our prob-
lems have been with point sources going to streams.
We need them. They have to be done.
Senator Baucus. If we have water quality standards for lakes be-
cause we have been dealing with point sources, then how do we
begin to develop water quality standards for lakes?
Mr. Wedepohl. A lot of the work has been done already. I think,
again, Senator Mitchell's bill has done a great job of structuring
this. You classify lakes — for instance, a favorite lake of yours, Flat-
head Lake, is exceptionally high water quality and is classified as a
multi-recreation water body. It is certainly an outstanding water
resource.
Once you have that initial classification, some wildlife lakes, for
instances, are more naturally eutrophic and have more nutrients
in them and that is fine.
You classify lakes by their use initially, and then you take a look
at the achievability, i.e., what are the background conditions?
What was this lake like before we started doing all these nasty
things to it? And you take a look at what that condition was like,
and then you end up setting an objective standard on what that
lake can achieve, whether it be for phosphorus in a lot of our lakes
in the midwest, or nitrogen in lakes in your area.
Senator Baucus. I agree. This is Flathead Lake that Mr. Wede-
pohl is talking about. It is the largest natural freshwater body west
of the Mississippi. It is potable.
Senator Graham. It's near Kalispell?
Senator Baucus. That's right. You were there recently. That's
right. It is about 45 miles long, and it is about 7 or 8 miles wide,
and it is a wonderful lake.
Senator Graham. I will certify it is a beautiful lake, and for the
remaining weeks of the summer that's not a bad place to be.
Senator Baucus. And I will be there. As soon as we get budget
reconciliation passed that's where I'm going to be.
Thank you very much.
Senator Graham. Ms. Martin, I would like to ask you the same
question that I asked Mr. Wedepohl, except in relationship to the
estuarine program. Using a specific example of the problems that
led to the establishment of this program, how effective has the pro-
gram been in ameliorating those problems?
Ms. Martin. I, too, would like to say that I think the program
has been extremely effective. It has taken time to develop and get
to the stage that we are at now.
I worked most closely with the 17 estuaries that have been on
line for a few years with the program directors from each of those
estuaries and the environmental representatives that sit on the
citizens advisory committees in several of those States. I think
Long Island Sound is a good example.
You can hear people talking in complete disbelief about how
years have gone by when citizens have tried to get both States —
Connecticut and New York — to talk to one another, and it was lit-
erally impossible until the national estuaries program came into
865
being, and now they are working together and have just recently
submitted their comprehensive management plan for approval into
EPA and is in the process, and so soon that will be underway.
The citizen advisory committees — I give the example of the
Santa Monica area, which has gotten people who didn't even real-
ize that the Santa Monica Bay was actually an estuary, and
through the restoration project there they have held many confer-
ences and workshops, and they've got people understanding the dif-
ference between point and nonpoint source pollution, and people
advocating, and actually individual citizens paying to have their
own public service announcements aired to educate people about
what they put in their drains ends up in their local bay.
Some of the problems that — the program isn't great now, and
that's why we have been working so closely with Senator Lieber-
man to straighten up some of the provisions that we think would
really make the program a lot stronger.
In particular, those are increasing the role of the EPA, like I
mentioned. There has been a lot of inconsistency in the staffing
level and the involvement of EPA and different offices, and in that
case some offices are able to function much more efficiently than
others just because of the sheer lack of resources.
There needs to be more citizen involvement from those programs
in Puget Sound, for example, and, like I mentioned, in Long Island
Sound — places where they have had successful programs. They are
starting to talk amongst each other, and we have been able to pro-
vide an opportunity for them to do that. We had a conference in
Puget Sound last year to bring program directors together so they
could provide a technical support network for one another.
So I guess there are a lot of different examples I can mention
about the strengths and the weaknesses, but just to say it is an on-
going process that I think is important to strengthen and to work
with, because it shows a great likelihood of success in the end.
Senator Graham. I only have a few moments left in my time,
and then at the conclusion of this I see Senator Sarbanes has
joined us. I'd like to call on him for his statement, and then we'll
return to panel one.
We have also been joined by Senator Lieberman, who has been
referred to in glowing terms by virtually all of the members of
panel one, and those who have not referred to you are anticipating
the chance to do so as quickly as possible.
Senator Lieberman. Perhaps I should remain silent.
Senator Graham. After Senator Sarbanes, I will call on Senator
Lieberman for any comments or questions that he might have.
Senator Lieberman. Thank you.
Senator Graham. But let me use my remaining moments to ask
this question.
There has been some concern about both the estuarine program
and the lakes program having a major and appropriate emphasis
on research and understanding, but is there an adequate link to
implementation to those steps that will then be necessary in order
to put that research to most effective purpose in terms of accom-
plishing the objective?
Any comments that you might have, as briefly as possible, on the
implementation aspects of these two programs?
866
Ms. Martin. That's what we would classify as the key problem
with the current program, that there isn't the strong mandate to
enforce implementation. Senator Lieberman's bill does do that, and
that's what we would recommend happen.
Mr. Wedepohl. From the lakes' end, the Clean Lakes Program
has worked exceptionally well. The scientists and lake citizens — the
citizens find these scientists, and it has gone very well although
there are a lot of weaknesses. The initial start-up research kind of
faded away as we got into acid rain and a lot of other issues. Some
of these good researchers have moved on. I think it is time to come
back again.
Senator Graham. Mr. Brinsko, I'm going to have a couple of
questions for you, but there will be an interlude here as we call on
Senator Paul Sarbanes, a United States Senator from the State of
Maryland, to share with us his thoughts on any issues relative to
the Clean Water Act, but particularly the Chesapeake Bay.
Senator Sarbanes?
STATEMENT OF HON. PAUL S. SARBANES, U.S. SENATOR FROM
THE STATE OF MARYLAND
Senator Sarbanes. Mr. Chairman, thank you very much. These
are difficult days right now, and I appreciate the opportunity to
make my statement.
You will be hearing later Mr. Will Baker, the President of the
Chesapeake Bay Foundation, Jeffery Coy is Chairman of the Chesa-
peake Bay Commission and Member of the Pennsylvania House of
Representatives, and Caren Glotfelty is from the Pennsylvania De-
partment of Environmental resources.
I have a long, comprehensive statement that I'd like to submit
for the record.
Senator Baucus. No. We want to hear every word.
Senator Graham. But in case you feel restrained. Senator Sar-
banes, be assured that your total record will be part of the official
record.
Senator Sarbanes. I think we'd better put it to a vote of the com-
mittee. Senator Baucus.
I'll just do a quick summary of it.
I appreciate this opportunity to testify on the clean water reau-
thorization, and specifically the Chesapeake Bay restoration pro-
gram.
I commend the committee for moving so expeditiously to reau-
thorize and strengthen the Clean Water Act, a fundamental build-
ing block to our national effort to clean up the Nation's waterways,
and particularly important to us in Maryland to restore the water
quality and the living resources of the Chesapeake Bay.
Reauthorization of this act, with continued funding for State
sewage treatment revolving funds, new initiatives to address non-
point source and toxic pollution, and to develop effective watershed
programs are, emiong other issues, absolutely essential.
The Chesapeake Bay was recently featured in the cover story of
the National Geographic. It is called, "Hanging in the Balance:
Chesapeake Bay."
867
Now, Will Baker from the Foundation — just to show how effec-
tive he is — has brought half a dozen or more copies in order to fur-
nish one to each member of the subcommittee. That's why he is so
effective in fighting for the Chesapeake Bay. We commend that ar-
ticle to you.
It says we are fighting hard now to restore this great natural re-
source to its essential health. This committee has an important op-
portunity to help tip the balance in favor of restoration by includ-
ing the Chesapeake Bay Restoration Act, which the six Senators
from the Chesapeake Bay area — the two from Pennsylvania, the
two from Maryland, and the two from Virginia — have all joined to-
gether in cosponsoring in this Congress, as we earlier had done in
past Congresses when we had the precursor to this legislation in-
cluded in the previous Clean Water Act.
This year marks the tenth anniversary of the signing of the first
Chesapeake Bay agreement, which brought the Federal Govern-
ment, Maryland, Virginia, Pennsylvania, and the District of Co-
lumbia into an arrangement to work together to restore the bay.
We have made substantial progress over this decade, and the co-
operative Federal, State, and interstate management structure es-
tablished by the program has provided a framework, not only for
the restoration of the bay, but it has also been a model for other
estuaries around the country. We had long discussions recently
with Senator Chafee about Narragansett Bay, and the west coast
people up in Puget Sound have also been very much involved. We
have heard about efforts on Long Island Sound.
The bay program has pioneered pollution prevention techniques,
many of these applied at the State level — this has really energized
the State government — such as phosphate controls, bans on toxic
boat paint, nutrient management efforts, programs to reduce pesti-
cide use on crop land.
With the signing of the Chesapeake Bay agreement in 1987 and
the 1992 amendments, a comprehensive set of goals was adopted,
and we have undertaken an ambitious program to achieve im-
proved water quality and living resources productivity including re-
ducing by 40 percent the nutrients by the year 2000.
The level of public support and the degree of cooperation and co-
ordination among all parties have been unparalleled. The Federal
role through all of this has been crucial. In fact, the Federal Gov-
ernment has served as the glue that holds the thing together and
the catalyst that moves it forward.
We are showing demonstrable results — reduction in phosphorus
discharges. The bay industry and sewage treatment plants lead the
Nation in compliance with pollution discharge requirements. Sub-
merged aquatic vegetation is making a comeback.
The authorization this committee gave us for the bay program in
the 1987 Water Quality Act has been a successful endeavor.
We have made great progress, but we still face some very tough
problems. Runoff from farms, in city streets, toxic chemicals, pollu-
tion growth and development, putting enormous pressure — many of
the bay's living resources and the habitat which supports them are
in decline.
We are asking you to include the Chesapeake Bay Restoration
Act in this Clean Water Act. It builds on the previous program.
868
It includes new Federal initiatives to improve cooperation and
coordination among the Federal agencies.
It has provisions to have better compliance by Federal facilities.
We have a large number of Federal facilities around the bay.
It establishes a new program to encourage citizen and private
sector stewardship of the bay watershed. It is very important.
We have a very good program working, and you'll hear more
about it from the people who are going to testify in the panel.
It provides support to State and local governments in terms of
collecting and analyzing information so better land use manage-
ment decisions can be made.
It authorizes a habitat restoration demonstration program, pro-
vides funding to assist in implementing toxic reductions, pollution
prevention, and management actions.
I understand that the administration looks kindly or favorably
on these proposals.
This Restoration Act was developed in consultation and coopera-
tion with the States, with the private groups. It has the strong sup-
port of the Chesapeake Bay Commission, the Foundation, and the
congressional delegation from the region. I mentioned the six Sena-
tors. There is also a group in the House of Representatives that is
strongly supportive of it.
I have a number of letters from organizations in support of the
legislation that I ask appear in the hearing record following my
statement.
Senator Graham. Without objection.
Senator Sarbanes. Mr. Chairman, we think this is a very impor-
tant initiative. We think your previous response has produced very
constructive results, and we very much urge its incorporation into
your reauthorization of the Clean Water Act. This legislation is co-
sponsored and strongly supported by my colleague. Senator Mikul-
ski, by the two Pennsylvania Senators, Senators Wofford and Spec-
ter, and by the two Virginia Senators, Senators Warner and Robb.
We used to fight about the bay. We used to have shooting wars
between Maryland and Virginia about the bay and drawing on its
resources. Fortunately, we have passed well beyond that stage and
we are now working together. We hope the committee will contin-
ue to provide us some glue and some catalyst at the same time.
Thank you very much.
Senator Graham. Thank you very much, Senator, for a very ex-
cellent and encouraging statement about what has occurred in the
Chesapeake Bay.
Are there any questions by members of the committee for Sena-
tor Sarbanes?
Senator Baucus. Yes, Mr. Chairman.
I want to thank you very much for your efforts. I have been very
impressed, with the Senators of States involved with the Chesa-
peake Bay program, beginning with Senator Mathias. I think Sena-
tor Mathias took the lead, and everyone associated with the Chesa-
peake Bay owes a great debt of gratitude to him and to you and
Senator Mikulski and other Senators for following the same tradi-
tion as Senator Mathias.
I might say that the same compliments go to Will Baker. I was
very impressed with him when he testified before this committee.
869
It is not an exaggeration to say that he is one of the more impres-
sive witnesses who have ever appeared before this committee. I can
see why the bay program is doing well. It is not only your leader-
ship— yours and Senator Mikulski — but also the very excellent
work of Will Baker and his associates.
Senator Sarbanes. I appreciate those remarks, and the citizen
participation in the bay cleanup is very impressive. The Chesa-
peake Foundation, which Will heads up, has played the primary
role in helping to engender that.
I must say we have gotten wonderful response at the State level,
both from the Governors and the State Legislatures, which are re-
flected in the Commission. We are very appreciative of the interest
of Pennsylvania on this problem because it sort of washes down to
us. It doesn't impact in the same way there that it does in Mary-
land and Virginia, but they have been responsive to the challenge,
and we are very grateful.
Senator Baucus. That's nonpoint pollution in Pennsylvania; is
that correct?
Senator Sarbanes. That's right. Well, a lot of it is agricultural
runoff, and they've gotten the farm community there and in Mary-
land and Virginia to cooperate in this effort.
A real education process has taken place. First of all, we have
brought together parties that used to fight, and the Federal role
there has been critical in doing that. There has been a wonderful
educational effort that really has people sensitized to cleaning up
the bay.
We have storm drains all over the State of Maryland now that
say, "Whatever goes here ends up in the Chesapeake Bay" to sensi-
tize people in terms of what they are doing.
Senator Baucus. I think you are all doing a very good job.
Senator Sarbanes. Thank you.
Senator Chafee. Mr. Chairman?
Senator Graham. Senator Chafee?
Senator Chafee. I'd like to join in those comments.
I recall when we started this. Senator Mathias, and then Mayor
Schaefer, which is going back a few years, and, of course. Senator
Sarbanes has been deeply involved with this right from the begin-
ning and giving it a lot of leadership. I think it is terribly impor-
tant to have the political leaders involved and caring, not that the
private citizens aren't terribly important. It has to be everybody.
But I have noticed that, as Senator Sarbanes has pointed out, he
has been deeply involved. Senator Mikulski has, Senator Warner,
who sits on this committee. Senator Robb, Senator Specter, and
Senator Wofford, who also sits on the committee — all of them have
had a big role.
As Senator Sarbanes pointed out, whether it is glue or catalyst,
the Federal role is so important, and the Federal role is in for a
relatively modest amount. I don't want to get hardened, but $21
million which went to the Chesapeake Bay last year is not a mam-
moth amount, but it was — I think Mr. Baker later will testify, as
I'm sure Senator Sarbanes will indicate, that that's the kind of es-
sential element. Absent that, it is really hard to get everybody to
pull together.
I appreciate your taking the time to be with us.
870
Senator Sarbanes. I do want to underscore the really critical
role Senator Mathisis played in all of this. You are absolutely right.
He early on saw the problem and he began to put together the sup-
port that was necessary to focus the attention on it, and we are
really trying to carry forward the banner that he left us when he
left the Senate.
It has been a marvelous effort in the sense of bringing people to-
gether to deal with a problem and having them all look forward
instead of fighting amongst themselves.
I am very appreciative to Senator Warner, who I see has now
joined us, for his very strong support. This has really been a very
bipartisan effort from the very beginning.
Senator Warner. I would say the most bipartisan I've encoun-
tered in the 14 years I have been privileged to serve here. And,
indeed, it was Senator Mathias that had the vision, but you and
others joined in, and the governors of our respective States.
It is a far cry from the oyster wars we had at the turn of the
century.
Senator Graham. Senator Lieberman?
Senator Lieberman. Mr. Chairman, I just want to thank Senator
Sarbanes for his statement and just to stress what I think is the
strength of the point he makes about the connecting that is going
on here and the interstate connecting because of the greater aware-
ness that we have that we are really talking about ecosystems here
and broader watersheds.
We had a fascinating experience Sunday in Connecticut on this
point when Secretary Babbitt came in and the Fish and Wildlife
Foundation nationally announced that they were acquiring salmon
fishing rights off Greenland as a way to assist in returning the
salmon to the Connecticut River.
Here these salmon had started in Canada, go through New Eng-
land down through the river, out through the sound out to the At-
lantic Ocean, and then up to Greenland. We see the way, particu-
larly through the waters, that we are all connected.
As Senator Sarbanes said, what happens in Pennsylvania affects
the Chesapeake Bay, which brings me back to this point: the em-
phasis in the legislation that Senators Baucus and Chafee have in-
troduced, which is reflected also in S. 815 that I have introduced,
on watershed planning and rewarding those who do watershed
planning with financial assistance to help make it possible is criti-
cally important, and it is a recognition of reality that Senator Sar-
banes I think has quite eloquently pointed to.
Thank you.
Senator Sarbanes. Let me make one final point.
The Susquehanna is a major tributary into the bay. The Susque-
hanna begins in Cooperstown, New York, and it comes out of Lake
Otsego. If you go to the Baseball Hall of Fame, you make that sort
of pilgrimage, right there in Cooperstown, down the street a little
way — I went to look at it — is where this stream starts down then
broadens out and becomes the Susquehanna and eventually flows
south. It is no wider than right across here at that point.
Senator Graham. Senator Sarbanes, thank you very much for
your very helpful statement today and the leadership which you
and all of the people that you have been generous enough to recog-
871
nize have given not only the Chesapeake Bay, but also as an exam-
ple of what similar efforts can mean to other endangered water
bodies across America.
Thank you.
Senator Sarbanes. Thank you very much.
OPENING STATEMENT OF HON. JOHN W. WARNER, U.S. SENATOR
FROM THE COMMONWEALTH OF VIRGINIA
Senator Warner. Mr. Chairman, I join in that. To show my re-
spect for my good friend and colleague, his statement will be the
one today. I will put mine in the record.
[Senator Warner's statement follows:]
STATEMENT OF HON. JOHN W. WARNER, U.S. SENATOR FROM THE
COMMONWEALTH OF VIRGINIA
Mr. Chairman, and other members of the Committee, I am very pleased that the
Subcommittee will hear testimony today on the Chesapeake Bay program, and par-
ticularly on legislation which I am pleased to cosponsor S. 567, the Chesapeake Bay
Restoration Act.
This year is the tenth anniversary of the signing of the first Chesapeake Bay
Agreement — a successful, cooperative effort at watershed planning and restoration
of the entire Bay area agreed to by Virginia, Maryland, Pennsylvania, the District
of Columbia, the Environmental Protection Agency, and a tri-State legislative body,
the Chesapeake Bay Commission.
Now is the appropriate time to assess the progress we have made over the past
decade, and more importantly, to examine the daunting tasks which lie ahead.
Mr. Chairman, let me state clearly that I hope that the full text of s. 567 will be
included in the Clean Water reauthorization bill when it is ready for Committee
mark-up.
Let me emphasize also that a significant amount of effort has been invested in
drafting the Chesapeake Bay Restoration Act. This legislation is the result of over
two years work by our States, members of the Chesapeake Bay Commission, the
Chesapeake Bay Foundation and Bay state legislators.
This legislation takes major steps in moving the program forward while keeping
faith with the principles which have kept the jurisdictions steadfastly united in the
common goal of restoring the Bay. First, the bill contains the flexibility necessary
for States to respond to new and changing research information on the health of the
Bay. Second, this bill continues to foster the strong and essential partnership be-
tween the Federal government and the States, and perhaps more critical, between
the states themselves.
Mr. Chairman, in 1979, when I first joined our distinguished former colleague,
Senator Mathias from Maryland, in this commitment to bring together significant
state and federal resources to "save" the Bay, it became clear that information on
the problems afflicting the Bay was sorely lacking.
Much of the effort in the early years focused on defining the Bay's problems. We
have known for some time that excessive nitrogen when decomposed depletes
oxygen causing "dead" areas in the Bay, that the Bay was plagued with toxic hot
spots, and that the return of underwater by grasses and living resources would be
key indicators in our efforts to restore the Bay.
Mr. Chairman, what I have learned from being associated with this program for
over then years is to never think we know all the answers to what it will take to
keep the Chesapeake one of America's greatest treasures.
I only have to look at the Chesapeake Bay Commission's 1992 Annual Report
which discusses the efforts to control nutrient loadings. It states, "While reductions
in phosphorus are well underway, nitrogen levels in the Bay have remained almost
unchanged since 1985, the baseline year for the 40 percent reduction. ... In short,
the nutrient we need to worry about most (nitrogen) is the one which, until now,
received the least attention."
This information led the Bay states to redouble our efforts to meet the commit-
ments made in the 1987 Chesapeake Bay Agreement to achieve a 40 percent reduc-
tion in nutrient loads by the year 2000. In 1992, the Chesapeake Executive Council
amended the 1987 Agreement to focus the nutrient reduction strategy on a tribu-
tary by tributary basis.
872
While the Bay Program continues to evolves as we move into a new stage of
maldng some very difficult decisions, I believe it can truly serve as a model for the
management of our nations' other estuaries.
The Bay Program's cooperative structure has been successful in fostering commit-
ments from divergent political entities and citizen groups. The Bay Program leads
the nation in nonpoint source pollution control, nitrogen removal technologies, estu-
arine modeling efforts, and sediment and erosion control initiatives. It has pio-
neered beneficial uses of dredged materials and has initiated several model land use
progreuns.
Mr. Chairman, during the August recess I will be holding a series of meetings
with state officials, representatives of agriculture and industry and members of the
environmental community, including the Chesapeake Bay Foundation who has
joined us today, to discuss the watershed management and nonpoint provisions of S.
1114. I look forward to sharing their thoughts with you as the Committee prepares
to markup this bill later this year.
Senator Graham. Thank you very much.
Senator Warner, we interrupted the first panel in order to hear
from Senator Sarbanes.
Senator Warner. I understand.
Senator Graham. We have a few more questions for the first
panel. It is now Senator Lieberman's turn to ask questions.
Senator Warner, if you have any questions I will call on you
next.
Senator Warner. Thank you.
Senator Graham. Senator Lieberman?
Senator Lieberman. Thank you, Mr. Chairman.
I will try to be brief.
I wanted to thank Ms. Martin for her kind words about S. 815.
We have been delighted to work with your organization in putting
it together. And, responding to the chairman's broad statement, to
thank anyone else who has or will say kind things about S. 815 in
the course of the morning.
I, in a way, have begun my statement by what I said in response
to Senator Sarbanes but, just to ask you, Ms. Martin, if you could
talk a little bit about two things.
First, is the way in which very broad — we're talking here a lot
about inter-relatedness, and just talked about the natural inter-re-
latedness of ecosystems or watersheds.
One of the things that struck me in Connecticut — it's reflected in
the person of John Atkin on the next panel — is the conceptual
breakthroughs, the psychological breakthroughs that have occurred
in the very broad coalitions that are now forming to protect estu-
aries.
I wanted to ask you whether in this case we have labor, manage-
ment, environmentalists, contractors all seeing the significance of
cleaning up the sound. Is that happening nationally?
Ms. Martin. Without a doubt. It has been very exciting for me.
Since I have started working American Oceans Campaign about
four years ago I started working on this piece of legislation, and
there was no other environmental group that I knew of really on a
national level doing this.
Since in the last couple of years, I have a mailing list of now
over 300 national groups, and just countless local groups that are
wanting to work on this bill.
I think part of it has to do with the fact that Congress has ac-
knowledged the role — and the very important role — that citizens
873
can play. Finally, they feel as if someone is really listening to
them. They can participate in the management conferences and
the citizen advisory committees, and they feel like they get some-
thing for their money or for their time at the end of the process
because they see some progress.
The coalition effort I think has been important both with the
labor and the industry and the Clean Water Jobs Coalition on the
funding element of it, but also on just the program strengthening
provisions that your bill also focuses on.
We have a whole new realm of industrial types of interest join-
ing our coalition now, too, from recreational users and sporting
magazines and scuba divers and those types of people to realizing
that all of their business depended on healthy waterways, and par-
ticularly the estuaries.
Senator Lieberman. Let me ask you one final question. I appreci-
ate that answer. It is encouraging.
The nitty-gritty, if you will, is money. We have seen estimates of
what it would take to clean up Long Island Sound which, of course,
we believe — and I hope people nationally begin to believe — is an es-
tuary of significance that really does compare to the Chesapeake
Bay and Great Lakes. We have seen estimates that go from $6 bil-
lion to $26 billion to clean up the sources of pollution, to clean up
the sound. That involves New York, Connecticut, and, to some
extent, Rhode Island.
My bill, and I believe the Baucus-Chafee legislation also includes
a funding for the State revolving funds to support infrastructure
changes — in our case up to $5 billion annually. How significant is
that, do you think, to dealing effectively with the kinds of problems
we are talking about here?
Ms. Martin. Being a Washington kind of inside-the-beltway lob-
byist, I very often get slapped around by my friends out there in
the field for saying that $5 billion is what we are advocating for,
because they say that really is a drop in the bucket compared to
the needs. As you said, implementing just the sediment provisions
in the Puget Sound Watershed comprehensive management plan is
upward of $20 billion.
So $5 billion for the whole Nation is really insignificant, but
when that can be leveraged with the types of means that are being
worked on and developed in the local estuary programs, the money
can go much farther than it appears on the surface.
I think your bill also highlights some of those things, and we
want to continue to educate other estuary programs and other wa-
tershed management models on how to make the most efficient use
of their funds. And, of course, to include the local people you have
to include local dollars and State dollars to keep their interest in-
volved in it. We think that's an important provision.
Senator Lieberman. Thank you, Ms. Martin. And thank you, Mr.
Chairman.
Senator Graham. Senator Warner?
Senator Warner. Mr. Chairman, I'm going to pass, and reserve
my time for the next panel. Thank you.
Senator Graham. Mr. Brinsko, I don't want you to feel as if your
remarks were not heard. You are essentially laying out a new chal-
874
lenge, while your two colleagues were discussing the effects of our
efforts to deal with issues that are currently underway.
From your statement, I infer that you feel that the current Clean
Water Act does not contain sufficient flexibility in the administra-
tor to deal with some of the unusual circumstances that are a con-
sequence of the peculiar climate and meteorology of the arid west.
Is that correct?
Mr. Brinsko. Mr. Chairman, that is correct. Early in my presen-
tation I made note of my former home city, Pittsburgh. I spent 50
years there. Listening to your conversations here on wet ecosys-
tems brough back memories of when I was heavily involved for 22
years in Pittsburgh.
But coming to the west, I found a different situation. Our prob-
lems are unique. When we talk about flexibility — flexibility, unfor-
tunately, is a two-edged sword. It all depends on the interpretation
of this flexibility aspect.
Our concerns primarily are that Congress said that all water
should be fishable and swimmable, and on the surface that sounds
great. But if this group would join me in Tucson today, and if any-
body is a golfer, we have a 60-mile lineal sand trap that runs from
one county border to another. To make this fishable and swimma-
ble is rather difficult because we just don't have the water there. It
is a dry river.
Our problem is that we are faced with these standards that are
inappropriate for our kinds of waterways. Even though they are
listed as navigable waters, we just don't have the water in it. The
only water that we have there is the effluent discharge from the
wastewater system and periodic rainstorms. Effluent discharges
form a riparian habitat, but aren't adequate or sufficient to main-
tain anything beyond that.
What we need is for Congress to establish a section in the law
which recognizes the need to develop proper water quality criteria
documents and water quality standards based on appropriate scien-
tific research for our part of the country: the arid west.
What we are looking for, basically, is to level the playing field.
I'm sitting here listening to what is going on in the Chesapeake
Bay area, which is great. The Great Lakes area is also an impor-
tant area because I came from Pennsylvania and I understand
what is going on there. But to equate those standards and the
standards that were developed in previous years in the wet ecosys-
tems and move them out into the west, and using a translator to
say, "okay, these are your standards," it just doesn't work.
We feel it is a very appropriate request to say, "Let's get some
research. Let's get some science into the west. Let's find out what
we have to protect there, and let's protect it."
However under current policies, it is a crap shoot. Some of you
could say that we are looking for some leniency in standards. That
is not true, because the studies could very well indicate that we
have to take out more of the pollutants.
But it also may show it is not necessary to take out some of these
pollutants. Ammonia is an illustration. I had a five-year — let's call
a spade a spade — a five-year battle with the EPA back seven years
ago. One of EPA's requirements was to take out ammonia from ef-
fluent discharges. We went through an extensive process and litiga-
875
tion and so forth to be able to substantiate why it was not neces-
sary to take out ammonia.
However, if the agency — the regulatory agency — would have pre-
vailed, I would have had to have spent approximately $118 million
of our ratepayers' funds to be able to retrofit the treatment facili-
ties. The bottom line is that there were no net environmental bene-
fits. The community would have to have had an increase of their
rates by a 45 percent factor.
So when we start talking about the west, the issues in the west,
the problems we have, the flexibility, it is very important to us.
This is why, in my presentation, I request that there be a re-
search program to be able to address not just the problems in a
specific area but the problems of the entire arid west. If you look at
the map in our submit all, you will find there are 17 western
States. Portions of those States have 15 inches of rainfall or less.
I'm not just talking about Tucson, Arizona, or Arizona; I am talk-
ing about the 17 western States that need the consideration, need
to be able to develop proper criteria documents for our part of the
country.
We need it because money is scarce. We don't have the money
just to waste in an area where really the money could be utilized
some place else.
Senator Graham. Thank you very much, Mr. Brinsko.
Are there any other questions of Mr. Brinsko or other members
of this panel?
Senator Baucus. I just want to say he makes a good point with
respect to the aridity in the west. I think it is important to remind
all of us here that west of the 100th meridian it doesn't rain. The
average annual precipitation — I don't know about your State, but
in the State of Montana it is about 14 inches. That's in the low-
lands— not in the top of the mountains where the snow accumu-
lates, but the average annual precipitation is about 14 or 15 inches.
Back here in Washington it must be around 45 inches at least.
Mr. Brinsko. But the eastern parts of Washington are very dry.
Senator Baucus. I'm talking about Washington, D.C. I would
guess
Mr. Brinsko. I think there are about 100 inches out there right
now, sir.
Senator Baucus. And it is the lack of precipitation which is the
single most defined criteria of the west — and also because they are
interior States. That explains why the population density is so
low — just because it doesn't rain, there is no water, and because
they are non-coastal States. I think about 50 percent of our coun-
try's population is within 50 or 75 miles of a coast. The rest is inte-
rior. If you look at the rest that is interior, it is distributed basical-
ly according to where it rains, where there is rainfall.
You make some very good points, and I think it behooves all of
us to listen very seriously to what you are saying because there is a
lot of truth in what you are saying.
Mr. Brinsko. Senator, thank you.
Senator Chafee. I want to join in that, Mr. Chairman. I think
Mr. Brinsko has brought before us something that we normally
don't deal with before this committee — an area of the country
where you have a river with no water in it. As Mr. Brinsko pointed
876
out, he formerly came from Pennsylvania where a river w£is a
river. Most of us in this committee are familiar with those situa-
tions. We are not familiar with the situation, as he pointed out, in
the Santa Cruz River where you can walk across and not even get
damp.
Mr. Brinsko. Mr. Chairman, just as one comment, when I talk
about 17 western States, we are talking about approximately
378,000 square miles of land.
Senator Baucus. That's right. I reminded Senator Lautenberg of
the different population densities. The population density in the
State of New Jersey is over 1,000 people per square mile. The den-
sity in the State of Montana is about five.
Senator Graham. If there are no further questions, we have been
joined by Senator Wofford.
Senator Wofford, did you have any questions of this first panel.
Senator Wofford. Not right now, Mr. Chairman.
Senator Graham. If there are no further questions, again I want
to thank this panel. You have underscored the fact that, while we
are dealing with a national Clean Water Act, within that act there
must be sensitivity to the full range of special circumstances which
you have so effectively described. That will be clear in our mind
and one of our major objectives.
Thank you very much.
If panel three could please come forward, I will introduce you as
you are taking your seats.
Mr. George Coling, Washington Great Lakes Representative of
the Sierra Club; Mr. William Baker, who has already been lauded,
is President of the Chesapeake Bay Foundation; the Honorable Jef-
frey Coy, Chairman of the Chesapeake Bay Commission and a
member of the Pennsylvania House of Representatives; Ms. Caren
Glotfelty, Pennsylvania Department of Environmental Resources;
Mr. John Atkin, Clean Water Jobs Coalition; and Mr. Paul Hansen,
Director, Midwest Regional Office, Izaak Walton League of Amer-
ica.
Senator Wofford, do you have an opening statement for panel
three?
OPENING STATEMENT OF HON. HARRIS WOFFORD, U.S. SENATOR
FROM THE STATE OF PENNSYLVANIA
Senator Wofford. Yes, Mr. Chairman.
This year is the tenth anniversary of the signing of the Chesa-
peake Bay agreement. That landmark accord marked the begin-
ning of Federal and State cooperation to improve one of our nation-
al treasures.
Much has been done during this past decade. Phosphorus levels,
a leading cause of aquatic life destruction, have been reduced; ni-
trogen levels have stabilized; toxic releases and emissions have
been dramatically reduced; many plant and animal species are
making a comeback. Yet, there is lot more to be done.
Pennsylvania supplies 50 percent of the fresh water to the Chesa-
peake. I'm glad that Pennsylvania recently has taken the lead in
stabilizing and improving the bay.
877
Our new Act Six creates the Nation's first comprehensive nutri-
ent management program to reduce agricultural runoff through
proper planning and practices. Cooperation will be key to imple-
menting this new environmental strategy.
Today we have from the Pennsylvania team on this panel two
witnesses here who are vital to the creation and implementation of
that Act Six.
Jeff Coy — we are very happy to see you here, Jeff — was a key
player in our Legislature in bringing about consensus among di-
verse environmental, agricultural, and business groups. We are
proud that he serves as Chair of the Chesapeake Bay Commission.
Caren Glotfelty — greetings, Caren — is Deputy Secretary of the
Pennsylvania Department of Environmental Resources for Water
Management, too was key in creating new approaches for Chesa-
peake Bay protection.
I welcome them here today, and salute also the other members of
the panel. I look forward to hearing all of you and to working with
my colleagues like Senator Warner on this Commission and Sena-
tor Sarbanes, who has introduced legislation on behalf of several of
us to improve the quality of the Chesapeake.
Thank you, Mr. Chairman.
Senator Graham. Thank you very much. Senator.
I would apologize in advance to members of this panel. I have a
note that we might be called shortly for a vote, so it is possible that
there will be an interruption during the course of your opening
statements.
I will call on the members of this panel in the order in which
they were recognized, again asking if you could be as concise as
possible. Your full statements will be part of the record.
Mr. George Coling?
STATEMENT OF GEORGE COLING, GREAT LAKES SPECIALIST,
THE SIERRA CLUB, WASHINGTON, D.C.
Mr. Coling. Hello. I am George Coling, the Sierra Club's Great
Lakes Specialist, based here in Washington. I am testifying today
on behalf of the Sierra Club, the Lake Michigan Federation, Citi-
zens for a Better Environment, Great Lakes United, Coast Alli-
ance, the Contaminated Sediments Work Group, and Lake Superior
Alliance.
It is my pleasure today to voice strong support of these organiza-
tions for the Great Lakes Clean Water Amendments Act of 1993,
that's S. 1183. We want to thank particularly Senators Metz-
enbaum and Glenn and the other cosponsors of the bill for their
continued leadership in cleaning up the Great Lakes which is, of
course, the largest freshwater ecosystem in the world.
I wish to emphasize that the organizations for which I am testify-
ing view this bill as an integral part of a comprehensive national
plan for cleaning up contaminated sediments. The same organiza-
tions testified on that subject about a month ago, and we see the S.
1183 approach as complementing that testimony.
Changes in the toxics section of the Clean Water Act — and,
again, we submitted testimony about a month ago on that. Could
prevent toxic buildups in the Great Lakes and elsewhere.
878
Certainly the Baucus/Chafee Act of 1993, S. 1114, is a very prom-
ising start for clean water authorization, and we urge the subcom-
mittee to meld the S. 1183 Great Lakes bill into the main vehicle
for reauthorization.
I have a couple of comments on what I am calling in my testimo-
ny "Toxic Harbors: The Great Lakes Plague." Throughout the
Great Lakes, contaminated sediments plague the use of our har-
bors and waterways. Water use in 42 of 43 Great Lakes Areas of
Concern — these are toxic hot spots that have been identified by the
International Joint Commission of Canadian and U.S. Representa-
tions— are impaired by the buildup of toxic muck. That's 42 out of
43 in both countries.
Evidence on the ill effects of sediments such as PCBs, cadmium,
dioxin, and DDT in the water is mounting, and there are severe
biotic and human health effects associated with this problem. As
an example, sediments account for 75 percent of the PCBs going
into Lake Michigan, and they are the main source of fish contami-
nation in that lake.
The sediments are a clear threat not only to the Great Lakes' en-
vironment, but also to the Great Lakes' economy. In June the
Sierra Club released a study called, "Clean Lakes, Clean Jobs,"
which documents approximately 2.9 million jobs and $76 billion of
revenue per year are in jeopardj'^ from not cleaning up contaminat-
ed sediments in the Great Lakes. This is aggregate data from tour-
ism, fishing, and the shipping industry in the lakes.
For example, tourism is the most threatened industry, and
roughly 2.7 million people in the Great Lakes make their living
from tourism. There are approximately 89,000 fishing jobs, and
more than $4 billion annually in commercial and sport fishing pro-
ceeds in the economy. These are in jeopardy, again, from doing
nothing. There are 44,000 shipping jobs which contribute about $3.5
billion to the Great Lakes' economy each year. That's the scope of
the problem.
We do have a success story like the Chesapeake Bay has a suc-
cess story, and that's called ARCS, the Assessment and Remedi-
ation of Contaminated Sediments program, initiated by the 1987
Clean Water Act reauthorization. This program has provided key
demonstration programs for cleaning up toxic mucks in five differ-
ent areas — Buffalo, Ashtabula, Saginaw, Indiana Harbor, and She-
boygan Harbor.
These are so far successful bench-scale pilot projects, and what
we need now is a full-scale cleanup of some of these sites and more
bench-scale models. That's exactly what the Metzenbaum bill, S.
1183, calls for, and that's why these organizations support it with
some specific modifications and additions which I am going to brief-
ly run through.
Senator Graham. Mr. Coling, could you please summarize?
Again, your full statement will be made part of the record.
Mr. Coling. I certainly will. Yes. I've just got a couple of quick
points.
There modifications include the possibility of adding more full-
scale cleanup sites, shortening the time for EPA's completion of
the pilot-scale projects by three years, broadening the application
of the assessments to include some smaller lakes in the basin, set-
879
ting a statutory deadline for completion of phase two of EPA's
Great Lakes initiative, and, finally, making Lake Superior a world-
a class pristine water body by stipulating that all of Lake Superior is
an Outstanding Natural Resource Water.
Thank you.
Senator Graham. Thank you very much, sir.
Mr. William Baker, President of the Chesapeake Bay Founda-
tion.
STATEMENT OF WILLIAM BAKER, PRESIDENT, CHESAPEAKE BAY
FOUNDATION, ANNAPOLIS, MARYLAND
Mr. Baker. Thank you, Mr. Chairman, members of the commit-
tee, and a special thanks to Senator Baucus for those kind words.
I appreciate the opportunity to appear before you today. My
name is Will Baker. I'm the President of the Chesapeake Bay
Foundation. We have over 87,000 members from all 50 States in
the Union and 14 foreign countries.
The Chesapeake Bay is, as Senator Sarbanes said, a worldwide
treasure. It is also a national and even international model for the
restoration of our coastal waters.
The program to restore the bay is an effort involving the com-
bined activities of Federal, State, and local governments, as well as
concerned citizens from all sectors of society.
Just 25 years ago, the Chesapeake Bay produced one-quarter of
the Nation's oysters, one-half of all hard crabs — nearly 100 million
pounds in a good year — and a staggering 95 percent of all the soft
crabs. In addition, nine out of every ten striped bass caught from
North Carolina to Maine were born in the Chesapeake.
Today, however, the bay is a far different place. For the first
time ever, the Gulf States' total catch of blue crabs has exceeded
the Chesapeake.
When the Chesapeake Bay agreement was put in place in 1983,
detergents still contained phosphates, the damaging impacts of ni-
trogen were largely ignored, agricultural programs focused almost
exclusively on soil erosion, and Pennsylvania wasn't even a
member of the Chesapeake Bay Commission.
We now consider most of those issues routine. We no longer
debate whether nitrogen is damaging, only how best to remove it;
we can't understand all the fuss about the phosphate detergent
ban; and Pennsylvania is a full and complete partner and has most
recently taken a leadership role in nutrient runoff from agricultur-
al lands, thanks to legislation sponsored by Representative Jeff
Coy.
Our organization strongly supports the Chesapeake Bay Restora-
tion Act of 1993 introduced by Senator Sarbanes and, as he men-
tioned, with the full support of the entire bay delegation. We are
particularly enthusiastic about the new wetlands restoration pro-
gram, and we are pleased to see the act's focus on the tributary
strategies.
This legislation will take us the necessary next step toward true
integrated watershed management, an approach pioneered by the
Chesapeake Bay Program that is now widely recognized as the only
logical way to proceed.
880
Despite the value of the Restoration Act for the bay, however, it
is the language in the rest of the Clean Water Act that can make
or break the cleanup.
The act being discussed in this committee, S. 1114, has many fea-
tures that we support. For instance, it clearly embodies the concept
that the most effective way to deal with pollution from toxic sub-
stances is to keep them out of the discharges in the first place —
what we have been calling "pollution prevention." It establishes
stronger programs to deal with polluted runoff, including mandato-
ry programs for certain areas. And it elevates watershed manage-
ment to its appropriate position in the Clean Water Act.
The Chesapeake watershed consists of some 64,000 square miles,
encompassing six States and the District of Columbia. Although it
may sound a bit presumptuous, I would submit that the world is
watching us here in the Chesapeake Bay region.
For example, every week our offices are contacted by people from
all over the globe. In the past six months, we have hosted visitors
from some 20 foreign countries, including Japan, the former Soviet
Union, Peru, Brazil, Germany, the Czech Republic, Sweden, and
many others.
This November, the Chesapeake Bay will be the centerpiece of
the International Conference on Coastal Seas, to be held in Balti-
more, Maryland.
We in the region are indeed blazing a trail for the rest of the
Nation. I urge you to incorporate the Chesapeake Bay Restoration
Act into the amended Clean Water Act, and when you do that,
please consider designating the Chesapeake as the Nation's estu-
ary, for that is truly what it is — a natural resource of singular im-
portance to the country.
Lately, when I am asked how the bay is doing I have said that
the patient is stabilized, and that we are poised on the brink of real
recovery. This news is encouraging, but I do not mean to minimize
the challenges we face. They are, indeed, formidable.
But do we really have any other choice but to address them?
The Chesapeake Bay lies in the heart of this great Nation's most
populated mid-Atlantic region. Washington, D.C., the capital of the
world's last superpower, is both geographically and historically cen-
tral to the Chesapeake. The 15 million people who live in this wa-
tershed have repeatedly and overwhelmingly demonstrated their
commitment.
One last thought. We have a model Federal, State, and local
partnership at work here. The cooperation is historic. We must set
our sights high. We must look to restore, not just maintain, the
Chesapeake, for if we here in the United States of American can't
save the Chesapeake Bay, what real hope do we have for the rest of
the planet?
Thank you very much.
Senator Graham. Thank you very much, Mr. Baker.
Mr. Jeffrey Coy?
881
STATEMENT OF HON. JEFFREY COY, PENNSYLVANIA HOUSE OF
REPRESENTATIVES, CHAIRMAN, CHESAPEAKE BAY COMMISSION
Mr. Coy. Thank you, Mr. Chairman, Senator Warner, Senator
Chafee, Senator Baucus, and my good friend from Pennsylvania,
Senator Wofford.
I am Jeff Coy, and I am a State Representative from the Com-
monwealth of Pennsylvania, and I am serving this year as the
Chairman of the Chesapeake Bay Commission.
The Commission is a tri-state legislative advisory commission
that was created over a decade ago by the Legislatures of Mary-
land, Virginia, and Pennsylvania. It serves as a signatory to the
1983 and 1987 Chesapeake Bay agreements, along with the gover-
nors of the three States and the mayor of the District of Columbia.
Functioning as the legislative arm of the cleanup effort, it is the
Commission's responsibility to work with both the State Legisla-
tures and the Congress on programs to restore the Chesapeake
Bay. The Commission also provides an important tri-state perspec-
tive for the restoration effort.
I am honored to be here today as its chairman representing my
colleagues from Maryland and Virginia, as well as Pennsylvania,
and the other members of the Commission, to support the reau-
thorization of the Clean Water Act, which would include provisions
of the Chesapeake Bay Restoration Act, and to emphasize the im-
portant role that the Federal Government has as a partner with
the States and the District of Columbia in the restoration of the
bay.
First I would like to share a few comments concerning the broad-
er picture, the critical importance of the reauthorization of the
Clean Water Act.
For almost two decades, the Water Pollution Control Act has
been regarded as landmark legislation aimed at improving, protect-
ing, and restoring water quality throughout the Nation. The act
has served both as a vehicle for providing financial assistance to
the States in areas such as the construction and expansion of
wastewater treatment facilities, and as provided by example the in-
centive or impetus for many of the other water quality programs
which have been undertaken at the State levels.
We commend you for your foresight in pursuing the reauthoriza-
tion and strengthening of this vital legislation. Virtually every ele-
ment of the Clean Water Act enhances and supplements our efforts
to protect and restore the Chesapeake Bay. The act's continued
support for sewage treatment plants and controls on toxic pollut-
ants will reap significant benefits, especially in the Chesapeake
Bay.
I am particularly pleased to see the nonpoint source pollution
control provisions of the act strengthened and reemphasized. We
have found, as have other States across the Nation, that control of
the runoff of other nonpoint sources is a vexing and expensive
problem. I think it is fair to say that we have made real progress
in the bay region, but continued emphasis at the Federal level can
only help.
While I am sure the committee is aware of the problems facing
the Chesapeake Bay, let me briefly review the condition as I see it.
882
While we have made significant progress, and certainly advances
in the last ten years, it is fair to say that we continue to have a
long way to go. We have made progress with reductions in nutrient
phosphorus entering the bay because of a number of phosphate de-
tergent bans.
Senator Chafee asked earlier if the State of Wisconsin had. Of
course, Maryland, Virginia, and Pennsylvania all do.
Improvements of sewage treatment plants and controls on runoff
from agricultural and other types of lands are also important.
Improved water quality in many areas has led to slow but steady
improvements in the bay's underwater grasses. Striped bass,
known in the bay as rockfish, have rebounded.
Many problems remain, however. We continue to have difficulty
in controlling excess nitrogen. Although the increase has been
slowed, critical habitat such wetlands are still under pressure from
this development.
There are good reasons why we have come so far, and there is
reason why there is also optimism, I think, for the future.
The current Chesapeake Bay agreement, signed in 1987 and
amended in 1992, has provided clear, strong, specific, and compre-
hensive goals for the multi-jurisdictional Chesapeake Bay program.
We have, under the rubric of the Chesapeake Bay program,
brought together not only the States, the District, the Commission,
and the EPA, but also thousands of citizens, scientists, business
leaders, local governments, farmers, and others who work toward
common goals.
We have been guided by state-of-the-art research and have used
a computer model for the management that is arguably one of the
most sophisticated in the world.
We have also not rested on our accomplishments. The partici-
pants in the bay program have not been shy about reassessing our
commitments in the face of new scientific evidence.
With a watershed that spans multiple States and jurisdictions,
success only comes when recognizing that regional differences may
apply, and therefore the tools that need to be applied must neces-
sarily meet the needs of the individual areas.
The recognition of the Chesapeake Bay as a resource of national
significance and your financial support for this program since 1984
have provided a vital underpinning for the entire effort.
Pennsylvania is blessed — my home State — with a strong agricul-
tural economy. However, excess nutrients produced by agricultural
operations have proved to be a very major problem for water qual-
ity in the Susquehanna River and ultimately the bay.
Money for the program — some $12 million since 1987 — supple-
mented— I want you to hear this — supplemented by $17 million of
State tax money in Virginia, Maryland, and Pennsylvania has
given us the ability to grant farmers help to install best manage-
ment practices to build manure storage facilities to help control
nutrient runoff.
Earlier this year, the Pennsylvania Legislature, with the support
of environmental and agricultural interests, adopted landmark ag-
ricultural nutrient management legislation which I introduced on
behalf of the Pennsylvania delegation to the Chesapeake Bay Com-
mission. Senator Wofford referred to it earlier, and I firmly believe
883
that this is part of the success, that this legislation came about
from the acceptance of farming practices that were already funded
in part by the bay program.
In closing, I cannot only say that I emphasize too strongly the
importance of the Chesapeake Bay as the community watches your
efforts here, but I believe that you have before you an opportunity
to signal to the citizens of the bay region and to the Nation at
large your continued commitment to the protection of this Nation's
most productive estuary.
The Chesapeake Bay restoration effort is a state-of-the-art experi-
ment in environmental protection which deserves and demands
your continued support.
To go a little further with Will Baker's medical analogy, I like to
say that the wound has been identified, the tourniquet applied,
bleeding stopped, but restoration of health remains quite essential
and, I think, equally important.
Thank you.
Senator Graham. Thank you very much, Mr. Coy. And congratu-
lations on the leadership that you have provided.
Mr. Coy. Thank you, Senator.
Ms. Caren Glotfelty with the Pennsylvania Department of Envi-
ronmental Resources?
STATEMENT OF CAREN GLOTFELTY, PENNSYLVANIA
DEPARTMENT OF ENVIRONMENTAL RESOURCES
Ms. Glotfelty. Thank you Mr. Chairman and members of the
committee.
As Deputy Secretary for Water Management in the Pennsylva-
nia Department of Environmental Resources, I am responsible for
all water quality and water quantity programs in Pennsylvania, in-
cluding the Commonwealth's participation in the Chesapeake Bay
program.
I appreciate the opportunity to speak to you today on the Clean
Water Act reauthorization, and specifically I'd like to touch on
some of the lessons that we have learned from our involvement in
the Chesapeake Bay program that should be applied elsewhere,
and provisions that should be included in the Clean Water Act to
ensure the continued success of the Chesapeake Bay program and
watershed planning efforts elsewhere.
Although the area in Pennsylvania drained by the Chesapeake
Bay occupies only about one-third of the Commonwealth's total
land, the Chesapeake Bay program has taken on an importance in
Pennsylvania, as it has in the entire country, beyond the geogra-
phy it directly affects.
In Pennsylvania it has served as a catalyst for many important
water quality initiatives that we have taken at the State level.
Most recently, as has been referred to before, we have developed
landmark agricultural nutrient management legislation under the
leadership of Representative Coy.
Initially in Pennsylvania we relied on a voluntary approach to
agricultural nutrient management to reduce the phosphorus and
nitrogen entering the Susquehanna River and the bay from farms
in Pennsylvania. Our Chesapeake Bay program in Pennsylvania
884
used education, technical outreach, and financial assistance to per-
suade farmers that nutrient management is not only environmen-
tally responsible, but can be profitable, as well.
Our partnership with agriculture has led this year to the passage
of Act Six, which now requires the preparation and implementa-
tion of nutrient management plans by high-density livestock farms.
This new law was the result of the major farm organizations in
Pennsylvania recognizing that nutrient management was essential
to the future of agriculture in the commonwealth, and that a vol-
untary program alone was not sufficient.
Pennsylvania's nutrient management program, while mandatory,
is not a traditional regulatory program. It requires the preparation
of a plan which takes into account the farmer's crop needs, soil nu-
trient content, available manure, and farming practices. The site-
specific nature of nutrient management planning allows the
farmer to integrate appropriate management practices into normal
farming operations.
The program will be administered through our country conserva-
tion districts, who have been traditional allies to farmers.
I believe that Pennsylvania's example could and should spawn a
whole new generation of legislative approaches that rely less on
command and control and more on shared goals, education, coop-
eration, and technical assistance.
The Chesapeake Bay program has shown us that it is important
to set tangible, measurable goals on a watershed basis. The notion
that the bay could be restored to the water quality of an earlier
time through specific numerical reductions in nutrient loadings
has had a tremendous effect in capturing and holding the public's
attention.
More recently, the program has been able to link water quality
restoration to the return of specific amounts of bay grsisses and is
moving toward the ability to scientifically link water quality im-
provement to the return of other living resources.
The power of such tangible goals is such that even in Pennsylva-
nia, with no bay shoreline at all, the public has retained its inter-
est in and strengthened its commitment to Chesapeake Bay resto-
ration for more than ten years.
The success of the Chesapeake Bay program is a strong demon-
stration that integrated watershed planning and management is
the direction in which we should be going in all geographic areas.
Only through concerted action by all jurisdictions and in all
media — air, water, and land — affecting Chesapeake Bay will we be
able to make this progress necessary to restore living resources to
the by.
I would like to stress two important principles from the perspec-
tive of the States and other jurisdictions involved in the bay pro-
gram that need to be respected for continued success. These are
flexibility and perseverance.
Now, I understand that you have already heard a lot in other
hearings about the importance of flexibility. Let me just say that
perhaps the most critical factor in the success of the bay program
to date has been the flexibility afforded the jurisdictions who are
responsible for implementing the program in targeting their finan-
cial and other resources to meet the broad bay-wide goals.
885
Although we are all part of a single watershed, Maryland, Vir-
ginia, Pennsylvania, and the District of Columbia are all very dif-
ferent in terms of the impacts we have on the bay, the resources
we have available to solve bay problems, and the other priorities
we must balance with the needs of Chesapeake Bay.
Perseverance is also critical. We must be able to stick to the
course we have set long enough to see success. With the first
Chesapeake Bay agreement in 1983, nutrients were identified as
the culprit causing the bay's decline in living resources. In 1987,
although other environmental goals were set, as well, there was a
strong and specific emphasis on nutrient reductions.
Because we have been somewhat single-minded until now, the ju-
risdictions have largely targeted their Chesapeake Bay resources
toward actions necessary to reduce nutrients. With the 1992 agree-
ment, the jurisdictions enlarged their perspective to include the
tributaries, but the emphasis has remained on nutrients.
We have made progress. The bay is getting cleaner slowly; how-
ever, it is clear that achieving the necessary nutrient load reduc-
tions will take many years and billions of dollars.
For example, preliminary cost estimates for the Potomac River, a
major tributary to the bay, indicate that it may take $155 million
to $244 million per year for an indefinite period to remove the nec-
essary amounts of phosphorus and nitrogen from point and non-
point source discharges to achieve and maintain the 40 percent
bay-wide load reduction goal.
We need to be able to count on sufficient funding to accomplish
this goal and cannot afford to have the necessary financial re-
sources or public attention diverted from nutrients until these re-
ductions are accomplished.
In closing, I want to compliment your efforts to date on behalf of
the Chesapeake Bay and to express my appreciation on behalf of
all Pennsylvania citizens. I look forward to your continued support,
and thank you for the opportunity to share my views with you
today.
Senator Graham. Thank you very much, Ms. Glotfelty.
We have just had a vote called. Senator Baucus is going to stay
and continue the hearing and I will vote and return so we will
have as short an interruption of the continuation of this panel as
possible.
Next is Mr. John Atkin of the Clean Water Jobs Coalition.
STATEMENT OF JOHN ATKIN, CLEAN WATER JOBS COALITION,
NORWALK, CONNECTICUT
Mr. Atkin. Thank you, Mr. Chairman. And I thank the commit-
tee for the opportunity to testify here today.
My name is John Atkin, and I am speaking on behalf of the
Clean Water Jobs Coalition, which originated in the Long Island
Sound watershed area.
I will share my experiences as a former member of the Connecti-
cut House of Representatives and State Senate for ten years, as
founder and Chair of the Long Island Sound Committee, as one of
the founding members of the Clean Water Jobs Coalition, and as a
person actively involved in Long Island Sound activities through
886
the Soundkeeper Fund, National Audubon Society, and other orga-
nizations.
I grew up in Norwalk, Connecticut — one of 98 cities and towns,
including the New York City boroughs of Queens and the Bronx,
that surround Long Island Sound. Today, as when I was a young-
ster, I swim and boat in the sound, and I have taught aboard a re-
search vessel on the sound about the sound to youngsters and
adults, alike, about the 450 species of marine life that inhabit the
sound.
I have told my students that the sound has 577 miles of shore-
line. It is 110 miles long and 21 miles wide at its widest point.
Mr. Baucus indicated earlier that 50 percent of the population
was within 50 or so miles of the coast. I can tell you 10 percent of
the population of this country lives within 50 miles of Long Island
Sound.
That startling statistic is precisely why this estuary is stressed.
Over 1 billion gallons of inadequately treated sewage pours from
sewage from 44 different sewage treatment plants into the sound
every day — almost 400 billion gallons a year.
Land development over the last 200 years has filled in nearly 75
percent of the coastal wetlands that acted as a natural buffer and
filter for the runoff into the sound.
Additionally, the construction of industry, roads, and parking
lots near the sound speed up the process of toxins, oil, salt, trash,
and animal waste finding its way into the body of water.
The sound is bordered by two States and is serviced by two re-
gions of the EPA — Connecticut in region one, and New York in
region two.
Senator Lieberman's Long Island Sound Improvement Act of
1990 was an important step in recognizing the sound as a national-
ly significant estuary with its own EPA office after models set
forth for the Chesapeake Bay and the Great Lakes.
This, along with the ongoing work of the Long Island Sound
study under the NEP, the creation of the Bi-state Long Island
Sound Committee, and the citizens' alliances and coalitions that
have formed are further evidence of the sound being a priority
water body for the Nation.
I stood on the shores of the sound on Calf Pasture Beach in Nor-
walk nearly six years ago and called on my then colleagues from
the State of Connecticut and New York to join together on a
formal and regular basis to examine what each State was doing in
handling the problems of the sound. This effort was designed to
complement the programs initiated under the national estuary pro-
gram.
Identical legislation was introduced in both States by the former
bi-state committee, and after passage and the signatures of both
governors the first meeting was held. Governor William O'Neill of
Connecticut attended and enthusiastically called for renewed
action and cooperation between the States. And Governor Mario
Cuomo of New York, through a spokesperson, did the same.
Since that day, as Dawn Martin earlier stated, the States' envi-
ronmental agencies and legislative representatives have been work-
ing closer together than ever to further ensure that the issues deal-
887
ing with the sound are addressed equitably on both sides of the
State Une.
Today, public concern for the sound continues to be high, and
major policy decisions are being discussed. In addition to the reau-
thorization of the Clean Water Act, the draft of the CCMP for the
sound under the NEP has been completed, and the public has had
an opportunity — many opportunities — to comment under this on
the CCMP.
Although many of us, frankly, felt the plan fell short of expecta-
tions and are somewhat disappointed with the lack of technical dis-
cussion, we still realize that without it and without the NEP there
would be little cooperation among the States.
For example, the no net increase of nitrogen plan that was
adopted by Connecticut and New York probably never would have
occurred without that plan.
We do need the leadership of this committee to ensure that the
Federal Government remains an active player and a financial sup-
porter in the effort to restore our sound. It is essential that the
Federal Government remain a partner in assisting States and mu-
nicipalities in upgrading sewage treatment facilities in the sound's
watershed.
The continuation of funds in the Long Island Sound estuary to
further assist in the establishment of the SRF funds must continue.
Many Connecticut cities have been hit hard by the recession and
massive deficits. In fact, a couple of years ago the city of Bridgeport
actually filed for bankruptcy to demonstrate the severity of the sit-
uation in their city.
Finally, as my time runs out I'd like to talk a little bit about
Senator Lieberman's bill, S. 815, the Water Pollution Control and
Estuary Restoration Act, cosponsored by Senators Moynihan, Dodd,
and D'Amato. In the House, Representatives DeLauro and Lowey
have introduced companion legislation with over 60 cosponsors.
I have attached for the record a list of over 100 organizations
from the northeastern United States in support of S. 815, including
environmental groups, union, and building trade organizations.
Again, we need strong Federal support for the NEP for imple-
mentation of the CCMP, for continued coordination between State
and Federal agencies, and for the funding levels of S. 815 to bring
the SRF program to a level of $5 billion annually with special set-
asides for critical, nationally recognized estuaries such as the
sound.
In conclusion, the sound represents an ecological system with
some of the greatest urban population pressures in the Nation. A
clean sound makes environmental and economic sense because it
can pave the way to solving some of the complex problems facing
estuaries nationwide.
We in the coalition are proud of the Long Island Sound region's
leadership in bringing together jobs and the environment national-
ly. We can only hope that S. 815 will become part of the commit-
tee's Clean Water Act reauthorization proposal.
I thank the committee for the opportunity to testify today, and
would be pleased to work with the committee and its staff if I can
be of any assistance.
Thank you.
69-677 0-94-29
Senator Baucus. Thank you very much, Mr. Atkin.
Mr. Hansen? I believe you are the remaining witness. We may
have to intervene if Senator Graham does not return in time, but
why don't you proceed at this point?
STATEMENT OF PAUL HANSEN, DIRECTOR, MIDWEST REGIONAL
OFFICE, IZAAK WALTON LEAGUE OF AMERICA, MINNEAPOLIS,
MINNESOTA
Mr. Hansen. Thank you, Mr. Chairman and members of the
committee.
I am Paul W. Hansen, Director of the Midwest Office of the
Izaak Walton League of America.
As you may know, the League has been deeply involved in Mis-
sissippi River conservation issues since 1924 when League-spon-
sored legislation establishing the Upper Mississippi National Wild-
life and Fish Refuge was passed by Congress.
The pen that President Coolidge used almost 70 years ago to sign
that legislation is displayed in my office today.
This year the Izaak Walton League's national convention was
held in Davenport, Iowa, in mid-July, in spite of the floods.
I am here today to tell you that the Mississippi River desperately
needs the special designation for watershed planning that Congress
has provided to the Great Lakes and to our great estuaries. We
have heard eloquent testimony today on the effectiveness of this
approach, and we need it on the upper Mississippi.
'The Mississippi River is the dominant watershed of the North
American continent. It is the second-largest drainage basin in the
world. Congress has designated the upper Mississippi in 1986 as
both a nationally significant ecosystem and a nationally significant
transportation system.
The Mississippi River is also considered one of North America's
greatest environmental resources. It is home to almost 241 species
of fish, 270 species of birds, and the narrow strip of green and blue
through the Nation's agricultural heartland is a major flyway for
over 40 percent of North America's waterfowl and wading birds.
The Upper Mississippi National Fish and Wildlife Refuge gets
over 3.5 million visitors per year — more than Yellowstone National
Park — during normal years.
As Senator Mitchell mentioned earlier, nutrient enrichment and
sedimentation from contaminated runoff are degrading the Missis-
sippi River ecosystem and are contributing substantially to devel-
opment of a large oxygen-depleted anoxic area known as "The
Dead Zone" in the Gulf of Mexico.
Senator Baucus. Mr. Hansen, I'm going to have to ask the com-
mittee to recess at this point. There is a vote going on, and I'm the
last one here, and I've got to go vote.
Mr. Hansen. Certainly. I understand.
Senator Baucus. Senator Graham will be back very shortly.
Mr. Hansen. Thank you.
Senator Baucus. Thank you very much.
[Recess.]
Senator Graham. I call the committee back to order.
889
Mr. Hansen, I understand you were in the midst of your state-
ment when Senator Baucus had to leave. We have been joined by
several Members of the House of Representatives who are in the
same situation we are, and that is facing a series of votes.
If you would be kind enough to let us hear from those Members
of the House, then we will return to panel three and hear the bal-
ance of your statement and questions that might be asked.
Mr. Hansen. Certainly.
Senator Graham. I appreciate your indulgence.
Panel four is Members of the House, Eric Fingerhut of Ohio, and
Marcy Kaptur, also of Ohio. I know that Ms. Kaptur is here be-
cause I saw her in the elevator. Is Congressman Fingerhut here?
Senator Fingerhut. Yes, Mr. Chairman.
Senator Graham. If you could, please come forward. Maybe Mr.
Coy or Mr. Hansen could share your chair momentarily.
Senator Metzenbaum. Mr. Chairman, I'd like to make a brief
statement, if possible.
Senator Graham. Senator Metzenbaum also has a statement rel-
ative to the subject of panel four of the Great Lakes.
Senator Warner. WTiat happened to the Chesapeake Bay panel?
I went to vote, and they've gone?
Senator Graham. No. They are still here. We are going to hear
from Members of the House of Representatives who are here to tes-
tify, following our rule of recognizing Members of the Congress as
they arrive.
Senator Warner. Mr. Chairman, could you advise the members
of your subcommittee what time we would likely have the opportu-
nity to pose questions to panel three?
Senator Graham. I would say that, assuming that Senator Metz-
enbaum, who has a statement, and Ms. Kaptur and Congressman
Fingerhut use approximately five minutes apiece, in 15 minutes
we'll be back to that panel.
Senator Warner. Thank you very much.
Senator Graham. Senator Metzenbaum?
OPENING STATEMENT OF HON. HOWARD M. METZENBAUM, U.S.
SENATOR FROM THE STATE OF OHIO
Senator Metzenbaum. Mr. Chairman, thank you very much. I
have a brief statement.
I am not a member of this subcommittee, but I wanted to attend
today's Clean Water Act reauthorization hearing on regional issues
because of my involvement in clean water issues as they relate to
the Great Lakes.
Before I begin, I'd like to express my appreciation to the chair-
man of this subcommittee and the ranking member for all the
work they have done in holding this series of hearings on the Clean
Water Act reauthorization.
There is little doubt about it: tremendous progress has been
made in cleaning up our rivers, lakes, streams, smd ocean coasts,
but more remains to be done.
Untreated sewage, industrial discharges of toxic pollutants, and
pollution from urban and agricultural runoff still threatens our
waterways.
890
The Clean Water Act reauthorization bill that Senators Baucus
and Chafee introduced not too long ago addresses these water pol-
lution issues on a national basis, but there are regional bodies of
water that have unique problems and deserve special attention.
One of them is the Great Lakes.
What a marvelous asset to this Nation the Great Lakes are. It is
simply impossible to overstate the importance of the five Great
Lakes. Their value is a source of freshwater, food, transportation,
and recreation. They are the highway of shipping and commerce in
the Nation's most industrialized region, stretching from the Iron
Mountains of Minnesota through the great manufacturing cities of
Detroit and Chicago and Cleveland and Buffalo. They are an un-
paralleled fishing and recreational resource. They are the primary
source of drinking water for millions of Americans. They consti-
tute— and this is such a significant fact — constitute over 95 percent
of this Nation's fresh surface water.
Yet, the shorelines, the tributaries, the open lakes, themselves,
are in danger. They are endangered by industrial pollution, agri-
cultural runoff, municipal sewage — even the oil and grease run-
ning off city streets.
I introduced S. 1183, the Great Lakes Clean Water Amendments
of 1993, in an effort to enhance the water quality of this precious
national resource.
My legislation, which is an expanded version of something I of-
fered last year to the water resources bill, is meant to fit within
the broader Clean Water Act reauthorization bill.
I would ask that a longer version of my statement appear in
today's hearing record.
Senator Graham. Without objection.
Senator Metzenbaum. Let me close by summarizing some points
from my bill.
The bill reflects a broad-based effort to address contaminated
sediment issues and other problems confronting the Great Lakes.
Under my bill we will test new sediment cleanup technologies, es-
tablish more environmentally sensitive requirements for dredge
sediment disposal, provide incentives for industry for pollution pre-
vention and provide a mechanism for enforcement penalties to be
reinvested into Great Lakes cleanup programs.
Congresswoman Marcy Kaptur and Congressman Eric Fingerhut,
two of whom are our pride and joy, will testify about comparable
legislation in the House. I think we are well on our way toward
enacting solid, comprehensive legislation which will be of benefit to
the Great Lakes and the entire country.
I look forward to working with members of the Great Lakes com-
munities, and members of the subcommittee and the full commit-
tee on my legislative initiative, as well as on the broader Clean
Water Act reauthorization.
I am particularly pleased that Congresswoman Kaptur and Con-
gressman Fingerhut are both with us this morning.
[Senator Metzenbaum's prepared statement follows:]
891
STATEMENT OF HON. HOWARD M. METZENBAUM, U.S. SENATOR FROM
THE STATE OF OHIO
Mr. Chairman, I'm not a member of this subcommittee but I wanted to attend
today's Clean Water Act Reauthorization hearing on regional issues because of my
involvement in Clean Water issues as they relate to the Great Lakes.
Before I begin, I would like to express my appreciation to the Chairman of this
subcommittee, and the ranking members, for all the work they have done in holding
this series of hearings on the Clean Water Act Reauthorization.
There is little doubt about it. tremendous progress has been made in cleaning up
our rivers, lakes, streams, and ocean coasts. But more remains to be done.
Untreated sewage, industrisd discharges of toxic pollutants, gmd pollution from
urban and agricultural run-off still threaten our waterways.
The Clean Water Reauthorization bill, which Senators Baucus and Chafee intro-
duced not too long ago, addresses these water pollution issues on a national basis.
But there are regional waterbodies within the country that have unique problems
and deserve special attention.
One of them is the Great Lakes.
It is simply impossible to overstate the importance of the five Great Lakes — their
value as a source of fresh water, food, transportation, and recreation.
They are the Highway of Shipping and Commerce in the Nation's most industrial-
ized region, stretching from the iron mountains of Minnesota through the g^reat
manufacturing cities of Detroit, Chicago, Cleveland, and Buffalo.
They are an unparalleled fishing and recreational resource.
They are the primary source of drinking water for millions of Americans. And
they constitute 95 percent of this Nations' fresh surface water.
Yet the shorelines, the tributaries, the open lakes themselves are in danger. They
are endangered by industrial pollution, agricultural runoff, municipal sewage, even
the oil and grease running off city streets.
I introduced S. 1183, '"The great Lakes Clean Water Amendments of 1993," in an
effort to enhance the water quality of this precious national resource. My legisla-
tion, which is an expanded version of something I offered last year to the Water
Resources Bill, is meant to fit within the broader Clean Water Act Reauthorization
Bill.
Senators Glenn, Riegle, Levin, Kohl, Feingold, Simon, and Moseley-Braun are co-
sponsors. Congresswoman Kaptur, D-'Toledo, Ohio, and Congressman Fingerhut, D-
Mayfield Heights, Ohio, will be here today to testify about comparable legislation
being offered in the House.
Specificially, my bill seeks to better manage the disposal of polluted lake sedi-
ments that must be dredged regularly from the rivers and harbors in order to main-
tain shipping. Sometimes these sediments are so polluted they must be confined in
disposal facilities. Sediments that are only mildly polluted are simply dumped in the
lakes.
The threat to human health presented by polluted sediments — whether they are
confined or dumped — is very real. Food chains poisoning, which begins with the fish,
winds up on the dinner table. According to a national research council report, neur-
omusuclar impairment, small birth weight, and smaller head size in infants was
pronounced in mothers who ate toxic Laden Lake Michigan fish only twice a month.
My legislation will require the corps of engineers to pay more attention to envi-
ronmental concerns when deciding where to dump dredged spoils in the lakes and
give EPA a bigger role in this disposal process. The bill will also require that all of
the existing — and any new — confined polluted sediment facilities have management
plans that include provisions for reclaiming the land and monitoring it after the
facility has closed.
The Bill also addresses the issue of sediment accumulation. It requires the corps
of engineers to measure sediment loadings into the major tributaries of the lakes
and sets up a grant program to promote projects which can reduced sediment run-
off in the first place.
In addition, the bill will facilitate the clean-up and removal of contaminated sedi-
ments by allowing five full-scale technology cleanup demonstration at toxic hot
spots identified within the Great Lakes.
But the Legislation moves beyond the sediments problem. It provides incentives to
Great Lakes industries to install new pollution prevention technologies. It also gives
towns and cities technical help in reducing the run-off from streets and parking lots
that pollute the lakes.
There is language in the bill to coordinate research efforts now carried out by sev-
eral Government agencies and to set deadlines for EPA action on developing
892
Lakewide Management plans to set out the long-term strategy for restoring, protect-
ing, and maintaining high water quality in each of the Great Lakes.
Finally, the bill creates a revolving fund into which penalties from Great Lakes
specific water qusility violations will be deposited, thus creating a source of funding
for Great Lakes water quality programs.
This is a solid and comprehensive proposal. It has cleanup, it has management
and it looks to the future. ^ , ^
Mr. chairman, I look forward to working with members of the Great Lakes com-
munity, members of the subcommittee and the full committee on my legislative ini-
tiative as well as on the broader Clean Water Reauthorization.
Senator Graham. Congresswoman Kaptur?
STATEMENT OF HON. MARCY KAPTUR, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF OHIO
Ms. Kaptur. Thank you very much, Mr. Chairman, our esteemed
Senator Metzenbaum, Senator Warner, and members of the com-
mittee. It is a read pleasure to appear before you this morning, and
I would like to submit my statement in entirety for the record and
not burden you with reading all of it, but I would like to summa-
rize.
Senator Graham. That's very kind. Yours and all the statements
will be submitted in full for the record.
Ms. Kaptur. I thank you. It is also a pleasure to be here with my
colleague. Congressman Fingerhut, who represents the northeast-
ern portion of Ohio. I am on the other side of the State, the north-
western part. The bluffs rise in the northern part of Ohio from our
region where there is about a 2 percent slope all the way up to the
Cleveland area, so the topography is rather interesting.
I wanted to come especially this morning as Chair of the North-
east Midwest Coalition on the House side to make sure that the
Great Lakes Region was on the radar screen of members of this
subcommittee as it conducts its important work, as well as the full
committee.
I wanted to come in full support of all of the work that Senator
Metzenbaum, as well as Senator Glenn, has done on the Great
Lakes Clean Water Act Amendments. The Senator has referenced
that Act this morning.
Twenty years ago, for those of us who can remember back that
far, Lake Erie literally was a dead lake. There is a rather interest-
ing phenomenon that occurs in the Great Lakes Region. Our lakes,
as a whole, flush out very slowly. So you've got Lake Superior that
takes about 200 years to flush out. Lake Michigan 100 years, and
Lake Erie, because of its shallowness, but three years.
That creates, with our very low slope, a real problem that is par-
ticularly addressed by the Senator's bill in terms of pollution pre-
vention as well as this business of reducing contaminated sedi-
ments into the lake.
I wanted to talk a little bit about some of the specific problems
we have had in our area as a result of our topography.
Agricultural runoff is our major problem right now — ^the non-
point source pollution. In fact, if you look at Ohio, my corner costs
the Army Corps of Engineers $7 million a year just to keep our
fishing channels open, largely because of the shallowness.
Unfortunately— and it is really sad to say this, but we haven't
found the trick to get the Environmental Protection Agency and
893
the Army Corps of Engineers to work together cooperatively. I
think the UAW and Chrysler, Ford, and General Motors have a lot
to teach our Federal agencies about working together toward a
common end.
We have a real problem, and we would ask your specific atten-
tion to this in the legislation that you draft.
We had a situation where our port was practically closed down
because EPA did not want the Corps of Engineers to open lake
dump the substantial sediments that have deposited in our ship-
ping channels, and the bureaucracy of this has held up resolution
of the problem for such a very long time.
This can't continue to go on in the Great Lakes area, and I dare
say other sections of the country.
In addition to that, in the area of contaminated sediments, I
know that the Senator has provided in his bill demonstration areas
for sediment reduction. We need to find a way to deal with the
massive amount of materials — literally trainloads full — every year
that are currently being open lake dumped in lakes like Lake Erie.
Our disposal facilities are full, and there has to be a better way.
The Army Corps down at the Mississippi facilities has some sug-
gested ways of reusing some of the sediment, getting rid of the
toxics in it, and providing a lot of that for fill or, in fact, for fertil-
izer and other uses.
We would encourage you to, support their efforts to stop these
contaminated sediments from going into the lakes in the first place
through working with stream bank buffers, windbreaks, cover
crops, wetlands, reducing chemicals and agricultural pesticides and
fertilizers, etc. Perhaps selecting a few of these areas so we can
work together and look toward the 21st century.
I also wanted to bring another area to your attention which I
know Senator Metzenbaum cares very deeply about, and my testi-
mony is very detailed on this. Even though this concerns the Clean
Water Act, the relationship of what you are doing to border clean-
up— not just U.S.-Canadian border, but U.S.-Mexico border. My tes-
timony has significant information in it about the requests we are
now getting — and I serve on the Appropriations Committee over on
the House side for EPA — from this Administration and several past
Administrations to provide special treatment for installation of
clean water, as well as sewage facilities, down at the U.S.-Mexico
border.
We are not saying that isn't an important region to be concerned
about. However, the many of the proposals at the southern border
are for grants, as opposed to matching requirements which are re-
quired of states in our area of the country. We ask for a level play-
ing field.
Whatever is done at the U.S.-Mexico border, we ought to have
the same treatment at the U.S.-Canadian border. That is not now
the case. We have 43 contaminated toxic areas in the Great Lakes.
We haven't taken care of them. Some of the very same companies
that caused the problem up in our region are now moving south of
the border and have already polluted down there. There is no
reason that we should let those folks off the hook.
So we are asking for a level pla5dng field, a national policy that
treats all regions of the country fairly.
894
My testimony is very detailed in that regard.
Senator Metzenbaum, I know you will be our conscience and
watchdog on that issue here. My testimony includes numbers from
EPA, USDA, Interior, HHS, and State on where that money is
being requested and where it is going. Our taxpayers have a right
to be treated fairly in our region.
I thank you very much for your attention.
Senator Graham. Thank you, Madam Congresswoman.
Let me just insert a modification of the response I gave a few
moments ago to the Senator from Virginia.
One, we have just started another vote, so there will be an inter-
rupt for that. We also have two other Members of the House of
Representatives who have joined us to speak on panel five relative
to the Gulf of Mexico, so it would be my intention to hear from
Congressman Fingerhut, then move to the other two Members of
Congress who are here, hopefully hearing all of those before we
must take a temporary recess for purposes of a vote.
Congressman de la Garza?
Mr. DE LA Garza. Would you respectfully do me the courtesy of
submitting my statement for the record and not appearing in
person?
Senator Graham. Congressman, we appreciate that. We regret
that we cannot have a chance to hear from you directly, but we
will certainly receive your statement and give it full attention. (See
p. 993.)
Senator Warner. I join the chairman in that, and must say with
some disappointment because we all have a very high admiration
of your lengthy experience in this field.
Mr. DE LA Garza. Thank you very much. Senator. There will be
other times. I appreciate it.
Senator Graham. Thank you very much.
Senator Graham. Mr. Fingerhut?
STATEMENT OF HON. ERIC FINGERHUT, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF OHIO
Mr. Fingerhut. Thank you, Mr. Chairman.
As the person who has served in Congress for the briefest time of
anyone in the room, I will make my statements the briefest.
It is truly a pleasure to appear before this subcommittee and Mr.
Chairman and Senator Warner, and my extraordinary personal
privilege to be before Senator Metzenbaum, who not only is one of
my heroes, but is one of my constituents, and therefore I must
mind my Ps and Qs. I assure you that he frequently calls to com-
plain to his Congressman about various things happening on the
House side.
Senator Metzenbaum. The record should reflect that the Repre-
sentative from Ohio was a member of this committee and under-
stands very thoroughly the work of this committee and made many
valuable contributions during his service. We miss him.
Mr. Fingerhut. Thank you very much. Senator.
Mr. Chairman, Congresswoman Kaptur, who is really the leader
of our Northeast Midwest Caucus on this issue, has spoken elo-
quently about it.
895
I'd like to give maybe just one comment as a new Member who
represents a significant part of the short of Lake Erie, and that is
that we live in a time when the skepticism about the work of gov-
ernment and the success or failure rate of government programs is
probably at a record high.
The history of Government involvement, and particularly the
Clean Water Act, with respect to the Great Lakes is one of extraor-
dinary success. We took an area — really you took, Senators,
through your work on this area — one of the greatest natured re-
sources that exists anywhere in the world and that had been,
through the work of man, polluted almost beyond recognition, and
you have brought it back to life through the work of the Clean
Water Act.
The Great Lakes in many ways — I saw the list of all the panels
that will be speaking — was in many ways the forerunner of all the
work that happened in the other natural resources of our country.
We were a regional approach to cooperation. In many ways we
were an environmental laboratory for some of the approaches that
this Congress has enacted.
I would just like to point out that not only have we seen environ-
mental benefits from this, but we have seen economic benefits. We
have a $4.5 billion annual sport fishing industry now across the
Great Lakes basin. We have $8.5 billion annual recreational econo-
my just in the Lake Erie portion of the Great Lakes.
And in my district, alone, we estimate that if we continue to
work toward the goals that Congresswoman Kaptur has articulat-
ed, particularly with respect to cleaning up the sediments in the
rivers to opening up the rivers that flow to the lake, that we have
$60 million in economic development on hold right now just in the
Ashtabula River area, which is in the far northeast section of my
district, that we would unlock if we can make significant progress
to unlock the difficulties that have existed around the issue of
cleaning up the sediments in the rivers and to continue to upgrade
the quality of the Lake Erie basin.
I would like to point out that I have introduce two portions of
the Clean Water Act Amendments as separate legislation in the
House. Congresswoman Kaptur has introduced other portions of
those amendments as separate legislation. We will be together pre-
senting them to the Public Works Committee in the House, and we
are pushing on our side to keep these issues moving forward.
The bills that I have personally been working on involve taking
the sediment research program, which Congresswoman Kaptur al-
ready referenced, beyond the experimental stage to the develop-
mental stage, which is necessary, and to also coordinate all the
work of our environmental agencies.
I have to underscore Congresswoman Kaptur's comments about
the coordination between the EPA and the Army Corps of Engi-
neers and the variety of other agencies that are involved in this
project.
I am pleased to note that the new administrator of the EPA was
out in Cleveland a couple of weekends ago. We went out with her
on the lake to test water quality. She appears to be seeking to be
very responsive to this area, and we encourage that and we compli-
896
ment them and thank them, but it is critical that the government
£igencies work together.
So thank you again for your interest in this issue, Senator Metz-
enbaum. Thank you for the honor of being invited to testify.
Senator Graham. Thank you very much, Mr. Congressman.
I would like to ask if Congressman Callahan, who is also here,
could please come forward. I'd like to receive his statement before
we have to leave for this next vote.
Senator Metzenbaum?
Senator Metzenbaum. Yes. Could I just ask unanimous consent
that the statement from Senator Glenn be included in the record at
an appropriate place?
Senator Graham. Without objection. (See p. 995.)
Thank you very much.
Congressman Callahan?
STATEMENT OF HON. SONNY CALLAHAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ALABAMA
Mr. Callahan. Thank you, Mr. Chairman, first for having this
hearing and giving us the opportunity to testify.
Let me first say that those of us who are interested in the Gulf of
Mexico program share enthusieistically the aims and the goals of
Senator Warner with respect to the Chesapeake Bay, and with Sen-
ator Metzenbaum with respect to the Great Lakes.
Our legislation tries to put us on a partial parity with these two
great water bodies by giving recognition to some of the problems
we have in the Gulf of Mexico.
The Gulf of Mexico is seven times larger, I think, than the Great
Lakes. I think it is probably 90 times larger than the Chesapeake
Bay. We in the past have not, we don't think, received adequate
attention from either the EPA or the Congress with respect to
some of the solutions that are available for the problems that face
us in the Gulf of Mexico.
So our Gulf of Mexico bill takes a step in the right direction. It
lets us cooperate with you to continue the efforts to improve the
Chesapeake Bay and the Great Lakes, but at the same time it puts
us on a partial parity saying we have a large body of water and the
Gulf of Mexico is crucial to our local economy, it is crucial to the
international and national economy, and it is crucial to the envi-
ronment to have solutions to problems rather than just to have the
police force of the EPA and Congress mandating as to what the
problems are.
So that's the purpose of our legislation, which we ask that you
incorporate in your Clean Water Act, and that is the purpose of
our establishment of the new Gulf of Mexico Council.
With that, Mr. Chairman, I want to submit my official statement
for the record, and also take the opportunity to request permission
to submit for the record the statement of Congressman Greg
Laughlin of Texas, who is the chief sponsor of the Gulf of Mexico
bill.
Mr. Chairman, we know that you especially share with us some
of the concerns for our beautiful Gulf of Mexico, and we hope that
we can get the cooperation of those Senators who represent areas
897
such as the Chesapeake Bay and those who represent areas such as
the Great Lakes to assist us in our effort to do just what they have
already started doing in those bodies.
I thank you, Mr. Chairman.
Senator Graham. Congressman Callahan, thank you very much.
We will be pleased to receive your statement, as well as the state-
ment of Congressman Laughlin. (See p. 996.) I know how hard you
have worked.
Senator Warner. Thank you, also. Congressman, very much.
Thank you.
Senator Graham. Also, we are joined by Senator Gramm.
As you know, we have a vote underway, if you would please take
a seat.
Senator Gramm. I'll be brief.
STATEMENT OF HON. PHIL GRAMM, U.S. SENATOR FROM THE
STATE OF TEXAS
Senator Gramm. Mr. Chairman, thank you for having this hear-
ing. We want America to recognize that the Gulf of Mexico is
America's sea.
We want to bring the level of our research and our commitment
to a sound environment there to the level of the Chesapeake Bay
and the Great Lakes. We are proud of your leadership. We want to
work with you. We have a strong bipartisan base of support, and
we thank you for your leadership.
Senator Graham. Thank you very much. Senator Gramm.
If you have any further statement, it will be incorporated fully
in the record.
We have five minutes remaining on the vote that is currently
underway, so we will recess and reconvene. I see Senator Binga-
man is here.
Senator, I apologize, but we will receive your statement as soon
as we can return from this vote.
Senator Durenberger. I voted. Do you want me to take it?
Senator Graham. I'm sorry. Senator Durenberger, who has
voted— Senator, if you would continue the hearing, we have been
receiving testimonies from Members of Congress as they arrive. We
have heard from all Members of Congress who are here, to my
knowledge, other than Senator Bingaman, who is here.
If you would hear Senator Bingaman's statement, then we'll
return to panel three. We were in the midst of testimony from Mr.
Hansen about 30 minutes ago when he was interrupted.
Senator Durenberger. Thank you, Mr. Chairman.
Jeff, I guess you are our next witness.
STATEMENT OF HON. JEFF BINGAMAN, U.S. SENATOR FROM THE
STATE OF NEW MEXICO
Mr. Bingaman. Mr. Chairman, in the tradition of this august
body, I will make my statement short and put my full statement in
the record.
The two points that I wanted to
Senator Durenberger. Jeff, if I could interrupt, do you have a
constituent here by the name of Judith Espinosa?
898
Senator Bingaman. Yes. There she is.
Senator Durenberger. Why don't we ask Judith come to the
table, as well.
Ms. EspiNOSA. Thank you.
Senator Durenberger. Thanks.
Senator Bingaman. Judith Espinosa is the Secretary of Environ-
ment in our State, and she is more knowledgeable than I on some
of the specifics of the wastewater treatment needs.
Let me make a very brief statement here and then defer to her
for any more in-depth comments she has.
There are two issues that I want to bring to the committee's at-
tention as it works on reauthorization of the Clean Water Act.
One of those issues is the problem of colonias, which are commu-
nities that are situated along the U.S.-Mexican border, or within
reasonable distance of the U.S.-Mexican border in rural residential
areas. They are usually unincorporated. They are generally with-
out paved roads. They are very small. Some of them are getting
larger, unfortunately, but they are in the range of 250 to 5,000
people per colonia in New Mexico.
They have sprung up along the U.S.-Mexican border on the U.S.
side of the border. Without adequate plumbing, without adequate
drinking water, comprised of extremely small lot sizes many with
mobile homes, they create a high rate of disease and severe health
and environment problems.
This last year the Congress recognized the problem and appropri-
ated about $60 million to EPA for wastewater treatment grants in
these areas, but it is clear that much more needs to be done.
We need to have clear legislative authority to deal with the prob-
lems of these colonias. These are a national problem, not a local or
a State problem. They present a national problem that arises by
virtue of our international border with Mexico.
So I hope very much that this committee will accept an amend-
ment that we have prepared which would authorize, as part of the
Clean Water Act, funding to go to these colonias for basic infra-
structure and to deal with some of the health and environment
problems.
The other issue I want to very briefly address is the problem we
have with small, disadvantaged communities — ^wastewater treat-
ment needs of small, disadvantaged communities — which are not
incorporated and which have inadequate wastewater systems.
These are communities such as the South Valley in Bernalillo
County. It is an area which is, unfortunately, too large to qualify
for a rural grant, as that authority is in the law, but too small to
shoulder the very high per-household cost of hookup to sewer serv-
ices at this point.
What we need there, again, is an amendment to the Clean Water
Act to permit Federal funds to help with construction through
some type of financing.
I think, as I said, the South Valley in Bernalillo County is a
prime example of this problem. We have about 12,000 citizens there
who do not have adequate wastewater treatment, which can result
in contaminating the drinking water in many cases. Some type of
Federal grant program to assist in that particular circumstance I
899
think is a very worthwhile thing to look at as part of the Clean
Water Act.
I will just stop at that point, and if you could take a few minutes
to hear from Judy, that would be great.
Senator Graham. Ms. Espinosa, it is a pleasure to welcome you.
STATEMENT OF JUDITH ESPINOSA, CABINET SECRETARY, NEW
MEXICO ENVIRONMENT DEPARTMENT
Ms. Espinosa. Thank you, Mr. Chairman. I very much appreciate
my being able to go with Senator Bingaman on these critical
issues.
I am Judith M. Espinosa, the Cabinet Secretary for the New
Mexico Environment Department. I would ask, Mr. Chairman, that
my written testimony be entered fully into the record, which I be-
lieve I have provided staff.
I want to echo what Senator Bingaman says. When we talk
about the international border with Mexico, we are not just talking
about a very local or regional problem. And I don't think I am
speaking out of turn when I tell you that colonias and the growth
and development that has occurred over the last two decades is an
increasing problem for all of the border States, and also the rest of
the country.
I think as we move into a North American Free Trade Agree-
ment consideration and we move into looking at environmental
concerns along the border, it is imperative that, as Senator Binga-
man sponsors Senate bill 1286, that we are able to fund much of
the development on wastewater treatment that we will need in
future years in the colonias.
I might also add, Mr. Chairman, that in looking at the Clean
Water Act, that we also look, as Senator Bingaman stated, at disad-
vantaged communities. Again, although we are specifically con-
cerned about New Mexico, this is a problem throughout the coun-
try.
There are many semi-rural entities around various urban areas
that lose out on the long run to any kind of funding mechanisms
now available to them. They are too poor to even pay back zero
percent loans that States are able to offer them, and yet they can't
get grant monies that are often scheduled for rural areas.
So we would very much appreciate it if the committee would look
at the whole situation of disadvantaged communities as Senator
Bingaman has defined in those semi-rural areas.
I might also say, Mr. Chairman, that last year New Mexico re-
ceived $10 million for colonias development. We have already
gotten that money out, so it is already going to work. We received
it. It was authorized in September, we received it in November.
The design work is out there. It is working in the communities.
The first phase is the engineering designs, and the second phase
will be the actual construction and implementation which we will
start later on this fall in New Mexico.
So the States can turn around the money very quickly, and so
when you give it to us it doesn't sit around and get wasted by any
of our State agencies.
900
Also, Mr. Chairman, I would say that to allow the administrator
to be able to issue grants for colonias wastewater treatment
shouldn't just come without some kind of responsibilities from the
States.
We are not here just asking for a handout, and we are not here
just asking for a handout so we can give to local communities for
wastewater treatment. We also feel that we must be responsible.
Let me give you a few examples of how New Mexico is responsi-
ble for the grant money it gives out.
Senator Durenberger. You'll have to do it quickly, if you can.
Thank you.
Ms. EspiNOSA. Yes.
We would require each grant award that — ^we look at alternative
and appropriate technology issues be evaluated, we look at things
like constructed wetlands. We also look at upgrading on-site sys-
tems and not just developing a whole new system if it is not suita-
ble or necessary. And, best of all, we are looking at comprehensive
regional plans that will discontinue the exploitation of underprivi-
leged people and lower socioeconomic people and get them
wastewater treatment as much as possible.
And so I think that with our money we will also be responsible
on the State end, and I urge you to support Senate bill 1286.
I thank you very much for your time.
Senator Durenberger. I thank you. You did a wonderful job in a
very short period of time. We appreciate your being here, and espe-
cially Jeff and the leadership he always provides us on this issue.
If I may, I'm going to ask Paul Hansen to come back. He has
about a minute left in his presentation. He has one point he wants
to make strongly, and then my colleague, Joe Lieberman, is going
to introduce the gentleman from Connecticut.
Mr. Hansen. Thank you. Senator Durenberger.
As I mentioned to the committee prior to our break, the Izaak
Walton League has been very active on Mississippi River issues
since 1924 when League-sponsored legislation established the
Upper Mississippi Wildlife and Fish Refuge.
I'm here today with one simple request, and that is that we add
to this legislation special designation for the Mississippi for water-
shed planning such as has already occurred for the Great Lakes
and the Chesapeake Bay.
We have heard some very eloquent statements today on how ef-
fective that special designation has been, and we desperately need
this in the Upper Mississippi region.
As you know, the floods of 1993 would have been devastating to
human development on the historic floodplain under any manage-
ment scheme, but it is clear that this has been made worse by the
drainage of wetlands, channelization of the river, and proliferation
of levees. This is the second 200-year flood that we have had in the
past 20 years, and hydrological analysis has shown that this flood
was two feet higher than a flood in 1844, even though the flow was
35 percent less.
This flood highlights the fact that the U.S. Army Corps of Engi-
neers manages the Mississippi in a manner that sacrifices the mul-
tiple purposes of river management, including flood control, envi-
901
ronmental management, and recreation, for the single purpose of
navigation.
The balanced use called for by Congress on numerous occasions
still has not been accomplished on the Mississippi.
For example, in March of this year the Corps has announced the
beginning of a $33.6 million feasibility study on $4.8 billion worth
of navigation capacity expansion measures.
We in the region find it to be a cruel irony that $33.6 million will
be spent on the evaluation of navigation expansion on single-pur-
pose use with little or nothing spent on overall watershed planning
for the beleaguered Mississippi region.
This is especially important in light of a recent report, "Trans-
portation and Iowa's Economic Future," performed by the Univer-
sity of Iowa's Public Policy Center, which concludes that it is sig-
nificant that even with a major subsidy the cost of shipping grain
from Iowa elevators to New Orleans is only marginally cheaper by
barge than by rail.
The study concluded, "In the case of large-scale capacity en-
hancement of locks and dams in the Mississippi, the large costs and
uncertsdn demands argue against advocating these investments at
the present."
So I am here today not to tell you that I have all the answers to
management questions raised by the floodwaters, but to tell you
that we need answers to these questions very desperately in our
region.
We request that you add a provision for watershed planning to
this legislation, a study that could provide information on how we
can best achieve objectives for flood control for the environment
and for navigation.
Thank you very much for this opportunity to testify. My full
statement has a number of more specific recommendations.
Senator Durenberger. Thank you, Paul.
Senator Graham. Mr. Hansen, I regret that the votes caused me
to miss both ends of your testimony.
Senator Lieberman?
Thank you, Mr. Chairman. The schedule obviously in the Senate
today is such that we are being peripatetic, and at the same time
regretful. I want to express both my regrets and admiration for
John Atkin from Connecticut who has been here testifying today.
I have read John's testimony, and I salute him for it and really
more generally for the extraordinary leadership that he has shown
in bringing together a unique precedent-setting coalition of envi-
ronmentalists, labor leaders, workers, construction industry people,
business generally, all recognizing shared interest in cleaning up
the sound and the specific case of infrastructure investments in up-
grading the sewage treatment facilities that must be upgraded if
we are going to clean the water. That requires money.
It also, as John has noted, not only will clean up the sound — or
will help to do so — ^but will generate jobs. A sewage treatment
plant investment generates as many, and in some ways more jobs
than building a highway or a bridge, which has been our tradition-
al vision of what infrastructure investment is about.
And it also has the same kind of spin-off in terms of quality of
life and improvement of economic condition generally — attractive-
902
ness of a State, attractiveness to business, job creation — that other
forms of infrastructure have.
Thank you, Mr. Chairman. I wanted to specifically thank John
for coming down. I apologize that I could not hear his testimony.
We look forward to working together with you.
Senator Graham. Thank you very much. Senator Lieberman.
Senator Durenberger, I want to thank you for continuing the
hearing. Do you have any questions?
Senator Durenberger. No. Thank you very much.
Senator Graham. Senator Chafee, questions?
Senator Chafee. No, thank you, Mr. Chairman.
Senator Graham. I want to thank this panel for an exceptionally
instructive set of statements.
As the first panel, you have impressed us again with the impor-
tance of maybe thinking globally but acting locally as an operating
premise.
Also, the leadership by example that your past experiences are
going to provide to other areas of the Nation will be extremely
helpful.
I just spent a few moments with Mr. Baker to ask some questions
about the Chesapeake Bay Foundation for purposes of some similar
possible organizations in my State, so I especially thank you for
giving us that model to follow.
I want to again express the committee's appreciation for your
being here today, and particularly for your patience in a somewhat
disjointed morning.
Thank you.
We are going to make a slight change in our schedule by merg-
ing panel six and a portion of panel eight so that we can have a
concentrated discussion on the situation in Boston Harbor.
Panel six is Senator John Kerry, who is with us; Senator Kenne-
dy, who also joins us; Mr. A. Paul Cellucci, the Lieutenant Gover-
nor of the Commonwealth of Massachusetts; Mr. Doug McDonald,
the Executive Director of the Massachusetts Water Resources Au-
thority.
Senator Kennedy?
STATEMENT OF HON. EDWARD KENNEDY, U.S. SENATOR FROM
THE COMMONWEALTH OF MASSACHUSETTS
Senator Kennedy. Thank you very much, Mr. Chairman, Sena-
tor Chafee, and the others.
First of all, I want to express our appreciation very much to the
members of the committee for the opportunity to make this presen-
tation and for your courtesies to myself, Senator Kerry, our Lieu-
tenant Governor Paul Cellucci, who is here and testifying, and
Doug MacDonald of the MWRA.
We will try — ^we understand the interruptions which have taken
place over the course of the morning, and that will continue, so we
don't need to take a great deal of time.
I want to thank you also for the opportunity to visit with you at
a more leisurely pace, and other members of the committee, in
going into very considerable detail on this issue, and we are grate-
ful to you for the preparation that you did and the knowledge and
903
the understanding that you have about this particular undertak-
ing.
The members of the committee may be interested in the history
about why Boston is in the situation that it is, and we are prepared
to provide the various information which I think would indicate
very clearly shared responsibility between governmental agencies
and State officials.
I personally believe, in reviewing it, that it lies more with the
agencies, but that really is very much in the past.
Second, the efforts to try to clean up Boston existed long before
1987 when many of the other cities across the country were moving
forward to take advantage of the then Federal resources that
amounted to 75 to 80 percent of the cleanup in a number of the
other communities. But after 1987, a number of the communities —
just two or three, actually — were really left behind when they were
trjdng to come to grips with the monumental challenges of clean-
up, and then to have the court requirements for cleanup.
The greatest example that we are speaking about directly today
is Boston, but we have a number of other communities that are fa-
miliar to the Members down in the Bedford/Fall River and other
communities in our State.
Nonetheless, what we are saying here, Mr. Chairman, is that the
Clean Water Act is basically a partnership between the local citi-
zenry, the State, and the Federal Government. What has happened
now is that there is really only one individual or one group of indi-
viduals involved, and that is the local ratepayers.
What has happened now, as you will hear, is that Boston rate-
payers have moved from 10 or 15 in terms of where they were
paying over three or four years ago to number 1, a 300 percent in-
crease in the last year or last two years, and that is going to in-
crease to more than $1,000 in the next three years. Some have esti-
mated it will go even double that in the next five to seven years,
and virtually prohibitive.
It is higher than local taxes, higher than Federal taxes, and it is
falling on almost half of the population in that State.
A great deal of focus and attention is on reconciliation, on health
care. People in those communities care about one thing, and that
has been the increase in their water rates, which is effectively
bankrupting them. It falls within a particular difficult period of
time because of the economic pressures on those communities.
These are, by and large, working class communities. By and
large senior citizens own those homes. The dramatic adverse
impact that is having in homes in not only the immediate Boston
area, but effectively almost half the total numbers of the State, has
been absolutely dramatic.
The cleanup of Boston Harbor, when it takes place, is unlike a
building or a bridge. The benefits will be for 100 years. There will
be individuals, companies, and corporations that will make millions
and even billions of dollars on that down the road. We know that.
We understand that.
But now the pressure is in terms of this particular group of
homeowners. We want to share partnership. We want to share
partnership between the ratepayers, between the States, and the
Federal Government.
904
We are asking you specifically for the short-term reauthorization
to the Clean Water Act. We are talking about the changes in the
Clean Water Act that we will outline in my own testimony that we
hope will be supported. And we are very hopeful, as well, that in
the Clean Water Act there is going to be attention given to other
communities that exist in our State to provide some relief to them
as they are moving under these court mandates.
And we are also going to ask you for continued coverage of the
national estuary statute so that communities that have been incor-
porated as in the cleanup of Narragansett Bay can be continued be-
cause very, very important work is being done there, and we also
want to make sure, under the national estuary program, that sec-
tion 320 will be included, as well.
Finally, Mr. Chairman, because I see the clock is on, just to give
you some idea of what is happening, we are mad and we won't take
it. Fed up. The panel votes not to pay the MWRA. The tax rebels
jump your water rates.
The fact of the matter is this is not going to work. It just isn't
going to work as it is constructed now. People haven't got the re-
sources to be able to do it.
As you will hear later, you've got major investments now that
have already been done. It isn't a chance of stopping and going
back. This is an absolute public policy and real kind of a crisis that
all of us are attempting to try to find ways of doing it.
You will hear recommendations and ideas and suggestions and
flexibility to try and permit the program, itself, to be altered and
changed, to take into consideration new technologies, changes in
the program to try and bring some reductions in terms of the total
cost. That will be testified to this morning.
But we believe this is a matter not just in terms of Boston and a
number of the communities, but it is a matter of enormous nation-
al importance.
I dare say that if we are unable to at least come to grips with
this kind of a situation, then the kind of commitment that this
country has made to try to do something about clean water in our
society is really going to be threatened and undermined. I think all
of us want to avoid that.
Mr. Chairman, I would like to file my full statement in the
record. Again, I am grateful to you for the opportunity to make
this presentation and for permitting our panel to make their com-
ments.
Thank you.
Senator Graham. Thank you very much. Senator. Your state-
ment, as well as all the statements of the participants today, will
be fully stated in the record of this hearing.
Senator Kerry?
STATEMENT OF HON. JOHN KERRY, U.S. SENATOR FROM THE
STATE OF NEBRASKA
Senator Kerry. Thank you very much.
There is not much that hasn't been said at this point, but let me
briefly emphasize a few key elements.
905
First, I want to thank the committee. This is not an easy task
that you have to undertake now, but I'll tell you it is a most impor-
tant task, and I think you understand that, but I just want to un-
derscore it.
The final remark of Senator Kennedy bears further comment as
we reflect upon the goals of the Clean Water Act and the road we
have travelled.
In the 1970's and in the 1980's, we had anywhere from 50 to 80
percent federal participation to assist communities in the effort to
upgrade major water treatment facilities and sewer projects in
America. For various resisons, none of which anybody can do any-
thing about today — court disagreement, siting dispute — the money
was not shared in during those 1970's and 1980's in Boston. More-
over, Boston never had a primary treatment plant.
So Boston is starting from scratch here. It has to build the pri-
mary and the secondary treatment facilities as well as the com-
bined sewer overflows and other water projects that go with it.
The very simple fact remains that this is not just a Boston prob-
lem. This is a problem in all of the United States where the part-
nership that once existed has broken down and disappeared. We
are not going to have the capacity to build a consensus in this
country for reauthorizing the clean water or safe drinking water
acts, or for most of the environmental cleanup efforts, unless that
partnership is reestablished.
Whereas most of the communities in this country got anywhere
from the 50 percent to 80 percent I talked about in federal support,
Boston, at the end of this project, at the current rate of participa-
tion, will receive just 8 percent. That's 8 percent partnership for a
Federal mandate, court-ordered completion schedule that is going
to require a ten-year span of citizens to make up for 100 years of
use and provide for the next 100 years of use.
It doesn't make sense.
But not only does it not make sense; it is not doable. As the
headlines indicate, you've got a daily fanfare of discussion on all of
our talk shows and in all our newspapers. You can't go out to any
meeting without meeting headlong a rightful — not a misplaced —
sense of anger. This is a rightful sense of anger. You've got people
who are concerned about having their water shut off. You've got
water being shut ofl" in some places because it is the only means of
enforcement.
So we have a major predicament. President Bush tried to address
this for years. We had $100 million a year, as the Senator from
Rhode Island knows and participated so much in helping secure
that funding. The Senator from Florida understands that. But now
we continue to struggle.
The Clinton Administration wants to follow through with its
$100 million pledge for the coming fiscal year, but the authoriza-
tion needs to be there. So there is the immediate problem of the
authorization for $100 million.
But even with the $100 million schedule, I want to reiterate we
come out at just 8 percent Federal participation, which is simply
not enough for a complete overhaul that takes you over $3.5 billion
for the treatment and another $2 billion-plus for the combined
906
sewer overflow and your other water projects that go along with it,
for a total of $5.7 billion or so.
So we really do need to get help. We in Massachusetts have
helped many citizens in other parts of the country with hundreds
of other projects over the years. If we are going to maintain sup-
port for major Federal projects and for the larger interests of the
Clean Water Act, it is going to be imperative to find a way to rees-
tablish that partnership now.
These 81 communities, which represent 2.5 million people of our
6-plus million population, are really seeing the fabric of our com-
munity torn apart.
What is happening is families that can't make it are saying, "We
can't live here," or "Maybe we ought to go somewhere else." That
rips at the whole structure of our community and at people's sense
of the future and their optimism. I know the Senators understand
that.
So we implore this committee to help us to find a way to reestab-
lish that partnership, and to do not just what needs to be done for
Boston, but what needs to be done nationally as other communities
face the same kind of problems all across this country.
Senator Graham. Thank you very much. Senators. We appreci-
ate both of your eloquent statements.
Lieutenant Governor Cellucci?
STATEMENT OF HON. A. PAUL CELLUCCI, LIEUTENANT
GOVERNOR, COMMONWEALTH OF MASSACHUSETTS
Mr. Cellucci. Thank you very much. Senator Graham, Senator
Chafee, Senator Durenberger, Senator Boxer.
I, too, appreciate the opportunity to testify before this committee
today, particularly on a panel that is so well represented with the
distinguished Senators from our State, Senator Kennedy and Sena-
tor Kerry.
On behalf of Governor Weld and the Commonwealth of Massa-
chusetts, I would first of all voice our strong support for the legisla-
tion, S. 1114, that we would like to see enacted in this session.
Since the passage of the Clean Water Act in 1972, the Nation has
seen a vast improvement in the quality of our water resource. But
the effectiveness of the act has been diminished as we discover the
true toll of environmental threats such as nonpoint pollution not
envisioned in the act, and witnessed the promise of pollution pre-
vention technologies only recently devised.
As we know only too well in Massachusetts, the cost of clean
water has become staggering for ratepayers and governments,
alike. Here, too, the funding provisions of the act no longer serve
their intended purpose.
The Baucus/Chafee bill is an excellent vehicle, we believe, for ad-
dressing these water quality problems and opportunities.
Most importantly for Massachusetts ratepayers, the bill will help
relieve some of the extreme financial pressures that are expected
to boost the average water and sewer rates, as has been mentioned,
in the Boston metropolitan area to over $1,000 per year per house-
hold by the year 2000.
907
I can't over-emphasize the hardship that this will impose on the
citizens of the metropolitan area, on families, on elderly. It will
force many citizens to lose their homes.
The proposed $2.5 billion authorization level for State revolving
fund capitalization is desperately needed.
And while we'd like to see the SRF pie even get larger, we see
greater equity in how the bill proposes to allocate the slices — that
is, according to a formula based on actual documented water
project needs rather than population — for example, additional as-
sistance for communities like Boston, where there are very high
capital costs associated with providing for secondary treatment.
We believe that provision should be phased in rapidly to deal
with the fact that, relative to other States, Massachusetts has
project needs that are disproportionately large.
We also recognize that the State has a significant role to play in
these financial pressures. In this regard, I'd like to inform you that
Governor Weld just signed into law a ratepayer relief appropria-
tion of $30 million in the fiscal year 1994 budget. We will also
ensure that the State SRF is adequate to capture all available Fed-
eral dollars on an ongoing basis.
In addition, our administration has initiated a rigorous audit to
review the Boston Harbor project to identify possible areas of cost
savings.
But the main point that I would like to make today is that, while
the State can do many things to help soften the blow to ratepayers,
the magnitude of the cost associated with required water treatment
projects far exceeds the capacity of the State government or the
ratepayers to bear them. Substantial Federal relief is necessary,
both in terms of funding and in terms of increased flexibility.
Beyond the SRF, President Clinton has requested $100 million
for the Boston Harbor cleanup. Senator Kennedy and Senator
Kerry have filed a bill that would allocate $200 million a year for
the next five years for the Boston Harbor cleanup.
That magnitude of relief is desperately needed if we are to pro-
vide assistance not only to our ratepayers, but continue to improve
the economy of Massachusetts.
We recognize that in the Baucus/Chafee bill there is flexibility
in using SRF monies where they can be put to best use in protect-
ing water resources. This means that, in addition to the traditional
water treatment works projects under the provisions of the bill, we
would be able to obtain infrastructure funding for combined sewer
overflows, stormwater control, nonpoint pollution control pro-
grams, and other effective measures.
We think that's the way to go.
I have submitted written testimony that has other details.
The other point I would make — and I'm sure Doug MacDonald
will make it — is this project is well underway. All you have to do is
go out and visit Deer Island, as I have recently, and the primary
treatment facility is well underway. This is a project that we are
committed to. We are committed to cleaning up that harbor, but
we need a little help and we hope that the Congress can provide it.
Thank you very much.
Senator Graham. Thank you very much, Mr. Lieutenant Gover-
nor.
908
Before we turn to Mr. Doug MacDonald, a schedule point.
We have now completed all of the panels but for two persons
who were on panel eight, Mr. Tom Behr, the Deputy Mayor of San
Diego, and Ms. Judith Espinosa, New Mexico Environmental De-
partment Cabinet Secretary.
When we complete this panel, we will hear from those two re-
maining witnesses.
Senator Boxer is here. She has a statement relative to the situa-
tion in San Diego. To our two colleagues, I know the pressures of
your schedule. We appreciate your staying with us. Whenever you
need to go to your next responsibilities, you are welcome to do so.
Senator Chafee. Mr. Chairman, I would just like to express our
appreciation to Senator Kennedy and Senator Kerry for coming
and outlining this situation.
My own view is that there is no point in replaying what took
place in the past. Let's look and see where we are now and see if
we can do something about it, and so I thought their testimony was
very effective, and that of Lieutenant Governor Cellucci.
Senator Graham. I share those remarks. I also correct myself.
Ms. Judith Espinosa in fact made her statement while I was at the
vote, so we have one remaining witness, Deputy Mayor Behr, who
we will hear from at the conclusion of this panel.
Mr. MacDonald?
STATEMENT OF DOUG MacDONALD, EXECUTIVE DIRECTOR,
MASSACHUSETTS WATER RESOURCES AUTHORITY
Mr. MacDonald. I thank you, Mr. Chairman.
Senator Chafee. Mr. Chairman, if I might interrupt, I have read
Mr. MacDonald's testimony, and appreciate and will review also
what he says. Unfortunately, I have to go now.
I want to thank particularly Lieutenant Governor Cellucci. He
has been a very effective Lieutenant Governor of his State. We are
neighboring States, so we hear about his activities up there. He is
doing a splendid job, along with Governor Weld.
Mr. MacDonald, I look forward to reading any other comments
that you might have and regret that I have to leave.
Mr. MacDonald. Thank you. Senator.
Senator Graham. Mr. MacDonald?
Mr. MacDonald. Mr. Chairman and Senators, as the Director of
the agency that is charged with this project, I would just like to
make a couple of comments to expand on my written statement
that I have submitted and to reinforce several of the points that
have been made here.
From the standpoint of having the opportunity to talk to this
committee, which has had a long interest in this project, I think
the most important thing we have to say is: Boston got the mes-
sage.
It got the message that the recalcitrance, the history to which
the Senator has just referred to, is over. And today on Deer Island
we will spend about $3 million in construction on this project. It
will be another $3 million tomorrow. In the course of this fiscal
year, $500 million will be spent, embodying the commitment of our
agency to comply with the Clean Water Act.
909
The rate shock problem which you have heard from bipartisan
testimony before you today is very, very real, and it has the capa-
bility of crippling our compliance program.
Many excellent things have happened. Through the assistance of
Senators Kennedy and Kerry we have the proposed appropriation.
We have the State contributing to this effort, which the Lieutenant
Governor has spoken of and which we are very pleased. S. 1114
also shows great leadership and responsive ties to people like our-
selves who are in the environmental business.
I would like to suggest just three or four things that would help
us deal with our specific situation that has been described in my
testimony.
First, we really do need help with the authorization that must be
obtained before the end of March in order to release the appropria-
tion that was included in the Clinton Budget. We would be very
grateful for your committee's assistance in insuring that authoriza-
tion language is included in this bill.
Second, we believe that S. 1114 should include a special program
of grant assistance to communities with very high capital costs and
skyrocketing rates that is the result of compliance efforts to meet
secondary treatment requirements under the Clean Water Act. We
would welcome the addition of that kind of element to your bill.
Third, we need a higher level of funding for our project and
others similarly situated. This is never going to be a Boston-only
problem, and I think we see this increasingly across the country.
We would be very grateful for your assistance in following the lead
of Senators Kennedy and Kerry in Senate 350, in which they have
suggested a total appropriation for our program on the level of
$200 million annually over the next five years.
If that were done, it would bring the total level of Federal par-
ticipation in our Clean Water Act compliance program for Boston
to about 32 percent — hardly large by the scale of what other cities
and areas around the country have received.
Fourth, we hope that the needs formula that is developed in the
bill can look to the present and the future, look to economic situa-
tion and rates, as well as simply the scale of needs, and can be cost-
effective in the way it delivers Federal assistance to communities
like ours which need your help.
From our standpoint, there is nothing that I, as the director of
the agency, and we in Boston want to do more than finish the com-
pliance efforts that we have begun. I hope that you can appreciate
the challenges we face and our pledged that we have had an oppor-
tunity to tell you about our project and persuade you of the vigor
with which we are moving forward. But we really have to say to
you, "Please don't abandon us now."
Our community is making a significant fiscal investment to
make this happen. Even with the levels of effort that we have
talked about today, we would still be funding 65 percent of the
project. But for us to continue and not to see the project shipwreck
on these rate issues which have now become so problematic in our
communities, we would very much like to ask for your assistance
in any way you can along some of the lines that we have suggested
or others.
910
I might also say that inasmuch as we are, like so many other
people who speak to you, people who are in the wEistewater busi-
ness generally, if there is any other topic or issue apart from our
specific situation where we can be of help to you and your staff, we
would very much like to be called upon and render you any assist-
ance we can from how we see the issues at the local viewpoint.
Thank you.
Senator Graham. Thank you, Mr. MacDonald. I appreciate your
testimony today, as well as the Lieutenant Governor and our two
colleagues. I appreciate the long-term commitment that each of you
has made, and what is being asked of the citizens of Boston now to
meet this challenge.
We will be very mindful, and I hope a very contributing partner
in that coalition which you have all spoken of as being necessary to
solve this local issue but with very great national implications.
Mr. MacDonald. Thank you very much.
Mr. Cellucci. Thank you. Senator.
Senator Graham. Thank you.
Mr. Tom Behr, Deputy Mayor of the City of San Diego.
Mayor, we have been joined by a very distinguished member of
this committee who has made a great impact in her first months of
service in the United States Senate, particularly on environmental
issues. Senator Boxer I understand has an opening statement.
Senator Boxer?
OPENING STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR
FROM THE STATE OF CALIFORNIA
Senator Boxer. I do. Thank you so much, Mr. Chairman.
It is within the five-minute rule.
I want to welcome Deputy Mayor Behr to Washington. I want to
thank you, Mr. Chairman, for allowing me to address and for him
to address the subcommittee on a subject that is very important to
San Diego, which is the second-largest city in California and the
sixth-largest city in America.
I think it is an issue that we can work on that will be fairly easy
to solve. I really do believe this. We are not asking for funding.
This is kind of a different issue.
So if you will allow me, let me give you a brief overview.
I wanted to state to the Deputy Mayor and to you that I am at
this point 30 minutes late for a health care meeting, so if I leave
you with the Deputy Mayor, will you take good care of him? And
then I'll run off because the First Lady is there and I feel like I
should be there.
Senator Graham. We will give to the Deputy Mayor the same
level of hospitality and good treatment that we have given to ev-
eryone else.
Senator Boxer. That sounds like a very good promise.
Mr. Chairman, it is reauthorization of the Clean Water Act, Con-
gress will determine whether San Diego will be required to spend
over $1 billion to meet a standard that the experts say offers no
measurable environmental benefit. Let me repeat that.
At this point, San Diego is being asked to spend $1 billion under
the Clean Water Act. If we don't change it and make it more flexi-
911
ble, they will spend $1 billion, and the experts say it won't make
any difference to the water quality. This is a very important point.
To give you a little bit of background, because I know Deputy
Mayor will give you a lot of background, San Diego is in a unique
position both geographically and environmentally. Situated a few
miles from Tijuana, Mexico, the city has been put in the difficult
situation of having to treat waste coming from both sides of the
border.
While we now have a Federal program in place to pay for the
construction of a sewage treatment plant in Tijuana, for years San
Diego has borne a tremendous financial burden as a result of its
location near the border.
San Diego is also located along the Pacific Coast, as you know, at
a point where the outer continental shelf is very narrow and the
ocean gets very deep within a very short distance from the shore.
The ocean water is cold all year and, of course, it gets colder the
deeper you go. I make these points because it impacts on its treat-
ment of the water.
The city is currently treating its wastewater to an advanced pri-
mary level before releasing that wastewater into a 2.5 mile long
ocean outfall, which is currently being extended two additional
miles to a depth of 320 feet. So they are extending this outfall.
But under the current Clean Water Act, San Diego is required to
treat its wastewater to a secondary level, not an advanced primary
but to a secondary level.
I have been advised by scientists from the University of Califor-
nia's Scripps Institute of Oceanography that 25 years of data show
that there is no environmentsd damage to the marine environment
from the existing outfall. Let me repeat, no environmental damage
to the marine environment from the existing outfall. That's the
University of California's Scripps Institute of Oceanography
making that point.
Apparently, the great depth and cold temperature of the water
create a situation found in few other places in the country. The ex-
tended outfall will provide even greater environmental protection.
But if we don't change the Clean Water Act and make it more
flexible, it is going to cost San Diego $1 billion — more than $1 bil-
lion— to bring its waste treatment from advanced primary to sec-
ondary.
Now, in closing — £ind I'll put the rest of my statement in the
record. I don't think I need to talk on and on — the bottom line here
is that I think that if you looked at environmental records of
people in the House and in the Senate, I was listed as number one
in the House, and I'm hoping to match that in the Senate.
But, to me, to make a city that is so strapped, as all our cities
are, spend money — $1 billion, plus — and get no environmental ben-
efit is an outrage.
I know, Mr. Chairman, you are a pragmatist and an environmen-
talist, as I am, and I hope we can work together on this because we
don't want to hurt our cities unnecessarily. Believe me, if I be-
lieved that this would make everything better and safer and more
environmentally sound, I would be here leading the charge fighting
to get money for San Diego to help them do it.
912
But experts tell us that we are doing just fine with the plan that
they have in place, and I hope that we have it within our power — I
know we do. I hope we have the wisdom to move to allow them to
continue their plan without having to spend this additional money.
Thank you very much for this chance to talk at you, and I will
work with you £is this process goes forward. You are doing an excel-
lent job. We appreciate your caring about the cities of our great
country.
Senator Graham. Thank you very much. Senator. I appreciate
your statement and the clarity with which you have outlined the
issue facing the city of San Diego. We look forward to hearing from
the deputy mayor.
Now that you have attended to the financial health of the city of
San Diego, will you take equally good care of our physical health
with the First Lady?
Senator Boxer. I will try.
STATEMENT OF TOM BEHR, DEPUTY MAYOR, CITY OF SAN DIEGO
Mr. Behr. Mr. Chairman, I know I will be in good hands today,
just as the city of San Diego is in good hands with Senator Boxer's
support on this specific issue. I, too, would not be here if I felt we
were harming the environment.
Thank you very much for inviting me to testify.
I would say, notwithstanding that I am a transplanted easterner,
having canoed for days on end on the Susquehanna to go back to
my home town of Binghamton, New York, and having played and
fished in the Chesapeake Bay when I worked here in Washington a
lot of years ago, notwithstanding that, I do want to thank you for
saving the best for last. That's not me, but that's the State of Cali-
fornia and specifically California's crown jewel, the city of San
Diego. I hope that you come out and visit us some time.
There are two requests that I make to your committee.
The first is that the Clean Water Act bill be written to allow the
city to continue to use advanced primary treatment where there is
a deep ocean outfall which provides the equivalent environmental
protection of secondary treatment.
The second is that wastewater reclamation be in capital improve-
ment or distribution systems, be eligible for funding under title six
of the act.
We look at the San Diego region as a broad ecosystem where we
face a variety of water quality threats from nonpoint source runoff,
as the Senator said, from Mexican sewage flowing across our
border, and from a need to enhance our long-range drinking water
supply.
It is very important to our residents that the act allow the city to
utilize its scarce funds to protect the environment by continuing
the use of our Point Loma advanced primary treatment facility in
conjunction with its deep ocean outfall, and an ambitious
wastewater reclamation program.
Unfortunately, the existing act does not allow for the city to
make the best use of resources. The act ignores sound science, it
ignores regional differences, and it ignores new technology for
treating sewage.
913
The existing law will cost San Diego ratepayers an additional bil-
lion dollars, not even including the financing charges to accomplish
full secondary.
However, with a deep ocean outfall there is no demonstrable dif-
ference in environmental impact between secondary treatment ef-
fluent and San Diego's present advanced primary treatment efflu-
ent.
We have an ocean floor that slopes steeply, accessing cold, deep
marine waters within a few miles offshore — an open coast, swift
currents, and dynamic mixing. We also have in place the technolo-
gy needed to ensure environmental protection.
Our state-of-the-art advanced primary treatment plant at Point
Loma discharges in 220 feet of water over 2 miles off shore. Our
new outfall extension now under construction will discharge even
farther off-shore — as the Senator pointed out, 4.5 miles into 320
feet of water.
This extension will make the outfall the longest and deepest re-
inforced concrete structure in the world.
San Diego has monitored the effects of the existing advanced pri-
mary discharge on the marine environment for over 25 years and
has found that there is no significant impact, and that's corroborat-
ed by Scripps Oceanographic scientists.
In the EPA's 1991 Federal lawsuit against San Diego, the court
considered a significant amount of evidence submitted by the coun-
try's best scientists — ours and yours — and found that there is no
adverse impact. That is a validated judicial finding.
Additionally, the National Academy of Science's April report
confirms what San Diego has been saying for years — advanced pri-
mary treatment is appropriate for San Diego's deep ocean environ-
ment.
The report provides a scientific foundation for you and for Con-
gress to protect the coastal marine environment by amending the
Clean Water Act to reflect regional science and geography.
In regard to water reclamation, San Diego has caught its potable
water demand through an extensive conservation program. A 20
percent reduction has been achieved.
And I have to note that in discussions about the arid States and
12.5 or 15 inches of rain, San Diego has an average rainfall of 9.5
inches, which is why we import more than 90 percent of our pota-
ble water needs.
We now look to water reclamation as the next major step and
think that it should be considered in the amended act. Reclamation
is a tool for wastewater management because it is folly to dump
treated effluent in the ocean when it can offset demand for potable
water.
We have a long-term strategy for wastewater treatment and
reuse and environment protection, and it is called the consumers'
alternative. That is underway, and that's a committed cost of $1.8
billion without the cost of financing added. That does not include a
$1 billion upgrade to secondary at Point Loma.
The major element of our program is a new 30 — expandable to
55 — NGD wastewater reclamation plant at a cost of $166 million.
That plant is under construction today.
914
I mentioned earlier my concern over significant cost if amend-
ments do not include consideration of our unique circumstances. It
is even more of a burden when you realize that because San Diego
meets the State ocean plan we have a low priority for SRF loans.
In addition, from 1970 to 1986 we have received just $95 per
capita grant funding, only 25 percent of the Statewide average.
From 1987 to today we have received just $30 million. Consequent-
ly, 99 percent of the costs that I have described will be paid for by
local ratepayers. That can't be what Congress intended when it
passed the Clean Water Act in 1972.
In conclusion, Mr. Chairman, San Diego has a strong wastewater
management program that includes treatment, construction, con-
servation, and reclamation at a cost of $1.8 billion. It is critical
that your clean water legislation provide San Diego with a frame-
work to protect our precious coastal waters without spending an
additional billion dollars plus on treatment facility upgrade that
provides no discernable additional benefit to the environment — a
point that I think Senator Boxer has made several times for you.
Thank you for the opportunity to be here today.
Senator Graham. Thank you very much, Mr. Mayor.
Let me ask a couple of questions.
Coming from a State which has also faced the issue of the level
of treatment required to discharge effluent, but recognizing that
our situation in relatively shallower waters and warmer waters
may be different, is your situation one in which the Environmental
Protection Agency is requiring you to install secondary treatment
and you feel that either EPA does not have sufficient flexibility to
take into account your special circumstances or, having that capa-
bility, EPA has chosen not to do to?
Mr. Behr. In my dealings — and they have been extensive — with
the EPA, I do feel that they have shown a great deal of interest in
understanding, but I think it is more the former that you were
pointing out — the lack of flexibility.
The may certainly not want to admit it, although it has been
said in various means and testimony that we have not been harm-
ing the environment. We are still under litigation with EPA,
almost to the point I would consider it harassment. But the fact
that we have the equivalent of the environmental protection of sec-
ondary has been our position all along, as justified or not, but the
things I have mentioned to you. That, under the present act, is
hard for the EPA to accept at this point.
Senator Graham. What is the current state of your litigation
with EPA?
Mr. Behr. We have a consent decree that we had entered into
with the EPA in January of 1990 that the judge has not entered.
That consent decree is looked upon as a living document by the
judge and by us. It has provisions for changes to it. And it is not in
a stay pattern by the judge as we go through further testing at
Point Loma to see whether additional solids can be removed. It also
provides within the consent decree legislative relief which would
then change the terms of the consent decree and the impositions
placed on San Diego.
Senator Graham. You mentioned your interest in recycling — an
interest that I applaud. Will you be able to do recycling with ad-
915
vanced primary treatment, or will that require additional levels of
treatment?
Mr. Behr. No. The reuse/recycling that I was referring to was
reclaimed water through the tertiary level. In California we still
have the situation of State requirements not making such water to-
tally available, say like the Lower Occoquan Reservoir, which has
additional levels of tertiary treatment. We are contemplating yet
still we would require tertiary treatment and then be able to use it
for agriculture, for injection in aquifers, and/or for irrigation pur-
poses throughout the city.
But that comes with a rather large, rather substantial price tag.
That is what I was also addressing in my remarks to you.
Clearly for us one of the long-term benefits if we can all invest in
reclaimed waters through the tertiary level and use it hopefully at
some point for all purposes — certainly at least now for those pur-
poses other than for drinking water. That's not only San Diego, but
would be any arid area of the country.
Senator Graham. Mr. Mayor, I appreciate very much your
coming this long distance to share with us the special circum-
stances of San Diego. I would agree with my colleague that yours is
one of the beautiful cities of America. I appreciate your invitation
to visit, which I have been able to do on a number of occasions in
the past and look forward to doing so in the future.
Mr. Behr. Thank you for your consideration. I just hope that you
do and the other members of the committee, and Congress under-
steinds the unique situation of deep-ocean dischargers like the city
of San Diego. We welcome you there and hope that you bring in
hand the appropriate amendments to the Clean Water Act that
will make us all very happy.
Senator Graham. The first time I went was to visit the zoo. The
next time was to visit the wastewater treatment plant.
Mr. Behr. I would also ask — I'll submit this to staff. I have my
formal comments for the record in addition. I don't believe they
were attached. I talked to Bill. The Union Tribune, our local paper,
has a very concise editorial on the Clean Water Act £ind its impact
on San Diego, and I'd appreciate being able to get that
Senator Graham. All of the materials that you would like to
submit will be included in the record. There also were previous wit-
nesses who had materials, including Congressman Laughlin, who
was unable to appear. Those statements will also be part of the
record.
Senator Graham. If there is no further testimony, the meeting is
adjourned.
[Whereupon, at 1:14 p.m., the subcommittee adjourned, to recon-
vene at the call of the Chair.]
[Statements submitted for the record follow:]
TESTIMONY OF DAWN M. MARTIN, AMERICAN OCEANS CAMPAIGN,
WASHINGTON, DC
INTRODUCTION
Good morning, my name is Dawn Martin and I am the Director of the Washing-
ton Office for the American Oceans Campaign (AOC) and the Coordinator for the
National Coastal Caucus (NCC). AOC is dedicated to conserving and enhancing our
916
nation's oceans and coastal resources. ' The NCC is a coalition of regional environ-
mental organizations working collectively to fight pollution in our oceans, estuaries,
bays, beaches, and wetlands. ^ On their behalf, I wish to express my thanks to
Chairman Graham (D-FL) for inviting us to testify and for all the work he and the
Committee staff have done in scheduling this very comprehensive series of clean
water hearings. In addition, I applaud Chairman Baucus (D-MT) and Senator
Chafee (R-RI) for introducing S. 1114, which has served as the vehicle for discussion
in these hearings. Attached to my testimony are two letters of support from the
NCC on legislation that I will discuss in my testimony. I request that the Committee
include these letters in support of S. 815, the Water Pollution Control Estuary Res-
toration Act, and the S. 997, the Beaches Environmental Assessment, Closure and
Health Act as part of the record for this hearing.
Since the original Federal Water Pollution Control Act (Clean Water Act) was
signed into law its provisions have been revised on numerous occasions. With each
reauthorization. Congress has strengthened efforts to protect our coasts from pollu-
tion. Once Eigain you are faced with this daunting task, and we believe that the time
is right to implement even greater protections. The critical state of our Nationals
aquatic ecosystems and our global environment demand the immediate attention
and help of the 103rd Congress.
Citizens of this Nation are becoming increasingly aware of our earth and its abun-
dant, yet limited, resources. According to a recent Gallup poll, approximately two-
thirds of the U.S. public are "greatly concerned" (the highest rating) about the con-
tamination of drinking water, and pollution of lakes, rivers, and beaches. ^ Even in
light of the extreme financial restrictions currently facing our state and federal
treasuries, the public has consistently called for increased environmental protec-
tions, while acknowledging the high cost of some of these programs. Similarly, the
Wirthlin Group conducted a poll last July and discovered that 80 percent of Ameri-
cans think "protecting the environment is so important that requirements and
standards cannot be too high, and continuing environmental improvements must be
made, regardless of cost." * And finally, the election of President Clinton, Vice-Presi-
dent Gore and the overwhelming victories at all levels of government of those who
ran their campaigns on an environmental platform, indicate the high level of con-
cern people of this nation have for protecting the en\dronment.
Clearly, citiz:>ns of this country understand the potentially disastrous short and
long-term environmental, social, and economic costs of delaying environmental pro-
tections. Realizing it is more costly to tackle environmental problems with a Band-
Aid approach, the public desires and deserves a comprehensive and strategic plan-
ning process that protects its natural resources and is aimed at cleaning up and pre-
venting pollution from occurring in the first place. This theme will guide me in my
remarks today.
The primary focus of my testimony will be on the National Estuary Program and
the strengthening language proposed by Senator Lieberman (D-CT) in S. 815, and I
will be speaking in support of the beach protection legislation as offered by Senator
Lautenberg (D-NJ) in S. 997.
PROTECTING AQUATIC ECOSYSTEMS THROUGH A WATERSHED APPROACH
A fundamental goal of the Clean Water Act is to maintain and restore the physi-
cal, chemical, and biological integrity of the nation's waters. During the past twenty
years, however, the Environmental Protection Agency (EPA) has dedicated much of
' AOC is a non-partisan, non-profit org£inization founded in 1987 and dedicated to the restora-
tion and preservation of the world's oceans. Our efTorts are rooted in the premise that the
eeirth's environment is dependent upon healthy oceans. Our mission is to work to protect the
vitality of coastal waters, estuaries, bays, wetlands, and deep oceans. We accomplish this goal by
educating the public and decision makers on the need to protect our meirine resources. We focus
on strengthening public policy to protect our marine resources, and we believe that strong grass-
roots input and sound /scientific information are the key ingredients to making effective public
policy.
2 Earlier this year, the AOC convened a gathering of geographically diverse, regional environ-
mental organizations with solid reputations for being highly effective. As a result of that meet-
ing the Nationtd Coastal Caucus was formed. The purpose of the NCC is to build a strong and
united voice of coastal experts, committed to the enactment of strong national coastal pollution
l^islation. Our first effort is focused on the need to strengthen the Ocesui Water Act. The posi-
tions taken by the NCC are based on the experience and expertise of these groups who have
implemented and enforced the Sea Water Act at the local level.
3 Americans Report High Levels of Environmental Concern, Activity Graham Hueber, The
Gallup Poll News Service (April, 1990).
■» Environmental Concern Still High after Rio Summit, Christine Keilpinski, The Wirthlin
Group and Susan Wysoki, Hill and Knowlton; the Wirthlin Report (July 1992).
917
its resources to the development of criteria addressing the chemical integrity of the
nation's waters, primarily because wastewater maneigement was treated as a public
health concern. As a resiilt, little attention has been peiid to the physical and biolog-
ical impairment of these waters.
EPA's focus on reduction of chemical inputs and concentrations in the nation's
waters has resulted in considerable progress toward controlling and reducing specif-
ic types of chemical discharges. However, it is time for the CWA to explicitly ad-
dress the restoration and protection of aquatic ecosystems, recognizing that the bio-
logical integrity of the nation's waters st£m,ds on equal footing with human health
risk assessments. It is critical that water quality standards use biological criteria to
protect waterndependent wildlife and ecosystem health.
"Aquatic ecosystems worldwide are being severely altered or destroyed at a rate
greater than that at any other time in human history. . . ." ^ Protection of the
functions of aquatic ecosystems such as pollution control, fisheries and wildlife sup-
port, floodwater storage and grovmdwater recharge have been largely ignored. His-
torically, resource management has been fragmentary in its approach and has fo-
cused on artificial boundaries (such as local, state, or country borders) when dealing
with protection of our natural resources. This type of strategy focuses on specific
programmatic issues with little consideration of the effectiveness of such actions on
maintaining or improving the condition of the ecosjrstem as a whole. Often times,
priority issues are defined by the availability of progrsuns rather than by the specif-
ic need of the watershed in its entirety. We are pleased to see that this Committee
has acknowledged the clear hydrological, ecological and economic basis for focusing
on broader aquatic ecosjrstems management approaches, through its watershed
planning provisions in Title III of S. 1114.
Watershed planning, however, is not a completely novel concept. Attempts have
been made at the local, state, regional and federal level to do successful watershed
planning for many years. Obviously, some of these efforts have been more effective
than others. Created by Section 320 of the 1987 Clean Water Act, the National Estu-
ary Program is an excellent exeunple of a workable model for comprehensive aquat-
ic ecosystem and watershed management. The early NEP incorporated the lessons
learned in the Great Lakes and Chesapeake Bay Programs. Since then, the experi-
ences gained by the first estuaries designated into the program — Puget Sound, Buz-
zards Bay and Narragansett Bay — have provided valuable lessons and serve as a
model for the other Management Conferences as they develop and implement their
CCMP's. As new information and technology are developed, the NEP will continue
to evolve.
NATIONAL ESTUARY PROGRAM
Estuaries form transition zones between freshwater and marine ecosystems and,
as a result are among the most productive natural systems. In these unique bodies
of water, fresh water drains from the land and mixes with salt water from the sea.
ITiis valuable estuarine habitat is ^i)ecially crucial to the early development of
marine fisheries, shellfish, and birds. As a result, maintaining the health and viabil-
ity of estuaries is critical to the biological life cycles both of marine organisms and
wildlife.
Society also places a high value on estuarine areas as places for living, working,
and recreating. However, the natural beauty and bounty of these ecosystems is
partly the cause of their decline. People are drawn to their shores because of their
unique qualities, yet, with people comes coastal development — housing, roads, busi-
ness, industry, and cars — ^which threatens the existence of these valuable ecosys-
tems. Today, estuaries are among the most densely populated areas — almost half of
the entire U.S. population (about 110 million people) reside in coastal areas. ® As a
result, they are one of the nations' most highly stressed natural systems.
In spite of their high value, intense use and frequent ovenise, estuaries only re-
cently have been recognized as a unique and severely depleted resource requiring
special attention. C!ongress determined that the problems confronting these estu-
aries were too complex to be adequately addressed by the traditional water pollution
^ Restoration of Aquatic Ecosystems, National Research Council (U.S.). Committee on Restora-
tion of Aquatic Ecosystems— Science, Technology, and Public Policy; Water Science and Technol-
ogy Board; Commission on Geosciences, Environment, and Resources. (November 1991). National
Academy Press, Washington, D.C. 1992.
* 50 Years of Population Change Along the Nation's Coasts: Coastal Trends Series, Report No.
2. TJ. Colliton, MA. Warren, T.R. Goodspeed, D.G. Reemer, CM. Blackwell, and J.J. McDonough
in. National Oceanic and Atmospheric Administration, Strategic Assessment Branch.
918
control programs. In response, they authorized the National Estuary Program
(NEP) under Section 320 of the Water Quality Act of 1987.
The NEP is designed to identity estuaries of "national significance" and to estab-
lish a process for improving and protecting their water quality, habitat and living
resources. To determine how to achieve these goals EPA is required to convene a
Management Conference that has the responsibility for developing a Comprehensive
Conservation and Management Plan (CCMP) within a five year time-frame. Partici-
pants in the Management Conference include representatives of the relevant feder-
al, state and local government agencies and elected officials, industries, businesses,
academic institutions, interest groups and citizens.
The CCMP is intended to address all uses affecting the restoration and mainte-
nance of the chemical, physical, and biological integrity of each estuary. It includes
many complex issues, such as habitat protection, polluted runoff controls, resource
management and land-use planning, and will probably take decades to meet its
challenge. However, the NEP has already taken important steps forward and is on
the way toward meeting its goals. However, as it is currently structured, the NEP
can only be expected to reach a limited level of success. The biggest obstacle to the
success of the program lies in the fact that implementation of the plans is stymied
by an inadequate federal financial commitment to the program.
The NEP has four tiers. Tier I was convened in 1985, 1986, and 1987 and includes
the following six estuaries: Puget Sound, Buzzards Bay, Narragansett Bay, Long
Island Sound, Albemarle-Pamlico Sounds, and the San Francisco Estuary. Tier II
was convened in 1988 and includes New York-New Jersey Harbor Estuary, Dela-
ware Inland Bays, Santa Monica Bay, Sarasota Bay, Galveston Bay, and Delaware
Estuary. Tier III was convened in 1990 and includes Casco Bay, Massachusetts Bays,
Indian river Lagoon, Tampa Bay, £ind Barataria-Terrebonne Estuarine Complex. In
1992, four estuaries were designated but will not be convened until their respective
Conference agreements are signed. These estuaries, comprising Tier IV, include
Corpus Christi Bay, Peconic Bay, San Juan Bay and Tillamook Bay.
Of these twenty-one estuaries, the Puget Sound Estuary Program, which was con-
vened in 1985, was the first to have its Comprehensive Conservation and Manage-
ment Plan approved by EPA. Last year, CCMPs from Buzzards Bay and Narragan-
sett Bay were approved. Long Island Sound has submitted its draft final CCMP for
public review and its final CCMP is expected in January, 1994.
PROBLEMS AND PROPOSED SOLUTIONS WITH THE NEP
For the past several years, AOC through the National Coastal Caucus (which is
comprised of representatives of citizens organizations involved in their local estuary
program), has been gathering comments on the strengths and weaknesses of the
NEP. As a result of the combined efforts of each of these groups, we developed a list
of priority problems and potential solutions necessary to strengthen the NEP. These
suggestions essentially became the basis of Senator Lieberman's Water Pollution
Control and Estuary Restoration Act, S. 815.
The organization's involved in the NCC have worked on developing and imple-
menting the CCMPs from the following estuaries: Albemarle/Pamlico Sounds,
North Carolina; Barataria-Terrebonne Estuarine Complex, Louisiana; Buzzards Bay,
Massachusetts; Casco Bay, Maine; Chesapeake Bay, Maryland, Pennsylvania, and
Virginia; Columbia River, Oregon; Delaware Estuary, Delaware, New Jersey, and
Pennsylvania; Delaware Inland Bays, Delaware; Galveston Bay, Texas; Gulf of
Mexico Program, Texas, Louisiana, Mississippi, Alabama, and Florida; Indian River
Lagoon, Florida; Long Island Sound, Connecticut and New York; Massachusetts
Bays, Massachusetts; Narragansett Bay, Rhode Island; New York-New Jersey
Harbor Estuary, New York and New Jersey; Puget Sound, Washington State; San
Francisco Estuary, California; Sarasota Bay, Florida; Santa Monica Bay, California;
Tampa Bay, Florida.
Last July, these activists, representing millions of constituents in nineteen differ-
ent states, met in Seattle, Washington near Puget Sound, to coordinate a national
strategy to strengthen the National Estuary Program. In order to help in this effort
and to build the necessary political will to encourage such changes, the participants
of the estuary meeting reviewed and agreed to actively support the provisions of
Senator Lieberman's (D-CT) bill, S. 815. These local and regional environmental ac-
tivists from around the country said that if S. 815 was passed into law it would do
much to preserve and restore our nation's estuanes, as well as to significantly im-
prove the current program.
One of the points highlighted by the activists was that S. 815 recognizes that estu-
aries are a vital resource to which many regional economies are closely tied. The
legislation acknowledges that investing in healthy estuaries is, in fact, investing in
919
jobs and a healthy economy. According to information provided in a March, 1992
study by Apogee Research, Inc., S. 815 would create 800,000 to 1.4 million new jobs
during the seven year life of the bill in the construction industries and industries
that support these workers. In addition to the NCC, another very broad based coali-
tion has evolved in support of this bill, The Clean Water Jobs Coalition. Mr. John
Atkin, who is sitting on one of the next panels of witnesses will highlight the
strength of this coalition.
Clearly, a general consensus exists that the basic structure of the NEP is sound
and worthy of whatever efforts necessary to improve the program. However, it is
also clear that those involved in the program have experienced similar types of frus-
trations across the country, and therefore, are calling for a national solution to ad-
dress these problems. We believe the solution can be found in S. 815 and we ask you
to include it in the Committee's version of legislation to reauthorize the Clean
Water Act.
Essentially there are five main areas in which section 320 of the Clean Water Act
would be strengthened by incorporating the language of The Water Pollution Con-
trol and Estuary Restoration Act (S. 815). The Coastal Protection Act of 1993 (S.
1119) introduced by Majority Leader Mitchell (D-ME) and Senator Lautenberg (D-
NJ) also provides some language which would strengthen the NEP, as does the Com-
mittees bill, S. 1114. These provisions include:
[1] Memdating implementation of CCMPs. The NEP has done an excellent job of
identify,ring the coastal pollution problems in each of these estuaries and in de-
veloping plans to address these problems. However, after the CCMPs are com-
pleted there is no firm requirement that the plan be implemented. EPA must
be given the clear authorization to provide funding and other assistance for the
implementation of CCMPs. Efficient use of the resources expended in develop-
ing the CCMPs necessitates federal support for implementing, monitoring and
enforcing the plan. Otherwise, all of the time, energy and money spent on plan-
ning will result in a nice document that sits on a shelf collecting dust!
S. 815 moves the program from the identification phase to implementing the solu-
tions to the problems by clarifying that implementation of CCMP's is a non-discre-
tionary duty of E.P.A. In addition, federal financial assistance is provided to assist
in this effort.
S. 1114 amends Section 320(g) by expanding the purposes of the grants to pay for
research, surveys, studies, modeling, and other technical work necessary for the
"implementation" (in addition to the development) of CCMPs. Section 101 of S. 1114
also sj)ecifically provides that implementation of an approved CCMP is an eligible
project for funding through the State Revolving Loan Funds (SRF).
S. 1199 acknowledges the need for federal involvement in the implementation of
CCMP's by extending the authority of, and funding for, Management Conferences to
oversee implementation of approved plans.
[2] Incorporating strict time-frame guidelines into CCMP development and imple-
mentation. The five year time-frame allowed under section 320(e) should not be
extended simply to allow the planning process to continue. With the appropri-
ate guidance and leadership a very detailed and comprehensive plan can be de-
veloped within five years. Such a plan should also include financial forecasts, so
as to assist States and the EPA in future budgeting decisions.
S. 815 sets forth scheduling deadlines to ensure a timely plemning and implemen-
tation process and to discourage individual members of the Management Conference
from stalling the entire process. Within the first year a total budget must be sub-
mitted to EPA outlining the expected costs for efficient development of the plan emd
implementation of early action plans. It also requires that a draft CCMP, identify-
ing the major problems and setting priorities for early action, be developed within
three years. In addition, it states that action plans are to be well coordinated with
the activities of other agencies. If the Management Conference does not meet the
scheduling guidelines, federal funding can be terminated.
S. 1199 also adds language to tighten up the planning process by requiring that
implementation plans include a detailed financial plan indicating the anticipated
Federal, State, and local funds needed to implement identified corrective actions.
The bill also prohibits the EPA to award grants to programs that have not received
EPA approval for a CCMP, or to programs that have failed to substantially imple-
ment their plans.
[3] Increasing the role and visibility of EPA in the program. The role of the EPA,
as an active participant and as a coordinator of the program has not been con-
sistent in each estuaries nor has its level of commitment to the NEP. In addi-
tion, there is a need for EPA to issue final NEP guidance outlining the mini-
n /-\ Q/l _ "in
920
mum federal standards and requirements necessary for CCMPs to be approved.
Reedizing that EPA continues to suffer extreme budget cuts, we are also work-
ing with the Administration and the Budget and Appropriations Committees to
encourage that EPA be considered a priority when funding choices are made.
Otherwise, the staff and resources necessary to ensure the success of this pro-
gram may be not be available.
S. 815 requires EPA to assist Management Conferences in ensuring full coordina-
tion with the Governor's offices and state coastal zone management agencies for im-
plementing the requirements under the CWA and the Coastal Zone Management
Act. EPA is also directed to publish and promulgate guidelines setting out criteria
for development, approved, and implementation of CCMPs. Generally, EPA is en-
couraged to take on a more aggressive leadership role in the program.
S. 1199 also highlights the need for increased participation by the EPA by revis-
ing its research and reporting requirements. Specifically, EPA is to review more
closely and report on the monitoring and pollution abatement measures taken by,
and the progress of, the Management Conferences.
[4] Strengthening citizen participation. Citizen participation during the develop-
ment and implementation of the CCMPs is often inadequate. Part of the reason
for this problem is the lack of funding necessary to make it feasible for the
public to participate in a serious manner. To ensure successful implementation
of CCMPs, plans must be endorsed by and must receive continuing commitment
from the scientific community, the public, elected officials, and the government
agencies responsible for its implementation.
S. 815 acknowledges that public involvement is a vital function of every Confer-
ence. It expands opportunities for public comment and participation in the develop-
ment, approval, and implementation of management plans. Environmental organi-
zations are specifically identified for participation as members of the estuary Man-
agement Conferences.
[5] Include a funding mechanism to ensure implementation of CCMPs. Due to
state budget shortfalls and a lack of federed support, memy states have been
unable to fully implement their CCMPs. As each day passes, additional stresses
and burdens on state treasuries require even the most essential projects to com-
pete for less dollars. This trend is expected to continue, therefore, it is becoming
increasingly unlikely that CCMPs will ever be implemented, monitored, and en-
forced if left solely as a state responsibility. It is imperative that access to addi-
tional resources be provided for implementation of the plans to be successful,
otherwise the federal funds expended for crafting the plans will be wasted. Fed-
eral funds also provide an incentive for states to undertake the more politically
difficult task of putting the elements of the plan into practice. Under current
law, states are eligible to receive CCMP implementation funds under the SRF
program, however, authorization and appropriation levels are severely inad-
equate to meet the growing demand for funding.
S. 815 provides for a funding mechanism to ensure that the states are given feder-
al assistance for CCMP implementation. A smedl grsint program is established for
innovative projects and interim actions that are not ordinarily funded through the
SRF in Title VI of the CWA The bill also increases funding for the SRF program at
$4 and then $5 billion and creates a set aside specifically for CCMP implementation.
BEACH CLOSURES AND ADVISORIES
As medical waste begem to wash up on our coastlines during the summer of 1988,
the many problems associated with coastal pollution came to forefront of the na-
tions attention. The media focused on the threat that toxic chemicals emd marine
floatable debris pose to the nation, and reported on toxic red tides, sewage spills,
dead dolphins, and fishing bems. Alarming accounts explained that unseen contami-
nation ft-om sewage spills and polluted runoff can contain high levels of pathogens
posing health threats such as hepatitis and gastroenteritis. During this period, the
New York and New Jersey tourism industries lost an estimated $2 million as a
result of beach closures.
The harm caused b^ coastal pollution extends beyond human illnesses contracted
fi-om body contact or mgestion of contaminated seafood; it also poses risks to marine
species and the economy. Though it is difficult to calculate overall total economic
losses, there are indications of wide impact. For example, the sport fishing industry,
which generates billions of dollars for local economies, suffers significant losses from
coastal pollution. One-third of the nation's remaining productive shellfish waters
are closed on any given day because of pollution, lliose same pollution sources
cause swimmer illness, further depressing the economy through lost work days.
921
In June of this year, the Natural Resources Defense Council (NRDC) released a
report which inventoried the beach protection programs in 22 coastal states. ''
NRDC discovered that over 2,600 closings and advisories occurred at ocean and bay
beaches in 1992 alone! Beach water standards, monitoring, and closure practices
vary widely from state to state, and within states. Eight of the 22 coastal states sur-
veyed in the report do no monitoring of coastal recreational water's for swimmer
SEifety despite evidence of coastal pollution problems in those states and despite the
sizable revenues generated by coastal tourism. In addition, five coastal states have
limited monitoring programs which apply to only a portion of their coastlines or in-
volve infrequent (once a year) monitoring.
Because coastal tourism generates bUlions of dollars gmnually, it makes good eco-
nomic and environmental sense for states to provide public health protection for
coastal recreational waters. Federal guidance is needed to discourage health officials
from turning a blind eye from this pollution for fear that closed beaches will deter
tourists. Instead, beach-goers should be aware that beach closings indicate responsi-
ble combined efforts to protect public health. In the long term, larger coastal pollu-
tion problems — of which beach closings are only a symptom — must be addressed and
a comprehensive remedy must be found.
The Beaches Environmental Assessment, Closure and Health Act (B.E.A.C.H.
Act), S. 997, proposed by Senator Lautenberg (D-NJ) is a significant firet step in
finding a comprehensive remedy to the pollution problems of our nation's beaches
and coastal recreation waters. The bill ensures that states follow uniform beach
testing procedures to protect public safety, avoid health risks, and improve the envi-
ronmental quality of coastal recreation waters. Cleaning up existing sources of pol-
lution, including polluted ninoff, is clearly the best and the most important remedy
to the problem of beach water contamination. In the interim, however, consistent
programs to adequately protect beach-goer health must be set in place. S. 997 ad-
dresses some of the deficiencies in the current sporadic approach to beach protection
and provides the following improvements:
[1] The bill requires EPA to develop health-based coastal water quality criteria for
pathogens within 18 months of enactment. The criteria is to be based on best
available scientific information and short term increases of bacteria and viruses
resulting from rainfall, malfunctions of wastewater treatment works, or other
causes. After the criteria are published, states are given three years to adopt
standards that at a minimum are consistent with EPA criteria.
[2] Nine months after EPA publishes the water quality criteria, EPA is to publish
regulations specifying minimum monitoring procedures for coastal recreation
waters. The regulations shall specify: a) the frequency of such monitoring based
on the periods of recreational use, b) the extent and degree of such use, and c)
the proximity to pollution sources. In addition, the EPA will include specific
methods for detecting short term increases of pathogens.
[3] The bill establishes procedures for mandatory public notification of water qual-
ity standards violations. Recognizing the public has a right to know about the
safety of its coastal recreational waters, the bill directs prompt communication
of the violations to the appropriate local government agency and requires the
state to post signs on beaches notifying the public of the violation and the po-
tential health risks associated with body contact with such water.
[4] The bill requires EPA to issue guidance on imiform assessment and monitoring
of floatable materials and to specify the conditions when the presence of float-
able debris constitutes a threat to the public health.
[5] The bill authorizes EPA and the National Oceanic and Atmospheric Adminis-
tration to conduct a joint study. The study's purpose will be to develop better
indicators for directly detecting the presence of bacteria and viruses which are
harmful to human health in coastal recreation waters.
We strongly support inclusion of the B.E.A.C.H. bill in the comprehensive Clean
Water Act reauthorization. The bill authorizes federal involvement in developing
minimum monitoring practices and in establishing mandatory public notification
procedures. By incorporating S. 997 into the Clean Water Act, this committee will
b^in to address the public's concerns about beach and coastal pollution. Minimum
standards applied in every state will provide beach-goers and enthusiasts of coastal
water activities with the peace of mind that they can participate in their activities
and be assured their health is not in jeopardy.
' ChasiB, Sarah, et al., Testing the Waters HI: Qosings, Costs and Qeanup At U.S. ^chea.
Natural Resources Defense Council (June 1993). For copies, contact NRDC s New York office: 40
West 20th Street, New York, NY 10011.212-727-2700.
922
SUMMARY
Assuring the development of the most efficient plan for tackling pollution prob-
lems within estuaries of "national significance" is the major theme of S. 815, The
Water Pollution C!ontrol and EJstuary Restoration Act. Senator Lieberman is to be
commended for his focus on the economic and environmental costs associated with
cleaning up these valuable watersheds. We encourage the Committee to amend Sec-
tion 607 of S. 1114 to incorporate the Lieberman bill in its reauthorization of the
Clean Water Act and to proceed with confidence that the public solidly supports this
legislation.
The Committees version of The Federal Water Pollution Control Act, S. 1114 can
easily be amended to address some of the concerns about the NEP. First of all, we
strongly support the above mentioned provisions that recognize the need for assist-
ance in implementing the CCMPs. Additionally, we recommend linking the Nation-
al Estuary. Program with the watershed provisions of the Committee's bill as set
forth in Title I and Title m of S. 1114.
Title I of S. 1114 creates a new allotment for watershed management and plan-
ning under CWA Section 604. We would like to see this provision amended to in-
clude approved CCMPs under Section 320, in addition to watershed planning and
management under Section 321.
Title III of S. 1114 creates a new Section 321 for Comprehensive Watershed Man-
agement. Section 321(c) establishes a Management Entity that is responsible for de-
veloping and implementing a plan for each watershed management unit. We believe
that this section should be broadened to permit the Management Conferences estab-
lished through the NEP to function as the management entity for implementing
CCMPs and therefore, be eligible for assistance under Section 321(f). Additionally,
Section 321(g) should include a mechanism for an approved CCMP to be approved on
an expedited basis under the requirements for a comprehensive watershed manage-
ment plan. Essentially, we recommend providing national estuaries with similar in-
centives and funding eligibility that are given watershed plans under Title in of the
proposed bill.
As mentioned above, The Coastal Protection Act of 1993, S. 1199, introduced by
Majority Leader Mitchell (D-ME) and Senator Lautenberg (D-NJ) also includes pro-
visions that will strengthen the National Estuary Program. Other important provi-
sions of S. 1199 include the creation of a coasted environment toxics release strategy
focusing on the effect of industrial discharges into marine waters, and the develop-
ment of a national marine water quality education program. The bUl significantly
strengthens the requirements and enforcement provisions of section 312 for marine
sanitation devices. It also calls for the development marine water quality criteria
and standards and significantly restricts ocean discharges. Finally, it authorizes the
Army Corp of Engineers to assist in the construction of facilities for the control of
overflows from combined storm and sanitary sewers into marine waters.
Unfortunately, due to time constraints, we have been unable to fully analjrze S.
1199. We are in process of gathering comments and wUl submit them to the Com-
mittee as soon as possible. Until I discuss the other provisions of the bill our activ-
ists and estuary coordinators, I hesitate to extend further comments on S. 1199.
CONCLUSION
This concludes our testimony. I hope we have assisted this Committee in its chal-
lenging task of reauthorizing the Clean Water Act. The citizens of this country are
seeking a comprehensive approach to preventing pollution of our nation's estuaries,
coastal waters and beaches. The proposed legislation I have discussed today will
meet the public's desires. We encourage you to do all that is within your power to
assure that these bills are included in the reauthorized Clean Water Act. Thank you
once £igain for soliciting our views on this important issue. We appreciate the Com-
mittee^ attention to the issues of coastal pollution.
AprU 14, 1993
CO-SPONSORS REQUESTED FOR STRENGTHENING CLEAN WATER ACT
Dear Senator,
The undersigned organizations urge you to co-sponsor and support the Water Pollu-
tion Control and Estuary Restoration Financing Act. to be introduced by Senator's
Liebernian (D-CT) and Dodd (D-CT) by the end of April. This legislation strengthens
the Clean Water Act (CWA) in several important ways. In particular, it will help
clean up our nation's water resources by significantly increasing federal aid to
states for upgrading sewage treatment plants, controlling polluted runoff, and fixing
923
combined sewer-overflows. In addition, it reauthorizes Section 320 — the National Es-
tuary Program, requires implementation of EPA approved Comprehensive Conser-
vation and Management Plans (CCMP), and ensures full coordination of efforts
taken to carry out other requirements of the CWA and Coastal Zone Maneigement
Act. The bill also targets State Revolving Loan Funds (SRF) for economically and
environmentally efficient implementation of estuary maneigement plans.
The protection of estuaries of "national significance" and other precious national
resources is a top legislative priority for citizens around the country, as well as for
the local economies that depend upon them for long-term economic growth. Current-
ly, many states and municipalities possess neither the infrastructure nor the finan-
cial resources to stop the ongoing destruction of these estuaries, therefore, it is essen-
tial that federal legislation such as this be supported.
It is our belief that the present statutory and regulatory structure of the Nationsd
Estuary Program does not adequately deed with the complexities of the problems
faced by these valuable watersheds. As a result, we have worked closely with Con-
gressional staff to ensure that this bill significantly strengthens Section 320 of the
Clean Water Act and provides adequate financial resources for implementation of
comprehensive management plans. We believe that support for this legislation pro-
vides a proper balance of environmental and economic incentives to improve current
law, to protect these estuaries from further destruction, and ultimately, to improve
the health and quality of these watersheds.
This bUl is designed to implement estuary protection and cleanup in such a way
as to create jobs and foster economic growth through commitment to a strong feder-
al-state-local partnership. Specifically, the legislation would create a set-aside of ad-
ditional funds in the SRF program to assist states in implementing approved
CCMP's. Such planning is essential to assure that management programs achieve
their goals and are economically feasible, before unnecessary resources are expend-
ed. This SRF set-aside will provide funds to local economies whUe achieving the
dual purpose of protecting the integrity of their estuaries, and creating the neces-
sary economic base essential for continued economic resiliency. According to a
March 1992 study by Apogee Research, Inc. this legislation would create 800,000 to
1.4 million new jobs over the seven year life of the bill in the construction industries
and industries that support these workers.
By becoming a co-sponsor of this important legislation you will help to lay the
groundwork for addressing this issue in the reauthorization of the Clean Water Act,
and ensure that our estuaries and communities thrive for generations to come. Thank
you for your consideration of this legislation. Please feel free to contact us if we can
be of any assistance.
Sincerely,
Dr. Robert Gray, President, Water Quality Section, American Fisheries Society;
Paul Kemp, Science & Technology Director, Coalition to Restore Coastal Louisiana;
Dery Bennett, Executive Director, American Littoral Society; Beth Millemann, Ex-
ecutive Director, Coast Alliance; Dawn M. Martin, Issues Director, American Oceans
Campaign; Eugenia Laychak, Policy Director, Coastal Resources Center; Connie B.
Cooper, AICP, President, American Placing Association; Peter Shelley, Senior Attor-
ney, The Conservation Law Foundation of New England; Ann Powers, Vice Presi-
dent & General Counsel, Chesapeake Bay Foundation; Cynthia Poten, Riverkeeper,
Delaware Riverkeeper; Mimi McConnell, Executive Director, Coalition for Buzzards
Bay; Peter DeFur, Senior Sicientist, Environmental Defense Fund; Lisa Kahn, Policy
Associate, Friends of the Earth; Nina Bell, Executive Director, Northwest Environ-
mental Advocates; Linda Shead, Executive Director, Galveston Bay Foundation;
Naki Stevens, Policy Director, People for Puget Sound; Roger Gorke, Research Sci-
entist, Heal the Bay; Tom Putnam, President, Puget Sound Alliance; David Gordon,
Staff Attorney, Hudson Riverkeeper Fund; Peter Lavigne, Director of River Leader-
ship Program, River Network; Larry Bock, Public Outreach Coordinator, Long
Island Sound Taskforce; Ruth Gravanis Campaign Director, Save San Francisco Bay
Association; Terry Backer, Soundkeeper, Long Island Soundkeeper Fimd; Curt
Spalding, Executive Director, Save The Bay; David Miller, Vice President, N.E. Re-
gional Office, National Audubon Society; Beth Nicholson, Chairperson, Save The
Harbor/Save The Bay; Clark Williams, Wetlands Specialist, National Audubon Soci-
ety; Matilda Pemell, Executive Director, Save Wetlands And Bays; Stephanie
Grogan, Counsel, Environmental Quality Division, National Wildlife Federation;
Derb Carter, Staff Attorney, Southern Environmental Law Center; Robert W. Adler,
Senior Attorney, Natural Resources Defense Council; Steve Moyer, Director of Gov-
ernment Affairs, Trout Unlimited; Andrew Willner, Baykeeper, New York-New
924
Jersey Harbor; Carolyn Hartman, Staff Attorney, U.S. Public Interest Research
Group; Todd Miller, Executive Director, North Carolina Coastal Federation
American Oceans Campaign • California Diving News • Center for Marine Conserva-
tion • Chesapeake Bay Foundation • Coalition for Buzzards Bay • Coalition to Re-
store Coastal Louisiana • Coast Alliance • Conservation Law Foundation • Dive
Boat Calendar and Travel Guide • Dive 'n ' Surf • Diving Equipment Manufacturers
Association • Divers Involved Voluntarily in Environmental Rehabilitation and
Safety • Eastern Surfing Association • Environmental Working Group • Florida
Scuba News • Friends of Casco Bay • Galveston Bay Foundation • Long Island
Sound Task Force • Long Island Soundkeeper Fund • Manasota 88 • Friends of the
Earth • Southern Environmental Law Center • Delaware Riverkeeper Network •
Heal the Bay • Inner Frontier • natural Resources Defense Council • National Asso-
ciation of Underwater Instructors • North Carolina Coastal Federation • Northwest
Environmental Advocates • Ocean Futures Patagonia, Inc. • People for Puget Sound
• River Network • Save our Shores • Save San Francisco Bay Association • Save the
Bay • Save the Harbor/Save the Bay • Save Wetlands and Bays • Sierra Club •
Sport Chalet • Surfrider Foundation, National Chapter • Surfrider Foundation,
Humbolt, California Chapter • Surfrider Foundation, Monterey, California Chapter •
Surfrider Foundation, San Francisco, California Chapter • Surfrider Foundation,
Santa Cruz, California Chapter • Surfrider Foundation, Laguna Beach, California
Chapter • Surfrider Foundation, Long Beach, California Chapter • Surfrider Foun-
dation, Newport Beach, California Chapter • Surfrider Foundation, Malibu, Califor-
nia Chapter • Surfrider Foundation, San Diego, California Chapter • Surfrider
Foundation, Santa Monica, California Chapter • Surfrider Foundation, Santa Bar-
bara, California Chapter • Surfrider Foundation, Ventura, California Chapter • Sur-
frider Foundation, Haleiwa, Hawaii Chapter • Surfrider Foundation, Rehoboth
Beach, Delaware Chapter • Surfrider Foundation, Tinton Falls, New Jersey Chapter
• Surfrider Foundation, St. James, New York Chapter • Surfrider Foundation, Kill
Devil Hills, North Carolina Chapter • Surfrider Foundation, Miami, Florida, Chap-
ter • Surfrider Foundation, Virginia Beach, Virginia Chapter • Surfrider Founda-
tion, League City, Texas Chapter • Surfrider Foundation, Lake Jackson, Texas Chap-
ter • Surfrider Foundation, Newport, Rhode Island Chapter • US Public Interest
Group • Washington, Scuba Allian • Women's Scuba Association •
July 13,1993
Dear Senator,
The undersigned organizations urge you to co-sponsor and support S. 997, the
Beaches Environmental Assessment, Closure, and Health Act of 1993. The focus of
the B.E.A.C.H bill is to ensure that States have adequate beach testing programs, to
protect citizens from health risks, while allowing states flexibility in determining
beach closures or in implementing stricter standards.
Current data indicate that the problem of sewage contamination and polluted
runoff of our coastal waters, and its associated health risks, are persistent. There
have been thousands of ocean and bay beach closings or advisories issued during in
the past few years, due to elevated bacteria levels attributable primarily to human
and animal waste. Cleaning up existing sources of pollution, including polluted
runoff, is clearly the best and the most important remedy to the problem of beach
water Qontamination. In the interim, however, consistent programs to adequately
protect beachgoer health must be set in place.
Recent surveys of federal and state practices have shown that:
• current Environmental Protection Agency (EPA) recommended standards allow
19 out of every 1000 swimmers to contract illnesses such as gastroenteritis and
even hepatitis;
• States use different standards of varying efficacy to judge the safety of coastal
T*of*T*pfii'ion3.1 wfltcrs*
• many states do little or no monitoring of their beach water despite evidence of
local coastal pollution problems as well as heavy beach attendance; and
• government agencies often fail to provide the public with timely notification of
potential health risks even when monitoring shows that standards have been
exceeded.
The B.E.A.C.H. bill requires EPA to develop health-based water quality criteria to
protect beachgoers and to issue regulations on procedures to monitor coastal recrea-
tion waters based on: (1) how frequently a beach is used, (2) proximity of pollution
sources, and (3) short term increases of bacteria and viruses resulting from rainfall,
malfunctions of wastewater treatment works, or other causes. The States then have
3 years to promulgate their own health-based standards or adopt EPA's minimum
925
criteria. States are also required to post signs on beaches notifying the public of po-
tential health risks when water quality does not comply with State coastal recrea-
tion water standards. Additionally, the bill requires EPA to develop guidance on
uniform assessment and monitoring of marine debris.
We believe that it is in the best interest of the country to have a comprehensive
and effective national program to protect beachgoers from potential health risks of
contact with polluted waters. In addition, the economic impacts of polluted beaches
must be considered, as tourist sj)end billions of dollars annually visiting coastal
counties and their ocean and bay beaches. The protection of beachgoers through
cleanup of polluted waters and effective monitoring is well worth the investment.
By becoming a co-sponsor of this important legislation you would help to install
nationally consistent standards, monitoring criteria, and closure notification require-
ments that would protect beachgoers everywhere while ensuring that no state is at a
disadvantage for taking effective action. Thank you for your consideration of this
legislation. Please feel free to contact us if we can be of any assistance.
Sincerely yours,
Robert Sulnick, Executive Director, American Oceans Campaign, Santa Monica,
California; Gary Magnuson, Vice President for Program, Center for Marine Conser-
vation, Washington, DC; Dawn M. Martin, Issues Director, American Oceans Cam-
paign, Washington, DC; Ann Powers, Vice President and General Counsel, Chesa-
pe^e Bay Foundation, Annapolis, Maryland; Fred Felleman, Director of Northwest
Oifice, American Oceans Campaign, Seattle, Washington; Mimi McConnell, Execu-
tive Director, Coalition for Buzzards Bay, Buzzards Bay, Massachusetts; Dale
Shecker, Editor, California Diving News, Torrance, California; Mark Davis, Execu-
tive Director, Coalition to Restore Coastal Louisiana, Baton Rouge, Louisiana; Beth
Millemann, Executive Director, Coast Alliance, Washington, DC; L3Tin Nettles,
Eklitor, Florida Scuba News, Jacksonville, Plorida; Peter Shelley, Senior Attorney,
Conservation Law Foundation, Boston, Massachusetts; Joe Payne, Casco BayKeeper,
Friends of Casco Bay, South Portland, Maine; Cynthia Poten, Delaware Riverkeeper,
Delaware River Network, Lambertville, New Jersey; Velma Smith, Director of Do-
mestic Policy, Friends of the Earth, Weishington, l5C; Cheri Boone, Publisher, Dive
Boat Calendar and Travel Guide, Huntington Beach, California; Linda Shead, Exec-
utive Director, Galveston Bay Foundation, Webster, Texas; Scott Jones, Vice Presi-
dent, Dive 'n' Surf, Redondo Beach, California; Adi Lieberman, Executive Director,
Heal the Bay, Santa Monica, California; Kimberly Woods, President, D.I.V.E.R.S.,
Fountain Valley, California; Jeff Bertsch, President, Inner Frontier, Durham, North
Cfirolina; Jim Prusa, Executive Director, Diving Equipment Manufacturers, Associa-
tion, Hunting Beach, California; Nancy Seligson, President, Long Island Sound Task
Force, Stamford, Connecticut; Kathy Phillips, Executive Director, Eastern Surfing
Association, Oceeui City, Maryland; Terry Backer, Executive Director, Long Island
Soundkeeper Fund, East Norwalk, Connecticut; David Dickson, Senior Analyst, En-
vironmental Working Group; Washington, DC; Gloria Rains, Executive Director,
Manasota 88, Palmetto, Florida; Sarah Chasis, Senior Attorney, Natural Resources
Defense CouncU, New York, New York; Curt Spalding, Executive Director, Save the
Bay, Providence, Rhode Island; Seun Jackson, Executive Director, Nationail Associa-
tion of Underwater, Instructors, Montclair, California; Beth Nicholson, Chairperson,
Save the Harbor/Save the Bay, Boston, Massachusetts; Todd Miller, Executive Di-
rector, North Carolina Coastal Federation, Swansboro, North Carolina; Barry
Nelson, Executive Director, Save San Francisco Bay Association, Oakland, Califor-
nia; Nina Bell, Executive Director, Northwest Environmental Advocates, Portland,
Oregon; Matilda Pemell, Executive Director, Save Wetlands and Bays, Millsboro,
Delaware; Dick Bonin, Executive Director, Ocean Futures, Huntington Beach, Cali-
fornia; Derb Carter, Attorney, Southern Environmental Law Center, Chapel HUl,
North Carolina; Kris McDivitt, Chief Executive Officer, Patagonia, Inc., Ventura,
California; Sam Allen, Chief Executive Officer, Sport Chalet, Inc., LaCanada, Cali-
fornia; Kathy Fletcher, Executive Director, People for Puget Sound, Seattle, Wash-
ington; Tom O'Neill, Trustee, Surfrider Foundation, National, San Clemente, Cali-
fornia; Peter Lavigne, Director of Leadership Program, River Network, Portland,
Oregon; Mark Harris, Chair, Humbolt Chapter, Surfrider Foundation, Humbolt,
Caltfomia; Vicki Nichols, Executive Director, Save Our Shores, Santa Ctuz, Califor-
nia; Bill Soskins, Chair, Monterey Chapter, Surfrider Foundation, Monterey, Califor-
nia; Bill McLauglin, Chair, San Francisco Chapter, Surfrider Foundation, Ssin Fran-
cisco, California; Mark Halvorsen, Chair, Ventura Chapter, Surfrider Foundation,
Ventura, Csdifornia; NeU McQueen, Chair, Santa Cruz Chapter, Surfrider Founda-
tion, Santa Cruz, California; Ken Newfield, Chair, Northshore Chapter, Surfrider
Foundation, Haleiwa, Hawaii; Tex Haines, Chair, Laguna Beach Chapter, Surfrider
926
Foundation, Laguna Beach, California; Marilyn Spitz, Chair, Delaware Chapter,
Surfrider Foundation, Rehoboth Beach, Delaware; Jeff Schfaegel, Chair, Long Beach
Chapter, Surfrider Foundation, Long Beach, California; Debbie Sease, Legislative Di-
rector, Sierra Club, Washington, DC; Nancy Gardener, Chair, Newport Beach Chap-
ter, Surfrider Foundation, Newport Beach, California; Greg Pollack, Chair, New
Jersey Chapter, Surfrider Foundation, Tinton Falls, New Jersey; Scott Dittrich,
Chair, Malibu Chapter, Surfrider Foundation, Malibu, California; Kevin Dubola,
Chair, New York Chapter, Surfrider Foundation, St. James, New York; Betty Steel,
Chair, San Diego Chapter, Surfrider Foundation, San Diego, California; Brant Wise,
Chair, Outer Banks Chapter, Surfrider Foundation, Kill Devil Hills, North Carolina;
Dave Marshall, Chair, Santa Monica Chapter, Surfrider Foundation, Semta Monica,
California; Randy Harris, Chair, Virginia Beach Chapter, Surfrider Foundation, Vir-
ginia Beach, Virginia; Mike Allen, Chair, Santa Barbara Chapter, Surfrider Founda-
tion, Santa Barbara, California; Alan Gregg, Chair, South Florida Chapter, Sur-
frider Foundation, Miami, Florida; Mike Mantell, Chair, Houston Organizing Com-
mittee, Surfrider Foundation, League City, Texas; Valerie McCane, Chair, Galveston
Organizing Committee, Surfrider Foundation, Lake Jackson, Texas; Dave Pekozi,
Chair, Rhode Island Orgeuiizing Committee, Surfrider Foundation, Newport, Rhode
Island; Carolyn Hartman, Staff Attorney, U.S. Public Interest Group, Washington,
DC; Don Larson, President, Washington Scuba Alliance, Olympia, Washington; Jen-
nifer King, President, Women's Scuba Association, Blue Jay, California
927
Q
AMERICAN OCEANS CAMPAIGN
Mr. Bill Leary
Committee on Environment and Public Works
SH-505 Hart Senate Office Building
Washington, D.C 20510
22 November 1993
Dear Mr. Leary:
Pursuant to Senator Graham's letter of request mailed to me on October 12, 1993,
the following information is intended to respond to questions for the August 4,
1993 hearing record as posed by Senator Lautenberg. I apologize for the delay in
preparing these responses.
BOARD OF
DIRECTORS
ledOanson
PresMant
Casey CoatesDanson
Vice Prestdeni
Mark Ryavec
Secrelary
Connie Mississippi
Ed Begley, Jr
Sharon Benjamin
Gerald Breslauer
Warner Chabot
Richard Charter
Michael J Gage
LuHaas
Michael Haynes
Susan Iger
Christopher duPont-
Roosevelt
Delano Roosevelt
Anthony J Robbins
Rot>ert Segal
Mary & Steven Swig
Michael Visbal
Rotiert H. Sulnick
Exscutrt« Director
1. Can American families feel secure in knowing that when they vacation in one of our
coastal states the beach water that their children swun in will not make them sick? Why?
No, American families camiot feel secure in knowing that when they vacation in one of
our coastal states the beach water that their children swim in will not make them sick.
The Environmental Protection Agency does not mandate minimum testing procedures or
nationwide bacteria standards for recreational waters. Left to their own volition, states
monitor with less than optimal frequency. Eight states do not monitor their coastal
waters for swimmer safety. Five coastal states have limited testing programs. In
addition, there are no federal requirements for public notification and beach closures
when the bacteria level violates water quality standards. The lack of national
requirements for public notification, bacteria standards, and testing procedures prevents
parents from receiving information that could be used to protect their families while
using our recreational waters. Until there are uniform standards, monitoring and closure
practices, families will be unsure whether they are being adequately protected when
swimming at beaches in different parts of the country.
2. What are the main reasons that beaches sometimes need to be closed, and what are
the health consequences when people swim in beach waters that should be closed?
The overwhelming majority of beach closings and advisories are caused by high levels of
bacteria in coastal waters. The major causes of high bacteria levels in beach water are:
inadequate and overloaded sewage treatment plants, raw sewage discharges from
combined or sanitary sewers, polluted stormwater runoff, faulty septic systems, and
boating wastes.
C9-677 452
725 Arizona Avenue, Suite 102 Santa Monica. California 90401 (310) 576-6162 FAX (310) 576-6170
235 Pennsylvania Avenue SE Washington, DC 20003 (202) 544-3526 FAX (202) 544-5625
3004 Northwest 93rd Street Seattle, Washington 98117 (206) 783-6676 FAX (206) 783-1799
928
When people swim in beach waters that should be closed, they risk contracting several
diseases. The wide range of diseases that can be carried by bacteria in sewage-
contaminated waters include gastroenteritis, dysentery, hepatitis, salmonellosis, shigellosis,
and infection caused by E. coli. A swimmer afflicted with gastroenteritis will exhibit one
or more of the following symptoms: vomiting, diarrhea, stomachache, nausea, headache,
and fever. Amoeba and protozoa are also found in coastal waters and can cause
giardiasis, amoebic dysentery, skin rashes, and "pink eye." These diseases are not life-
threatening for most persons but are discomforting and occasionally lead to lost working
days. The consequences of contracting swimming-associated illnesses can be greater for
children, elderly people, and others with weaker immune systems.
3. Because EPA has not mandated that states adopt minimum standards for monitoring
beach waters, there is great inconsistency in standards used among-and even within-
states. Do you perceive this as a problem? Why?
Yes, the inconsistent standards used by coastal states to monitor beach waters is a
significant problem. Swimmers and beachgoers cannot be truly assured the coastal water
they use is safe until minimum standards are adopted nationwide. Frequently, beach
water with comparable water quality transcends two jurisdictions. The jurisdictions that
do not monitor and post water quality violations or have less stringent standards provide
a beachgoer with a false sense of security.
4. What is the cost burden to states that would need to comply with S. 997? Can you
discuss this in context of any benefits that those same states would derive?
Coastal states would derive substantial benefits if our nation took the initiative to clean
up coastal waters. The primary benefit of cleaning up coastal waters would be improved
health protection for beachgoers nationwide. Another benefit would be increased
revenue from tourism and recreation. Currently, over one-hundred and sixty million
individuals visit bay and ocean beaches each year, generating billions of dollars for the
local tourist industries. According to the Florida Department of Natural Resources,
coastal tourism was responsible for generating $12 billion of income in 1992. Coastal
tourism generated over $9 billion in New Jersey in 1992. Jobs that are dependent on
coastal recreation and tourism would be saved if coastal waters were cleaned up and
tourists felt confident that they would be notified if waters were unsafe for recreational
use. Tourists would be likely to return to beaches where local officials were
straightforward concerning their health. Finally, recreational water sport users are more
likely to invest in their activities and equipment and spend their time where they feel safe
fi-om pollution-borne diseases.
The costs associated with cleaning up the coastal waters saves money in the long run
because we are preserving a valuable economic and environmental resource. The cost of
the monitoring program is reasonable when one considers that states do not have to
include every mile of beach and are not required to monitor every area to the same
929
degree. The Natural Resources Defense Council recently published a comprehensive
study of monitoring costs of existing beach protection programs. NRDC discovered that,
in 1992, the annual monitoring cost per beach mile ranged from $541 to $7500. New
Jersey monitored 127 miles of beach at a cost of $1,575 per mile. Orange, Los Angeles,
and Santa Cruz Counties in California spent an average of $2,683 per mile to monitor
164 miles of beach. Considering the local and state revenues generated from cleaner
water, any investment in water pollution clean up is worthwhile.
5. What is your opinion of the exemption contained in the BEACH bill which allows
some beaches not to be tested? What are some of the conditions where an EPA
exemption from the monitoring standards would be appropriate?
We do not support the exemption contained in the BEACH bill which allows some
"discrete areas of coastal recreational waters" not to be tested. Water pollution does not
confine itself to specific boundaries; there is always a risk that pollution will infiltrate
popular beach areas. As the monitoring program is designed, every mile of beach water
does not have to be periodically tested. We should not encourage a potentially
unfavorable and ambiguous loophole by exempting some "discrete" areas that should be
monitored routinely.
Some beach areas are clearly not frequented by swimmers as often as others, however,
EPA already has the discretion to develop monitoring standards that allows for flexibility
in the monitoring regimes. Such an "exemption"--or less rigorous monitoring programs-
should be left for EPA to determine as it develops coastal water monitoring standards.
This approach is more preferable than including a potentially ambiguous loophole in
statutory language.
Thank you for the opportunity to respond to Senator Lautenberg's questions.
Sincerely,
Dawn M. Martin
Director, Washington D.C. Office
930
STATEMENT BY RICHARD E. WEDEPOHL, NORTH AMERICAN LAKE
MANAGEMENT SOCIETY, MADISON, WISCONSIN
My name is Richard E. Wedepwhl and I am a past president of the North Ameri-
can Lake Management Society (NALMS). I presently serve as Chair of NALMS Gov-
ernment Affairs Committee and am the State of Wisconsin's Lake Management Co-
ordinator. Recently I have also served as Chair of Water Quality 2000's Urban and
Rural Runoff Challenge Team which focused on defining solutions to our nation's
water quality problems which originate from rural and urban runoff. NALMS, the
organization I am representing today, is an international organization of citizens,
scientists, lake associations and water pollution control professionals who are deeply
concerned about the water quality in our nations lakes, ponds and reservoirs. Al-
though relatively young, NALMS has members in every state, Canada emd several
other countries throughout the world, along with chapters in almost half of our na-
tion's states. The Society's strong and diverse membership is in itself testimony to
the abiding and lasting concern about the present and future condition of our na-
tion's lakes. I am here today on behalf of our Society to offer to this Subcommittee
testimony relative to S. 1198, the "Lakes Assessment and Protection Act of 1993"
recently introduced by the Honorable Senator George Mitchell, and S. 1114, the
Water Pollution Prevention and Control Act of 1993.
Let me begin by stating, as strongly as possible, our support for S. 1198, Senator
Mitchell's Lake Assessment and Protection Act. TWs is, without a doubt, the finest
piece of legislation our organization has had opportunity to comment on. Our com-
pliments to Senator Mitchell and the staff who have worked hard over the past
three years to put this piece of legislation together. S. 1198 has many fine provisions
which build upon the 11 years of experiences and lessons learned from the highly
successful Section 314 Clean Lakes Program, most of which focused on watershed
protection and control of nonpoint sources of pollution. Although our nation's lakes
would benefit if S. 1198 were adopted independently, it would be our preference to
see it enrolled, in its entirety, into the Clean Water Act Amendments. By so doing,
it is our belief that the many strengths of this piece of legislation would spill over
into other, much newer, nonpoint source and watershed initiatives, strengthening
the act in total.
WHY SPECIAL EMPHASIS ON MANAGING AND RESTORING LAKES AND
RESERVOIRS?
Your committee has heard many times the facts and figures on the quality of our
nation's water resources and how critical it is for us to get on with addressing non-
point source pollution. Additionally you have heard a great deal about the impor-
tance of managing water resources by using a watershed approach and you have
heard about the importance of involving individuals and local communities if we are
to meet our water quality objects. We add our support to these. What has not been
stated, very well, is the critical need to focus our nonpoint source and watershed
based control efforts to help solve the lake degradation which continues to occur.
Lakes are without a doubt a major water resource of our nation. Freshwater
inlemd lakes and reservoirs provide our nation with 70% of its drinking water. They
supply water for industry, irrigation, and hydropower. Their ecosystems provide the
habitat needed to support large numbers of endangered and threatened species.
Lakes are the cornerstone of our nation's $19 billion dollar freshwater fishing indus-
try. Freshwater inland lakes and reservoirs form the backbone of numerous state's
tourism industries. They provide countless numbers of recreational opportunities
whether it be for swimming, fishing, boating, or purely aesthetic enjoyment. In Min-
nesota alone, riparian areas around lakes are valued at $10 billion with lakes sup-
porting the bulk of the state's $5 billion tourism industry.
Lakes are a way of life in this country, but sadly their quality has long been ne-
glected. Over 50% of all classified lakes and reservoirs are of poor or very poor qual-
ity. Many more are threatened and since 1986 there has been a 40% decline in the
percentage of assessed lakes and reservoirs which are meeting their designated uses.
Although great strides have been made in cleaning up our streams and rivers,
which have been dominated by point sources of pollution, relatively little progress
has been made in improving the quality of our nonpoint source dominated lakes.
THE STRENGTHS OF S. 1198
The success of the Section 314 Clean Lakes Program has never been questioned.
The program model was based on sound science, was driven by needs identified at
the grass roots level, and has been implemented with the principle of the need to
build strong state/local partnerships to solve watershed level problems. Recently
931
the National Research Council's Ck)mmittee on Restoration of Aquatic Ecosystems
described the Clean Lakes Program as "a model of federal restoration efforts, espe-
cially with regard to its emphasis on causes of lake problems and on local and state
participation' . A 1993 EPA review of the program highlighted its many successes.
Former head of the EPA's Office of Water, Lajuana Wilcher, in 1991 described the
Clean Lakes Program as "the quintessential example of empowering citizens to
work closely with their local, State and Federal governments in achieving common
goals". Finally, this was all accomplished with a program that has had little to no
budget support from EPA, operating with an average annual appropriation of less
than $10 million per year. Senator Mitchell's Lake Assessment and Protection Act
of 1993 revises and strengthens elements of the Section 314 Clean Lakes Program.
Additionally it builds upon the experiences of that program by correcting weakness-
es learned over the 17 years of the program's existence. Specifically:
• Section 3 of the bill provides a well conceived approach to get practical research
done at all levels. It recognizes the special sensitivity of lakes and the need to
develop interdisciplinary solutions.
• Section 4 directs EPA to develop lake specific water quality criteria, an issue
our organization has been very actively pursuing for the past 6 years. Without
criteria, and the establishment of standeirds, setting pollution controls is prob-
lematic, if not impossible. While the Act's four year timeline is very aggressive,
it is achievable, at least for the more proactive states. Quite rightly it also offers
sufficient latitude and flexibility to the states to allow for regional differences.
• Section 5 is the core of S. 1198. It provides program support to the states, sup-
ports local initiatives to assess pollution sources and develop corrective re-
sponses, and provides support for implementation of the control plan. This sec-
tion recognizes that even if all sources of pollution are stopped, lake water qual-
ity response will be slow. Once degraded, lakes recover very slowly, retaining
90% or more of the pollutants added to them. This act recognizes that although
future nonpoint source initiatives may protect lakes and reservoirs, they cemnot
restore them and may not improve them. Additionally this section will lead to
many more states utilizing the Section 314 model to develop their own pro-
grams. This section helps take the new lakes initiatives of many states beyond
the strictly case by case scenario, allowing them to develop more comprehensive
protection initiatives which will affect large numbers of lakes within each state.
This is a major strength of the act.
• State revolving loan fund eligibility is a logical addition.
• A national ban on phosphorus in detergents is an issue which should have been
addressed long ago. So many individual states have already adopted their own
phosphate detergent bans that many manufacturers no longer use phosphorus
as a detergent builder because of distribution problems. Consequences of the
ban in those states where it has already been adopted have been virtually non-
existent. This is pollution prevention at its best. There is absolutely no reason
not to extend the ban to the national level.
• Section 9 directs sigricultural programs to provide priority consideration to wa-
tersheds of impaired lakes. Given the financial magnitude of agricultural incen-
tive programs their use can provide tremendous benefits if targeted to sensitive
lakes. It is very important that EPA and USDA coordinate their efforts. "The
water quality benefits to lakes provided by this section may very well exceed
any of the others. We do, however, recommend that language be added to make
threatened lakes be eligible as well as those already impaired. Prevention is far
more cost-effective than is correction.
• Ekiucation, Section 10. This section is absolutely essential if we are to meike long
term progress. It thoughtfully allows those states which wish to take the lead to
do so, while providing a backup for those citizens who want to participate but
do not have an active state program. Citizens have demonstrated again and
again their willingness to volunteer to help solve lake problems. Their value
cannot be discounted. We would strongly reconmiend that funding, in the order
of $5 to $6 million, be provided to support this initiative. Without a strong state-
level coordination effort along with resources for monitoring equipment, train-
ing, etc., the vast potential of these volunteer programs will be under-utilized.
The citizens who participate in these programs will be the same ones who'll be
there help make the watershed and nonpoint source elements of S. 1114 work at
the local level.
• Section 11 recognizes the need to control specific exotic species. The approach
provided is a logical one.
Overall, S. 1198 is an extremely well conceived and developed bUl. It has few
flaws and is a logical extension of the section 314 program. However, given the low
932
funding levels provided by this bill, it is essential that lake water quality problems
are also given special attention in the new watershed and nonpoint source initia-
tives of S. 1114 and other related bills. Indeed, if the special needs of lakes are not
recognized £ind incorporated into this act, the success of the new watershed and non-
point initiatives will be very much threatened.
THE WATER POLLUTION PREVENTION AND CONTROL ACT OF 1993
Generally NALMS is supportive of S. 1114. The act recognizes the importance of
assessing problems and developing solutions using the watershed approach, it pro-
vides more emphasis on controlling nonpoint sources of pollution and it begins to
recognize the key role volunteers, individual citizens and local communities must
play if nonpoint sources of pollution are to be dealt with. While we have the general
sense that this bill is still more top^iown than bottom-up in design, and that little
emphasis was placed on the need to develop state and local infrastructure, some of
this weakness would be corrected if the citizen initiated clean lakes projects pro-
posed with S. 1198 could be effectively incorporated and integrated into the water-
shed and nonpoint sections of S. .1114. As stated earlier, the state/local partnership
structure and model for effective, voluntary, local watershed management has al-
ready evolved through the clean lakes program and incorporation of these principles
into these newer initiatives would greatly increase the chances for S. 1114 to be ulti-
mately effective. i • . . •
A key language weakness of this bill, which we trust was not of general mtent, is
the emphasis on the clean-up of impaired watersheds. Although there are sections
related to protection and prevention actions, they are buried and often left to the
discretion of the administrator or the states. Protection of our many still high qual-
ity resources is the most cost-effective actions we could take. For example, through-
out the act, "threatened waters" should be added wherever "impaired waters are
mentioned and "protection and maintenance" emphasis added as appropriate else-
wli©r6.
Along this seune prevention vein, NALMS is very concerned that there still exists
Uttle incentive for state or local programs to address control of post-development
stormwater runoff under section 402(p). Presently EPA and state implementation of
the stormwater permitting program does not effectively deal with control of post-
development rimoff from new developments. As the program is now bemg imple-
mented any new construction activities greater than 5 acres in size must control
runoff during construction. Post-development controls are not required. EPA in its
guidance, only requires that if post-development controls are to be used they must
be described. There are absolutely no requirements that control of post-development
runoff be seriously addressed. To correct this major deficiency we propose that a
new section be added to this act which would focus specifically on controlling runoff
from new developments. The section should require that the appropriate regulatory
authority institute any zoning or other regulatory provisions necessary to prevent
post development runoff problems. Permittees should be required to show that all
new development will incorporate post-development runoff" control practices. State
level requirements should be flexible and variances should be allowed to accommo-
date regional needs. The issue here is that states and local regulatory authorities
need to become serious about addressing this problem. The time has past when we
can willy-nilly pave all the land around our sensitive lake resources, assuming their
pollutant assimilative capacity is endless. m. i
We sincerely appreciate the courtesy and consideration extended to us. Ihank
you.
TESTIMONY OF GEORGE A. BRINSKO, PRESIDENT, WESTERN COALITION
OF ARID STATES, TUCSON, ARIZONA
INTRODUCTION
Good Morning Mr. Chairman, and members of the Subcommittee. My name is
George Brinsko. I atn President of the Western Coalition of Arid States, otherwise
known as WESTCAS. I am also the Director of the Wastewater Management De-
partment in Pima County, Arizona. „ , ^ o l xi. •
WESTCAS has requested the opportunity to testify before your Subcommittee m
order to inject an arid West perspective into these discussions on the Clean Water
Act Reauthorization. Our concerns about this Reauthorization are that the issues of
the arid West are missing, on both a conceptual and implementation level. Our tes-
timony will focus on (1) a description of continuing arid West problems with the
Clean Water Act, (2) the concepts needed to include arid West concerns m the Reau-
933
thorization, (3) our proposals for change in the language of the Act and (4) he need
for research projects and programs for arid West ecosystems to be instituted under
the Reauthorization.
WESTCAS
Before I begin on these themes, however, I believe it would be helpful to the Sub-
committee if I gave you a little background on WESTCAS. The Western Coalition of
Arid States was formed in 1992 by a group of Western water and wastewater agen-
cies concerned about the manner in which water quality and water resource man-
agement issues were being addressed in states throughout the arid West — defined as
areas with less than 15 inches of annual rainfall.
In the last eighteen months, WESTCAS has attracted more than 50 members
from five Western states: Arizona, California, Colorado, New Mexico and Nevada.
Representatives from agencies in several other Western states have consistently
participated in our quarterly meetings and we have every reason to believe that
they too will be joining us in the near term.
WESTCAS's main objective is to assist in the development of water quality regu-
lations, policies and laws which promote the protection of arid and semi-arid ecosys-
tems throughout the West. With that in mind, WESTCAS has developed proposals
for specific changes in the Clean Water Act Reauthorization that would protect
those species which actually exist in arid ecosystems. For example, we are commit-
ted to a policy that the quality of our effluent should protect "what is there;" but
we oppose policies that require us to adopt extremely expensive measures to protect
aquatic species which may not even exist in arid and semi-arid ecosystems.
IMPLEMENTATION OF THE CLEAN WATER ACT IN THE ARID WEST
Prior to my move to Arizona, I served 22 years eis General Superintendent of Op-
erations for the Allegheny County Sanitary Authority in Pittsburgh, Pennsylvania,
and also as President of the Pennsylvania Water Pollution Control Association. In
Pennsylvania, "a river is a river," in every sense of the word. By that I mean that it
actually heis water flowing in it twelve months a year. Under those circumstances,
the quality of the receiving water becomes extremely important in determining the
level of treatment to apply to effluent to meet the Environmental Protection Agen-
cy's (EPA) National Pollutant Discharge Elimination Sjrstem (NPDES) permit re-
quirements.
But, 14 years ago, I was introduced to a completely new set of circumstances and
challenges when I moved to Pima County in southern Arizona. Pima County is lo-
cated in the heart of the Sonoran desert, an "arid ecosystem." The environment in
southern Arizona is typical of the arid and semi-arid ecosystems found throughout
17 of our Western states.
I moved to Pima County to establish the first regional wastewater treatment
system in Arizona. One of my first and most vivid experiences, upon my arrival, was
standing beside the Santa Cruz River — a river with no water. TTie river had begun
as a dry wash, commonly known in the west by its Spanish neime, arroyo. Exhibit 1
depicts em example of what I saw on that memorable day.
Now to someone who has been raised in the eastern United States, a river with-
out water would seem to be a bit of a contradiction. But that is not the case in my
new homeland. The arid West is laced with arroyos and dry rivers such as the Santa
Cruz; they are actually ephemeral streams. Ephemeral streams have streambeds
that are, at all times, above the water table. These streambeds are created over time
by periodic powerful rainstorms whose runoff cuts through the desert floor. Ephem-
eral streams only flow in direct response to one of these storms. Exhibit 2 depicts
the Santa Cruz River experiencing one of these ramstorms, or monsoons, as they are
commonly known in the Southwest. These storms are beautiful to observe and expe-
rience, but they can also be dangerous and deadly. They often cause loss of life and
millions of dollars of property damage.
The point is that "rivers" such as the Santa Cruz are dry 80 percent of the year.
However, ephemeral streams like the Santa Cruz have sections — or reaches — that
owe their flows primarily to effluent from local wastewater treatment facilities.
Such reaches, which are actually independent ecosystems, are more specifically des-
ignated "effiuentdependent".
THE 1972 CLEAN WATER ACT
I want to emphasize from the outset that WESTCAS supports the objectives estab-
lished by the Clean Water Act. The Act has provided all of us with a major toolto
restore and maintain the physical and biological integrity of the nation's navigable
waters.
934
Our concerns arise from the application of the Clean Water Act to the arid West
environment. Concepts and regulations that make perfect sense when developed in
terms of "wet" ecosystems have major flaws when applied to arid West water and
wastewater situations. Water quality standards are a good example of this. State
water quality standards and EPA permit limits are being established on the basis of
nationally-based scientific water quality criteria developed in and for "wet ecosys-
tems." Unfortunately, those who established these national criteria failed to take
into consideration differences in environmental ecosystems such as those found in
arid and semi-arid ecosystems.
Under current federal policies, states and agencies must use these national crite-
ria as a basis to develop state water quedity standards. Otherwise, states must devel-
op their own site-specific data to justify using different water quality standards. In
other words, arid states that believe national criteria are inappropriate for all of
their ecosystems must choose between two options: (1) use these inappropriate na-
tional water quality criteria, or, (2) invest extensive local financial and scientific re-
sources to develop site-specific standeu-ds for each stream in these ecosystems. This
is an extremely burdensome and expensive task. To accomplish this, the state must
identify designated uses for each stream reach, then develop water quality criteria
documents to calculate the water quality standards necessary to protect the desig-
nated uses.
Another unique feature of the 'arid West is the extensive use of constructed water
conveyance systems. During the reclamation of the arid West over the last 90 years,
canals were constructed to transport groundwater or surface water to agricultural
lands or municiped water treatment plants. Incidental ecosystems have evolved in
some of these cemal systems. Future regulations for canals must recognize the origi-
nal intended water use, and not impede critical water management programs to
meet a national fishable/swimmable policy. Canals were designed to move water for
human use, not maintain an artificially constructed fishery. The Reauthorization
should also permit the development of water quality standards to allow the use of
ephemeral streams for the transportation of reclaimed water.
AMENDMENTS TO THE CLEAN WATER ACT: WESTERN ISSUES UNAD-
DRESSED
WESTCAS members, and other water eind wastewater agencies throughout the
West, must perform a balancing act between competing forces. On the one hand, we
must fulfill our mandated responsibility to protect the environment by meeting
NPDES permit requirements; on the other hand, we must convince our local elected
officials and ratepayers that we are spending increasingly limited resources wisely
and efficiently. But it is difficult for us to justify expending millions of dollars to
build new wjistewater treatment facilities, or to retrofit existing ones, to comply
with increasingly stringent standards for effluent discharges when such additional
improvements will result in no measurable net environmental benefit. The costs
could actually reach into the billions, if the same inappropriate water quality stand-
ards are required for stormwater discharges. The West needs the local and regional
flexibility to adapt water quality progreuns to local ecosystems and conditions, par-
ticularly in the absence of federal dollars for these national mandates.
Now I want to make it clear that we are not arguing that these ephemeral stream
environments do not need protection from pollutants. Because, they do. In fact,
when effluent is discharged to certain reaches of these ephemeral streams, a lush
riparian ecosystem is often created. If the discharges are continuous, a unique bio-
logical community may evolve. The photographs in Exhibit 3 illustrate this on a
reach of the Santa Cruz River below Pima County's Ina Road Water Pollution Con-
trol Facility. This reach is a year-round, effluent-dependent ephemeral stream
which has created a unique environment for birds, reptiles, and small animals. And
we believe that we have a major responsibility to protect such ecosystems.
WESTCAS members have consistently supported the goals of the Clean Water
Act. We believe that S. 1114 will significantly enhance our national efforts on water
pollution. However, the Reauthorization needs to address the issues essential to the
management of the water and wastewater resources of the arid West. We respectful-
ly request the Committee to add an "Arid West" finding to S. 1114. The finding
would state that Congress recognizes the diversity of watersheds and waterbodies
throughout the nation and that environmental protection of arid West ephemeral
and effluent-dependent ecos3rstems would be enhanced by the development of region-
al water quality criteria documents. This finding would specifically indicate the
intent of dongress regarding water quality regulations for arid West ecosystems.
935
We further urge the committee to add "Arid West" amendments to the bill to ad-
dress these specisd needs. First, in regard to water quality criteria and standards
these amendments should: '
• Authorize and fund research to develop appropriate water quality criteria for
arid ecosystems;
• Require the development of appropriate water quality standards for canals and
other man-made waterways which protect the intended uses of these water con-
veyance and irrigation systems;
• Modify the anti-backsliding concept to allow development and adoption of ap-
propriate water quality criteria and water quality standards suitable for the
arid West.
Second, these amendments should also address:
• The primacy of the states in designating appropriate uses and protection of
their waters;
• The utilization of reclaimed water as a valuable water supply resource in the
arid West;
• The ability of reclaimed water to create and maintain riparian habitats;
• The interaction between the environmental, social and economic effects of poli-
cies, regulations and permits designed to protect arid ecosystems;
• The use of "biomonitoring" (whole effluent toxicity testing) as a warning signal
rather than as an enforcement tool.
WESTCAS has prepared specific language on these issues for the Committee's
consideration in the Reauthorization process. This language will lead to practical,
workable regulatory guidelines which will enable Western agencies to manage
scarce water resources in an environmentally sound manner with strong consider-
ation for local concerns and values.
WESTCAS agrees with the testimony recently presented to the House of Repre-
sentatives' Committee on Transportation and Public Works, Subcommittee on
Water Resources and Environment, by the National Governor's Association and the
Association of Metropolitan Sewerage Agencies on the critical need for significantly
increased funding for Clean Water activities. We agree with the testimony of the
National Association of Counties on the need to reinstate a Clean Water grants pro-
gram for special needs and special communities. WESTCAS also supports the volun-
tary program approach for watershed management, but we have some concerns
about the implementation of the watershed management concept.
WATERSHED MANAGEMENT
Many distinguished organizations and individuals have been advocating a water-
shed management approach to resolve water quality issues. The volimtary water-
shed management program concept in S. 1114 reflects the recent increase of interest
in this approach. WESTCAS supports the concept of water quality planning and
program implenaentation using a watershed management approach. WESTCAS
members can bring many years of experience in water quality planning, financing
improvements and operating facilities to this approach. These experiences prompt
us to approach the implementation of this concept with prudent caution.
We do not believe that any single methodology or perspective is a panacea to
solve our water quality problems. An elaborate structure of federal, state and local
regulations and governing entities has evolved to meet the requirements of the cur-
rent Clean Water Act. The integration of the watershed management approach into
these existing structures must be designed, managed and implemented with great
care. The volimtary programs encouraged by this legislation should be carefully
monitored to allow this approach the greatest opportunity to grow and succeed.
WESTCAS has developed a position statement of principles for a watershed manage-
ment approach to water quality. These principles include watershed management
decisions based on good science and watershed program funding from multiple
sources. These positions are included in our written submission to the Committee.
WESTCAS has also prepared specific comments on other provisions of S. 1114.
However, in recognition of the committee's time constraints, I will not review all
these statements at this time. The comments on S. 1114, the watershed management
position statement and proposed Reauthorization language on arid West issues are
attached to our written submission as Exhibits 4, 5 and 6, respectively.
ARID WEST DEMONSTRATION AND RESEARCH PROJECTS
WESTCAS members are developing several projects and programs within their
own states to research, demonstrate and facilitate better management of water and
wastewater resources throughout the arid West. These include wetlands, reclaimed
936
water, desalinization projects (Eastern Municipal Water District — California); use
attainability analysis (Santa Ana River Dischargers Association under the manage-
ment of the Santa Ana Watershed Project Authority — California); reclaimed water/
recharge projects (Phoenix, Mesa, Tempe and Scottsdale — Arizona); wetlands (Pine-
top-Lakeside — Arizona) and the regional Water Quality Research Project (Pima
(bounty Wsistewater — Tucson, Arizona). WESTCAS is also initiating a regional
survey of arsenic levels in small water systems and coordinating the development of
a statisticed methodology to account for the natural biological variability of chronic
effluent toxicity testing for western wastewater agencies. WESTCAS offers these ef-
forts to the Subcommittee as examples of the kinds of programs the Congress should
be encouraging in arid ecosystems. The future water supplies of the West are being
developed through these projects.
Without good science, we run the risk of expending scarce financizd and technical
resources on unnecessary and non-critical pollution control activities. Without full-
scale research and demonstration projects, we lack the ability to develop the appro-
priate water quality criteria and standards to effectively control water pollution, in-
crease effluent utilization and encourage new technologies and environmentally
sound methods to manage and preserve our limited water resources.
WESTCAS believes that there is only one way we cem be certain we are protect-
ing arid ecosystems in accordance with good science and the dictates of the Clean
Water Act. And that is for us to conduct the basic scientific research and demon-
stration needed to identify "what is there" and then to determine how to protect it.
There is a very real danger that current federal policies are simply shifting the
cost of much needed research and demonstration projects to local jurisdictions. It
may be felt that this is a savings in federal exp)enditures. In reality, it results in
excessive expenditures of resources at state and local levels that have Limited trans-
ferable technology potential. (Dongress can achieve tremendous economies of scale by
adopting a region^ approach to the science of arid lands water quality manage-
ment. Itesearch and demonstration projects on western water resource management
could be funded emd implemented for regionsd benefit. Both the federal government
and many diverse arid West interests would benefit from a federal partnership on
these projects.
Let's talk about the role of research. The preamble to S. 1114 notes that munici-
palities and districts will be spending $80 billion dollars in new capital costs to im-
prove the nation's water quality. When we construct a new treatment plant or
modify a process, 10 percent to 15 percent of the total construction budget is ex-
pended up front for planning and design. The implementation of the nation's water
quality program demands an equivedent amount of research. Do we plan to spend $8
to 12 billion dollars for research while we plan to construct $80 billion dollars in
water quality facility improvements? H.R. 1994, The Environmental Research, De-
velopment and Demonstration Authorization Act of 1993, would budget $49 million
for water quality research for the entire nation, about 2 percent of the total pro-
posed construction funding for this fiscal year. We need to be as prudent smd far-
sighted in managing our nation's water quality program as individued agencies must
be in managing the construction of treatment facility improvements and modifica-
tions.
Therefore, WESTCAS urges the committee to add a "Research Title" to S. 1114,
including authorization language and suitable appropriations, to encourage the de-
velopment and implementation of research and demonstration projects in the arid
West regions to assure a plentiful supply of high-quality water for the region's
future.
As a part of this research title, WESTCAS requests that the Subcommittee incor-
porate into the Clean Water Act the authorization for the Water Quality Research
Project (WQRP), in Pima County, Arizona. This would create a program to conduct
the research needed to develop appropriate water quality criteria documents for
arid ecosystems throughout the arid West. WESTCAS supports the establishment of
the regional WQRP, at the earliest possible opportunity, to conduct and coordinate
this research for agencies throughout the arid West. The 1972 Clean Water Act ac-
tually dictates that this research activity should be encouraged and funded at the
federal level. Under the Act, "the Administrator . . . shall develop and publish . . .
criteria for water quality accurately reflecting the latest scientific knowledge . . .".
Therefore, even though we believe this research program is already authorized in
the Act, we would like the Committee to give their direct authorization of this pro-
gram.
The research title should authorize $5 million in FY 94 to begin the planning and
design phase of the Project including construction of a biological laboratory. Pima
County has offered to furnish the land, use of an analytical laboratory and profes-
937
sional staff support for the project. Copies of the proposal to establish the Regional
Water Quality Research Project (WQRP) are attached to this testimony as Exhibits
7 and 8.
We also have documentation of other significant water quality and water resource
management projects being pursued by WESTCAS agencies. These efforts can be
discussed with your staff in more detail at their convenience, as some of these
projects may also be appropriate for incorporation into a Clean Water Research
title.
CONCLUSION
In closing, Mr. Chairman and Members of this Subcommittee, on behalf of WEST-
CAS, I would like to thank you once again for allowing me to appear before you.
WESTCAS is anxious to work with you to bring this arid West perspective to the
Clean Water Act Reauthorization. We appreciate the time and interest of the Com-
mittee in these issues.
STATEMENT OF HON. PAUL S. SARBANES, U.S. SENATOR FROM THE STATE
OF MARYLAND
Mr. Chairman and Members of the Subcommittee. Thank you for this opportunity
to testify on the Clean Water Act reauthorization and specifically on the Chesa-
peake Bay Restoration Program. I want to commend you for your efforts in develop-
ing comprehensive legislation to reauthorize and strengthen the Clean Water Act.
The Clean Water Act has been fundamental to the national effort to clean up our
Nation's waterways and fundamental to the cooperative effort to improve the water
quality and restore the living resources of the Chesapeake Bay. Reauthorization of
this Act— with continued funding for state sewage treatment revolving funds and
new initiatives to address non-point source pollution, among other issues is abso-
lutely essential.
Today, I wish to report on the current state of the Chesapeake Bay and to urge
the Committee to enhance the Chesapeake Bay Program by including S. 567, the
Chesapeake Bay Restoration Act, which I and the other Members fi-om the Bay area
states introduced earlier this year, in the new Clean Water Act.
The Chesapeake Bay Program which was authorized by this Committee in the
1987 Water Quality Act, has been a successful endeavor. The cooperative Federal-
State and interstate management structure established through the Chesapeake
Bay Program has provided the framework for the restoration of the Bay and serves
as a model for other estuaries throughout the country and around the world. The
Bay Program has pioneered pollution prevention techniques such as phosphate con-
trols, bans on toxic boat paint, nutrient management efforts, and programs to cut
pesticide use on cropland. The Program serves as a proving ground for innovative
approaches to environmental restoration.
With the signing of the Chesapeake Bay Agreement in 1987 and the 1992 amend-
ments to the Agreement, the Federal government and the Bay area jurisdictions
Pennsylvania, Maryland, Virginia, the District of Columbia and their local govern-
ments— set goals, made plans and have undertaken commitments to an ambitious
program to achieve improved water quality and living resources productivity.
The level of public support and the degree of cooperation and coordination among
all parties — the Federal, State and local governments; environmental, community
and citizens groups — is unparalleled. There are over 700 groups and some 40 com-
mittees involved in the Bay Program. Nine Federal agencies have signed Memoran-
da of Understanding (MOUs) with EPA to participate in the Program.
In the years since the Bay Program was authorized, substantial progress has been
made both in putting in place a coordinated Federal-State-local-citizen management
structure and in specific programs to address key problems in the Bay such as nutri-
ent loads and the decline of living resources. TTiroughout this process, the Federal
role has been crucial. It has served, in effect, as the glue that binds the program
together and the catalyst that keeps it moving forward.
There are signs that the Bay is improving:
• Phosphorus discharges from municipal treatment plants, industry and nonpoint
sources into the Bay have been reduced by 35 percent from 1985 levels. This is a
direct result of the phosphate detergent ban now in place in each State and the
District of Columbia, new sewage treatment plant construction featuring proc-
esses for advanced phosphorus removal, and the Bay Program's unique non-
point source controls.
938
• Submerged Aquatic Vegetation (SAV), which provides critical habitat for the
Bay's living resources, has made a slow but steady comeback from dramatic de-
clines in the 1960s and 1970s. This can be directly traced to improved water
• Striped bass have also made a significant recovery from the depleted stocks of
the early 1980s. This success demonstrates that management controls can make
a difference in the health of the Bay's resources.
But, despite these efforts, the job of restoring the Chesapeake to levels of quality
and productivity that existed earlier in this century is far from complete.
Many of the Bay's living resources— oysters, shad, white perch— which are indica-
tors of the Bay's health, are still in decline. ^ .,. . ,
Runoff from farms and city streets and pollution from fertilizers, animal wastes,
and air deposition, among other so-called non-point sources, continue to deprive the
Bay of life-sustaining oxygen. Nitrogen loads to the Bay have increased by about 5
percent since 1985, despite the Chesapeake Bay's nutrient management program.
Population growth and development, and resulting pollution impacts in the water-
shed, threaten to undermine the gains that have been made thus far. The popula-
tion of the U.S. increased by 22% in the past twenty years. In the Chesapeake Bay
region, the population grew by roughly 40% over this same period. The cumulative
effect of the growth in population is putting enormous pressures on our natural re-
source base. , ^ , , , .
Toxic chemicals are still present in the Bay s surface and bottom waters, havmg
untold impacts on the Bay's water quality and wildlife.
A 1991 report prepared by the Chesapeake Bay Foundation entitled "Turning the
Tide" documents many of these trends. It is clear that we need to do much more to
really "turn the tide" and restore the Bay to health.
1993 marks the tenth anniversary of the signing of the first Chesapeake Bay
Agreement and the beginning of a new phase in the Chesapeake Bay restoration
effort. We have moved from the planning and analytical phase to advanced imple-
mentation of programs. Many of the relatively easy steps have been taken. Now we
must begin addressing the problems that are much more difficult to resolve, as well
as more expensive. New approaches and enhanced resources and effort are essential
if we are to meet our goals and objectives in the Bay.
In order to address these problems I convened a distinguished group of experts on
the Chesapeake Bay, consisting of representatives of the Bay area States, the Dis-
trict of Columbia, the Chesapeake Bay Commission, the Citizens Advisory Commit-
tee the Scientific and Technical Advisory Committee, the Local Government Advi-
sory Committee, the Alliance for the Chesapeake Bay, the Chesapeake Bay Founda-
tion, and other agencies and organizations responsible for implementing the strate-
gies and programs called for under the Bay Agreement. I asked them to identify the
highest priority needs for the restoration of the Chesapeake in the years ahead. We
have continued to refine these needs and the results of this effort are embodied in
this measure.
What does the legislation do? , <. ,. •
• First, it improves upon the management of the Bay program by facilitating co-
operation and coordination among the various agencies and programs of the
Federal government in support of the restoration of Chesapeake Bay. There are
over sixteen Federsil agencies or departments with responsibility for the stew-
ardship of the Bay's resources or which have programs that influence or impact
both directly and indirectly upon the Bay. These agencies include the U.S.
Army Corps of Engineers, the U.S. Fish and Wildlife Service, the National Park
Service, the National Oceanic and Atmospheric Administration, the Depart-
ment of Defense, the U.S. Forest Service, the Soil Conservation Service and the
Federal Highway Administration. By more effectively sharing information,
pooling agency expertise and combining and targeting resources, we can im-
prove the Federal response, get "more bang for the buck," and greatly enhance
our abilities to protect and restore the Chesapeake Bay.
The legislation identifies and codifies the responsibilities of all the Federal agen-
cies involved in the Bay cleanup effort and requires that they cooperate in develop-
ing and implementing plans, programs and projects to meet their commitments to
the Bay program. Furthermore, it requires those agencies to report in their annual
budget submissions on the activities that are being undertaken and planned. This
will help ensure accountability of the agencies and that any problems encountered
come to the attention of the Congress.
• Second, it requires the Federal facilities within the Chesapeake Bay watershed
to review their operations on a regular basis and take corrective actions to
ensure that these facilities do not adversely impact on the Bay's water quality
939
and living resources. A number of Federal agencies own or occupy large tracts
of real estate in the Chesapeake Bay watershed. There are 66 military installa-
tions on approximately 350,000 acres. The U.S. Fish and Wildlife Service has 13
National Wildlife Refuges and a number of other facilities occupying approxi-
mately 46,000 acres. The Army Corps of Engineers owns approximately 70,000
acres in the watershed. While these agencies have made great strides in recent
years to reduce discharges into the Bay, there are still problems to be resolved
to further reduce point emd nonpoint source discharge from Federally owned or
occupied real estate and protect the natural resources of these areas.
The legislation would require each department, agency or instrumentality of the
United States which owns or operates facilities within the Bay watershed to per-
form an annual assessment of their facilities to ensure consistency and compliance
with the commitments, goals and objectives of the Bay program. It would also re-
quire the agencies to develop a detailed plan, funding mechemism and schedule for
addressing or mitigating any potential impacts.
• Third, it authorizes a comprehensive research, monitoring £ind data collection
program to assess the status and trends in the environmental quedity and living
resources of the major tributaries, rivers gmd streams within the Chesapeake
Bay watershed and to assist in the development of management plans for such
waters. Until now, the principal focus of the Bay cleanup effort has been on the
mainstem of the Chesapeake. It has become increasingly clear however that
many of the Bay's problems originate in the rivers and streams which flow into
the Bay and that expanded efforts are needed in these waters if we are to
achieve improvements in conditions in the Bay watershed. In the 1992 amend-
ments to the Chesapeake Bay Agreement, the Chesapeake Executive Council
committed to develop and begin implementation of tributary-specific strategies
to "achieve the water quality requirements necessary to restore living resources
in both the mainstem and the tributaries."
Although we have an extensive body of information about the mainstem Bay and
its dynamics from current monitoring and modeling programs, there is a critical
need for enhanced basic and applied scientific research and long term monitoring of
the trends in environmental quality and living resources of the tributaries. For ex-
ample we do not have a system for accounting for sources of nutrients, and the
movements of nutrients, pollutants and sediments through the watershed.
It is clear that one of the most cost-effective ways to protect the rivers and
streams in the watershed is to help, encourage and promote stewardship among the
citizens and other interested parties who have a direct stake in the specific local
situation. Stewardship starts with the individual citizens who live in the watershed.
By conserving and protecting local water resources, citizens can also help to clean
up the Bay. However they frequently need guidance in identiiying the threats to the
water body and in devising appropriate solutions.
The legislation specifically encourages local and private sector participation in ef-
forts to protect and restore the rivers and streams in the Bay watershed by estab-
lishing a technical assistance and smedl grants program to support such activities as
developing citizen monitoring programs, initiating local pollution prevention tech-
niques and practices, and determining the most effective and appropriate vegetative
plantings to prevent non-point source runoff into the rivers and streams. The "seed
grants" would be avgdlable on a competitive and cost-sharing basis. The legislation
also requires that the local efforts be coordinated in a watershed-wide strategy.
• Fourth, the legislation provides support to State and local governments in col-
lecting and analyzing information about land use around the Bay to give plan-
ners better tools in making sound land use management decisions. The Year
2020 report underscored the need for comprehensive and coordinated informa-
tion about forest resources, important habitat areas, unique and scenic areas
and other sensitive areas so that planners csm take this information into consid-
eration in their planning and development activities. While land management
and use is not a Federal responsibility, the Federal government through agen-
cies like the Soil Conservation Service, U.S. Forest Service, U.S. Geological
Service and NOAA, to name a few, have invaluable information and technical
expertise which can be of great assistance to state and local authorities, when
properly integrated. The legislation authorizes EPA to work with other Federal
agencies in developing a coordinated watershed land use data base.
• Fifth, it establishes a habitat restoration and enhancement demonstration pro-
gram to develop, demonstrate and showcase various low-cost techniques for re-
storing or enhancing wetlands, forest riparian zones and other types of habitat
associated with the Chesapeake Bay and its tributaries. The wetlands, sub-
940
merged aquatic vegetation (SAV) beds, and forest buffer strips play a vital role
in the Bay by absorbing nutrients such as phosphorus and nitrogen, trapping
sediments, producing oxygen, and providing food, shelter and nursery areas for
fish and wildlife. Tliey also serve as measures, or "indicators" of the Bay's
health. Scientists have demonstrated a clear link between water quality condi-
tions and the survival and health of these various types of habitat. Protecting
and restoring these resources offers tremendous opportunities to improve water
quedity conditions necessary to support the living resources of the Bay and its
tributaries and provide a host of other benefits.
Unfortunately, there is no centralized data base of scientific literature on habitat
restoration design and techniques. We need to learn more about the effectiveness of
different kinds of riparigm zone vegetation in different geologic conditions. For ex-
ample are forest buffer strips more effective in removing nutrients than other types
of vegetative plantings? Under what conditions? What types of forest cover remove
the most nutrients? How much of a buffer strip is needed to prevent or reduce
runoff? More information is needed about the hydrology of rivers and streams and
the mechanisms by which nutrients are removed. It is these kinds of questions and
information gaps which the habitat restoration and enhancement demonstration
program authorized in this legislation seeks to address.
Sixth, the legislation authorizes funding to assist in the implementation of specific
actions to reduce toxics use and risks throughout the Bay watershed. The 1987 Bay
Agreement committed the signatories to the ambitious goal of eliminating all con-
trollable sources of toxics to the Chesapeake Bay and the Bay Program is currently
in the process of reviewing the Baywide toxics reduction strategy to better target
toxic pollutant problems. One of the most important steps in accomplishing this
goal is identifying and quantifying the amount of toxics being discharged into the
Bay and its tributaries. The legislation specifically directs the Administrator to
assist the States in improving this data collection process and integrating this infor-
mation into the Chesapeake Bay Program Toxics Loading Inventory. It also directs
the EPA Administrator to begin implementing toxics reduction, pollution preven-
tion and maneigement actions, including targeted demonstration projects, to achieve
the toxics reduction goals of the Bay Agreement.
The Chesapeake Bay Restoration Act, in my view, represents the third leg of the
three-legged stool on which the Chesapeake Bay Program must rest. The first two
legs were established in the 1987 Water Quality Act authorization — an authoriza-
tion for EPA to administer the program and an authorization for grants to the Bay
area States which has been used primarily for non-point source reduction efforts.
The third leg, which this legislation would authorize, provides the authority and re-
sources that are necessary for Federal agencies to implement the strategies called
for under the 1987 Bay Agreement and the 1992 amenc^ents to the Agreement.
The legislation is not intended as an all-encompassing measure which seeks to
remedy all of the problems of the Bay. Some of these issues are being addressed
elsewhere in the bill introduced by Senator Baucus and Senator Chafee, or in other
measures. Rather, the Chesapeake Bay Restoration Act is intended to continue and
improve upon the Chesapeake Bay Program that was authorized in the 1987 Clean
Water Act. The measure was developed in consultation and cooperation with the
signatories to the Bay Agreement and has the strong support of the Chesapeake Bay
Commission, the Chesapeake Bay Foundation and the Congressional Delegations
from the region. An identical bill has been introduced in the House, with broad sup-
port. I ask that copies of letters in support of this legislation be included in the
hearing record following my statement.
I hope that the Committee can approve S. 567, the Chesapeake Bay Restoration
Act and include its provisions in the new Clean Water Act.
941
Commissionen
Chesapeake Bay Commission
60 West Street, Suite 200
Annapolis, Maryland 21401
(410) 263-3420
FAX (410) 263-55^ |.|AR
I PH |:55
March 8, 1993
Honorable Paul S. Saibanes
United States Senate
Washington.D.C. 20510
Dear Senator Saibanes:
Hon. lolutF. Wood. ;r.
MOHouwoilMifiM
Staff:
I am writing to express the Chesapeake Bay Commission's strong
support for the Chesapeake Bay Restoration Act (CBRA) of 1993. As you
know, the Chesapeake Bay Commission is a tri-state legislative advisory
commission created to assist the General Assemblies of Maryland, Virginia
and Pennsylvania in addressing Chesap>eake Bay-related issues which are of
mutual concern to the three member states. The congressional reauthoriza-
tion and enhancement of the Chesapeake Bay Program is certainly one such
issue.
~^The Chesapeake Bay Restoration Act of 1993 builds upon the highly
successful program authorized in the 1987 Water (Quality Act and includes
important new federal initiatives in the areas of Federal agency coopera-
tion, coordination and compliance; the conservation and restoration of the
tributaries, rivers and streams in the Bay watushed; habitat protection and
restoration; population growth and devdopment; and toxics reduction.
These are major areas in which we, the states, require additional federal
assistance. The legislation provides enhanced resources and new programs
that will assist us and other governmental and non-govemroental organiza-
tions in addressing and meeting the needs for the restoration of the Chesa-
peake Bay in the years ahead.
The legislation is vital to the continued success of oiir efforts to
protect this national treasure, the Chesapeake Bay. We believe it warrants
and should receive the AiIl backing of citizens throughout the Chesapeake
Bay watershed. I want to commend you for your leadership in developing
this important measure.
: Sincerely,
. o
A legislative commission serving Maryhmd, Pennsylveaua and Virginia.
942
Oodlrvy A. Rocl>a(«ll*r
CNurmtn Em»flu»
9 mUBTKEa
Govwnor Robert P. Cu«y
Oovwnor Wlllam Donald SchMfvr
Oov*rno> L Douglu WBd«r
Mayor Sharon Pran Kally
Kal C. 8. Clagan - Clag^n Tn»l—
Joanna S. B«rWa)r • Bmy Cv Ch»pl0f
SIdnay C. Obion • York Chaptar
rmuBTEEM
Mynha L. Allan
John U. BartMT
Donald F. Boatch
Harban W. Carten
L Eugana C/onIn
Loulu C. Ouamling
Dorothy B. Outfy
A. Paul Funkhouaar
Joaaph V. Ganlan. Jr.
Laonta L Gataly
Uaufica K. Goddard
Roban M. Hawaa 3nl
Palar A. Jay
a R. Klnataltar
Shapard Krach. Jr.. M.D.
Burka Lapham
M. Lae Uarsion
H. Tumay UcKn\gtH
Kaibarlfta Tumai Maan
Q. Siaala Philipa
Uarla W. fllddar
WDcei Ruffin. Jr.. M.D.
Tnjman T. Samana
Anhuf W. Sharwood
Hanryf.Stam
Thornn H. Stortar
Eugana 8. Sydnor. Jr.
Oannla L Taylor
W. Lawrartca WaUaca. Sr.
MktiMl Walaon
Arthur L. S. Waxiar
NONOHAAr Tnuarctm
T. Marshal Ouar. Jr.
C. A. Ponar MopMna
Charlaa UcC. Maihlaa
Siura G. Obaon
C. TroMtorUga Strong
WlHam W. Warnor
Chesapeake Bay Foundation
Environmental Defense - Environmental Education - Land Management
162 Prince George Street • Anl5^|^jj^a»laiM|2Mqio
(410)268-8816 Fax (410) 268-6687
March 9, 1993
Honorable Paul S. Sarbanes
309 Senate Hart Office Building
Washington, D.C. 20510-2002
Dear Senator Sarbanes:
I am writing to express the Chesapeake Bay
Foundation's strong support for the Chesapeake Bay
Restoration Act of 1993. As you know, I have been
concerned about the apparent loss of momentum within the
Chesapeake Bay Program in recent months. Although I
realize that no single piece of legislation can save the
Chesapeake Bay, I believe this bill will shake up and
reenergize the Bay program. I am particularly
enthusiastic about the new wetlands restoration program.
It is time to move beyond simply focussing on preserving
our remaining wetlands, and get on with the job of
restoring and enhancing the resilience of the Bay.
I ~am also glad to see the Act's focus on the
tributary strategies. This legislation will take us the
necessary next step towards true integrated watershed
management, an approach pioneered by the Chesape^e Bay
Program that is now widely recognized as the only logical
way to protect our waterbodies.
Finally, the participation of Federal agencies new to
the Bay Program, including the Departments of
Transportation and Housing and Urban Development,
recognizes the fact that many parts of the Federal
government, not just those concerned with the environment,
affect the health of the Bay. As we increasingly
recognize the linkages between how we use the land and the
health of the Bay, these agencies' participation in the
Bay Program has become essential.
In summary, this legislation is a definite step
forward for the Bay Program, and will aim it in the right
direction for the rest of the century. I would like to
thank you and your cosponsors for your efforts on behalf
of this legislation and on behalfyB^ the Chesapeake Bay.
,yoxj
Baker
President
Virginia Office: Heritage Building • 1001 E. Main Street • Richmond, Virginia 23219 • (804) 780-1392
Maryland Office: t4 Market Space • Annapolis, Maryland 2t40t • (4t0) 268-8833
Pennsylvania Office: 21 4 State Street • Harrisburg, Pennsylvania 1 71 01 • (7t 7) 234-5550
NonMorine BUadied Rteydtd Paper
943
Executive Department
WASHINGTON OFFICE
- ■ Washington, D. C 2000I
ilLLIAM DONALD SCHACFER
March 8, 1993
The Honorable Paul S. Sarbanes
United States Senate
Washington, DC 20510
Dear Senator Sarbanes:
I am writing, in my capacity as Governor and Chair of the Executive Council of the
Chesapeake Bay Agreement, to commend you for the initiative you have taken to
reauthorize and expand federal participation in the Chesapeake Bay program through
the introduction of the Chesapeake Bay Restoration Act of 1993. It is time to update
the existing federal involvement, and build upon the federal-state partnership we
established in the 1987 Chesapeake Bay Agreement. Your legislation opens a new
phase in the Bay program and gives the clean up effort an important boost.
The Chesapeake Bay watershed will face increasing environmental threats in the years
ahead. In 1992, the Executive Council agreed to amendments that will expand the
program to include control of the pollution that flows into the Bay from the its major
tributaries. This approach will require substantial new efforts to reduce the amount of
nutrients that enter the Bay from nonpoint sources. The new efforts are necessary if
we are to meet the 40% nutrient reduction goal called for in the Bay agreement.
The cooperation of government at the federal, state and locaf level will be essential to
protecting and restoring the Bay. Your oill helps to establish the blueprint for that
cooperation. It also provides for new opportunities on habitat restoration through the
creation of low-cost restoration and enhancement demonstration projects. These
projects directly address an area that is key to supporting the living resources of the
Bay, the main goal of the Bay agreement.
944
The Honorable Paul S. Sarbanes
March 8, 1993
Page 2-
I also want to thank you, and Charles Stek of your office, for consulting extensively
with my Washingtbri Office, Maryland state agencies, the Chesapeake Bay
Commission, and all sectors of the Bay community during the process of drafting your
legislation. The final product reflects a broad consensus of what needs to be done to
build upon the progress we have already made.
I look forward to working with you to ensure the passage of this Important legislation.
Sincerely,
^Governor ^
945
Sierra||
V_>LUd Vf^^-V^ 408 C Street. N.E. Washington, D.G. 20002 202 -547 -1141
CLEANING UP GREAT LAKES TOXIC WATERS
STATEMENT OF GEORGE COLING
SIERRA CLUB GREAT LAKES SPECIALIST
AUGUST U. 1993
ON THE NEED FOR A COHPREHENSIVE PROGRAM TO
CLEAN UP CONTAMINATED SEDIMENTS IN THE GREAT LAKES
BEFORE THE. SUBCOMMITTEE ON CLEAN WATER, FISHERIES AND WILDLIFE
SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE
CHAIRED BY THE HONORABLE BOB GRAHAM
ON BEHALF OF THE SIERRA CLUB, CITIZENS FOR A BETTER ENVIRONMENT,
COAST ALLIANCE , CONTAMINATED SEDIMENTS WORK GROUP,
GREAT LAKES UNITED,
THE LAKE MICHIGAN FEDERATION,
AND THE LAKE SUPERIOR ALLIANCE
"When wc try to pick out anything by itself, we find it hitched to everything else in the univei5C."y<'^ ^^'"''
National Headquaneis: 730 PoUc Street, San Francisco, California 94109 (415) 776-2211
PWffreO ON UNeUACMED ««% POSTCONSUMEB WASTE
946
I would like to Chank Che Subcommittee and the chairman for holding
this hearing and for leading the effort to clean up the nation's
waters .
My name is George Collng, and I am the Sierra Club's Great Lakes
Specialist based in Washington. . I am testifying today on behalf
of the Sierra Club, the Lake Michigan Federation, Citizens for a
Better Environment, Great Lakes United, Natural Resources
Defense Council, the Coast Alliance, the Contaminated Sediments
Work Group and the Lake Superior Alliance. These organizations have
appeared many times before Congress to urge a comprehensive program
to clean up contaminated sediments that line our harbors and stop
additional toxic pollution from sullying our waters.
It is my pleasure today to voice the strong support of these
organizations for the Great Lakes Clean Water Amendments Act of
1993, S. 1183. At the outset, we want to thank Senator Metzenbaum,
Senator Glenn and other co-sponsors of the bill for their
continued leadership in cleaning up the Great Lakes. These lakes
are the largest freshwater ecosystem in the world, and only through
the continued leadership of our elected officials will the Great
Lakes continue to maintain the vibrant diversity of life and
culture around them. We feel that this bill, with the
modifications and additions suggested below, offers solid progress
in cleaning up the toxic muck that clogs harbors, threatens public
health and Jeopardizes 2.9 million Jobs in fishing, shipping
and tourism and $76 billion of the Great Lakes economy associated
with these Jobs.
Before specifically commenting on the bill, I wish to emphasize
that we view this bill an integral part of a comprehensive,
national plan for cleaning up poisoned sediments. On July 1, 1993,
Brett Hulsey, Sierra Club Great Lakes Program Director, testified
before this Subcommittee and outlined this eight point plan. In
sum, it is:
1. EPA needs statutory authority to develop a strong national
program with deadlines and funding to measure and clean up toxic
sediments with strong and practical sediment quality criteria (SQC)
so that communities can identify and cleanup toxics sediments in
their area. Federal criteria exist for every other major form of
pollution. SQC are needed to identify the extent of sediment
contamination, to help protect clean areas and promote pollution
prevention, to identify critical areas for cleanup, and to
determine appropriate methods to manage dredge materials.
2. EPA must develop policies to apply SQC to the states and other
programs. States need EPA guidance to apply the SQC to various
programs like the NPDES , non-point, ocean and estuarine dumping
criteria, and Superfund.
947
3. EPA should admlnlscer a naclonal sediment program to use
technologies developed by EPA's Great Lakes (ARCS) program and the
Superfund SITES programs to cleanup toxic sites in the Great Lakes
and marine sites. This program also needs to test new
technologies In critical marine sites in addition to New York/New
Jersey harbors which were authorized under section 405 of URDA of
1992. EPA has bench tested at least five technologies in the Great
Lakes but full-scale tests are needed to determine costs and
effectiveness before recommendations can be made for full cleanups.
4. Make pollution prevention measures a condition to receive a
permit to dispose of contaminated sediments and include pollution
and sediment prevention measures in other Clean Water Act programs
to reduce further sediment contamination.
5. The EPA/Corps ocean disposal program should be improved since
the ocean dumping criteria (as niandated by section 103 of the
(MPRSA) lack appropriate thresholds to interpret bioaccumulatlon
test results. This program is being run by the EPA regional office
and Corps districts and lacks adequate public review and central
management. Clarification of roles are needed.
6. Develop a phase-out period for open water dumping of
contaminated sediments in sensitive areas like Lake Superior as
called for by the International Joint Commission.
7. Strengthen and enact the Great Lakes Clean Water
Amendments to Improve sediment management and cleanup in the Great
Lakes -- our topic today.
8 . Create a funding mechanism to pay for sediment management and
clean-up under section 115 of the WPCA or another appropriate
section.
Mr. Hulsey's July 1 testimony also outlined our recommendations
for preventing further toxic contamination of the Great Lakes, an
ecosystem whose management goal, by international agreement, is
"zero discharge" of persistent toxic chemicals. I am giving this
testimony as a complement to the July 1 recommendations.
BAUCUS CHAFEE BILL: A PROMISING START
The Baucus-Chafee Water Pollution and Control Act of 1993, S. 1114,
makes significant progress towards the above needed program and
complements the approach in this Great Lakes bill. For example, we
applaud the committee's foresight to give EPA clear authority to
release sediment quality criteria (SQC) and set deadlines for 8
chemicals, including PCBs and Dloxin within five years. The PCB
and dloxin standard are particularly important given the current
controversies In New York/New Jersey and Duluth/Superlor harbors.
But since EPA has five draft criteria pending for release this
summer, we feel that they can Include up to eight additional
948
chemicals in that five year period once their protocol for doing
SQC is established.
TOXIC HARBORS: A GREAT LAKES PLAGUE
Throughout the Great Lakes , contaminated sediments plague the use
of our harbors and waterways. Water use in forty- two of
forty- three Great Lakes Areas of Concern is impaired by the buildup
of toxic muck. Table 6-5 shows that there are 193 contaminated
sddiments sites in Ohio (not all in the Great Lakes Basin) , and
evidence on the ill effects of toxic sediments on smaller lakes in
the Basin, such as Onondaga Lake near Syracuse, is building.
Persistent toxic chemicals like PCBs, cadmium, dloxin, DDT and
other pesticide and mercury befoul the sediments, bioaccumulate
through the Great Lakes food chain, vaporize and travel through the
atmosphere to pollute more pristine parts of the lakes, and --in
the lack of EPA sediment Quality Criteria -- represent a potential
time bomb if they are dredged or removed to another area.
These sediments account for 75% of the PCBs going into Lake
Michigan, according to the National Wildlife Federation, they are
also the main source of fish contamination in that Lake.
According to the EPA National Water Quality Inventory, 1988 Report
to Congress,: "The main reason for these fishing restrictions is
contamination of sediments by toxic chemicals such as priority
organics that are, in turn, passed along to macroinvertebrates and
fish." (page 35). The 1990 Report to Congress from the same EPA
program noted that "...landfills and contaminated sediments are the
leading sources impairing the Great Lakes." (page 39). Meanwhile,
more and more sediment washes through Great Lakes streams and
rivers, picking up unknown loadings of contaminants from a wide
variety of agricultural, mining, forestry and Industrial sources.
JOBS AT RISK
These toxic sediments are a clear threat to not only the Great
Lakes Environment, but also the Great Lakes economy. Tourism is
now the second largest sector of the economy in Ohio and many Great
Lakes states. Yet this economy is threatened by continued
contamination. Nitrate pollution and persistent toxics levels for
PCBs and dloxin are increasing in several lakes. Table 1-2 shows
the persistent toxic levels of PCBs in coho salmon in all the Great
Lakes. These levels are over 70 times EPA's 1/100,000 cancer risk
level and may cause thousands of cancer cases each year .
In June, Sierra Club recently released its Clean Lakes, Clean Jobs
study that documents the Jobs and money at risk If we fail to
cleanup the toxic blobs that rest at the bottom of every Great
Lakes harbor. Billions of dollars and thousands of Jobs are at
risk if toxics are not cleaned up (see table) .
949
GREAT LAKES JOBS AT RISK
HEALTH
FISHING
SHIPPING
TOURISM
JOBS
*
89,000
44,000
2,760,000**
COSTS
$18.47 Billion
4.0 Billion
3.5 Billion
69.0 Billion
TOTAL
2,893.000
$94.97 Billion
[* complete data unavailable; ** assumes $25 , 000/direct Job]
Great Lakes tourism is the most threatened industry. Tourism is a
$69 billion industry in the Great Lakes Basin and the number two
industry in several states. In Ohio, Lake Erie recreation industry
accounts for $8.5 billion and 152,000 jobs.
Approximately 89,000 fishing Jobs and more than $4 billion in
commercial and sport fishing proceeds are in Jeopardy. There are
more restrictions on, fish consumption in the Great Lakes than
anywhere in the United States, 1,000 of the nation's 1,400 fishing
restrictions -- five in seven -- come from Great Lakes states.
As the EPA said, these are largely a result of sediment
contamination.
Also at risk are more than 44,000 shipping Jobs and $3.5 billion In
personal and corporate income , including state and local taxes paid
by the ports. Contamination and lack of a national program to deal
with this toxic muck prevent safe dredging In half of all Great
Lakes harbors where sediments cannot safely be dredged.
Because communities cannot safely dredge this toxic sediment,
barges must lightload their cargos an average of 480,000 pounds.
This means lost profits and Jobs in the millions for the entire
Great Lakes Basin.
If you extrapolate these risks to the country at large and three
other coasts, the potential Job risk could be near 10 million and
the coomierce at risk could be near $400 billion. That Justifies an
aggressive national program to Identify and clean these sites.
While the price tag for cleaning up all Great Lakes seems expensive
-- $10 billion by some estimates -- the potential of creating
400,000 Jobs in depressed areas of the Great Lakes Is enormous.
According to the EPA National Water Quality Inventory, 1990 Report
to Congress, 67.7% or 3,288 miles of Great Lakes shoreline do not
support Clean Water Act designated uses. Only 1.8% or 85 miles
950
fully support Clean Water Act designated uses for fishing and
swlouDlng. None of the shoreline In Wisconsin, Illinois, Indiana,
Michigan, and Ohio supports full Clean Water Act designations.
Daafgnatad Us* Support in Grtat Lakas
GrwtLika 3>iOf» MU— A— — 0 yj„ mia, yp„
^_ She™ _Pweant Pareant Fully MOm P«rtally Not
- . . .... SupperUng TtirasMiwd Supporting Supporting
lanoa
Indbna
63
43
3.288
63
43
3,288
0
0
0
100
100
100
0
0
54
9
43
0
3.288
NmYoili
ONo
Wseontti
577
236
650
577
238
650
100
too
0
0
85
0
0
15
0
477
238
650
0
0
0
i.Tolali „ . 4,457
Pwcam of AssMMd Warn
4,857
85
1J%
69
1.4%
1,415
29.1%
..- 3^88—^.
67.7%
Seurta: 1990 Sot* Sacaon 30S(b) npara.
EPA National Water Quality Inventory, 1990 Report to Congress,
March 1992. Page 38.
ARCS: A GREAT LAKES SUCCESS STORY
We have several successful programs to address Great Lakes sediment
pollution, like the Assessment and Remediation of Contaminated
Sediments (ARCS) Program, set up under Section 118 of the 1987
Clean Water Act Amendments and the Great Lakes Critical Programs
Act. These provide key demonstration programs and deadlines to
test technologies and complete the Remedial Action Plans (RAP) .
Sierra Club participates the ARCS Citizen Work Group, I can report
some progress on this program -- five pilot treatments were tested
last summer with some promising results. In the laboratory, over
10 technologies were tested. ARCS also did five in-depth
contaminant assessments from Buffalo, Ashtabula, Saginaw, Indiana
Harbor, and Sheyboygan harbors. But these plans and tests are only
that. We need a concrete program to clean up these 27 toxic Great
Lakes hotspots and many others in ports around the country.
GREAT LAKES CLEAN WATER AMENDMENTS ACT: A NEEDED STEP
The Clean Water Act reauthorization presents a perfect opportunity
to make additional progress in the Lakes (and throughout the
nation) . The Great Lakes Clean Water Amendments Act of 1993 is the
basis for doing so. We urge that this bill, with the specific
modifications and additions noted below, be merged with the Clean
Water Act reauthorization vehicle.
Before discussing these points, I wish again to commend the authors of
this bill for an well-crafted approach In identifying the sources
of sedimentation, for their promising strategy for dealing with the
contentious issue of confined disposal facilities and for their
general leadership.
951
SPECIFIC MODIFICATIONS AND ADDITIONS NEEDED
Sierra Club and the other organizations represented in this
statement offer the following comments on S. 1183.
MODIFICATIONS
Section 4: Include the possibility of adding more full scale
demonstration projects in the program. The extensive mass-balance
study done on Green Bay and other information may demonstrate
enough knowledge to readily make the transition to a full-scale
remediation within the time frame of the bill. Other sites for
full-scale clean up might emerge, and EPA should be given latitude
and encouragement to do more than five full-scale remediations. A
change in the wording of line 24 of page 23 to, adding "...at least
5 full scale..." would provide sufficient latitude, but Congress
should require an EPA report either directly to Congress or as a
finding on whether or not other sites have been chosen and the
rationale for this choice.
Section 4: Shorten the times for EPA's completion of pilot scale
demonstrations and assessments. We suggest shortening the time
frame for this work by three years. The success of the present
ARCS program and the on- going work on the full-scale remediations
should make the suggested time frame feasible. The pace of clean up
must reflect the gravity of the environmental problem. EPA may
need an increase in appropriations to the Great Lakes National
Program Office to proceed at this pace, but this appropriation is a
investment in the health of the Great Lakes economy and the health
of its people that is well worth making.
ADDITIONS
Section 4. Broaden the application of assessments and pilot scale
studies. We urge that the bill direct EPA to make assessments at
and test more clean up technologies on a pilot scale at sites
others than the present Areas of Concern. First of all, other
Areas of Concern might be specified under the provisions of the
Great Lakes Water Quality Agreement. Secondly, other sites,
whether or not they have AOC status, will undoubtedly need at least
pilot scale demonstration over the next several years. Specific
candidates are Lake Calumet at Chicago, the focus of continued
planning for its remediation and economic development of areas
around it, and Onondaga Lake at Syracuse, subject of a management
strategy under the 1990 Great Lakes Critical Programs Act. This
legislation should provide for the transition from planning to
remediation of Onondaga Lake and the application of what we have
learned from ARCS to Lake Calumet and other appropriate lakes and
waterways, not in the designated Areas of Concern.
952
New Section: Set a statutory deadline for completion of Phase II
of EPA's Great Lakes Initiative. Another major success In the
history of Great Lakes clean up Is EPA's proposed Great Lakes
Initiative. This proposed federal rule would provide for uniform
water quality standards in each Great Lakes, levelling the economic
playing field and adding stability to our Industrial Heartland.
The Initiative would also require that bloaccunulaclon of
persistent toxic chemicals, protection of vulnerable at-risk groups
and other measures that build on the best science be used to
provide much more stringent standards to safeguard the health of
the present and future generations of people In the Great Lakes .
The GLI is affordable. It Is an investment that the nation must
make to protect the largest freshwater ecosystem on the planet.
Indeed, EPA is holding hearings on this rulepaking in Chicago today and
tomorrow, and other environmentalists are speaking to the merits
of this precedential rulemaking.
However, the scope of the present GLI Includes only point source
discharges. Sources for contaminated sediments, airborne toxics,
polluted, runoff and other source of chemical contamination of the
Great Lakes has been assigned to a second phase of rulemaking,
called the Toxic Reduction Initiative. We urge that the Great
Lakes Clean Water Amendments Act put a statutory deadline on the
completion of the Toxic Reduction Initiative. We suggest a
proposal date of September 30, 199S, and proniulgatlon date of
December 31, 1996.
EPA deserves great credit for conceiving the Great Lakes Initiative
as follow through on the 1987 revamping of the Great Lakes Water
Quality Agreement. Nevertheless, the present GLI rule was moving
slowly through the EPA until the 1990 Great Lakes Critical Programs
Act specified a proposal date of June 1991. Even with that
statutory dead line, it took a National Wildlife Federation lawsuit
to force the proposal to be Issued on March 31, 1993. Again,
rulemaking must proceed according to the gravity of the
environmental concern. The concern Is grave, regulations for many
of the sources of Great Lakes of pollution will be outmoded --
less than state of the science -- as soon as Great Lakes
Initiative I is promulgated. Equity demands that EPA expeditiously
address these other sources. Congress needs to set a statutory
framework to marshall EPA's resources this expeditious pace.
Make Lake Superior a world-class pristine water body. We urge Congress to
make Lake Superior a world-class demonstration area for zero discharge of
persistent toxic chemicals. This action to intplement the Great Lakes Water
Quality Agreement follows through on the cogent 1991 recommendation of the
International Joint Commission and strengthens the US Canada blnatlonal action
plan for Lake Superior. Congress should stipulate that ail of Lake Superior
is an Outstanding Natural Resources Water under the Clean Water Act.
Any of our organizations may have more comments on the details of
the legislation and communicate them to you by letter.
953
CONCLUSION
In conclusion, this year's Clean Water Act reauthorization and
Introduction of the Great Lakes Clean Water Amendments Act gives us
the opportunity to stop additional persistent toxics from entering
the Great Lakes and other waters of the United States and to clean
up the current toxic hotspots . We look forward to working with
the Senate, EPA and interested parties to respond to the moral
imperative of protecting and restoring the precious Great Lakes for
generations to come .
954
This is taken from EPA National Water Quality Inventory, 1990 Renort to Conjtress, page 96
Tabl«6-5. S«dlin*nt Contamination Raportad by StatM
AJaska
Arizona
Calilomia
Connaclicut
Oalawara
DC
Florida
Hawaii
nOnoia
bidana
Iowa
Kamucky
Louisiana
Maina
Maiyland .
Masaachusatts
Mictiigan
Mnnaaota
Navada
NawYofk
Ohio
OMahoma
Oregon
Rhoda laiand
South Carelna
South Oafcoia
Virginia
Numbar
ofSltaa
Contaminama Mantiflad
1 Aromatic hydrocaftxvis
6 PMibda*. m«ais (boron, chraniium. saianum).
radnchamicaia
1 Marcury
6 l-Md.polychlonnatwtbiphanyla(PC8a).amnc
chamicals. and oihaf matatt
LMd. cadmium, zinc. <*lordan». DOT
Haavy maiala. DOT. PCSa. hapiKhlorapaxida
Maialt. polynuelav aremadc hydrocarbona (PAHa).
'1 iii;
1 : •
PCga
PC8s
Priority oiganica. craoaota, rnaWi. ol and QTMsa. PC8s
nm^iyltotmanwto. iDkjana. MdtoMtww.
cMorinatad solvants, lris(2J-dkramapn]pyq phoaphata.
Nk*ai.zine.PAH«.nan-OOTptiin.lnii t~.T*'<,f,t.
patfddas. DOT. PCSaantfaOMrmaMa
Ma>H«.priet*yo>Baniea.oiandgraia
Maicwy. atcytaad laad. PCaa. doni. banaXaHiyrana.
hmchtorebanzana (HCq. OOT. dattbi. tm^ihana.
Mareunr. PCSa, coai tHB
Maroay and otfiar niatrii
193 . AnaniceMMum.ctiramium,oappar,laadlziK
10 ,'.. Marcunr.lMd.iinccM0RJana.hydrecirtxna.PC8a
14 - - Araanic. cadmium. d«amiuni.ooppar.laad.nidiai.
zinc. DOT, PAHs. PCSa. pMhalMaa. cyartda. wIMIa
•o>B«nicoompcund».phan«<hiaiia.paBttcWotBphaiiul
Virgin
^ Wlaconain
2 . . ; PCSa, chiuiHtfii, marcwy
4 ^ . Maicury
31 Satanfean. chromium, araanic, Iran, wanganaaa. nichal.
cadmiuin, zinc, coppar, matcury, laad
10 .-. Marcury. coppar. aataniwii. cadmium. nidial. zinc
.24 ^ r - PCaa.dtaxin.m8taay,pantBcMotaphanal.ananie.
.'^■S^' cadmium, chromium, zinc, oi and ^aaa. pirtcidii.
■ ■''■—.: PAHa
Totai
SoucK l«S0SIMiS«caQn30S(b)iapani.
955
STATEMENT OF WILLIAM C. BAKER, PRESIDENT, CHESAPEAKE BAY
FOUNDATION, ANNAPOLIS, MARYLAND
Mr. Chairman, members of the Committee, thank you for the opportunity to
appear before you today. My name is WiUiam C. Bsiker; I'm the President of the
Chesapeake Bay Foundation (CBF), a non-profit environmental organization founded
27 years ago and dedicated to restoring and protecting the Chesapeake Bay and its
resources. We have over 87,000 members from all fifty states and 14 foreign coun-
tries. (In Texas, for instance, we have 50 members.) This diverse membership re-
flects the fact that the Chesapeake Bay is not only a worldwide treasure, but a na-
tion£d and international model for the restoration of our coastal waters. The pro-
gram to restore the Bay is an effort involving the combined activities of federal,
state, and local governments, as well as those of concerned citizens from all sectors
of society. It is important to remember the Chesapeake Bay of 27 years ago. Even
then, the words of H.L. Mencken, who called it "an immense protein factory," reing
true. A quarter of a century ago, the Chesapeake produced one quarter of the na-
tion's oysters, one half of all hard crabs (100 million pounds in a good year), and a
staggering 95% of all soft crabs consumed in the United States. In addition, nine
out of every ten striped bass caught from North Carolina to Maine were bom in the
Chesapeake Bay.
Today, the Bay is a far different place. For the first time ever, the Gulf Coast
catch of blue crabs has exceeded the Chesapeake. Overfished, over fertilized with
nitrogen and phosphates, poisoned with toxins, stripped of much of its valuable
habitat, the Bay can be described as "degraded," "abused," and "polluted." But it is
not dead. A decade of intense public and private effort to save the Bay has produced
some signs of improvement and many signs of hope.
In assessing where we are today, and where we would like to be in ten years, it's
important to remember how far we've come. A great deal has been achieved since
1983 which gives us confidence that by 2003 we can make just as much progress — if
we identify where we want to go as boldly as we did ten years ago.
When the Chesapeake Bay Agreement was put in place in 1983:
• Detergents still contained phosphates
• The damaging impacts of nitrogen in the Bay were largely ignored and misun-
derstood
• No sewage treatment plants were designed to remove nitrogen
• Rockfish were almost commercially extinct, with a moratorium yet to come
• Fisheries management plans were a theoretical ideal
• Critical areas land use legislation was a just a proposal
• Agricultural programs focused almost exclusively on soil erosion
• Pollution prevention wasn't even discussed
• Pennsylvania wasn't a member of the Chesapeake Bay (Commission
We now consider most of these issues routine; for example, we are debating the
best way of achieving nitrogen removal from sewage treatment plants, not its neces-
sity. We can't understand all the fuss about the phosphate detergent ban. And
Pennsylvania is a full and complete partner that has most recently taken a leader-
ship role on nutrient runoff from agricultural lands thanks to legislation sponsored
by Representative Jeff Coy. It is important to keep this ten-year perspective in
mind. A great deal can be achieved if we set our sights high and work together. But
it is also clear that we have a long way yet to go. We cannot afford to reach only for
what appears easy to achieve in the short term.
The primary Bay jurisdictions — Pennsylvania, Maryland, Virginia, and the Dis-
trict of Columbia — have spent hundreds of millions of their own dollars on restoring
the Bay. But the Federed government's role in the Bay cleanup may be the linchpin.
'The funds provided by the EPA each year bring the Bay states to the table, where
they c£ui identify common concerns and develop common strategies to deal with the
Bay's problems. This multi-state, team approach, almost unheard of ten years ago,
minimizes finger pointing, and has resulted in the active involvement of one state —
Pennsylvania — that doesn't even share a foot of the Bay's shoreline. Pennsylvania's
participation, and even leadership on certain issues, is evidence of the power of the
watershed approach to problem solving.
The Chesapeake Bay Foundation strongly supports the Chesapeake Bay Restora-
tion Act of 1993 introduced by Senator Sarbanes with the full support of the Bay
delegation. Although I realize that no single piece of legislation can save the Chesa-
peake Bay, I believe this bill will substantially advance the Bay cleanup. I am par-
ticularly enthusiastic about the new wetlands restoration program. It is high time
to move beyond simply focussing on preserving our remaining wetlands, and get on
with the job of restoring and enhancing the resilience of the Bay.
956
I am also glad to see the Act's focus on the tributary strat^es. This legislation
will take us the necessary next step towards true int^rated watershed manage-
ment, an approach pioneered by the Chesapeake Bay Pn^ram that is now widely
recognized as the only logical way to protect our waterbodies.
Finally, the participation of Federal agencies new to the Bay Program, including
the Departments of Transportation and Housing and Urban Development, recog-
nizes the fact that many parts of the Federal government, not just those concerned
with the environment, affect the health of the Bay. As we increasingly recognize the
linkages between how we use the land and the health of the Bay, these agencies'
participation in the Bay Program has become essential.
In summary, this legislation is a definite step forward for the Bay Program, and
will aim it in the right direction for the rest of the century. Despite the value of the
Restoration Act for the Bay, however, it is the language in the rest of the Clean
Water Act that can make or break the cleanup. The issues you are debating— wet-
lands protection, combined sewer overflows, water quality standards, sewage treat-
ment are all pieces of the puzzle that must be assembled to restore the Chesapeake
Bay. Polluted runoff— nonpoint source pollution — is one of the most pressing, and
most difficult, water pollution issues that still needs to be addressed.
The Water Pollution Prevention and Control Act of 1993 (S. 1114) being discussed
in this committee has many features we support. For example, it clearly embodies
the concept that the most effective way to deal with pollution from toxic substances
is to keep them out of discharges. It establishes stronger programs to deal with pol-
luted runoff, including mandatory programs for impaired watersheds. It elevates the
watershed to its appropriate position in the Clean Water Act, the focus for planning
and implementing restoration programs. As you debate these and other issues relat-
ed to the Clean Water Act, I hope you will remember the very real places— includ-
ing the Chesapeake Bay — whose health depends on your actions.
The Chesapeake Bay watershed consists of some 64,000 square miles. Every drop
of stormwater that washes off that vast area heads straight for the Bay. The water-
shed is now home to some 15 million people in six states and the District of Colum-
bia, twice what it was before World War H. In order to restore the Bay, it will be
necessary for us to reduce our cumulative impacts. This is a daunting challenge, be-
cause the population is conservatively projected to grow by 20% over the next 25
years, a one-third increase in the number of households. That population growth is
the equivalent of the entire state of Mississippi picking up and moving to this area,
with the corresponding demand for housing, roads, places to work, schools, sewage
treatment plants, and so forth. In order to achieve a net improvement in the Bay,
we will have to effectively accommodate this growth with NO additional pollution,
or greatly increase per capita reductions in the impacts of existing residents. Just as
the year 2000 once represented the distant future, the year 2020 will be upon us
before we know it, and our children and grandchildren will be debating the implica-
tions of the projections for the year 2050. How we plan for the next 30 years will
determine the nature of that debate, just as this discussion is largely the result of
decisions made in the last 30 years.
It may sound presumptuous to say this, but the fact is that the world is watching
us here in the Chesapeake Bay region. Every week, our offices are contacted by visi-
tors from all over the world. In the past six months, we've hosted visitors from
Great Britain, Japan, the former Soviet Union, Nepal, New Zealand, India, Peru,
South Korea, Germany, Bulgaria, Poland, the Czech Republic, Hungary, Slovakia,
Brazil, the Baltic Republics, Finland, and Sweden. This November, the Chesapeake
Bay will be the centerpiece of the International Conference on Environmental Man-
agement of Enclosed Coastal Seas to be held in Baltimore, Maryland. Other estu-
aries around the country, as well as other environmental groups, look to the Bay as
well. The National Estuary Program is modelled after the Chesapeake Bay Pro-
gram; environmental groups, such as the Galveston Bay Foundation, have been
modelled after the Chesapeake Bay Foundation. We in this r^on are indeed blaz-
ing a trail for the rest of the nation, even the world. I urge you to incorporate the
Chesapeake Bay Restoration Act into the amended Clean Water Act. When you do
that, please consider formally designating the Chesapeake Bay as "THE NATION S
ESTUARY," for that is what it truly is — a natural resource of singular importance
to the nation. • ^ • x u-
Lately, when asked how the Bay is doing, I have said that the patient is stabi-
lized, and that we are poised on the brink of real recovery. I do not mean to mini-
mize the challenges we face; as I've discussed above, they are formidable. But do we
really have any choice? . . , » x, j.-
The Chesapeake Bay lies in the heart of this great nation s mid-Atlantic region.
Washington, D.C., the Capitol of the world's last super power, is both geographically
957
and historically central to the Chesapeake Bay. The fifteen million people who live
in the watershed have repeatedly and overwhelmingly demonstrated their commit-
ment to Saving the Bay. In fact, love for the Bay may just be as close as we will
come to establishing £m environmental ethic.
We have a great federal, state, local partnership at work here on the Chesapeake.
The cooperation is historic. We must set our sights high; we must look to restore,
not just maintain, the Chesapeake Bay. For if we cannot do it here, with all that we
have going for us, we must ask what hope is there for the rest of the planet.
Thank you.
STATEMENT OF JEFFREY COY, PENNSYLVANIA HOUSE OF
REPRESENTATIVES, CHESAPEAKE BAY COMMISSION
Mr. Chairman and members of the Committee, my name is Jeffrey Coy and I am
a member of the Pennsylvania House of Representatives and Chairman of the
Chesapeake Bay Commission. The Commission is a tri-state legislative advisory com-
mission that was created over a decade ago by the legislatures of Maryland, Virgin-
ia and Pennsylvania to assist the states in addressing Chesapeake Bay-related issues
of mutual concern. The commission is a signatory to the 1983 and 1987 Chesapeake
Bay Agreements along with the Governors of Maryland, Pennsylvania and Virginia,
the Mayor of the District of Columbia and the Administrator of the U.S. Environ-
mental Protection Agency. Of the six signatories, the Commission is the only signa-
tory representing the legislative branch of government. Functioning as the legisla-
tive arm of the clean-up effort, it is the Commission's responsibility to work with
both the state legislatures and the Congress on programs to restore Chesapeake
Bay. It is in that capacity that I am before you today.
The Commission also provides an important tri-state perspective for the restora-
tion effort. The wisdom and strategies that are exchanged by the delegations from
the three states are vital in moving the progrgmi forward.
I am honored to be here today as Chgurman of the Chesapeake Bay Commission,
representing my friends and colleagues from the legislatures of Pennsylvania, Mary-
land and Virginia and the other members of the Chesapeake Bay Commission to
support reauthorization of the Clean Water Act which should include the provisions
of the Chesapeake Bay Restoration Act and to emphasize the important role of the
federal government as a partner with the states and the District of Columbia in the
restoration of Chesapeake Bay.
First, I would like to share a few comments concerning the broader picture — the
critical importance of the reauthorization of the Clean Water Act. For almost two
decades, the Water Pollution Control Act has been regarded as landmark legislation
aimed at improving, protecting and restoring water quality throughout the nation.
The Act has served both as a vehicle for providing financial assistance to the states
in areas such as the construction and expansion of wastewater treatment facilities
^d has provided by example the incentive or impetus for many of the water quality
programs which we have undertaken at the state level.
We commend you for your foresight in pursuing the re-authorization £md
strengthening of this vital legislation. Virtually every element of the Clean Water
Act enhances and supplements our efforts to protect and restore the Chesapeake
Bay. The Act's continued support for sewage treatment plants and controls on toxic
pollutants will reap significant benefits in the Bay. I am particularly pleased to see
the nonpoint source pollution control provisions of the Act strengthened and reem-
phasized. We have found, as have other across the nation, the control of runoff and
other nonpoint sources, is a vexing and expensive problem. I think it is fair to say
that we have made real progress in the Bay region, but continued emphasis at the
federal level can only help.
While I am sure the committee is aware of the problems facing Chesapeake Bay,
let me briefly review its condition. While we have made significant advances in the
10 years since the first Chesapeake Bay Agreement was signed, it is fair to say that
we have a long way to go. We have made progress with significant reductions in the
nutrient phosphorus entering the Bay because of a number of initiatives including
phosphate detergent bans, improvements in sewage treatment plants and controls
on runoff from agricultural and urban lemds. Improved water quality in many areas
has led to slow but steady improvements in underwater grasses which are vital
habitat and nursery areas for a msnnad of Bay species. Striped bass, known around
the Bay as rockflsh, have rebounded. But problems remain: we continue to have dif-
ficulty in controlling excess nitrogen, although increase have been slowed, critical
habitats such as wetlands are still under pressure and we still need to understand
958
and remedy toxics problems that exist in the waters and the sediment of the Bay.
Our fisheries continue to decline and we face an expanding human population in
the watershed that will continue to stress the Bay and its resources.
There are good reasons why we have come so far and why there is reason for opti-
mism about the future. The current Chesapeeike Bay Agreement, signed in 1987 and
amended in 1992 has provided clear, strong specific and comprehensive goals for the
multi-jurisdictional Chesapeake Bay Program and those goals have been embraced
by the highest levels of leadership in the region. We have, under the rubric of the
Chesapeake Bay Program, brought together not only the states, the district, the
commission and EPA but thousands of citizens, scientists, business leaders, local
governments, farmers and others to work for common goals. We have been guided
by state of the art research and have used a computer model for management that
is arguably one the most sophisticated in the world. We have also not rested on our
accomplishments. The participants in the Chesapeake Bay Program have not been
shy about reassessing our -commitments in the face of new scientific evidence and to
move to new areas and abandon those that are not productive. We have also recog-
nized that there is not one monolithic approach that works in all areas. With a wa-
tershed that spans multiple states and thousands of local jurisdictions, success
comes only be recognizing regional difference and therefore the tools we have em-
ployed a range of programs that range from r^ulations to voluntary incentive
based programs.
Throughout the Bay region, the environmental professionals, the politicians and
the public at large all recognize and appreciate the importance of continued involve-
ment of the federal government in our efforts. Your interest in and support for the
Chesapeake Bay has been not only a catalyst, but also an incentive and an inspira-
tion to our state and local governments. The recognition of the Chesapeake Bay as a
resource of national significance, and your financial support for this program since
1984 have provided a vital underpinning for this entire effort. It has enabled the
states to adopt programs which would not otherwise be possible. The active involve-
ment of EPA and other federal agencies has leveraged hundreds of millions of state
and local dollars. The states have taken seriously their obligations and have re-
sponded with significant investments of time and money. Since the beginnings of
the program in the late seventies and the early eighties federal assistance to the
Bay region has grown substantially. It now amounts to more than $20 million dol-
lars annually, with over 60% of the figure going to on the grovmd implementation
programs. While this money is vital, it is dwarfed by the total expenditures on Bay-
related initiatives of states and the District of Columbia. In my own state of Penn-
sylvania, as in Maryland, Virginia and the District of Columbia, federal money pro-
vided by the Bay Program has helped established the groundwork for important ini-
tiatives:
Pennsylvania is blessed with a strong agricultural economy, however, excess nu-
trients produced by agricultural operations have proved to be a major water quality
problem for the Susquehanna River and ultimately Chesapeake Bay. Money for the
Bay program, some 12 million dollars since 1987 and supplemented by 17 million
dollars of state money, has given us the ability to give grants to farmers to install
best management practices and build manure storage facilities to help control nutri-
ents. Earlier this year, the Pennsylvania l^islature, with the support of both envi-
ronmental and agricultural interests, adopted landmark agricultural nutrient man-
agement legislation which I introduced on behalf of the Pennsylvania delegation to
the Chesapeake Bay Commission. I firmly believe that part of the success of that
legislation came from the knowledge about and acceptance of farming practices that
were funded in part by the Chesapeake Bay Program.
In your considerations of the Clean Water Act and the incorporation of the provi-
sions of the Chesapeake Bay Restoration Act, you will have yet another opportunity
to express your support for the type of inter-jurisdictional and interdisciplinary
management structure which we have put in place in this region. As you consider
the reauthorization' of the Clean Water Act, I urge you also to view the Chesapeake
Bay as a microcosm of the water quality problems confronting our nation. I am cer-
tain that there is no problem unique to the Chesapeake Bay. The Bay's problems
are the nation's problems. And therefore, many of our solutions we embrace will
benefit the nation. .
In closing, I would only say that I cannot emphasize too strongly the importance
which the Chesapeake Bay community attaches to your efforts here. I believe that
you have before you an opportunity to signal to the citizens of the Bay region, and
to the nation at large, your continued commitment to the protection of this nation's
most productive estuary. The Chesapeake Bay restoration effort is a state-of-the-art
959
experiment in environmental protection which deserves and demands your contin-
ued support.
Thank you the opportunity to be with you today.
960
REMARKS TO THE SENATE COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
REGARDING THE REAUTHORIZATION OF THE CLEAN WATER ACT
Deputy Secretary Caren B. Glotfelty
Pennsylvania Department of Environnental Resources
August 4, 1993
Mr. Chairman and members of the Committee, my name is
Caren Glotfelty, and I am Deputy Secretary for Water Management of
the Pennsylvania Department of Environmental Resources. In this
position, I 2UB responsible for all water quality and water quantity
programs in Pennsylvania, Including the Commonwealth's participation
in the Chesapeake Bay Program.
I appreciate the opportunity to speak to you today on Senate
Bill #1114, concerning reauthorization of the Clean Water Act.
I have been asked, specifically to discuss the Chesapeake Bay
Program — The lessons we have learned from the program that should
be applied elsewhere and provisions that should be included in this
Clean Water Act to insure the continued success of the Chesapeake Bay
Program and watershed planning efforts elsewhere.
Although the area in Pennsylvania drained by the Chesapeake Bay
occupies only about a third of the Commonwealth's total land, the
Chesapeaike Bay Program has tsiken on an importance in Pennsylvania, as
it has in the entire country, beyond the geography it directly
affects. Since the initial Bay Agreement in 1983, the ChesapeeOce Bay
Program has established itself as the preeminent watershed
restoration, protection, and management program in the United States.
The Chesapeake Bay Program has been a laboratory for watershed
management approaches that 2u:e serving as models elsewhere.
Congress had great foresight in 1987, to include specific authorizing
language for the Chesapeake Bay Program in the Clean Water Act
Amendments. Now that the Clean Water Act reauthorization is again a
topic for Congressional action, it is timely to reflect on what we
have learned from the Bay Program over the last six years. What has
worked well? What are essential elements for continuing success?
«HXT HI^VI WB hSMMXED FftOM TEM CHBSAPBAXB BXX VKOORAII?
Partnerships with Agriculture are Necessary
In 1987, the signatories to the Chesapeake Bay Agreement committed to
reduce the loads of phosphorus and nitrogen (nutrients) entering the
Bay by 40 percent by the Year 2000. In Pennsylvania we focused on
reducing agricultural sources of nutrients, the primary contributors
of nitrogen and phosphorus to the Susquehzmna River. To accomplish
this challenging task, we built a strong and lasting partnership
between the environmental and agricultural communities.
Initially, we relied on a voluntturY approach to agricultural nutrient
management. Pennsylvania's Chesapeake Bay Program used education,
technical outreach, and financial assistance to persuade farmers that
nutrient management is not only environmentally responsible, but can
be profitable as well. Our partnership with agriculture has led this
961
year to th« passage of Act 6, which rsquires ths prsparation and
implsasntation of nutrient managanent plans by high density livestocJt
farms. This new law was the result of the major farm organizations
in Pennsylvania recognizing that nutrient management was essential to
the future of agriculture in the Commonwealth, and that a voluntary
program alone was not sufficient.
Pennsylvania's nutrient management program, while mandatory, is not a
traditional regulatory program. It requires the preparation of a
plan which taXes into accoxuit the farmer's crop needs, soil nutrient
content, available manure, and farming practices. The site specific
nature of nutrient management planning allows the farmer to integrate
appropriate management practices into the normal farming operations.
The program will be administered through the county conservation
districts, traditional allies to farmers. I believe that
Pennsylvania's exeunple could and should spawn a whole new generation
of legislative approaches that rely less on "command and control" and
more on shared goals, education, cooperation, and technical
assistance.
Local Solutions are Weeded to Regional Problems
Another lesson learned from the Chesapeake Bay Progr«un has been the
importance of employing strategies to build support at the local
level for solutions to regional problems. With the 1992 Chesapeake
Bay Agreement, the signatories embarked on the development of
tributary-specific strategies. Until that time, most attention in
the Program focused on the main bay. It finally became cleeur that
without specific attention to the tributaries — that is, to
activities throughout the entire watershed — we could not accomplish
the task of the 40 percent nutrient reduction agreed to in 1987.
The four jurisdictions that have signed the Chesapeake Bay
Agreements — Maryland, Virginia, Pennsylvania, and the District of
Columbia — vary considerably in their geography, population,
development, and in the activities that contribute to the Bay's
nutrient problems. Accordingly, their solutions and their priorities
must be different. In recognition of this, each of the jurisdictions
has spent the last eight months in extensive rounds of public
meetings, developing local solutions which are most appropriate and
cost-effective in aoooaplishlng the agreed-upon nutrient reductions.
The key to the success of these various efforts to accomplish Bay
restoration is that they are all tied into the accomplishment of a
set of coBBon goals for the Bay and watershed as a whole.
Tangible. Measurabla Goals are Essentia 1
Proa in Chesapeake Bay Progreun, we also have recognized the value of
setting these tangible, measurable goals on a watershed basis. The
notion that the Bay could be restored to the water quality of an
earlier time through specific numerical reductions in nutrient
loadings has had a tremendous effect in capturing and holding the
962
public's attention. More recently the Program has been able to Unit
water quality restoration to the return of specific amounts of bay
grasses, and is noving toward the ability to scientifically link
water quality iaproveaent to the return of other living resources.
The power of such tangible goals is such that, even in Pennsylvania,
with no Bay shoreline, the public has retained its interest in, and
strengthened its comnitment to, Chesapeake Bay restoration for more
than ten years.
watershed Planning ie Essantial for Meaningful Water Quality
Inprovement
The Chesapeake Bay Program initially focused on traditional concepts
of water pollution control. The impacts of air pollution were not
well understood. It is now recognized that 25 percent or more of the
nitrogen contributions to the Chesapeake Bay come from atmospheric
deposition. As such, water quality improvements will require air
pollution reductions as well as reductions in point source discharges
from industries and municipalities and non-point source discharges
and point source from agriculture urban storm water.
The success of the Chesapeake Bay Program is a strong demonstration
that integrated watershed planning and management is the direction in
which we should be going in all geographic areas. Only through
concerted action by all jurisdictions and in all media — air, water,
and land — affecting this Bay — will we be able to make this
progress necessary to restore living resources to this Bay.
These lessons from the preeminent watershed restoration, protection,
and management program should be remembered as Congress moves toward
the idea of watershed management on a cross-media basis nationwide.
It is also important that any mandated approach to watershed planning
and management be flexible. Interstate and intrastate agencies
already engaged in effective watershed management should be allowed
to continue without interference. New organizations should have
this flexibility to design and implement watershed management
approaches that fit the needs and circumstances of the resources and
jurisdictions involved.
wtaa i» MBBDBD za thb ciiEah v&tbr act ssaotrorisatiov?
Retain Emnhasts on Nutrient Reductions
With the first Chesapeake Bay Agreement, in 1983, nutrients were
identified as the culprit causing the Bay's decline in living
resources. In 1987, although other environmental goals were set,
there was a strong and specific emphasis on nutrient reductions.
Because we have been somewhat single-minded until now, the
jurisdictions have largely targeted their resources toward actions
necessary to reduce nutrients. With the 1992 Agreement, the
jurisdictions enlarged their perspectives to include the tributaries,
but the emphasis remained on nutrients.
As we have learned more about the Bay and its tributeuries, we have
identified additional problems to tackle including the restoration of
Bay grasses, and wetlands, remediation of toxic chemicals trapped in
963
botto» ••dlaenta, and rejuvenation of the stripad bass, oyetar, and
crab fisheries. It has been tempting to declare the nutrient problem
well on its way to solution and to move on to other problems. Partly
this is because we are impatient for the complete solution, and
partly because we are concerned about maintaining the public's focus
on and support for the Chesapeake Bay Program.
However, it is clear that achieving the necessary nutrient load
reductions will take many years and billions of dollars. ?or example,
preliminary cost estimates for the Potomac River, a major
tributary to the Bay, indicate that it may take $155 million to
$244 million per year for an indefinite period to remove the
necessary amounts of phosphorus and nitrogen from point and non-point
source dischaurges to achieve and maintain the 40 percent Baywide load
reduction goal. We need to be able to count on sufficient funding to
accomplish this goal and cannot afford to have the necessary
financial resources or public attention diverted from nutrients until
these reductions are accomplished.
Mj.<n1-«<n T|.^1ama«^^tion Plexibllitv
Perhaps the most critical factor in the success of the ChesapeeOce
Bay Program to date has been the flexibility afforded the
jxirisdictions who lure responsible for implementing the Program in
t2urgeting their resources to meet the broad Baywide goals. Although
we are all part of a single watershed, Maryland, Virginia,
Pennsylvania and the District of Columbia are all very different in
terms of the impacts we have on the Bay, the resources we have
available to solve Bay problems, and the r>^her priorities we must
balance with the needs of the Chesapeetke Bay.
The implementation gremts to the jurisdictions have been substantial,
and more will be requir.-jd. In Pennsylvania, we have spent most of
our $12 million implementation grants, since 1987, on the
agricultural nutrient problem — with most of the dollars going into
cost-sharing best management practices on farms. In other
jurisdictions, other priorities have received funding.
It is crucial that this flexibility to the jurisdictions be
maintained in the future as we focus more on tributary-specific
strategies. This flexibility is essential not only for bow we spend
our dollars, but in the kinds of solutions we choose. Particular
implementation strategies, practices, and techniques should not be
dictated to the ii^lementing jurisdictions. Rather, we should
continue to be permitted to choose our own approaches to meeting
broad Bay goals and to be judged on our performance in meeting those
goals.
Emphasis Coat-Effeetive and PoUutlon-Preventina fiQlutelone
The Bay jurisdictions should be required to invest in solutions that
are the most cost-effective and equitable from a comprehensive
standpoint and that empbasixe pollution prevention and recycling.
Pennsylvania's nutrient management program is a good example of this.
Farmers' are encouraged to use their manure resources efficiently.
964
raduoin? thalr dependanc* on exp«nslv* cheaical fartllizers, which
will both help thair aoononlca and reduca pollution from improper
agricultural nutrient use.
Raeogniza Competing Priorities at National Laval
A final concern to us in Pennsylvania is the need for Congress to
understand that there are a number of watershed programs of national
priority which are competing for our resources and attention. In
addition to our Involvement in the ChesapeaJce Bay Program,
Pennsylvania has been an active participant in the Great Lakes Water
Quality Initiative and a strong partner in the Delaware Estuary
Program. If all of these watershed restoration, protection and
management programs are to produce results, and if our many other
state level water quality management responsibilities are to be
maintained, it is crucial that Congress make its priorities clear,
and back them up with adequate financial resources.
In closing, I want to compliment your efforts to date on behalf of
the Chesapeake Bay and to express my appreciation on behalf of
Pennsylvania citizens. I look forward to yoxir continued support.
Thank you for this opportunity to share ay views with you today.
965
TESTIMONY OF JOHN ATIGN, CLEAN WATER JOBS COALITION, NORWALK
CONNECTICUT
My name is John Atkin and I am speaking on behalf of the Clean Water/ Jobs
Coalition which originated in the Long Island Sound watershed area. I will share
my experience as a former member of the Connecticut House of Representatives
and State Senate for ten years, as founder and chair of the Bi-State Long Island
Sound Committee, as one of the founding members of the Clean Water/ Jobs coali-
tion, and as person actively involved in Long Island Sound through the Soundkeeper
Fund, the National Audubon Society, and other organizations.
I grew up in Norwalk, Connecticut, one of the 98 cities and towns including the
boroughs of Queens and the Bronx, that border the Sound. Today, as when I was a
youngster, I swim in of New York. Inc. the Sound. I have taught aboard a research
vessel on the Sound, about the Sound, to youngsters and adults alike about the 450
species of marine life that inhabit the Sound. I have told my students that the
Sound has 577 miles of shoreline, is 110 miles long, and 21 miles wide at its widest
point. And I have informed them that 10% of the country's population live within
50 miles of the Sound.
That startling statistic is precisely why the estuary is stressed. Over one billion
gallons of inadequately treated sewage pours into the Sound from 44 sewage treat-
ment plants every day. Land development over the last 200 years has filled in
nearly 75% of the coastal wetlands that acted as a natural buffer and filter for the
runoff into the Sound. Additionally, the construction of roads and parking lots near
the Sound speed up the process of oil, salt, trash and animal waste finding its way
into the Sound.
The Sound is bordered by two states, and is serviced by two regions of the Envi-
ronmental Protection Agency (EPA). Connecticut is in Region I, with its office in
Boston, and New York State is in Region II with its office in New York City. Sena-
tor Lieberman's "Long Island Sound Improvement Act of 1990," was an important
step in recognizing the Sound as nationally significant with its own EPA office after
models set forth for the Chesapeake Bay and the Great Lakes. This, along with on-
going work of the Long Island Sound Study under the National Estuary Program,
the creation of the Bi State Long Island Sound Committee and the citizen alliances
and coalitions that have formed are further evidence of Long Island Sound being a
priority water-body for the nation.
I stood on the shores of the Sound on Calf Pasture Beach in Norwalk nearly six
years ago and called on my colleagues from the States of Connecticut and New York
to join together on a formal and regular basis to examine what each state was doing
in handling the problems of the Sound, and how the two states could work together.
This effort was designed to compliment the programs initiated under the National
Estuary Program. I negotiated with the Governor's offices from the two states to
ensure Executive Branch involvement in the process. Identical legislation was intro-
duced in both states to form a Bi-State Committee, and after passage, and the signa-
tures of both Governors, the first meeting was held in Stamford, Connecticut. Gover-
nor William O'Nell of Connecticut attended and enthusiastically called for renewed
action and cooperation between the states, and Governor Mario Cuomo of New
York, through a spokesperson, did the same. Since that day, the state's environmen-
tal agencies, and legislative representatives have been working closely together to
further ensure that the issues dealing with Long Island Sound are addressed equita-
bly on both sides of the state line.
Today, pubUc concern for the Sound continues to be high and major policy deci-
sions are being discussed. In addition to the reauthorization of the Clean Water Act,
the draft of the Comprehensive Conservation Management Plan (CCMP) for the
Sound under the National Estuary Program has been completed and the public has
had an opportunity to comment. Although many of us felt that the Plan fell short of
expectations, and are disappointed in the lack of technical discussion, we still real-
ize that without it, and without the National Estuary Program there would be little
cooperation among the states. For example, the "no net increase" of nitrogen plan
that was adopted by Connecticut and New York probably never would have oc-
curred without it.
The Management Conference of the Sound's estuary program consisted of govern-
ment agencies, academics, elected officials and citizen representatives. They worked
to complete the plan with sections on hypoxia, toxins, pathogens, floatables and
living marine resources. The Citizen Advisory Committee of the Sound study was an
active participant in the process, and was an integral partner in the development in
the final plan.
966
We need the leadership of this committee to ensure that the federal government
remains an active player and financial supporter in the effort to restore our Sound.
Specifically, it is essential that the federal government remain a partner in assist-
ing states and municipalities in upgrading adequate sewage treatment facilities in
the Sound's watershed. In the Sound, hypoxia is responsible for the lack of life in
many parts of the estuary. Only through a federal, state and local partnership can
the billions of dollars needed be foimd.
The continuation of funds in the Long Island Sound estuary to further assist in
the establishment of state revolving loan funds must continue. Many Connecticut
cities have been hard hit by the recession and massive deficits. In fact, Bridgeport,
Connecticut even filed for bankruptcy a couple of years ago to demonstrate the se-
verity of the situation in their city. Federal monies must be tied to priority infra-
structure needs identified in the CCMP of the Long Island Sound study under the
National Estuary Program. In addition, municipalities are beginning to address
growth management issues to ensure new facilities remain in capacity. Long Islsmd
Sound is an estuary of national significance, and Congress should play a role in fi-
ngmcially supporting long term restoration of the ecosystem.
Finally, I'd like to talk a little bit about Senator Lieberman's bill, S. 815, the
Water Pollution Control and Estuary Restoration Act, co-sponsored by Senators
Moynihan, Dodd and D'Amato. In the House, Representatives Rosa DeLauro and
Nita Lowey have introduced companion legislation (H.R. 1720) with over 60 co-spon-
sors. I have attached for the record a list of over 100 organizations from the North-
eastern United States in support of S. 815, including environmental groups and
union and building trade organizations. The reason so much support and leadership
within this list has come from the Long Island Sound region, is that without S. 815
becoming part of the Clean Water Act re-authorization, our efforts and plans to
clean up the Sound will falter. We need strong federal support to the National Estu-
ary Program for implementation of the CCMP, for continued coordination between
state and federal agencies and for the funding levels of S. 815 to bring the SRF pro-
gram to a level of $5 billion annually, with special set asides for critical, nationally
recognized estuaries like Long Island Sound.
WTiile we are gaining support from organizations everyday from other parts of the
country for S. 815, the unique birth of the Clean Water/ Jobs Coalition began on
Long Island Sound. The coalition began on a confrontational note in the winter of
1992, when, as the Long Island Sound Watershed Alliance was meeting in New
York, 1200 union picketers stood outside and expressed concern about their econom-
ic survival. As representatives from both sides met, they started tedking about
cleaning up the Sound, and creating jobs in the process. They also spoke of helping
economies that rely on clean water like commercied and recreational fishing, recrea-
tion gmd tourism; and trying to work for development away from sensitive environ-
mental areas while providing the infrastructure to support it. But most important,
the theme that truly brought the groups together was that the federal government
must pay an equatable share of the clean-up costs. Local, state and federal govern-
ments must pay a part of the sewage treatment investment with the federal govern-
ment taking a leadership role. A Long Island Sound plan which places the entire
fiscal burden on implementation on the most vulnerable level of government is des-
tined for environmental and economic failure.
The Clean Water/ Jobs platform that developed after this "fortunate" confronta-
tion expanded beyond the Sound, and S. 815 became the coalition's legislative vehi-
cle. Now we have begun to enlist support from environmental leaders,
contractors and unions from around the nation. An overriding emphasis was
placed on the National Estuary Program sites and the Great Lakes, whose regions
are developing comprehensive management plans for restoration. The platform de-
veloped into not just an environmental plan, but a jobs program. A program that
according to several studies can result in up to 57,000 jobs for every billion dollars
invested. The studies included direct jobs for construction and repair of sewage
treatment plant facilities along with indirect jobs by enhancing clean water related
economies.
In this country, our clean water infrastructure is just as important as transporta-
tion infrastructure which the federal government has been investing approximately
$155 billion over a six year period. Financial support, with an emphasis on innova-
tive approaches, is another exciting aspect of our Clean Water/ Jobs coalition and in
turn S. 815. It expands the traditional view by showing that funds for non-point
source pollution control and wetland restoration can also provide jobs to the region's
economy. The Sound Study's CCMP goal is integration of point and non-point pollu-
tion sources in a management plan which can maximize environmental and, in
turn, economic benefit. Best management practices and new infrastructure ap-
967
preaches are some examples of innovation for our clean water future, and will need
to receive strong federal support.
The coalition of organizations that support this legislation may seem highly un-
usual at first glance, but it shows what can be accomplished when people communi-
cate and listen to one another. The old adage of jobs vs. the environment, is being
replaced. Now environmentalists and the construction industry realize that by
working together, jobs, sustainable development and a clean environment are a re-
ality. The support that has. formed around Long Island Sound has put the Sound on
par with the recognition of other ecosystems such as the Chesapeake Bay and the
Great Lakes.
Long Island Sound represents an ecological system with some of the greatest
urban population pressures in the nation. A clean Sound makes environmental and
economic sense because it can pave the way to solving some of the complex prob-
lems facing estuaries around the nation. We in the coalition are proud of the Long
Island Sound region's leadership role in bringing together jobs and the environment
nationally. We can only hope that S. 815 will become part of the committee's Clean
Water Act reauthorization proposal.
I thank you for the opportunity to testify today and I would be pleased to work
with this committee and its staff LF I can be of assistance.
CLEAN WATER/ JOBS SUPPORTERS
A Listing of Organizations, Local Governments, Businesses and Unions from Long
Island Sound and Neighboring Estuaries who have endorsed S. 815/H.R. 1720 — the
Water Pollution Control and Estuary Restoration Act
Action
Action for Pres. & Cons. LI
Advocates for the Earth Club
American Littoral Soc — NY Chapter
American Oceans Campaign
American Rivers
Anacostia Watershed Society
Appalachia Science in the Public Interest
Audubon Council of CT
Baykeeper
Bedford Audubon Society
Bronx Council for Environmental Quality
Bronx Council on Environmental Quality
C.A.C. Peconic Estuary N.E.P.
CCIA
Central Westchester Audubon Society
Chesapeake Bay Foundation
ClC/Nassau Suffolk Construction Association
ClC/Westchester & Hudson Valley
Citizens Campaign for the Environment
City of Groton
City of New Haven
City of New Rochelie
City of Stamford
City of West Haven
Clean Qcean Action
Coalition for Livable West Side
Coalition for the Bight
Coalition — Protection of LI Groundwater
Coast Alliance
Connecticut Audubon Society
Connecticut Conservation Association
Conservation Law Foundations
Construction Industry Foundation
St. James NY
Huntington NY
White Plains NY
Broad Channel NY
Washington DC
CoUinsville CT
College Park MD
Lingstonl* KY
Cromwell CT
Sandy Hook NJ
Mt. Kisco NY
Bronx NY
Bronx NY
Shelter Island NY
Wethersfield CT
White Plains NY
Annapolis MD
Albany NY
Tarrytown NY
White Plains NY
Groton CT
New Haven CT
New Rochelie NY
Stamford CT
West Haven CT
Sandy Hook Highlands NJ
New York NY
New York NY
Northport NY
Washington DC
Hartford CT
Black Rock CT
Boston MA
White Plains NY
968
CLEAN WATER/ JOBS SUPPORTERS— Continued
A Listing of Organizations, Local Governments, Businesses and Unions from Long
Island Sound and Neighboring Estuaries who have endorsed S. 815/H.R. 1720— the
Water Pollution Control and Estuary Restoration Act
Construction Industry Coalition of Westchester
& Hudson Valley
Crackerbarrel Enterprises/Cetacean Int.
CT Fund for the Environment
CT Laborers District Council
Darien Audubon Society
Delaware Riverkeeper
Downstate Alliance of Heavy Construction
Environmental Planning Lobby
Fairfield Town Shellfish Commission
Federated Construction of Westchester County
Fisherman's Defense Fund
Friends of Norwalk Clean & Green
Friends of the Bay
Gaia Institute
Garden Club of Old Greenwich
GCA of New York, Inc.
General Contractors Association of NY
Greenwich Audubon Society
Harborwatch
Huntington Audubon Society
International Union of Operating Engineers,
AFLCIO
John W. Deering, Inc.
ads for the Earth
Utchfield Hills Audubon Society
Local 478, lUOE
Long Island Baymen's Alliance
Long Island Sound Task Force
Lyman Langdon Audubon Society
Menunkatuck Audubon Society
Mianus River Watershed Council
Nassau Suffolk Contractors Association
National Audubon Society
National Audubon Society— Northeast
National Utility Contractors Association
National Water Council/National Water Fund-
ing Council
Naugatuck Valley Audubon Society
New York City Audubon Society
New York Coastal Fisherman's Association
North Country Garden Club of LI
North Fork Environmental Council
Norwalk Woman's Club, Inc.
NY/NJ Harbor Estuary Program
NY Public Interest Research Group
NYS Trawlers Association
Preserve the Wetlands, Inc.
Quinnipiac River Watershed Association
Regional Plan Association
Regional Plan Association — CT
Residents for More Beautiful Port Washington
Tanytown
Clinton
New Haven
Hartford
Darien
Lambert
Tarrytown
Albany
Fairfield
White Plains
Glen Cove
Norwalk
Oyster Bay
New York
Old Greenwich
New York
New York
Greenwich
Westport
Huntington
New York
Bethel
Mt. Vernon
Utchfield
Hamden
HicksvUle
Stamford
Port Washington
Clinton
Greenwich
Commack
Washington
Albany
Arlington
Boston
Derby
New York
Bronx
Glen Head
Mattituck
Norwalk
New York
Huntington
East Setauket
Norwalk
Meriden
New York
Stamford
Port Washington
NY
CT
CT
CT
CT
NJ
NY
NY
CT
NY
NY
CT
NY
NY
NY
CT
NY
CT
CT
NY
NY
CT
NY
CT
CT
NY
CT
NY
CT
CT
NY
DC
NY
VA
MA
CT
NY
NY
NY
NY
CT
NY
NY
NY
CT
CT
NY
CT
NY
969
CLEAN WATER/ JOBS SUPPORTERS— Continued
A Listing of Organizations, Local Governments, Businesses and Unions from Long
Island Sound and Neighboring Estuaries who have endorsed S. 815/H.R. 1720 the
Water Pollution Control and Estuary Restoration Act
Sagamore Rowing Association
Saugatuck Valley Audubon Society
Save the Bay, Inc.
Save the Peconio Bays Inc.
Scarsdsde Audubon Society
Sierra Club— CT Chapter
Sierra Club — New Haven Group
Sierra Club — Northeast Region
Soundkeeper
Sounds Conservancy, The
Sound Watch
Soundwatch Inc.
Stamford Carpenters Local Union #210
Town of Cromwell
Town of Deep River
Town of Essex
Town of Greenwich
Town of Groton
Town of Guilford
Town of Huntington
Town of Lyme
Town of Madison
Town of North Haven
Town of Shelter Island
Town of Southold
Trillium Garden Club
Udall's Cove Preservation Committee
United Auto Workers, Region 9
Utility Contractor Association of New England
Village of Larchmont
VUlage of Mamaroneck
Westchester Land Trust
Wldwood Lake Association
Glenwood Landing
NY
Westport
CT
Providence
m
Mattituck
NY
Scarsdale
NY
Greenwich
CT
New Haven
CT
Saratoga Springs
NY
Norwalk
CT
Essex
CT
Mamaroneck
NY
City Island
NY
Norwalk
CT
Cromwell
CT
Deep River
CT
Essex
CT
Greenwich
CT
Groton
CT
Guilford
CT
Huntington
NY
Lyme
CT
Madison
CT
North Haven
CT
Shelter Island
NY
Southold
NY
Groton
CT
Douglaston
NY
Buffalo
NY
Quincy
MA
Larchmont
NY
Mamaroneck
NY
Bedford Hills
NY
Riverhead
NY
List compiled as of August 4, 1993. For further information contact 581-869-
9731— David J. Miller, National Audubon Society, 1789 Western Avenue. Albany
NY 12203. '
970
1I2AAKUIALT0II
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LEAGUE OF AHIERICA
TBSTZMOIIT OF
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POWAIBXIIO UOl TIB Ct.«A« WATER ACT AMD THl MI88X8SXPPX RXVKl
BEPORB THE gURCOMKITTBS Oil CX.SAR »fATBR, PI8HBRIBS AMD KHJ>LIFB
imZTBD STATBS SBHATB, HASHXMIOE, D.C.
AUOU8T 4, 1993
National Office: 1401 Wilson Boulevard Level B Arlington, Virginia 22209-2318 Phone (703| 528-1818
Midwest Office: 5701 Norrnandale Road Suite 210 Minneapolis, Minnesota 55424 Phone (612| 922-1608
971
Mr. Chairman, Honorable members of the committee, I an Paul w.
Hansen, director of fth#» Mi<1w«»?t Office of the Izaak Walton Leagus
of JUnerica (League). As you may icnow, the League has been deeply
involved in Miesiseippi River conservation issues since 1924, when
T,«flgi'*~*P"n*or«d legislation that establisbad th« Vppmv MisBissippi
National Wildlife and Fish Refuge was passed by Congress. The pen
that President Coolidge used to sign that bill is displayed in ny
offir* today.
Th« Fflt.h^tr of Mrtt.ftra
The Mississippi River is the dominant watershed of the North
Am«rir«n rontinent, and the second largest drainag* basin in the
world. The mighty Mississippi:
- stretches 2,358 miles from Minnesota to the Gulf of Mexico;
- bordars 10 statas;
- drains an area that covers more than a million square miles,
including all or parts of 33 states and 2 Canadian provinces;
- provides the major sourca of inflow into the Gulf of Mexico.
The Upper Mississippi River System includes nearly 1,300 miles
of conanercially navigable portions of tha Upper River north o£
Cairo, Illinois. The Upper Mississippi has been officially
recognized by the Water Resources Develojanent Act (WROA) of 1986 as
both a nationally significant acosystam and transportation system.
From the mouth of the Ohio River to the Gulf of Mexico, the Lower
Mississippi stretches almost 1,100 miles.
The Miflsiaaippi^B Resources
The Mississippi River is considered one of North America's
greatest environmental resources, with its channels, river lakes,
backwater ponds, sloughs, wetlands, bottomland hardwood forests and
adjacent valley lands.
The Mississippi ILiver is home to a vast inventory of fish and
wildlife:
- 241 ■pedes of fish, including representatives of some of
the most ancient lineages of freshwater Tishes (gait*, tfLuigtK^uu and
paddlefish) and estuarine species that regularly enter the river's
lower reaches;
- the river's corridor is a major flyway for neotropical
migratory birds and is used by up to 40 percent of North America's
waterfowl and wading birds;
- the Upper MisslBBippi National Wildlife and Fish Refuge,
which runs from Wabasha, Minnesota, to Rock Island, Illinois, is
home to 270 bird species during all or part of the year;
- so mammal species live on and along the river;
972
- original forested w«t.lAnd«« associated with the Riv«r covered
about 21 million acres — legs than 5 million remain-
High public demands £or use of thtt River's natural resources
are burgeoning in many areas, especially near larger towns and
metropolitan areas. For example, the Upper Mississippi River
National Wildlife refuge reports 3.5 million visits annually --
more than the visits to Yellowstone National Park. The Upper
Mississippi alone generates revenue from recreational and
associated uses that exceeds $1 billion annually. Waterfowl
hunting in the flyway is valued at $58 million annually, and sport
fishing on the Mississippi is valued at well over $100 million.
I
Threats to the River
Despite these values and many others, the Mississippi River is
being severely degraded by a combination of human impacts,
including:
- point source pollution from industry;
- nonpoint, polluted runoff from farms and cities;
- operation and maintenance of the navigation system;
- movement of tows and recreation craft;
- development along the river and in the watershed;
- deatruation of fxltering wetlands;
- energy development.
Point source pollution is a serious problem, especially on the
Lower River where the states from Arkansas to Louisiana are home to
many of the country's most polluting industries. On the Upper
Mississippi, polluted runoff from urban areas and agricultural
lands are considered a greater problem. This nonpoint, polluted
runoff into surface waters and groundwater, is the problem that the
clean Water Act has been least effective in addressing. The most
severe problems attributed to polluted runoff in the UMR are
excessive loadings of sediments and suspended solids, nutrients,
and contamination from toxic materials, including pesticides and
heavy metals. Goals for pollutants established by the federal EPA
and state governments are not protecting the River. River
ecosystems are in serious decline despite the fact that the states
are not reporting widespread or persistent exceedances of current
numeric water quality standards.
Nutrient enrichment and sedimentation from contaminated runoff
is certainly the single largest environmental problem on the river,
i'be Kiver currently contributes unnaturally high levels of
nutrients to the warm waters of the Gulf of Mexico — much of this
originates from agricultural sources in the Upper Mississippi
basin. This nutrient enrichment is largely to blame for
development of large, oxygen-depleted "anoxic" areas, also luiown as
"dead zones" in the Gulf, which are responsible for massive fish
kills that threaten the Gulf's $780 million/year fishery.
973
Ih« River's polit.lral geography is to blame for a big part of
its problems. Because it flows between the states, the Hississippi
is often neglected. Several coordinating mechanisms exist to help
states work together and with the federal government on various
Mississippi-related problems. However, these entities generally
have limited or no authority to take action on their own. They
perform *D important rolw, hut hrtve not provided the strong or
unified leadership needed to address the River's complex problems.
The Mississippi River is Being Mismanaged
While the floods of 199 3 would hav« been devastating to
human develojanent on the historic floodplain under any river
management scheme, they have clearly been made worse by the
drainage of wetlands, the channelization of the river and the
proliferation of levies. The extensive deuaage caused by these
floods serves to highlight the fact that the U.S. Array Corps of
Engineers has continued to manage the Miseiesippi in a manner that
sacrifices the multiple purposes of river management -- including
flood control, environmental management, and recreation — to the
single purpose of navigation.
Let me give you just one good example, but by no means the
only one. In March of this year, without any specific request by
Congress to do so, the Corps announced the beginning of a $33.6
million "feasibility" study on $4.8 billion in navigation capacity
expansion moasurcs identified by the Corpo ao their "preferred
alternative" in their "Upper Mississippi River Navigation Study
Reconnaissance Report." This is the most expensive navigation
capacity expansion ever considered and would include the addition
of 1200-foot locks at up to 16 of the 35 locks and dams on the
Mississippi and Illinois River systems. This will be in addition
to $00 to §90 million per year that the tas^ayera already spend on
this archaic, environmentally destructive and unreliable means of
transport. The Office of Management and Budget described waterway
transport as the most heavily subsidized mode of transporting
goods; it is also the most unreliable. It is closed most of the
winter, is closed during floods and is closed on a regular basis by
accidents at the locke .
The suppoeed advantages of waterway transport have been vastly
overstated By the barge lobby, as was documented in a recent srudy
by the University of Iowa's Public Policy Center, Transpprtatj^off
and Iowa 'a gconomic Future. This study points out that: "It Is
significant that even with a major subsidy, the cost of shipping
grain from lowa elevators to New Orleans is only marginally cheaper
by barge than by rail." The only real effect of the massive
subsidy is that it keeps shipping prices about 10 cents a bushel
lower for fanners who live within about 100 miles of a waterway.
No one has explained why the taxpayer should provide these farmers
with this extra subsidy, but the university of lowa study suggests
974
t:hat if tb« purpose is to provide chAMp transportation for theaa
faxroere, "direct support subsidies to farmers are likely to be more
cost affective than massive public expenditures on locks and dams."
The study concludes:
"It is not prud»nt to make coRtly investments when great
uncertainty enshrouds the forecast that govern the economic
feasibility of these investments."
— "In the case of large-scale capacity enhancements of locks
and dams on the Mississippi River, the large costs and uncertain
demand argue against advocating these investments at present . "
The study also points out that "none of the locks and dans had
traffic volume in 1987 even approaching its capacity, " and that
"additional d«nand that does develop can be met by peak pricing or
railroads." in other words, the project is not needed.
Re<riire a National Academy of Sciences Study of the Management of
the Upper MiaaJBoippi
I am here today, not to tell you that I have all the answers
to the management queations raised by the flood waters, but to tell
you that we need answers to these gueetions before we embark on the
enormous federal spending that will be required to restore the
Mississippi in the aftermath of the flood and the even greater
long-term spending that the Corps proposes for navigation
expansion. I am here with one simple suggestion and request, that
ypu ggg\'-irc in the Clean Water Act that the Corpa divert a
significant portion of their S33.6 million navigation "feasibility
study to contract an independent analysis of the management of the
Miaaiaaippi with the Hational Academy of Sciencea . This report can
then be used by Congress and the President to determine the roost
cost-effective means of memaging the Mississippi in the future —
£u£ fluuU cuuUiol/ lor the euvicooment, and for navigation. Such
a comprehensive and independent study could be completed for a
fraction of the $33.6 million now being spent by the Corps on
"feasibility* studies for the single purpose of a major navigation
capacity e]q>«ii8ion — a project that is deaned "unwise* and "not
justifiable* by the only independent emd academic analysis that it
has been glv*n (by the university of Iowa Fublic Policy center).
We believe that the Mississippi R.wer is being seriously
mismanaged by the U.S. Army Corps of Engineers and that an
independent review of the river's management is essential before
massive expenditures are made.
IWLA RecCTmnendationn for Changes in the Clean Water Act That Would
Benefit the Mississippi River
975
The League is involved with a nvuober o£ efforts to protect the
Mississippi River. The changes that we think would do most to
benefit the Mississippi River include:
* Providing a special designation for the Mississippi River.
In previous revisions o£ the Clean Water Act, Congress has
provided apeoial deeignation for the aation'e largest lake system
and the nation's largest estuary. Special status for the Great
Lakes and the Chesapeake Bay have vastly improved the management of
these water bodies. tt is time to extend this to the nation's
largest river system.
'* Bseouraging a watershed-based appreaeh to protection and
restoration of waterbodies.
To be successful, efforts to protect and restore the
Mississippi and moat other watorbodics rouot be baeed on watershed
strategies that account for land uses in the watershed and their
downstream impacts. Water quality protection efforts in this
country are moving in this direction, and ohangos aro needed in the
CWA and its programs to reinforce this approach.
* Dealing sore effeotivelr with polluted mno££.
Current totally voluntary approaches to nonpoint source
problems are simply not working in the Mississippi basin. The
country needs to lean more toward limited regulations that will
provide the enforcement tools necessary to back up other
approaches. Possible watershed-based models for dealing with
polluted ruuuff iiiure effectively axe the new Cuawttil Zone Act
Reauthorization Amendments (CZARA) to the Coastal Zone Management
Act (CZMA), which attempt to encourage coastal states to take a
more active approach to addressing nonpoint source threats, and the
proposed Oberstar polluted runoff bill, H.R. 2543.
* Strengthening wvtland protection.
The 404 wetlands sections o£ the current Clean Hater Act must
be revised or conqpletely restructured to provide increased
protection to wetlands, including taking cumulative losses into
account .
* Fostering citisoa participation.
A certain amount of section 319 Nonpoint funds should be
allocated to fund volunteer water monitoring programs that build
citizen awareness, knowledge and support for tneir waterways. In
addition, an urban watershed restoration project is needed to
assist citizens groups in urban areas where low-income and ethnic
minorities often use dangerously polluted sections of the River and
its tributaries for subsistence fishing and other purposes.
* Improriug procedures for setting standards.
Standards should incorporate meaningful biocriteria that
indicate the health of ecosystems much more effectively than
numeric standards. In addition, better coordination of monitoring
976
and standard sotting is nosded that considers cumulative impacts
and overlapping permitting by multiple jurisdictions,
* StreagthealBg eafercMOMnt of current Clean Meter Aet
provisions.
snforcement of the Clean Water Act should be stren^bened by
oatabliobing mandatory mininuin penalties for serious violations,
based on current U.S. EPA and New Jersey Clean Water Enforcement
Act definitions that reduce economic gains enjoyed by violators.
In addition, discharge reporting and inspections should be
increased, and current obstacles to citizens suits removed.
* Reeterlng e^uatlo eaesysteeie.
The National Research Council's report Restoration of Aquatic
Ecosystems (National Academy Press, Washington, DC, 1992) should
form the basia for tho design of a national aquatio ecoByetem
restoration strategy. Aquatic ecosystem restoration projects
should be designed to sustain and enhance the diversity of native
species and ecological conmtunities on a regional scale.
Let us make the suffering from the floods of 1993 the
springboard for a new era of improved management of the
Mississippi. We appreciate your consideration of our
recommendations .
977
TESTIMONY OF MARCY KAPTUR, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF OfflO
Thank you, Mr. Chairman, Senator Metzenbaum, and members of the Subcommit-
tee, for the opportunity to testify before the Subcommittee today. The Clean Water
Act is a critical piece of legislation for the Great Lakes region. Twenty years ago,
when the Clean Water Act was first enacted, Lake Erie's condition was so bad that
it was given up for dead. The Clean Water Act with its sewage treatment standards
and grants, and water quality standards and permit requirements effectively resus-
citated this irreplaceable resource. But Lake Erie, as the rest of our nation's large
fresh water bodies, is still far from healthy and self-sustaining. We have not met the
goal of "fishable and swimmable" waters in many areas. More work needs to be
done.
In addition, we have learned much along the way about environmental protection,
and what works and what does not work. That is why I am particularly pleased that
we will be working on reauthorizing the Clean Water Act in this Congress. From
my position on the House subcommittee that determines the appropriations for the
Environmental Protection Agency (EPA), I am aware of how limited our resources
are for tackling this huge problem. However, we cannot afford to have anything less
than the most up-to-date and effective water quality protection in our country.
Today, I would like to provide my comments on the Metzenbaum-Glenn Great
Lakes Clean Water Amendment which I wholeheartedly endorse. I would like to do
so by discussing specific issues, drawing on some examples of clean water needs in
my district.
The Great Lakes comprise the world's largest fresh water system, and contain
95% of this nation's fresh surface water. That s a big resource and a big responsibil-
ity. The Great Lakes are also fragile. They sustain extensive use by manufacturers,
the maritime industry and recreational users. The Great Lakes are the repository
for water that runs-off a huge area of land; the basin as a whole is roughly the size
of the former West Germany. In addition, the Great Lakes system has an exceeding-
ly slow flush rate. That is, it takes centuries for water to move from Lake Superior
through the system to the St. Lawrence River and ultimately to the Atlantic Ocean.
The flushing rate of Lake Superior alone is some 200 years. Lake Michigan's reten-
tion time is 100 years. Lakes Erie's rate is shorter because it is so shallow, at 3
years.
The special features of the Great Lakes create special water quality protection
needs within the basin. However, some of our most pressing concerns are shared by
the nation, namely, sewage treatment, toxic discharge reduction, and nonpoint
source pollution control. I would like to begin by emphasizing our stake in these
national policy concerns but I will focus my remarks on the more specific Great
Lakes needs addressed in the Great Lakes Clean Water Amendments Act, especially
contaminated sediments and pollution prevention. I also would like to stress my
concern over the North American Free Trade Agreement (NAFTA).
CONTAMINATED SEDIMENTS IN THE GREAT LAKES
As for the rest of our nation's fresh waters, the EPA estimates that a full 75% of
the new loadings of certain contaminants into the Great Lakes is from diffuse
sources of pollution. These sources include, broadly speaking, atmospheric deposi-
tion of toxic substances, leachate from contaminated sites and runoff. Fortimately, a
provision in the 1990 Clean Air Act, entitled the Great Waters program, will go a
long way toward identifying impact of and abatement needs for atmospheric deposi-
tion of toxicants of the Great Lakes. However, leachate of contaminants from pol-
lute' sites and runoff faU very much under the jurisdiction of the Clean Water Act,
and in both cases, more needs to be done.
Contaminated sediments and other in-place pollutants are gaining increasing at-
tention as sources of contaminants into the Great Lakes. Contaminated sediments
are one of the largest pollutants the western basin of Lake Erie. They introduce con-
taminants into the food chain that accumulate to dangerous levels in fish and of
wildlife. These polluted sites impede harbor uses and redevelopment of old industri-
al sites. In short, the sooner we get a handle or cleaning these areas up, or effective-
ly containing the contaminants the better. We are already overdue in our efforts to
take care this public health, environmental and economic problem.
Tfie Great Lakes Clean Water Amendments Act provides a comprehensive program
for addressing the special problems within the Great Lakes basin created by contami-
nated sediments. Sediment clean-up, prevention and improvement in our day-to-day
management practice's are all part of the solution to this huge environmental prob-
lem each is significantly improved by the Great Lakes measure.
978
/ strongly endorse the provision within the Great Lakes Clean Water Amendments
which reauthorizes and updates the Assessment and Remediation of Contaminated
Sediments Program (ARCS). It is companion language to my colleague Eric Finger-
hut's legislation introduced on June 30th. As you know, the program demonstrates
sediment remediation technologies on the pilot scales at 5 Areas Concern. In Ohio,
this program has been demonstrated at the Ashtabula Area of Concern. The second
phase will authorize more sediment treatment technology demonstrations at the pilot
and full scale. It will also include technical assistance and outreach to communities
beset with contaminated harbors around the basin. Perhaps it should be further ex-
panded to include a jobs program could be conducted in cooperation with the region's
universities assist students in entering the field of pollution remediation.
Agricultural run-off is the number one water quality problem in northwest Ohio.
Conservation tillage has gained acceptance in part due to the federal cost share
funds (Section 319 non-point source pollution grants) that were made available for
the purchase of conservation tillage equipment, and due to profitability of no-till
farming. The program has worked extremely well in my district. Water quality test-
ing has shown some reduction in phosphorus levels but the sediment, nitrate, and
pesticide loads remain high. To achieve these necessary reductions, additional incen-
tives are needed to encourage the agricultural community to practice conservation
tillage, and reduce its use of fertilizers and pesticides. Stream bank buffers, wind-
breaks, cover crops, wetlands, and practices such as crop rotations that result in re-
duced chemical applications improve our environment. The federal government
must continue to help the states and regional agencies solve these problems.
/ would like to express my strong support for the Great Lakes Sediment Reduction
provision of S. 1183, authored by Senator John Glenn. This measure was included in
last year's Water Resources Development Act. but dropped from the final version. The
measure requires the Cords of Engineers to work through the EPA to develop Tribu-
tary Transport Models of soil run-off for each major river system feeding a Great
Lakes harbor. The task of developing models is not as monumental as it may sound
since the Corps, the Soil Conservation Service and the United States Geological
Survey already have substantial data on some rivers. However, a further development
and compilation of this is exactly what the Great Lakes basin needs to identify high
priority watersheds for intensive nonpoint pollution abatement work. We also need
this information for our Lakewide Management planning process. Bedload material
from rivers is a major transport medium for pollutants entering the Lakes, yet cur-
rently it is not accounted for in our lakewide mass balance efforts. The grants provi-
sion contained in this section promises to save federal dollars through reducing the
loadings of sediments that require dredging each year in the Great Lakes Basin. We
spend over $33 million annually on dredging. Prevention will save money and im-
prove water quality.
POLLUTION PREVENTION
Senators Metzenbaum and Glenn included language in their Great Lakes Clean
Water Amendments Act wliich would provide technical assistance and incentives to
industry and municipalities in the Great Lakes region to implement pollution pre-
vention and source reduction practices. Mr. Chairman, I like this language so much
that I will be introducing similar legislation in the House this week.
Pollution prevention is often the most efficient way for industry and municipali-
ties to achieve the water quality standards that are necessary to protect the Great
Lakes but the up-front investment and technical uncertainties can create difficult
initial barriers. The Great Lakes Pollution Prevention for Industries language
serves the dual purpose of helping to demonstrate modernizing environmental tech-
nologies and practices, and to increase the extent to which pollution prevention
practices become part of the Best Available Technologies found on factory floors.
The Pollution Prevention for Cities program, authored by Senator Glenn, provides
technical and financial assistance to communities seeking the most cost-efficient
and environmentally effective ways of cutting pollution in run-off, wastewater and
stormwater. Both programs are especially important to the Great Lakes because our
regulated community will soon be going the extra mile of environmental protection
in compliance with the Great Lakes Water Quality Guidance.
Mr. Chairman, while sediment contamination and pollution prevention are two
areas of special concern to me and my district, I reiterate my full support for all the
provisions of the Great Lakes Clean Water Amendments Act. I look forward to
working with you and your Committee to gain enactment of this important meas-
ure
Mr. Chairman, I also endorse the Great Lakes Clean Water Amendments provi-
sion clarifying the relationship between the Corps of Engineers and the EPA in day-
979
to-day dredge spoil management activities in the Great Lakes basin. Sediment man-
agement is not a simple matter, and there are legitimate differences of opinion
among agencies of the federal government, and between federal and state agencies,
over the best way to carry it forth. However, without a clear line of authority be-
tween agencies over decisions with respect to environmental acceptability of dredge
spoil management practices, real problems can result.
The worst example was in my own home Port of Toledo. A disagreement between
the Corps of Engineers and the EPA-endorsed State EPA position nearly shut down
the port. Through a team effort on the part of Senators Glenn and Metzenbaum, the
Governors Office, and myself, we now have a constructive process of sediment man-
agement planning and interagency coordination in our watershed. The Great Lakes
Clean Water Amendments will prevent future disputes, and hasten the same con-
structive approach in other watersheds.
NAFTA-RELATED CONCERNS
North American Free Trade Agreement (NAFTA) — related discussions, budget ini-
tiatives, and legislative proposals related to the environment have focused primarily
on southern border initiatives, that is U.S./Mexico. The Fiscal Year 1993 appropria-
tions for the Environmental Protection Agency (EPA), for example, provided over
$200 M to address U.S./Mexico border environmental and infrastructure needs in
preparation of NAFTA. The Fiscal Year 1994 proposal included $161 M in EPA
funding to help the South prepare for NAFTA. All of these monies would be ob-
tained from genered revenues.
A House proposal by Representatives Wyden and Richardson would create an ad-
ditional Border Environmental Fund (BEF) and provide bonding authority to a
North American Commission on the Environment. This Fund is proposed for clean-
up of existing contaminated sites, construction of new environmental infrastructure,
and adoption of pollution prevention practices exclusively on the U.S./Mexico
border. A Richardson-only proposal would create a guaranty fund also restricted to
southern border needs.
In fact, it is incorrect to assume there is only a southern-border need to prepare
for NAFTA. The northern border — U.S./Canada — has profound environmental
needs associated with free trade, deriving in large part from the region's need to
adapt its economic base. In particular, the region will need to accomplish cleein-up
of its lakes and toxic hot spots, harbors and old industrial areas to promote neces-
saiy economic diversifications; and it will need to retrofit its aging manufacturing
facilities with pollution prevention technologies and practices to remain competitive
in a free trade environment given the relatively stringent environmental standards
of the Northeast and Midwest region of our country.
Moreover, northern border communities often face these needs — along with
worker retraining, and transportation infrastructure development — in a context of
diminishing wealth, as a consequence of industrial relocation to the south. The
region faces diminishing political resources as population also moves southward. In
contrast, southern border localities will address their needs in the context of in-
creased economic activity smd political clout within their region.
A 1988 EPA survey estimated that the eight Great Lakes states would need to
invest an additional $27 billion by the year 2008 for municipal wastewater treat-
ment improvements; these states must complete more than 700 projects to ensure
that municipalities meet at least secondary treatment standards.
In addition, 42 Areas of Concern have been identified in the Great Lakes basin
which have large concentrations of toxic pollutants. Effects of toxic pollution that
have been measured in the Great Lakes include health risks to humans along the
with deformities, tumors, and reproductive disorders in all types of wildlife.
Budget initiatives drawn from general revenues convert a proposed trade agree-
ment into an "aid agreement"; they provide direct aid to the U.S./Mexico border,
and indirect aid to the polluters who are responsible for the contamination that
these monies will rectify. Such initiatives do not reflect the "polluter pays" system
that applies to the rest of the nation as it copes with sewage treatment infrastruc-
ture needs and clean-ups of contaminated sites.
NAFTA-related commissions and mitigation funds should be "border-blind" if
they are truly intended to facilitate free trade; and expenditures should be based on
technical trade related criteria rather than broad untested assumptions about geo-
graphic need.
TTie attached information indicates the overall funding requested by the Clinton
Administration for environmental initiatives associated with the NAFTA in FY
1994. As indicated, $150 million is requested for construction grants for wastewater
and drinking water projects within EPA's budget. This funding is all in the form of
980
grants as opposed to loans. As you know, the regfular funding that is appropriated to
States through the State Revolving Lo£in Fund is in the form of loans, and a 20%
match by the States is also required.
As you know, $70 M was requested in the FY 1994 EPA budget for construction of
the Tijuana wastewater treatment plant which will be located in the United States
but treats Tijuana sewage. The authorization for appropriations for the plant was
included under Section 510 of the Clean Water Act of 1987. The FY 1993 VA, HUD
and Independent Agencies Appropriations bill capped the amount that could be ap-
propriated for the plant at $239.4 million — the current estimated EPA responsibil-
ity. $124.2 M has been appropriated through FY 1993. The House FY 1994 VA, HUD
and Independent Agencies Appropriations bill includes $35 million for this project.
The House VA, HUD and Independent Agencies Appropriations bill has set Eiside
$500 million in non-earmarked funds which cannot be spent until March 31, 1994.
These funds are intended to be used for wastewater treatment needs for hardship
communities. Eligible projects must be authorized by the Public Works and Trans-
portation Committee prior to March 31, 1994 to quedify for the funds. Projects that
were requested by President Clinton and not funded include $50 million for a grant
to Texas for colonies projects; $10 million for a grant to New Mexico for colonias
projects; and $20 million for architectural and engineering activities in Nogales,
New Mexico and Mexicali, Mexico. The $50 million and $10 million require a one to
one state match by Texas and New Mexico. The match for the $20 million will be
based on an agreement between the International Boundary Water Commission
(IBWC) and the States that have the border projects. Therefore, there is not specific
designation in the EPA budget for cost sharing for the $20 million. This funding
would all be in the form of grants.
Most recently, to address the need that all EPA projects must be authorized in
order to receive access to the $500 million account. House Agriculture Committee
Chairman Kika de la Garza introduced legislation to authorize EPA funding for the
construction of water and wastewater projects serving communities, including colon-
ias, along the U.S. Mexican border. H.R. 2545 would authorize EPA to make avail-
able wastewater construction grants to the colonias and H.R. 2546 would authorize
EPA, acting through the State Department, to provide financial assistemce for joint
U.S.-Mexico projects to construct or improve wastewater treatment facilities.
In addition, the Agriculture Appropriations conference also addressed Clean
Water related issues with the funding for Rural Water and Waste Disposal loans
and grants. These programs help low income rural communities meet federal and
state mandated service standards including the Clean Water Act. The Conference
Report will include approximately $500 million for rural water and waste disposal
grants, with $25 million earmarked for the colonies on the U.S. /Mexico border.
I would like to urge you to keep in mind the needs of the northern border in any
of your action on the Clean Water Act or separate pieces of legislation addressing
wastewater treatment needs. I do not argue with the fact that pollution along the
U.S./Mexican border is horrendous. However, I believe that all areas of the country
should be treated equitably.
As you move to reauthorize the Clean Water Act, I hope that you will consider
initiatives that will benefit the Great Lakes region. I look forward to working to-
gether in this endeavor.
Thank you, Mr. Chairman, for consideration of my testimony.
TESTIMONY OF ERIC FINGERHUT, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF OHIO
Mr. Chairman, thank you for the opportunity to testify before the Subcommittee
today as its distinguished members consider reauthorization of the Clean Water Act.
I am here today as a strong advocate of federal programs to protect and enhance
our Great Lakes resources to the benefit of the environment and the economy. In
fact it was the history of pollution in the Great Lakes, highlighted by the much pub-
licized "death" of Lalie Erie and the Cuyahoga River catching fire, that strengthen
the resolve of Congress to craft and pass the first Clean Water Act in 1972. The
results were dramatic. The removal of conventional pollutants such as phosphorous
and untreated wastewater effluent brought Lake Erie back from the dead and
breathed life into our economy. The Great Lakes now supports a $4.5 BUlion annucd
sportfishing economy and Lake Erie a stands as the first example of environmental
controls reclaiming a large natural resource.
Overall Lake Erie alone boasts a recreational economy that generates $8.5 Billion
annually and supports an estimated 152,000 jobs. If approached wisely, federal in-
981
vestment to clean up and protect the Great Lakes will sustain economic opportuni-
ties for generations to come. Unfortunately, the easy work is behind us.
Historical pollution found in the sediments of Great Lakes rivers and harbors re-
mains a severe impediment to our shipping and recreational opportunities, threat-
ening fish and wildlife resources and placing human health at risk. Federal, state
and local work throughout the Great Lakes Basin during the last two decades has
demonstrated unprecedented leadership for scientific understanding of natural re-
sources, positioning the Great Lakes as an "environmental laboratory" in which to
implement an ecosystem approach to resource mgmagement as mandated by our
Great Lakes Water Quality Agreement with Canada.
It is appropriate that today, as this committee considers the merits of a regional
approach to environmental management, that we reflect on the sustained leader-
ship that the EPA and other agencies have shown within the Great Lakes Basin.
Federal interagency work within the Great Lakes represents the most comprehen-
sive, multi-media environmental effort within the United States. However, much
has been learned since the 1987 Amendments to the Clean Water Act that formally
established the EPA's Great Lakes National Program Office.
I am honored to work with the distinguished Senator from Ohio, Howard Metz-
enbaum, to craft amendments to the Clean Water Act that will refme valuable les-
sons learned over recent years and refine them to provide resources and direction to
the EPA to assure that past program investment and our vision for the future of the
Great Lakes are joined in an enhanced initiative.
Mr. Chairman, as you know, Senator Metzenbaum has joined with other Great
Lakes Senators to introduce S. 1183, a package of Great Lakes amendments for the
Committee's consideration. On the House side I have worked with other Great
Lakes members, including Congresswoman Kaptur, to introduce a number of bills
that we will present as a comprehensive Great Lakes package to Chairman Mineta
of the House Public Works Committee this Friday. I would like to speak of two bills
of special interest.
The "Great Lakes National Program Act" seeks to augment efforts in the Envi-
ronmental Protection Agency's Great Lakes National Program Office by reauthoriz-
ing EPA's Assessment and Remediation of Contaminated Sediments (ARCS) pro-
gram. The program was originally authorized in the 1987 amendments to the Clean
Water Act for five years to demonstrate innovative technologies for the removal of
contaminated sediments in Great Lakes rivers and harbors. These "pilot scale" ef-
forts were successful and now require demonstration at the "full scale" to ensure
their effectiveness in lai^e scale sediment removal actions.
Additional provisions in the Great Lakes National Program Act direct the EPA to
conduct assessments of contaminated sediments at all U.S. Areas of Concern identi-
fied by the International Joint Commission and to recommend remediation technol-
ogies at each site in a report to Congress. Deadlines for the development of Lake
Wide Management Plans are also included in the bill.
The second bill is entitled the "Great Lakes Federal Effectiveness Act." Its pur-
pose is to provide for a higher level of coordination among federal research efforts
to avoid duplication and ensure the most effective product with the limited research
doUars available.
The bill will establish a Great Lakes Research Council comprised Of the top feder-
al research managers in the Basin. They will be charged with producing an assess-
ment Of current research knowledge to identify our research shortfall from meeting
the goals of the U.S.-Canadian Great Lakes Water Quality Agreement and reporting
the goals to Congress. This information will provide the basis for a prioritization of
research efforts by identifying both long and short-term research goals. The develop-
ment of a uniform, multi-media, data collection protocol for adoption across the
Great Lakes Basin will also be advanced.
Mr. Chairman, the modest federal investment to continue these important pro-
grams with additional authorities will help continue the reclamation of our Great
Lakes environment, protect human health and insure that the economic underpin-
ning of our region's economy, the Great Lakes, will continue to sustain our liveli-
hood well into the future. Tluuik you.
STATEMENT OF SONNY CALLAHAN, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF ALABAMA
Mr. Chairman, I appreciate having the opportunity to testify today in support of
H.R. 1899, the Gulf of Mexico Economic and Environmental Protection Act of 1993,
that I introduced with my colleague, Gr^ Laughlin, and others. We would prefer
982
that the measure move as a free-standing bill, but if that is not possible, we would
urge the committee to consider incorporating it into the Clean Water Act Reauthor-
The Gulf produces approximately 40% of the U.S. commercial fish yield and pro-
vides critical habitat for 75% of the migratory waterfowl traversing the country.
Gulf ports handle 45% of U.S. import-export shipping tonnage and offshore drillmg
there accounts for 90% of U.S. production. Recreational opportunities abound and
tourism in the Gulf States contributes significantly to their economies.
Two-thirds of the contiguous United States drains into the Gulf of Mexico so it is
under some stress. Many shellfish-growing areas have been closed in recent years
because of health-related concerns. While warning signs have been sounded in
recent years, the government has focused most of its attention on the Great Lakes
and the Chesapeake Bay. Those bodies of water are certainly important to the
nation, but the Gulf of Mexico is 190 times larger than the Chesapeake and seven
times larger than the Great Lakes. Our bill simply formalizes the Gulf of Mexico
program to ensure that this highly productive national treasure receives the sup-
port it deserves. x. » ^ x li.-
The Gulf of Mexico Economic and Environmental Protection Act creates a muiti-
agency executive board, to be Chaired by the EPA Administrator. Each Gulf State
Governor (or designee) will serve on the Board, along with the Chairperson of the
Citizens Advisory Committee and a resident of a coastal county from each state. The
function of the board will be to develop a comprehensive joint plan for the actions
necessary to address economic and environmental problems of the gulf
The Gulf of Mexico belongs to all Americans, not just those of us fortunate
enough to reside on it. It feeds the nation and fills its energy needs. All of us should
be appreciative of its contributions and give it the recognition it merits. I am con-
vinced that legislation is necessary to ensure that real progress is made m the Gulf
I will be pleased to work with the subcommittee if it feels H.R. 1899 needs changes,
but I do urge you, Mr. Chairman, to move forward with a meaningful Gulf of
Mexico bill. , . , •>. xi. i. • r ^. ■
Thank you again for scheduling this hearing on a subject that is of such impor-
tance to my district.
STATEMENT OF HON. JEFF BINGAMAN, U.S. SENATOR FROM THE STATE
OF NEW MEXICO
Thank you Mr. Chairman for the opportunity to say a few words today about
Wastewater Treatment Needs and the Clean Water Act.
First I want to bring to your attention the plight of colonias. Colonias are commu-
nities situated along. The Southwestern Border of the United States. They are rural
residential areas, generally unincorporated, many without paved roads. They are
small in size— in New Mexico, they have populations ranging from about 250 to
5 000 people. Residents are generally poor and live in substandard housmg with in-
adequate plumbing and drinking water. Housing lots are extremely small m size
and packed together, frequently creating a high density of cesspools and madequate
septic tanks. And the population is growing in size daily, compounding existmg
If by chance you happen to visit these colonias, you can only be struck by the
primitive conditions in which the residents live. You can only walk away in disbelief
that over 350,000 American citizens and legal permanent residents are subject to
what most of us would call third world living conditions.
These conditions create health and environmental problems. Many colonias are
situated in areas with a very shallow water table resulting in sewage trickling
through the ground and contaminating the groundwater. Since many families rely
on wells on their property for their drinking water— wells fed by groundwater, it s
not surprising that incidences of infectious diseases in the colonias are higher than
the national average. It's also not surprising that the groundwater is contammating
our rivers. The National Environmental Group American Rivers recently identified
the Rio Grande as 1993's most endangered river, citing inadequate treatment of
sewage waste as one of the prime causes of pollution in the border area.
The needs of the colonias have not gone unnoticed. Last year. Congress appropri-
ated through EPA 60 million dollars to help these communities. These funds were
used for grants to build needed wastewater treatment facilities. This year, the ad-
ministration requested funds or EPA to continue helping the colonias construct
wastewater treatment facilities. However, when EPA's budget came up for discus-
983
sion on the house floor, funds were stricken due to a parliamentary debate as t(
whether sufficient legal authority existed for EPA to make these grants.
The debate today in congress is not if we should help these colonias, just whether
wfe have the legal authority to do so.
I want to end this debate over legal questions, and place attention on where it
rightly belongs — how we can help the colonias and their residents. I have therefore
introduced an amendment to the Clean Water Act authorizing EPA to make grants
for wastewater treatment in the colonias.
The special needs of these communities must be met.
I also want to bring to your attention today the wastewater treatment needs of
other small disadvantaged communities which I believe should be addressed by the
Clean Water Act. These are small unincorporated communities with inadequate
wastewater systems. These communities are too large to qualify for rural water
grants, but are too small to shoulder the high per household hook-up fees or month-
ly water and sewer service fees that would be necessary if they were to finance
wastewater treatment construction through revenue bonds or other financing mech-
anisms.
The South Valley in New Mexico, a small unincorporated community alongside
the Rio Grande, is one such community. Most of its 12,000 residents rely on septic
tanks. Their drinking water comes from wells on their property. Heavily concentrat-
ed septic tanks, a shallow water table, and tight soils resulting in poorly drained
septic tanks are contaminating the ground water, state and local governments have
already contributed significant funds to address the problem, but additional funding
15 needed. If this funding were to come through revenue bonds, residents in the
area would have to pay 4 to 6 times as much as other new Mexico residents for
monthly water and sewer service.
These citizens cannot afford such rates. The Clean Water Act should be amended
to include a special grant program for unincorporated communities such as this.
I think that this nation can be proud of what it has accomplished through the
Clean Water Act in protecting and restoring the well-being of our waters. To contin-
ue this progress, Mr. Chairman, support amendments to address wastewater needs
of colonias and unincorporated communities. Thank you Mr. Chairman for your
time.
STATEMENT OF HON. EDWARD KENNEDY, U.S. SENATOR FROM THE
COMMONWEALTH OF MASSACHUSETTS
Thank you, Mr. Chairman, for giving me the opportunity to discuss an issue of
great importance to Massachusetts and communities across the country struggling
to meet the requirements of the Clean Water Act.
The federally-mandated clean-up of Boston Harbor is imposing an extraordinary
burden on 2.5 million people in 61 communities in Massachusetts — nearly half the
state's population. The issue touches every family and every business in the Greater
Boston area.
The overall cost of the clean-up and related construction is $5.7 billion through
the year 1999 — one of the largest public works efforts ever undertaken. The national
average for water and sewer bills is about $350 a year. In the Boston area, the aver-
age household will pay $572 for water and sewer bills this year — a 300% increase
since 1985. Many households above the average already pay far more. Rates are ex-
pected to escalate to over $1000 for the average household by 1999.
The current burden and these estimated increases are major obstacles to econom-
ic recovery. They make it harder for existing businesses to survive, and they dis-
courage new firms from locating in the state. Protests have grown into an organized
movement. Residents are burning their water and sewer bills or throwing them into
the Harbor in a symbolic recreation of the Boston Tea Party. Towns have voted to
withhold their pa3rments to the agency that is overseeing the clean-up. The entire
project is threatened if we cannot ease the burden.
To date, federal assistance for this project has been less than 10%, compared to
the 55% to 75% in federal aid that many communities received for wastewater
treatment construction before the 1987 amendments to the Clean Water Act were
enacted.
It is time for the federal government to do more. The reauthorization of the Clean
Water Act presents the opportunity to address these urgent needs. It is vital that
the Committee bill provide significantly increased federal aid for Boston Harbor, to
keep pace with the escalating burden facing households and businesses. In a state
where economic troubles are far from over, where even many middle-class families
69-677 0-94-32
984
are on the edge each month, struggling to pay their bills, the escalating cost of the
Boston Harbor clean-up should not be forcing them to choose between paying their
water and sewer bills and meeting other basic needs for their families.
We are continuing to reassess the scope of the project to make sure that each
aspect of it is cost-effective. Legitimate questions have been raised about certain ex-
pensive parts of the clean-up that are difficult to justify in terms of their environ-
mental benefit. The Committee has an important role to play in this effort, by not
precluding sound adjustments to the project's design, and by not imposing new re-
quirements that cause undue hardship in the future.
The Appropriations Committee has signaled its intent to make funding for Fiscal
Year 1994 contingent on specific authorization of the project by March 31, 1994. As
you know, the authorization contained in the 1987 amendments has technically ex-
pired. Consequently, I urge your help in securing short-term authorization for the
ongoing clean-up, to ensure continuity until the full-scale Clean Water Act reau-
thorization can be enacted. Federal aid in the coming year should not be lost for
lack of adequate authority.
I also urge the Committee to renew the federal government's commitment to help-
ing the large numbers of communities across the country that are facing very ex-
pensive, court-ordered construction projects under the Clean Water Act and Safe
Drinking Water Act. The circumstances for Boston Harbor are especially compel-
ling, but this problem is definitely national in scope. In Massachusetts, many towns
and cities outside the Boston Harbor area, such as New Bedford, Fall River and the
communities in the South Essex Sewerage District, are struggling to comply with
federal mandates. Five billion dollars annually for the State Revolving Fund in the
Clean Water Act can be readily used and will ease the burden nationwide. The new
revolving loan fund proposed by the President to meet the requirements of the Safe
Drinking Water Act will also provide much-needed relief.
Finally, I urge the Committee to resolve a problem in the National Estuary Pro-
gram that threatens to undermine its success. Section 320 of the Clean Water Act
should be amended to make clear that the EPA should remain involved in the Na-
tional Estuary Program process after communities develop their Comprehensive
Conservation and Management Plans.
In Massachusetts, the communities surrounding Buzzards Bay have done an out-
standing job in working together to develop a plan for the protection of this sensi-
tive habitat. They have reached agreement on the plan and are ready to begin im-
plementing it. But they are being told that the EPA must drop out of the process
altogether, leaving them without the agency's valuable guidance and support to
ensure successful implementation of their plan.
This problem has arisen in other states as well and it could seriously impair the
benefits of the National Estuary Program. I urge the Committee to clarify the law
on this issue, so that the EPA can continue to work closely with these communities.
Once again, Mr. Chairman, I commend you for holding these hearings, and I look
forward to working with the Committee to achieve these important environmental
goals.
STATEMENT OF HON. JOHN KERRY, U.S. SENATOR FROM THE STATE OF
NEBRASKA
Mr. Chairman, thank you for holding this hearing today on the Regional Water
Issues pertaining to the Clean Water Act Reauthorization. I appreciate this opportu-
nity to join with Senator Kennedy to briefly address our dire situation in Eastern
Massachusetts and to introduce our two Massachusetts witnesses, Lt. Gov. Paul Cel-
lucci and Mr. Douglas B. MacDonald, Executive Director of the Massachusetts
Water Resources Authority.
First let me acknowledge the enormous task you and your committee have before
you in reauthorizing this important environmental statute. While we are here to
relay our concerns about our extremely serious situation with the Boston Harbor
project, I want to say up front that I know how important this reauthorization is to
hundreds of communities that face similar situations around Massachusetts and
across the country and I hope we can work with your committee in the coming
weeks to make sure that provisions in your legislation also address concerns of
smaller urban and rural communities that need eissistance to comply with federal
mandates.
But we are here now to talk about our specific emergency in the MWRA Water
District. I believe it is in the national interest for the federal government to provide
direct assistance for the MWRA. As you know, the project is a massive undertaking
985
which will provide water and sewer services to 2.5 million people in 81 communities
with a total cost, including the combined sewer overflow and capital costs improve-
ments, of over $5 billion.
At the Inception of the Clean Water Act, congress acknowledged the important
federal role by providing federal support of between 50% to 90% of the funding for
systems on the scale of the Boston Harbor project. However, the Federal Assistance
for the MWRA project to date has only been about 8% of the total estimated costs.
Let me finally say that this is not a partisan issue but a bipartisan issue. The
Clinton Administration this year, as did the Bush Administration in prior year
budgets, included $100 million to assist in curbing the massive rate increases that
those in Eastern Massachusetts have been facing in the past few years. WhDe Sena-
tor Kennedy and I would like to see this amount doubled — we introduced legislation
this year which would authorize $1 billion over 5 years — we continue to work with
the administration to encourage the congress to include the Clinton Administra-
tion's 1994 budget request of $100 million in the 1994 appropriations bill.
We ask you, Mr. Chairman and members of the committee, to help us secure an
authorization for that funding as requested in the President's Budget in order to
release to the Boston Harbor Project the funding contained in the House's EPA Ap-
propriations Bill, prior to March 31, 1994, when it will expire.
Thank you for taking time to hear Senator Kennedy and me and for allowing Lt.
Gov. Cellucci and Mr. MacDonald an opportunity to address your committee.
TESTIMONY BY AREGO PAUL CELLUCCI, LIEUTENANT GOVERNOR
COMMONWEALTH OF MASSACHUSETTS
Thank you for the opportunity to testify before you on Senate IIU, The Water
Pollution Prevention and Control Act of 1993. On behalf of Governor William Weld
and the Commonwealth of Massachusetts, I am here today in strong support of this
legislation to reauthorize the Federal Clean Water Act (CWA). My comments on the
bill will address the critical issue of funding for wastewater treatment projects, and
will also highlight some of the innovative and progressive provisions related to pol-
lution prevention and watershed protection.
TITLE I. The price of clean water across the nation is rising dramatically. Massa-
chusetts, with its dense population, is burdened with particularly high costs for
water pollution abatement projects. Local communities face costly upgrades of exist-
ing water and wastewater facilities or the need for entirely new facilities to serve
growing populations. Massachusetts' immediate unmet capital needs for wastewater
treatment projects is $6.6 billion. This includes construction of municipal
vvastewater treatment plants, major interceptor sewers, wastewater pumping sta-
tions, correction of combined sewer overflows, collection sewer systems, and removal
of infiltration/inflow from existing sewer systems. More projects and additional
needs in these categories are expected in the near future as final planning is com-
pleted on ongoing municipal wastewater projects.
Financing wastewater projects in Massachusetts and other states will require both
federal and state support. To reverse the unfortunate decline in coastal and inland
water quality, and to cushion the impact on ratepayers, federal and state dollars are
needed to help fund planning, design and construction/upgrades of treatment plants
and pump stations, construction of sewer systems, infiltration /inflow removal, and
combined sewer overflow projects.
But Massachusetts is not asking the federal government to solve oar water qual-
ity problems without a commensurate effort on the state's part. We have optimized
the expenditure of all federal assistance received from past CWA authorizations.
Just last month we successfully financed 37 environmental abatement projects in 20
communities for $91.1 million. To support future wastewater infrastructure needs,
the Weld Admiiiistration's strategy is to support an annual General Fund appro-
priation of state monies for wastewater treatment projects ($30 million was appro-
priated for FY '94); amend the State Revolving Fund (SRF) to include more funds
for wastewater projects; and establish an innovative Technologies Program to facili-
tate permitting/implementation of innovative wastewater treatment technologies to
better attain clean water objectives at reduced cost to ratepayers. Specific to the
Boston Harbor Project, Governor Weld has convened a rigorous audit of the project,
to identify possible cost savings related to project financing, management, adminis-
tration, scheduling and technology. Governor Weld will press for appropriate cost-
saving modifications in the Boston Harbor project where consistent with Clean
Water Act requirements.
986
In order for Massachusetts and other states to meet their obligations in funding
wastewater treatment, there is an urgent need for renewed and expanded feder^
participation in funding these projects. As you know, the federal authorization for
new SRF monies has expired and is precipitating a major financial headache for
state and local governments.
We support the SRF authorizations in Senate 1114, AS A MINIMUM, and urge
you to increase this amount to the highest level possible. Under this bill, SRF capi-
talization grant funding would be reauthorized at $2.5 billion annually through
Fiscal Year 2000 (total of $15 billion). Additional amounts each fiscal year, rising to
$2.5 billion in Fiscal Year 2000 (total of $7.5 billion), would be authorized pending
Congress meeting its annual deficit reduction goals. Under the existing federal allo-
cation formula, the SRF capitalization grant of $2.5 billion would provide Massachu-
setts with $79 million per year. When the federal monies are combined with a 20%
state match ($16 million), the resultant capitalization funds of $95 million would be
placed into a reserve which would secure $190 million in revenue bonds. Using this
approach, the original $79 million in federal grants will generate $190 million in the
construction of critical municipal pollution abatement projects each year, if the $7.5
billion in funds tied to the deficit reduction goals are funded, additional construc-
tion could be funded from 1994 through 2000. This increment will still leave Massa-
chusetts far short of its need.
Title I of Senate 1114 provides for the development by the EPA of a new SRF
allocation formula, based on need for all eligible categories and the need for projects
covered by a watershed management plan. We strongly support an allocation formu-
la predicated upon actual documented needs. At present, Massachusetts has the
third highest total needs ($7 billion) in the nation and the highest per capita needs
of all of the industrialized states. Yet, the current funding allocation formula ig-
nores this all-important fact. The new allocation formula should be implemented as
swiftly as possible. We underscore our support of provisions in the bill to finance
and utilize comprehensive watershed management plans, to better target states' ef-
forts in making effective water pollution control decisions.
On the issue of project eligibility under SRFs, we favor an expansion of the cur-
rently limited eligibilities, to include combined sewer overflow and stormwater con-
trol programs, implementation of watershed plans, implementation of clean lakes
protection projects, and technical and financial management assistance for subsur-
face diposal systems. There are a multitude of "non-traditional" wastewater
projects currently ineligible for CWA funding, primarily in the urban northeast and
in small rural areas across the country. For example, Massachusetts, in particular,
is faced with tremendous combined sewer overflow problems in its older cities.
Stormwater pollution is the number one nonpoint source of water quality degrada-
tion in Massachusetts' coastal and inland waters. Massachusetts applauds Senate
1114's expanded eligibility criteria under the CWA for funding these kinds of
projects.
Under the current CWA, limitations with regard to eligibility for federal funding
are also felt by wastewater treatment projects with enormous capital costs, such as
Massachusetts' Boston Harbor project. New Bedford, MA is another example of a
community with wastewater treatment project costs that exceed the ability of the
municipality and its ratepayers, even with state assistance, to pay. We encourage
the addition of provisions in Senate 1114 which recognize the particular difficulties
of funding large wastewater treatment projects.
1 wish to emphasize our grave concern with regard to securing the $100 million
appropriated in the FY '94 Budget for the Boston Harbor project. This amount was
appropriated pending authorizing language in the CWA reauthorization by March 1,
199%. As CWA reauthorization may not occur by this deadline, we urge that Con-
gress take the necessary action to ensure this $100 million is not lost to the Boston
Harbor project.
TITLE 11. Senate 1114 provides for the development and strengthening of guide-
lines and effluent criteria for toxic pollutant discharges. Massachusetts strongly en-
dorses the provision for new EPA authority to issue guidelines for source reduction
practices, including elimination of discharges whenever feasible and prohibiting or
limiting the release of pollutants to other environmental media. There should be as
much emphasis as possible in the bill to support waste minimization and recycle/
reuse initiatives.
We do not see in Senate 1114 a reasonable process or mechanism which would
allow states to modify technical criteria, policies, and permit limits according to
local and regional water quality conditions. Such an allowance would be particular-
ly important for heavy metals where there is no evidence of in-stream toxicity. Un-
reasonable and unfair limits defeat the general purposes of the CWA.
987
We strongly support the bill's requirement to develop sediment criteria, to
strengthen antidegradation provisions for sediment quality, and to develop a nation-
al policy on mixing zones.
Section 205 of Senate 1114 establishes a pollution prevention planning process for
industrial dischargers. Dischargers of pollutants which, if reduced, would benefit
human health or the environment, are to develop pollution prevention plans for
these pollutants and other toxics as part of their permit applications. We strongly
support this planning requirement, as it could result in meaningful pollution reduc-
tion over the life of the permit and would complement Massachusetts' innovative
Toxics Use Reduction Program. Our toxics reduction program aims to cut toxic
waste generation by 50% by 1997. With cumulative degradation occurring in our
waterways from multiple sources of pollution, it is no longer sufficient to simply
meet water quality standards where additional reductions are possible and economi-
cally achievable.
TITLE III. The Commonwealth strongly supports the expansion of authority for
watershed based implementation of CWA goals. Providing states flexibility to devel-
op watershed based approaches to water pollution control is excellent, and sorely
needed. It makes both economic and environmental sense to do a whole watershed
assessment to determine how to best target pollution control measures for the most
effective expenditure of both regulatory and infrastructure capital. States can get
more environmental quality for fewer dollars if they are allowed to use a combina-
tion of controls, including pollution prevention and nonpoint source management as
well as the traditional end-of-the-pipe point source controls to attain fishable/swim-
mable waters. States also need the flexibility to take into account groundwater con-
tribution to surface water quality degradation in determining where to direct pollu-
tion control measures.
As I noted previously in this testimony, in Massachusetts — as in most of the rest
of the country — nonpoint source pollution is the main water pollution culprit, yet
the current CWA is focused primarily on point-source discharges. "The traditional
focus has meant spending millions of dollars for small increments of pollution re-
duction rather than spending the same or possibly less money reducing nonpoint
sources and implementing point-source pollution prevention measures. The water-
shed approach will be a way of setting clean-up priorities based on the biggest bang
for the buck in each river basin, it will also mean some relaxation of the point-
source control constraints that have, in some instances, not served us in a cost-effec-
tive manner. To illustrate this point, I call your attention to two examples where a
reshuffling of priorities may in fact produce greater improvements in water quality:
In the metropolitan Boston area, stormwater is believed to contribute more to the
failure to meet fishable/swimmable goals in Boston Harbor and its major tributaries
than combined sewer overflows (CSOs), but the CWA provides no funding to states
for stormwater remediation. And the federal government, in conjunction with the
states, is spending millions for immediate toxicity controls at sewage treatment
plants rather than targeting time and resources to reducing the pollution at the
source or to identifying and controlling other, more serious sources of toxic pollution
for less money. Incorporating a watershed approach in the CWA can be a "win/
win" for regulators and the regulated community, and provide for more effective
environmental protection.
Senate 1114 specifies that watershed plans are to characterize waters and land
uses of the watershed, identify water quality problems, identify goals for watershed
management, allocate needed load reductions among point and nonpoint sources,
and identify needed financial resources and the institutional arrangements needed
to carry out the plan. We strongly suppjort this prescription for watershed plans, but
caution that watershed based permitting must build on the knowledge, successes
and failures realized since the inception of the CWA. The watershed planning estab-
lished by Senate 1114 must not recreate the Section 208 master planning work ac-
complished in the 1970's; rather, it must expand and integrate real implementation
goals into a results oriented watershed planning and permitting program. Emphasis
must be placed on the allocation of needed load reductions within watersheds and
the identification of financial and institutional resources needed to implement wa-
tershed plans, implementation is key.
Massachusetts strongly encourages the regulatory development of a watershed-
based effluent reduction trading program that could significantly reduce the cost of
meeting water quality standards. Similar market-based incentives have worked ef-
fectively in controlling air pollution and should now be applied to other media, such
as water. An effluent trading program could ensure the overall quality of the water
resource by determining the total amount of pollutants that can be released without
compromising water quality standards. A successful effluent reduction trading pro-
988
gram could potentially include both point and nonpoint sources and provide signifi-
cantly greater cost-effectiveness than traditional command and control approaches.
Massachusetts suggests that the CWA be amended to specifically sanction (or even
promote) effluent reduction trading.
Another important addition to Senate 1114 which would greatly assist in the im-
plementation of a watershed approach under the CWA would be provisions to fund
the development and use of regulatory and management tools, such as Geographic
Information System (GIS). GIS, a complex system of resource mapping in the early
stages of development in Massachusetts, would assist regulators and managers in
applying water quality standards and pollution requirements in the most sensitive
or degraded areas.
Senate 1114's proposed standardization of monitoring and reporting timelines to
five years instead of two years would greatly improve the ability of states to manage
limited resources for these purposes. Massachusetts strongly supports this provision,
as well as the provision establishing new authority for the EPA or states to require
dischargers to monitor receiving waters (in addition to their effluents). States are
hard pressed from a resource standpoint to accomplish this monitoring on their
own. Ambient water qusdity monitoring is critical to understanding the interplay of
individual discharges with each other and the cumulative impacts of multiple dis-
charges on background water quality. With receiving water quality information,
regulators can better target controls to the significant sources of water quality deg-
radation.
Massachusetts supports the inclusion of stronger enforcement guidelines for non-
point source controls. Improved enforcement of nonpoint source control measures
will safeguard the initial water quality successes of p>oint-source pollution controls.
We would like to see stronger links made between the EPA's administration of
the Section 319 nonpoint progrsun and the administration of other federal programs,
as has been attempted with federal transportation legislation — to include agricul-
ture, forestry, and public works projects, for example. We support provisions of
Senate 1114 which provide for the coordination of various federal agencies in water
quality improvement.
We applaud Senate 1114 for linking two important policies of the Weld-Cellucci
Administration: watershed management and privatization. Senate 1114 allows for
nonprofit private organizations to assume the role as stewards for a state designated
watershed management area. This provision recognizes the significant interest and
expertise of many nonprofit environmental organizations in protecting our water re-
sources, and the many benefits of public-private partnerships.
TITLE IV. Massachusetts supports provisions of Senate 1114 which extend the
time periods required to eliminate, in a reasonable way, discharges from CSOs and
urban stormwater. We stress, however, that these modifications should be carefully
integrated with other policy and funding provisions so as to maximize resolution of
these serious water quality problems. New stormwater discharges should be require
to implement Best Available Technologies (BAT). For existing discharges, an aggres-
sive interim schedule requiring regular improvements should be developed. This
schedule, based on a municipal/state priority plan, (i.e. part of a watershed plan),
could be incorporated into permits, consent orders or both.
Massachusetts supports language under Title IV which targets assessment of the
principal sources of pollutants in stormwater. Again, these data must be integrated
into watershed plans, so that informed decisions on where to focus limited resources
for water pollution control can be made.
Massachusetts is making considerable progress in water conservation, but a great
deal more can and must be done. Conservation efforts are central to protecting
public water supplies and water resources dependent on maintenance of groundwat-
er levels and instream flows, and to reducing the cost and maximizing the efficiency
of wastewater treatment. Accordingly, we support Section 403 of Title IV, which
would authorize the Army Corps of Engineers to assist states in water conservation
and the EPA to coordinate federal policies on municipal, industrial, commercial,
and residential water conservation. The proposed national clearinghouse on water
conservation would benefit government, industry and residential users alike and
should be adopted.
TITLE V. We support the provision under this title which calls upon the EPA to
work with federal and state agencies to identify sensitive aquatic systems that sup-
port valuable biological resources. Also of importance is the provision directing EPA
to issue biological monitoring methods for establishing the biologiced condition of
waterbodies. Massachusetts is evaluating the establishment of biological criteria for
wetlands whose water quality can't be measured by levels of conventional pollutants
(for example. Biochemical Oxygen Demand and Total Suspended Solids) which vary
989
seasonally. We would find guidance from the EPA regarding biological monitoring
methods helpful.
Also under this Title, we support the authorization of EPA to issue special experi-
mental permits for facilities proposing to test innovative or alternative technologies,
as long as water quality standards are required to be met.
TITLE VI. Massachusetts is currently establishing an innovative and Alternative
Wastewater Treatment Technologies program which would benefit greatly from pro-
visions of Senate 1114 authorizing funding and programs to demonstrate new or sig-
nificantly improved water pollution control practices, methods, technologies, or
processes. Especially noteworthy is Senate 1114's recognition of the need to promote
technologies which have the potential to control pollutants that present risks to
human health, to advance pollution control of regulated industries, to foster pollu-
tion prevention, or to advance the control of point and nonpoint sources of water
pollution.
Massachusetts strongly supports the provision providing for National Estuary
Program funding, specifically funds for implementation of Comprehensive Conserva-
tion and Management Plans beyond the initial five year planning phase of these
programs.
CONCLUSION
I again thank you for the opportunity to appear before you today to testify on this
landmark piece of water quality legislation. Please register Massachusetts' vigorous
support of Senate 1114 and consider the important amendments we have offered
today. We thank you. Chairman Graham, for your leadership in reauthorization of
the CWA.
Special thanks to Senator Baucus and Senator Chafee, for your recognition of the
new directions the CWA must take to accomplish real improvement in the quality
of the nation's waters. Thanks also to the distinguished members of the Committee,
for their aggressive support of Senate 1114.
TESTIMONY OF DOUG MACDONALD, EXECUTIVE DIRECTOR
MASSACHUSETTS WATER RESOURCES AUTHORITY
Mr. Chairman, thank you for the opportunity to present this testimony during
your hearings on the reauthorization of the Clean Water Act. I also want to thank
Senators Kennedy and Kerry for their statements in support of the Authority's
need for special funding.
The Massachusetts Water Resources Authority is a wholesaler of wastewater
treatment services and water supply to over 2.5 million people in eastern Massachu-
setts. The Boston Harbor Project, which will provide secondary treatment for the
wastewater generated in the district, allowing compliance with the Clean Water
Act, is the largest sewage treatment facility under construction in the United
States. We are building it under a Federal court ordered schedule that requires com-
pletion by 1999. Even though the milestones in the court order are demanding, we
may be able to complete some elements of the project even earlier then scheduled.
Already, we are seeing environmental benefits in the Harbor from some of the im-
provements we have made, such as the sludge processing plant that now keeps
sludge out of the Harbor.
The Boston Harbor Project is a massive undertaking, bringing our sewage treat-
ment system from its seriously deteriorated and inadequate condition in the early
'80s to a state-of-the-art facUity serving the entire metropolitan area by the end of
this decade. It is extraordinarily expensive, however. 'The Boston Harbor Project
itself will cost an estimated $3.8 billion. The costs of CSO improvements and other
related projects will bring the total for wastewater through FY 1999 to over $4.3
billion. The Authority is also facing nearly $800 million in water supply system
costs over that same period.
We are doing what we can to reduce these costs. We are exploring with the court
the downsizing of the secondary treatment plant, to treat the smaller flow our more
refined estimates and metering now show we can expect. And the EPA CSO control
policy endorsed by S. 1114 may allow to reduce our costs for CSO compliance, par-
ticularly in the period after FY 1999. We are also hopeful that other provisions of
this year's Clean Water Act Reauthorization, such as the watershed planning provi-
sions, will allow us to find other ways of reducing the wet weather flow of pollut-
ants to Boston Harbor and other receiving waters, and reduce our need to control
CSOs so stringently. The project will still be very costly even with these reductions.
990
We know it is difficult, in these days of tight budgets and many competing de-
mands, to talk of specisd funding for a single major project. Let me try to tell you
why the Boston Harbor Project is special, and why we need these funds so desper-
ately. Mr. Chairman, this project is like the big city sewage treatment plants built
in the '70s and early '80s with Federal grant assistance, but it differs in important
ways. First, we did not have an adequate primary treatment plant and collection
infrastructure onto which we could add the required secondary treatment plant. We
literally started from scratch. Second, this project is late, because of the extended
dispute between Boston and EPA and other local interests over the possibility of a
waiver of the secondary treatment requirement under section 301(h). That dispute is
resolved, and court has ordered compliance by 1999. The Authority is committed to
full compliance with the mandates of the Clean Water Act and the retirements of
the decree under which we operate.
The result of our compliance with the federal law has been massive rate in-
creases. Water and sewer charges in Boston are now the first in the nation. As a
result, wholesale rates have increased 600% since 1985. These rates now average
over $570 a year for every household in our service area. Without major relief on
our capital investment or debt service, we expect those rates to at least nearly
double again, to $1,000 per household by 1999. We need help — the land of grant as-
sistance our sister cities received for their wastewater treatment systems. To date,
this project has only received about 8% of our total capitsd costs in Federal assist-
ance, even with the specied appropriations of the past few years. It is the debt serv-
ice costs we face, having to fund this project virtually alone, that make our rates
rise so dramatically. Debt service on our current capital investment approaches
$200 million a year. As we have to borrow more to complete the project, annual debt
service may exceed $360 million by FY 1999.
We are facing a citizen revolt with our ratepayers. They have thrown their sewer
bills into the Harbor in pro*«st, in a later-day "Boston Tea Party". The rate rebel-
lion is the hottest political news in Boston, constantly discussed in all the media.
The political consensus for completing the project is threatened, and it may be diffi-
cult to maintain the support for the project that is needed to continue to make
progress, without evidence that the Federal Government is willing to commit funds
to help meet the mandates of the Clean Water Act and the Federal court. We are
spending a lot of our own money on this project, borrowing extensively and carrying
high level of debt service. We are doing what we can to reduce costs, carefully man-
aging our spending. We are also receiving some assistance from the State, particu-
larly on short term rate relief. But the ratepayers are still bearing 90% of the costs
of this project. They will not be able to carry that load as it gets heavier and heav-
ier. If we want a clean Boston Harbor, we need a larger Federal contribution toward
that goal.
So we are asking the Committee for several things. First, we ask that you act on
authorizing legislation so that the money for the Boston Harbor Project contained
in the FY 1994 EPA appropriations bill can be released. The Administration re-
quested $100 million for the Boston Harbor Project in its FY 94 Budget. The House-
passed appropriations bill contains an appropriation for grants for Boston and other
projects, but the bill requires that the use of such funds be authorized prior to
March 31, 1994, or these funds may be lost. We ask that you provide the authoriza-
tion for such a grant to MWRA, in a timely manner. The earlier we receive the
money during in FY 94, the more we can avoid borrowing that will otherwise be
necessary, r^ucing debt service and rate increases over the whole life of the
project. The Committee may provide this as a separate short-term authorization, or
as part of the larger long-term reauthorization of the Clean Water Act.
MWRA needs a long-term commitment of Federal funding, as part of the pro-
grams of the Clean Water Act. It is not essential that such programs single out
Boston. A well-designed program that meets Boston's needs may also benefit other
communities. S. 1114 contains a broad-based program accepting the principle of
grant assistance or loan forgiveness to provide rate relief, the so-called "Disadvan-
taged Communities" provisions, and we applaud you for including this concept in
the bill. There are several features of the legislation, however, that meike this pro-
gram insufficient to help Boston, such as the limitation to 20% of a State's annual
SRF allocation, the limitation to $20 million overall in loan forgiveness, and the
way the threshold qualifications for excessive sewer rates are stated. The Authority
would be happy to work with the Committee on redrafting the qualifications to
assure that communities like the MWRA service area, with massive rate increases,
actually do qualify for special assistance. I suspect, however, that capital assistance
of the magnitude required by the Boston Harbor Project mav be harder to accommo-
date within the Disadvantaged Communities program >.ithout significant redesign.
991
This program does contain the germ of what we are requesting, though, and we
would be pleased to work with the Committee to expand it in a way that will offer
meaningful assistance to the Boston Harbor Project.
To keep the Boston Harbor Project viable, MWRA suggests these provisions for
the long-term reauthorization of the Clean Water Act:
• We strongly urge a special program of grant assistance for communities with
high capital costs for secondary treatment needed for compliance with the
Clean Water Act, and unacceptably high sewer service rates as a result. It is
critical that this assistance be provided as grants, because only this type of sub-
sidy of capital costs will reduce debt service, and therefore rates to users, over
the life of the project
• The Authority is very grateful for the level of funding requested by the Admin-
istration in the FY 94 Budget. A higher level of capital assistance, however, sus-
tained for the full authorization period of the Clean Water Act, is actually
needed to produce the kind of rate relief and equity we are requesting. We sug-
gest the Committee consider the level of authorization provided by S. 350, intro-
duced by Senators Kerry and Kennedy, of $200 million per year over five years.
This could be provided in a single authorization, or could be the aggregation of
grants available under several programs for which the Authority might qualify.
• Funds for municipal wastewater treatment plant construction should be allocat-
ed on the basis of a needs survey reflecting the costs of remaining eligible
projects necessary to meet the requirements of the Clean Water Act. The funds
authorized by this legislation should no longer be allocated under the old allot-
ment formula, using old population figures and out-dated estimates of needs.
• We hope there will be adequate flexibility provided in any grant program for
which MWRA qualifies so that some portion of the money may be used to
reduce debt service in addition to the major purpose of capital assistance.
There is much in S. 1114 that appreciates and supports, and we look forward to
working with the Committee to refine this legislation. For this bill to make a lasting
contribution to clean water in Massachusetts, however, it must contain a significant
level of grant assistance for the Boston Harbor Project. I have outlined several areas
where I believe the bill could be strengthened.
Thanks again for the opportunity to testify on the needs of MWRA in this year's
reauthorization of the Clean Water Act.
STATEMENT OF TOM BEHR, DEPUTY MAYOR, CITY OF SAN DIEGO
Mr. Chairman, I am Tom Behr, Deputy Mayor of San Diego. Thank you for invit-
ing me to testify before your Committee today.
There are two primary requests that I am making to you and the Committee. The
first is that the Clean Water bill be written in a manner that allows a city such as
San Diego to continue to use advanced primary treatment where there is a deep
ocean outfall which provides the equivalent environmental protection of secondary
treatment. The second is that wastewater reclamation be eligible for funding under
Title V of the Act.
Both of these requests fit into our priority considerations for continuing to protect
both San Diego's and our nation's waters. These requests result from decades of ex-
perience in San Diego in working on Clean Water issues. In addition, my comments
reflect the conclusions reached in the National Academy of Science report which
recommends changes for coastal protection that should be considered in a new
Clean Water Act.
Our two requests for changes in the law are dictated by the needs of California in
reducing pollution, improving our overall water quality and protecting our coastal
waters. We are looking at the San Diego region as a broader ecosystem where we
face a variety of water quality threats from non-point source runoff, from Mexican
sewage flowing across our border and from a need to enhance our long range drink-
ing water supply. To protect our greater geographic area we believe that it will take
local initiative and additional funding. 'This is the reason that it is very important
to the residents of San Diego that the requirements for Clean Water Act compliance
allow the City to utilize its scarce funding to provide the greatest possible protection
to the environment. This can best occur by continuing the use of the Point Loma
Advanced Primary Treatment Plant in conjunction with its Deep Ocean Outfall and
its ambitious wastewater reclamation program.
992
Point Loma Outfall
The existing Clean Water Act does not allow for the City and the Federal District
Court to take the steps necessary to fully protect our ocean with a program that
makes the best use of resources. Existing Clean Water requirements for the San
Diego Ocean Outfall ignore sound science, ignore regional differences and ignore
new and improved technology for treating sewage.
The existing law requires the construction of a wastewater treatment program
that will cost San Diego ratepayers billions of dollars. San Diego seeks the option to
develop a wastewater treatment program that has the same environmental protec-
tion, but at a cost of $1.3 billion. The reason for this cost difference is the Clean
Water Act requirement that the City must reach a secondary treatment standard.
However, with a deep ocean outfall, there is no demonstrable difference in envi-
ronmental impact between secondary treatment effluent and San Diego's present
advanced primary treatment effluent. To allow San Diego ratepayers to save one
billion dollars with no reduction in the protection to the environment, we are
asking that the reauthorized law be written to allow for this special circumstance.
In San Diego we have an ocean floor that slopes steeply away from the shoreline,
accessing deep marine waters within a few miles offshore. We have an open coEist
that is a part of the vast expanse of the Pacific Ocean. We have swift currents and
dynamic mixing in the waters off Point Loma.
We also have in place the technology that we need to ensure environmental pro-
tection. San Diego currently operates a state-of-the-art advanced primary treatment
plant that discharges treated wastewater to the Pacific Ocean through a deep ocean
outfall. This outfall currently discharges in 220 feet of water over two miles off-
shore.
The Point Loma Outfall was designed to protect bathing beaches from contamina-
tion. It has done so without exception over the past thirty years. When California's
State Ocean Plan was amended to protect not only swimmers at bathing beaches
but also divers in the offshore kelp beds, San Diego planned the extension of its out-
fall even farther offshore— 4.5 miles — and into deeper waters — 320 feet below the
This extension, which is currently under construction, will make San Diego's out-
fall the longest and deepest reinforced concrete structure in the world.
San Diego has monitored the effects of the existing discharge on the marine envi-
ronment for thirty years and has found that there is no significant impact.
in the EPA's federal court lawsuit against the City in 1991, Federal Judge Rudi
Brewster considered a significant amount of evidence presented by a cross-section of
the best scientists in the country — ours and yours — and found that there is no ad-
verse impact. Please understand that the City's position of no adverse environmental
impact is not mere opinion or posturing. Rather, it is a validated judicial finding.
Regional Environmental Protection
The National Academy of Science report, published in April, clearly shows that
we can balance protecting our precious ocean environment with the needs of San
Diego's sewage system by setting water and sediment criteria and standards.
Most importantly, it confirms what San Diego has been saying for years: ad-
vanced primary treatment is appropriate for San Diego's deep ocean environment at
the Point Loma Outfall.
The National Academy's report provides a scientific foundation for Congress to
protect the coastal marine environment by amending the Clean Water Act to reflect
regional science and geography.
Water Reclamation
San Diego has a long-term strategy for wastewater treatment, and environmental
protection— it is called the Consumers' Alternative. A major element in the pro-
gram is the construction of a 30 (expandable to 55) million gallons per day (mgd)
wastewater reclamation plant, which will cost $166 million. It is an ambitious initia-
tive that will allow the City to initially reclaim 30 mgd of wastewater and utilize it
for a number of purjwses for which limited and expensive potable water is used
today. That construction is underway as I speak today.
A major thrust in S. 1114 is the protection of our waterways from toxic pollution
and non-point source pollution. While those objectives are also an integral part of
the Consumers' Alternative, we urge you to consider an additional and unique pro-
gram faced by California cities in their water programs. If too much water is used
by agriculture and cities, the natural ecology of our streams, rivers and lakes is
threatened. San Diego has taken steps to cut its water demand through an extensive
993
volunteer conservation program. A 20% reduction in average water use has been
achieved over the past three years.
It seems that the region has achieved almost the maximum amount of water sav-
ings through our home and business water conservation program. Now we are look-
ing to water reclamation as the next major step in the program. I think that water
reclamation should be considered in the amended Clean Water Act. Reclamation is
a tool for wastewater management. In San Diego, by replacing the 30 mgd in peak
demand and a lesser amount year round, we greatly relieve the pressure and
demand for greater water supply from the Colorado River and the lakes and rivers
in our state. It is folly to pump the effluent into the Pacific Ocean when it can meet
some additional demand through a water reuse progreun.
Costs
I mentioned earlier my concern over the cost faced by the City if amending the
Clean Water Act does not include consideration of the unique circumstances in San
Diego. While the cost is significant, it is even more of a burden when we realize that
San Diego has had a low priority for EPA grants and for State Revolving Fund
(SRF) loans.
From 1972 to 1987, the Clean Water Act provided funding for no more than 75%
of the cost of secondary treatment improvements. The State of California provided a
matching amount of 12.5%. The remainder was eligible for state loans. The adminis-
tration of Clean Water grants was left to the states, and the California Regional
Water Quality Control Board established a priority list of projects to receive fund-
ing.
From 1970 to 1986, the City of San Diego received just $95 per capita in grant
funding under the Clean Water Grants program, just 25% of the statewide average
of $383 per capita. San Francisco received $1696 per capita, nearly four-and-one-half
times the statewide average. Sacramento received $683 per capita, nearly double the
statewide average.
From 1987 to today, the City of San Diego has received just $30 million towards
the cost of a $2.8 billion plan for secondary treatment. Because we meet the State
Ocean Plan requirements, the City is a low priority for funding under the State's
Revolving Loan Program. Under the current system we estimate that 99% of the
costs to upgrade our sewerage system will be paid for by local ratepayers. I don't
think that's what the Congress intended when it passed the Clean Water Act in
1972.
Conclusion
San Diego has a strong wastewater management program. It includes treatment,
conservation and reclamation. It is important that the Clean Water legislation this
Committee writes provides San Diego the framework to continue to implement its
program and enable us to continue to protect our precious coastal waters without
spending one billion dollars on a treatment facility at Pt. Loma that provides no
discernable additional benefit to the environment.
Thank you for the opportunity to be here today.
STATEMENT BY E. (KIKA) DE LA GARZA, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Mr. Chairman and Members of the Subcommittee, thank you for holding this
hearing On various watershed planning issues as they relate to congressional reau-
thorization of the Clean Water Act. I commend you Mr. Chairman for including
both the special problems associated with the Gulf of Mexico coastal areas as well as
the water service problems faced in colonias along the U.S.-Mexico border.
The Gulf of Mexico is a vital economic resource for our country. "The Gulf is the
source of over 30 percent of the domestic fish and seafood marketed here in the
United States. More than 90 percent of U.S. And Mexican oil production comes from
offshore oil wells located in the Gulf Ports along the Gulf handle 45 percent of the
tonnage that passes through all U.S. ports. We have the growing resort and recrea-
tion industries along the Gulf coastline that generate approximately $10 billion per
year in revenues.
But the Gulf region is more than an economic asset, it is also an environmental
asset. The Gulf and its coastal areas comprise one of North America's most impor-
tant and fragile ecosystems. Three-fourths of the North American landmass drains
into the Gulf The wetlands in the Gulf region provide habitat for more than 75 per-
994
cent of the migratory waterfowl of North America. The region is a breeding ground
for a astounding variety of sport and commercial fish and shellfish species.
It's the health and future of this ecosystem that brings us here today. The simple
fact is the Gulfs frsigile ecosystem is threatened on several fronts by man's activi-
ties.
For too long we have been of the mindset that economic development and envi-
ronmental protection are mutually exclusive and diametrically opposite objectives.
It is time to break out of that way of thinking.
If the Gulf of Mexico is to continue to be a productive economic resource, we must
do a better job of managing — and yes, in some cases, protecting — its waters, its
coastal wetlands and its beaches.
That is why I have introduced H.R. 1566 on the House side. It's Senate counter-
part is S. 686 which is cosponsored by Senator Graham of Florida and Senators
Breaux and Johnston of Louisiana.
Basically, this legislation has three principal components. First, it would require
the Department of Agriculture to conduct a complete inventory of laws and regula-
tions affecting agricultural wetlands. Second, it would establish a Federal-state co-
ordinating body, a partnership, if you will, in the form of a Gulf of Mexico Commis-
sion. Third, it would formally establish the Gulf of Mexico Program within the U.S.
Environmental Protection Agency.
My objective is to promote sensible and sustainable economic development of the
natured resources of the Gulf of Mexico and the surrounding coastal areas. Let me
briefly explain these three major components.
Inventory of agricultural wetlands and regulations: Probably no area of environ-
mental policy has been a source of greater controversy and confusion for farmers
than the regulation of wetlemds.
We have four Federal agencies — the EPA, the Army Corps of Engineers, the inte-
rior Department's Fish and Wildlife Service and USDA's Soil Conservation Serv-
ice regulating wetlands or various aspects of wetlands issues. There are also State
laws and regulations affecting wetlands.
My bill requires the Secretary of Agriculture to conduct a complete inventory of
all the Federal and state laws and regulations affecting the use of wetlands for agri-
cultural production. TTiis information is to be used by the Secretary in developing
recommendations on how to clarify, consolidate, better coordinate, harmonize and
simplify the regulation of agricultural wetlands. My legislation would also require
the Secretary to look specifically at these issues as they affect the Gulf region and
what can be done to foster the prudent use of agricultural lands in these states.
Gulf of Mexico Commission: Today there is no coordinating, on-going public entity
for the Gulf region as there is for the Great Lakes and the Chesapeake Bay.
H.R. 1566 would establish a Gulf of Mexico Commission, comprised of Federal and
state officials and non-government representatives. The Gulf of Mexico Commission
would be responsible for setting resource and development goals for the Gulf of
Mexico region. The Commission would seek to better coordinate the various Federal,
State, local and private sector activities aimed at protecting and developing the Gulf
of Mexico.
EPA Gulf of Mexico Program: H.R. 1566 would also formally establish a Gulf of
Mexico Program at EPA. It would require that this program be administered by an
EPA office located in one of the Gulf states. H.R. 1566 would also direct EPA to
work closely with the Gulf of Mexico Commission in setting environmental policy in
the Gulf region.
I believe the Commission concept and the EPA Gulf of Mexico Program office are
essential to fostering trust and cooperation between all levels of government, with
industry, and with the concerned public.
Mr. Chairman, there is also an international aspect to the Gulfs problems and
solutions. For you see, the Gulf is also our "other border" with the country of
Mexico.
I believe congressional action to begin addressing the Gulf of Mexico's problems
would encourage Mexico and other Caribbean countries to take similar steps. I have
discussed this issue with Mexican President Salinas and his Secretary of the Envi-
ronment, Luis Donaldo Colosio, and his Secretary of the Fisheries, Guillermo Jimen-
ez Morales — and they share our interest in this area.
Mr. Chairman, I believe we can and must do a better job of balancing man's eco-
nomic needs and the Gulfs environmental health. I have introduced H.R. 1566 as
one set of policy options for your consideration. I look forward to working with the
members of this Senate committee and with the members of the House Merchant
Marine and Fisheries on this issue.
995
Mr. Chairman. I also want to commend this Subcommittee for focusing its atten-
tion on the water-related problems faced by the quarter of a million people who live
in the impoverished American communities called colonias along our Southwestern
border.
I represent one of the congressional districts that has a number of colonias. I have
fought throughout my congressional career for Federal and state funding to bring
basic water and sewer services to these people.
It's my understanding that the conference report for the fiscal 1994 sigricultural
appropriations includes $25 million in USDA funding for colonia water projects. I
worked hard for this funding on the House side and I'm pleased to hear it has been
included in the bill.
While we have made considerable progress, I must admit that much, much more
needs to be done.
I have been working with USDA to establish a clearinghouse network to help dis-
seminate information to colonia residents on the various types of Federal, state and
non-governmental assistance available to help them.
I might also add that last year's agricultural appropriations bill instructed USDA
to provide Congress with an inventory of the Federal programs available to colonia
residents; and a Federal action plan on how we can better address these issues. The
inventory report is expected soon, I am told. The action plan will be submitted later
this year.
Finally, Mr. Chairman, I would like to bring to your attention another piece of
legislation I have introduced (H.R. 2545, the Colonia Assistance Authorization Act of
1993) that deals specifically with colonias. H.R. 2545 would formally authorize EPA
to provide financial assistance for the construction of water supply systems and the
installation or improvement of sewers and wastewater facilities serving colonias.
This legislation seeks to establish a remedy action taken by the House of Repre-
sentatives that stripped language targeting $50 "^illion for colonia water projects
out of the fiscal 1994 EPA appropriations bill. It is my hope that this legislation
could be included in the Clean Water Act reauthorization.
Mr. Chairman, I appreciate your interest in the problems of the colonias and hope
this committee would see fit to help us focus Federal resources and attention on this
issue. Thank you for allowing me the opportunity to testify here today.
STATEMENT OF HON. JOHN GI-ENN, U.S. SENATOR FROM THE STATE OF
OHIO
As Co-Chairman, along with Senator Durenberger, of the Senate Great Lakes
Task Force, I would like to commend Chairman Graham and the Environment and
Public Works Committee for holding one of its Clean Water Act hearings on Great
Lakes and other regional programs. It is appropriate, I think, that we focus special
attention on the Great Lakes in this reauthorization of the Clean Water Act, as the
Great Lakes contain roughly 95% of the nation's fresh surface water, and remain
the most valuable freshwater resource on our planet.
I would like to begin by expressing my strong support for S. 1183, the Great Lakes
Clean Water Act Amendments of 1993, of which I am an original cosponsor, and by
acknowledging the efforts of my colleague. Senator Metzenbaum, in introducing this
omnibus Great Lakes bill. I am the author of certain provisions of the omnibus bill,
relating to sediment reduction, pollution prevention for cities, and Great Lakes re-
search coordination. In a moment, I will elaborate on these provisions, but I would
first like to comment generally on the importance of the Great Lakes and a contin-
ued federal commitment to their protection and restoration.
The Great Lakes are a precious freshwater resource, supplying millions of Ameri-
cans with a livelihood, drinking water, recreation and inspiration. They also support
a fragile and unique natural ecosystem and require special care by all its users
basin residents, industry, and government, alike. We of the Great Lakes region con-
tinually strive for better environmental protection for this irreplaceable resource
which we are so fortunate to have in our backyards. We have seen much progress
over the years, most visibly evidenced by the remarkable return of Lake Erie from
the "dead". Yet many challenges remain, and it is our responsibility to find innova-
tive and cost-effective solutions to today's complex environmental problems.
According to the EPA, fishing and swimming are not what they should be along a
full 90 percent of the Great Lakes' United States shoreline. Picturesque harbors
contain contaminated and harmful bottom sediments, and all of our Great Lakes
states issue advisories to warn the public of potential health risks of eating too
many of certain kinds of Great Lakes fish. This situation is unacceptable.
996
This year, we have special legislative opportunities to help the Great Lakes envi-
ronment as Congress takes up the reauthorization of the federal Clean Water Act.
With so much of the nation's fresh surface water in our basin alone, we have a keen
interest and a high stake in successful national and regional provisions of the Cleem
Water legislation.
In order to address the difficult problems that continue to plague the Great Lakes
ecosystem, I joined with several of my colleagues on June 30, 1993, in introducing
the Great Lakes Clean Water Amendments Act of 1993, S. 1183. This bill addresses
several areas of need for the Great Lakes, including sediment management, pollu-
tion prevention and research coordination.
The Great Lakes Sediment Reduction provision applies the principles of pollution
prevention to the sediment problem in the Great Lakes. Currently, excessive loads
of sediment migrate to our Great Lakes harbors polluting them and creating high
costs for removal and disposal — costs that no one wants to bear. An average of 5
million cubic yards of sediments must be dredged from Great Lakes harbors each
year at an expense to the taxpayer of $33 million per year. About 50 percent of
these dredge spoils are so contaminated that they are disposed of in special confined
disposal facilities.
This sediment pollution of our harbors need not be a fact of life. The sediment
originates upstream as runoff pollution, and to a large extent can be abated there as
well. And prevention of sediment pollution in the Great Lakes will save money for
all involved: the EPA; the ports and the Corps of Engineers, which are responsible
for sediment removal; and even the upstream lemdowners who will benefit from
keeping more of the soil on the land.
The Sediment Reduction provision of our omnibus bill will authorize and direct
the US Army Corps of Engineers to map out where this sediment originates on a
river system-by-river system basis, and authorizes the Corps to provide technical
and financial assistance for voluntary upstream best land management projects that
will result in a cost savings in their dredging and disposal operations. I introduced
this measure as a stand-alone last Congress, and look forward to enactment as part
of the Clean Water Act this Congress.
My Pollution Prevention for Cities Program also builds our ability to stop pollu-
tion at the source. This measure will establish a technical assistance program
within the EPA for municipalities within the Great Lakes basin to help them
comply with new water quality rules in the most cost-effective way possible. The
program is targeted at source reduction of toxic constituents in urban runoff,
wastewater and stormwater. The measure also authorizes the use of State Revolving
Fund monies for municipalities to implement EPA approved source reduction plans.
Again, prevention is the most effective and least cost approach to pollution abate-
ment, and cities should be provided with the assistance they need to stop pollution
at its source.
The third measure of which I am the Senate author is the Great Lakes Research
Coordination provision. This provision will require federal agencies that conduct
ecosystem research in the Great Lakes to jointly develop priorities and a coordinat-
ed plan for addressing them. This measure will increase the efficiency with which
we gather information so important to sound environmental protection decision-
making.
I would like to conclude by reiterating my strong support for the Great Lakes
Clean Water Act Amendments of 1993; it is a practical, useful and beneficial bill. I
urge the Committee to include these critical Great Lakes provisions when marking
up its Clean water Act reauthorization package, and I look forward to working with
the Committee in the months ahead. I commend this Committee for making Clean
Water Act legislation such a high priority in this Congress. The Great Lakes and
our nation's waters deserve such a commitment.
TESTIMONY BY GREG LAUGHLIN, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF TEXAS
Having grown up on the Gulf of Mexico, and representing the District in Texas
with the most coastline along the Gulf, I have long been committed to raising the
priority of Gulf issues.
On April 28, 1993, Congressman Sonny Callahan and I introduced H.R. 1899, the
Gulf of Mexico Economic and Environmental Protection Act.
The bill has the bipartisan support of 55 members of congress and is the culmina-
tion of a four year effort by the Sunbelt Caucus to enact legislation to protect the
Gulf of Mexico.
997
This bill will prevent the Gulf of Mexico from turning into an Environmental Ca-
tastrophe, such as the Great Lakes and Chesapeake Bay once were.
It emphasizes the need to improve water quality in the Gulf of Mexico, reduce
coastal erosion, ameliorate the economic loss of fisheries in the Gulf, and address
other economic and environmental issues.
The Gulf of Mexico Economic and Environmental Protection Act will establish a
Gulf of Mexico Executive Board with each member having an equal vote.
This board includes representation from the citizen's advisory committee, local
communities, each Gulf State, and each federal agency with jurisdiction over the
Gulf of Mexico.
I believe the involvement of coastal elected officials will ensure that those who
deal with the Gulf everyday are included in the decision-making process.
Another important aspect of our bill is it ensures that we comprehensively ad-
dress the economic and environmental issues of the Gulf of Mexico.
I want to emphasize that the intent of this bill is to balance environmental pro-
tection with economic progress.
It is high time that the economic and environmental significance of the Gulf of
Mexico be recognized.
There are two such programs currently in existence which protect and manage
the Chesapeake Bay and the Great Lakes.
Although the Gulf is seven times larger than the Great Lakes and almost 200
times larger than the Chesapeake Bay, the Gulf of Mexico receives dramatically less
EPA funding than those two bodies of water.
For example, in 1993, the EPA is spending less than $5 million on Gulf of Mexico
Program activities while spending $35 mUlion and $24 million the Great Lakes and
Chesapeake Bay Programs, respectively.
Surely a body of water so rich in environmental resources, so rich in economic
resources, and yet so impacted by activities that occur as far away as Minnesota
should get more federal attention than it has historically.
I want to emphasize the National importance of the Gulf of Mexico, the incrediMe
contribution it makes to our country, and its great environmental value.
For example, not only have oil and gas revenues historically ranked second only
to the Federal Income Tax as a revenue source for the FederaJ Government, but at
the same time the Gulf provides critical habitat for 75% of the migratory waterfowl
traversing the United States.
We waited until it was almost too late to clean up the Great Lakes and the Chesa-
peake Bay, are we going to do the same to the Gulf of Mexico?
Are we going to wait unit we can no longer fish the Gulf, until Americans can no
longer eat good shrimp, to begin comprehensively addressing its problems?
If we do, clean up efforts will end up costing 7 times that of the Great Lakes, and
200 times that of the Chesapeake Bay.
Let me assure you that delay will only compound the problems and the costs of
restoring the Gulf to the living jewel that it is.
I applaud the actions of my colleagues from the Great Lakes, the Chesapeake, and
other regions for their aggressive and continuous efforts to protect and enhance
those national treasures.
Now is the time for us to do our part for the region that contributes so much to
our Nation's economy and environment.
In closing, I would like to thank the other co-chair of the Gulf Task-Force, my
distinguished colleague and friend Sonny Callahan and all of the other members of
the Gulf of Mexico Task Force who have worked so hard in developing this legisla-
tion.
Thank you.
STATEMENT OF THE AMERICAN AUTOMOBILE MANUFACTURERS
ASSOCIATION
The American Automobile Manufacturers Association (AAMA) submits this testi-
mony for the record of the August 4, 1993 Clean Water, Fisheries and Wildlife sub-
committee hearing on regional issues associated with the reauthorization of the
Clean Water Act. AAMA is the trade association for the domestic manufacturers of
passenger cars and light trucks. Our members, Chrysler Corporation, Ford Motor
Company and General Motors Corporation, manufacture approximately 81 percent
of all U.S.-built cars and light trucks, and operate 172 assembly and component
manufacturing facilities in the Great Lakes States.
998
This testimony will highlight some of our key concerns regarding the reauthoriza-
tion of the Clean Water Act, using examples raised by the proposed Great Lakes
Water Quality initiative. This regional approach to water quality improvement was
authorized by the Great Lakes Critical Programs Act of 1990 and affects many of
our members' manufacturing facilities.
The goal of this initiative is a laudable one: to develop comprehensive water qual-
ity guidance for the protection of the Great Lakes System. However, AAMA has two
serious concerns with the Great Lakes initiative regulations as they have been de-
veloped and proposed. First, the proposed regulations lack technical and scientific
validity. Second, the regulations do not accurately reflect the small environmental
benefit that will result despite the huge economic impact to businesses and munici-
palities in the Great Lakes region.
EPA is required by the Clean Water Act to develop and publish water quality-
based criteria that "accurately reflects the latest scientific knowledge." Many of the
Great Lakes initiative standards, in contrast, are scientifically unsupportable and
excessively conservative. As a result, many of the standards are an order of magni-
tude more stringent than necessary.
Regulation of heavy metals such as copper and zinc is a good example of how the
proposed standards are scientifically incorrect and overly stringent. In general,
heavy metals must be in a dissolved state or bioavaillable in order to pose a threat
to aquatic life. Toxicity limits should be established using dissolved metals. Studies
have demonstrated that metals limits as proposed by the Great Lakes initiative rule
are many times more stringent than necessary to protect aquatic life. Despite con-
clusive scientific information and acknowledgement by EPA experts that the pro-
posed method of translating water quality criteria into permit limits overestimates
bioavailability and toxicity, the proposed rules have not been modified. As a result,
the proposed Great Lakes initiative Aquatic Life criteria seeks to address problems
that do not, in fact, exist.
We are also concerned that these regulations will impose severe economic burdens
with only minimal environmental improvement This is partly because the Great
Lakes initiative addresses only industrial and municipal sewage treatment plants
which discharge pollutants through pipes, known as point sources. However, it is
well known that these sources are not the major contributors of many of the pollut-
ants in the Great Lakes. EPA's own studies show that nonpoint sources, such as air
deposition gmd agricultural and urban runoff, are more significant contributors.
Nonpoint sources contribute more than half of the toxic pollutants discharged into
the Great Lakes. The most common nonpoint pollutant comes from soil eroded from
farms, construction sites and stream banks. Significant improvements in water qual-
ity will only be attained if regulatory controls are directed at the sources causing
the greatest problems.
AAMA believes that the goals of the Great Lakes Water Quality Agreement will
not be met unless EPA prioritizes and directs its regulatory efforts to control pollut-
ant sources which have the greatest impact on the Great Lakes. The lack of a holis-
tic approach places an undue burden on industry, municipalities and the public to
minimize pollution, well beyond what is actually necessary. Improvements of the
water quality in the Great Lakes will not be realized unless regulatory efforts ad-
dress pollutants from nonpoint sources, such as agricultural and urban storm
runoff.
In addition to these technical concerns and lack of overall environmentsd benefits,
the economic impacts of these regulations will be staggering and anti-competitive.
For example, implementation of the Great Lakes initiative will lead to significantly
more stringent permit limitations for many of the pollutants commonly discharged
from automotive manufacturing operations. In addition, the proposed antidegrada-
tion requirements such as "the no net increase in pollutant loadings . . .", could
deter economic expansion in the Great Lakes Basin. Before any existing facility
could be expanded, any additional pollutant loadings would have to be eliminated,
even if the resultant discharges would be within permit limitations. This proposed
requirement would impose an economic disadvantage to a facility in the Great
Lakes Region as compared to a similar facility elsewhere in the nation or overseas.
AAMA's member companies will not only be affected by more restrictive require-
ments placed upon their discharges to the Great Lakes and its tributaries, but will
also be faced with stringent and essentially unachievable requirements mandated by
the local municipalities through their pretreatment programs. Even the minor low-
ering of permit limitations, as applied to municipal discharges under the proposed
Great Lakes initiative, will force municipalities to modify their industrial pretreat-
ment programs by significantly restricting the discharges of many pollutants from
industrial sources to levels well below the best achievable technology known. In
999
some instances, pretreatment requirements on industrial source discharges will be
more stringent than limitations applied to the mimicipality, because of the inability
of the municipality to control pollutant contributions from domestic sources.
AAMA members have 124 manufactiiring facilities, including 20 assembly and 104
component plants in six states within the Great Lakes Basin (89-MI, 16-OH, 2-IL,
1-IN, 4-Wl, 12-NY) that are eiffected by the proposed rules. This breakdown as-
sumes that only those facilities within the Basin are impacted by the proposed regu-
lations; and that Great Lakes states other than Michigan will have "two" sets of
water quality standards (i.e., one adopting Great Lakes initiative requirements for
Basin dischargers and the other (less stringent) being applied to the balance of the
state). If the other Great Lake states choose to adopt the Great Lakes initiative re-
quirements statewide, 48 additional AAMA member facilities may be impacted.
These manufacturing facilities are predominately indirect dischargers to municipali-
ties.
The overly stringent requirements proposed by the rules will force AAMA's
member companies to apply advanced treatment technologies, such as a combina-
tion of biological treatment, softening, reverse osmosis, high efficiency filtration,
carbon absorption smd reject water treatment, in addition to existing Categorical
Best Available Technology equipment. However, even this treatment technology
may not be consistently effective for PCBs and other complex organics.
Facilities that discharge stormwater and non-contact cooling water into the Great
Lakes Basin will also be required to provide additional treatment. Depending upon
state adoption, application of more stringent metal limitations as proposed by these
rules will require the installation of multiple advanced treatment technologies (i.e.,
a combination of biological, media filtration, softening, reverse osmosis and reject
water treatment) to reduce pollutant concentrations in rain water and uncontamin-
ated non-contact cooling water from city water supplies. Industry would be forced to
treat rain water and city water that has not been impacted by any plemt activity.
Thus, when discharging only city water with no plant contribution, treatment will
still be required prior to this discharge.
The potential capital cost impact of the proposed Great Lakes initiative upon
AAMA's member companies in the Great Lakes Basin is estimated at two billion
dollars, with annual operating and maintenance costs approaching two hundred mil-
lion dollars.
To summarize, a holistic approach which sets priorities based on sound science
and implements programs using risk-based controls should be the basis for the envi-
ronmental objectives of both the Great Lakes initiative and the Clean Water Act
Reauthorization. AAMA urges the subcommittee to evaluate the economic and
social impact of the Great Lakes initiative and apply the lessons learned as you re-
draft the Clean Water Act. As currently proposed, the initiative places an unaccept-
able burden on industry and municipalities in the Great Lakes Basin. R^rettably,
in spite of these high costs, there is little expectation that measurable improvement
in Great Lakes water quality will result.
REAUTHORIZATION OF THE CLEAN WATER ACT
THURSDAY, AUGUST 5. 1993
U.S. Senate,
Committee on Environment and Public Works,
Subcommittee on Clean Water, Fisheries, and Wildlife,
Washington, DC.
FEDERAL AGENCIES; MONITORING; AND OTHER ISSUES
The subcommittee met, pursuant to recess, at 9:35 a.m. in room
406, Dirksen Senate Office Building, Hon. Bob Graham [chairman
of the subcommittee] presiding.
Present: Senators Graham and Chafee.
OPENING STATEMENT OF HON. BOB GRAHAM, U.S. SENATOR
FROM THE STATE OF FLORIDA
Senator Graham. Good morning. Today we conclude our current
series of hearings, which we have held over the past eight weeks on
the reauthorization of the Clean Water Act. We will hold at least
one additional hearing in September on the specific subject of wet-
lands.
This morning's hearing focuses on a number of miscellaneous
issues which are important to our review of the act but to which
we have not yet been able to give our full attention. For this hear-
ing we have invited representatives of the various Federal agencies
which are impacted by the Clean Water Act to share with us their
comments on the Clean Water Act generally and on S. 1114 specifi-
cally.
The areas of responsibility for these agencies vary greatly. The
Environmental Protection Agency is the primary Federal agency
with responsibility for much of the Clean Water Act. Accordingly,
it is no stranger to the witness table this summer; in fact, we began
our series on June 16th with the testimony of its Administrator,
Ms. Carol Browner. We look forward to continuing our discussions
with EPA over changes to the Clean Water Act, one of the agency's
premiere environmental responsibilities.
On July 14th and again on July 21st, this subcommittee focused
on nonpoint source pollution and watershed planning as a means
of addressing nonpoint source pollution. We were repeatedly told
that agriculture is a major contributor to this type of pollution.
The Department of Agriculture is here today to discuss a number
of its programs that address water quality, and will focus today on
the nonpoint source pollution and watershed planning provisions of
the bill before us.
(1001)
1002
Two agencies within the Department of the Interior are here to
discuss issues relevant to them. The Fish and WildUfe Service is
here to continue our inquiry into physical and biological impacts
on our Nation's waters. We will recall the testimony at our first
hearing in which a panel of scientists warned us that we must re-
member that the Clean Water Act should not just concentrate on
chemical impact. To the extent that it has, we have seen remarka-
ble successes, though much is still left to be done in the area of
chemical impact. , .„ ^ , j i.. i • i
We have also been reminded that dams kill fish, and biological
changes impact habitat.
The U.S. Geological Survey is here primarily to discuss with us
its monitoring program and how it does and does not coordinate
with other monitoring programs, such as those at EPA.
Finally, the National Oceanographic and Atmospheric Agency, or
NOAA, is here to talk about coastal programs and its monitoring
efforts. .
We will then turn to three remaining issues in our second panel.
The General Accounting Office has prepared for the subcommittee
an assessment of several monitoring issues in response to my con-
cerns about whether the environmental data we collect bears ade-
quate relevance to the decisions that agencies must make. That
might be a general question that I would like to place before the
agency representatives here today: how does the data which is col-
lected by our various monitoring efforts relate to your needs to
make policy and management decisions?
We will follow that discussion with a debate about an important
but comparatively narrow issue regarding the right of States to
control nonchemical impacts on their waters from certain sources.
Finally, we will learn about water conservation efforts, using as
an example the city of Tampa and the lessons that perhaps can be
applied nationwide from that municipality's experience.
At the first hearing in this series on June 16th I characterized
our schedule as "ambitious." This is the seventh hearing in as
many weeks. I commend the subcommittee members and the wit-
nesses for their stamina and the contributions that they have made
to our understanding of these complex issues. We received a great
deal of advice, both oral and written, as to how we should proceed.
We will be studying the lessons we have learned in these hearings
over the August recess. I invite those who wish to comment on the
bill to make their comments known to the subcommittee so that we
might take them into account as well.
Again, I thank the witnesses who are here today. I will introduce
the witnesses on the first panel by name and title, beginning with
Mr. Jim Lyons, Assistant Secretary for Natural Resources and En-
vironment of the U.S. Department of Agriculture; Mr. Douglas K.
Hall, Assistant Secretary for Oceans and Atmosphere, U.S. Depart-
ment of Commerce; Mr. Dallas Peck, Director of the U.S. Geologi-
cal Survey of the Department of the Interior; Mr. Michael Spear,
Assistant Director, Fish and Wildlife Service, Department of the
Interior; and Mr. Robert H. Wayland, III, Director, Office of Wet-
lands, Oceans, and Watersheds of the U.S. Environmental Protec-
tion Agency.
1003
Mr. Lyons has another commitment in the House of Representa-
tives which he must leave to attend, so I am going to ask if he
would make his presentation first. I will ask a few questions of Mr.
Lyons, then if you must move on, it is your loss that you will not
get the benefit of the rest of the testimony. You can read the tran-
script. Then we will proceed to the other witnesses, asking each in
turn to make their presentation, and then I will ask questions, as
will other members of the subcommittee as they join us.
Mr. Lyons?
STATEMENT OF JAMES R LYONS, ASSISTANT SECRETARY FOR
NATURAL RESOURCES AND ENVIRONMENT, U.S. DEPARTMENT
OF AGRICULTURE, ACCOMPANIED BY JOHN BURT, SOIL CON-
SERVATION SERVICE; AND WILLIAM McCLEESE, U.S. FOREST
SERVICE
Mr. Lyons. Thank you very much, Mr. Chairman. I appreciate
the committee's indulgence. Congress is rushing to get a lot done in
the remainder of this period of work.
I am pleased to be here to discuss the views of the Department of
Agriculture on reauthorization of the Clean Water Act. I am ac-
companied by John Burt with the Soil Conservation Service and
Bill McCleese from U.S. Forest Service, who can address any tech-
nical questions you might have.
Water quality, of course, is a cross-cutting concern and has the
potential of affecting agriculture and USDA programs in numerous
ways. But let me make clear, Mr. Chairman, that while agriculture
is a significant part of the nonpoint source pollution problem,
USDA intends to be an important part of the solution.
The quality of water from a watershed is influenced by the way
we farm, harvest timber, graze cattle, or confine livestock for effi-
cient production. USDA can play a significant role in reducing the
effects of these activities on water quality, and this is why USDA
must be involved in implementation of the Clean Water Act.
S. 1114 helps provide the support and program direction needed
to aid in the maintenance and restoration of the quality of the Na-
tion's waters. The watershed approach is the most effective way
nonpoint source pollution can be effectively managed. Today I
would like to discuss USDA's experience in water quality, both on
privately owned lands and on Federal lands.
First, USDA has numerous programs that have had and are
having an impact on water quality on privately owned lands. One
such program, the conservation compliance provisions of the 1985
and 1990 farm bills, for the first time linked an individual produc-
er's performance on environmental issues to eligibility for USDA
farm program benefits. To remain eligible for USDA farm program
benefits, conservation compliance requires farmers to develop and
carry out approved conservation plans on highly erodible cropland.
SCS has worked with farmers to develop more than 1.5 million con-
servation compliance plans.
When fully implemented, these plans will significantly reduce
soil erosion on some 142 million acres on participating farms in the
United States. SCS estimates that fully implemented conservation
compliance plans, combined with grass and tree plantings on more
1004
than 35 million acres enrolled in the Conservation Reserve Pro-
gram, will cut the soil erosion rate on highly erodible cropland in
the U.S. by about 65 percent. In areas where sediment is the pri-
mary problem, conservation compliance will have the effect of im-
proving water quality.
USDA's National Conservation Program in 1988 established pro-
tection of water quality from agricultural pollution as a national
priority. As a result, agencies began to redirect resources where
possible to address water quality concerns. This resulted in a
number of outputs:
First, increased research in such areas as developing predictive
models;
Evaluating agricultural chemical transport;
Searching for plant species requiring less pesticides and methods
for propagating crops with less use of pesticides;
Improved technical assistance to aid farmers and ranchers in
dealing with nonpoint source pollution problems;
Education and information materials directed to farmers and
ranchers to make them aware of water quality concerns and pro-
vide guidance on how to correct water quality problems; and
Financial assistance, to the extent it has been available, to help
farmers and ranchers install cost-effective environmental practices
and/or try new methods of farming or ranching.
Today we have about 135 water quality projects across the coun-
try. At USDA we have used the program resources and authorities
of 15 programs to implement water quality planning and imple-
mentation. USDA has also reached out to form partnerships with
industry, farm organizations, and with other agencies to help im-
plement water quality improvements. And here, Mr. Chairman, I
would like to emphasize the fact that we are doing our best to de-
velop partnerships with producer organizations and with producers
themselves to work jointly to address nonpoint source pollution
concGrns.
USDA is also working closely with EPA on many water quality
issues and projects related to agriculture. USDA and EPA have
jointly funded Soil Conservation Service staff positions for all of
the EPA regional and national offices; provided support to the Na-
tional Estuary Program; and assisted EPA and NOAA in develop-
ing technology-based management measures for the Coastal Zone
Management Reauthorization Act amendments. EPA also has two
persons detailed to our offices in USDA to help work on nonpoint
source pollution concerns.
We firmly believe that partnerships with agencies, the agricul-
tural community, State governments, and local people must be con-
tinued and improved. Federal and State governments cannot imple-
ment water quality improvements without the support of the local
people and the agricultural community. This is a key reason for
the watershed approach, and it must be fully supported by all Fed-
eral and State agencies. We believe USDA plays a critical role
there.
Our experience has taught us some valuable lessons which we
think are useful to consider.
1005
First, patience is a critical concern in dealing with nonpoint
source pollution concerns. It clearly takes time for water resources
to respond to reduced nonpoint source loading.
Second, we need to rely on observable results. Monitoring of
physical chemical characteristics of water provides important infor-
mation for determining the impacts on water quality.
Third, on-farm application is clearly essential. When farmers are
able to relate their farming activities to water quality concerns —
that is, when they understand how what they're doing is impacting
on water quality — we find more often than not that they are will-
ing participants in programs to help reduce or alleviate those im-
pacts.
Fourth, always remember that a delivery system which can im-
plement programs at the local level is critical.
Finally, solutions which come from the bottom up rather than
the top down seem to work best.
We recognize, Mr. Chairman, that the nonpoint source pollution
problem is enormous; in fact, EPA estimates it will cost $8.8 billion
over 20 years to control agricultural and silvicultural nonpoint
sources of pollution. However, we believe the watershed approach
is a very sound and effective way to accomplish the objectives of
the Clean Water Act and to seek to reduce nonpoint source pollu-
tion impacts. However, it will require experience in watershed
planning and resource management at the local level to facilitate
the process and assist in implementation. The Soil Conservation
Service and the Forest Service can clearly assist in providing this
kind of guidance at the local level.
We recommend three ways to make the watershed concept work
for water quality.
First, we think it is clearly important that the USDA be one of
the Federal partners involved in implementation. We have the
field staff, the experience, and the multidisciplinary technical skills
necessary to supplement efforts already occurring in other agencies
to implement this approach. We are, in fact, actively applying wa-
tershed management across the Nation.
Second, we think it is critical that the program be flexible. Clear-
ly, in dealing with nonpoint source pollution concerns, one size
does not fit all. Flexibility in designing programs and plans to aid
local producers or to deal with local management situations when
it comes to forest lands is critical.
And third, involvement of local people and institutions is also es-
sential.
If I could, Mr. Chairman, just briefly turn to the activities of the
Forest Service, the Forest Service is responsible for managing 191
million acres of forest and rangeland in the United States. In addi-
tion, the Forest Service's State and Private Forestry Program
works closely with private landowners, affecting millions of acres
of land in how they are managed.
The Forest Service is actively involved in research, development,
and implementation of management practices designed for the con-
trol of nonpoint source pollution and the protection of forested wa-
tersheds. The Forest Service has developed a watershed manage-
ment strategy for protection of nonpoint sources based on two basic
components: prevention and rehabilitation.
1006
The Forest Service policy is to comply with all State require-
ments for protection of water quality in the same manner and to
the same extent as a nongovernmental entity. In most States we
have developed and are implementing working agreements with
the States to achieve this end. Under these agreements the Forest
Service is responsible for implementing State nonpoint source
water quality programs on the National Forests. Through review of
proposed Forest Service programs and monitoring activities, the
States are assured that Forest Service programs meet State water
quality concerns.
Let me briefly summarize, Mr. Chairman, with some comments
on S. 1114.
As I said, we are delighted to see that S. 1114 is taking a water-
shed approach to help implement water quality improvement pro-
grams, an approach that is consistent with our philosophy of man-
aging ecosystems on a watershed-by-watershed basis — an approach,
I might add, Mr. Chairman, that is the foundation of the Presi-
dent's recently announced plan for management of the forests in
the Pacific Northwest, where an interagency effort is now under-
way to begin the watershed based planning necessary to address
the multiple resource concerns that affect that region.
EPA, in consultation with USDA and others, should provide wa-
tershed program requirements for the State to follow. At a mini-
mum, a State watershed plan should list the targeted watersheds;
identify water quality concerns in the watersheds; specify a sched-
ule for developing a plan; require coordination with appropriate
Federal agencies, including the land management agencies; and
identify Federal and State assistance through existing programs.
At USDA we support the farm bill incentive programs and other
measures in the 1985 and 1990 acts to help address nonpoint source
pollution concerns. In general, USDA is not opposed to a require-
ment that Federal lands be managed in a manner that is consist-
ent with that required on private lands; in fact, that's exactly what
the Forest Service does.
Finally, as I've indicated, USDA supports the emphasis on water-
shed management as the key to resolving the nonpoint source pol-
lution problems ahead. This is consistent with the direction that
the Forest Service and SCS are taking. We think it is a critical di-
rection to address the concerns that we all share.
Thank you very much, Mr. Chairman, for this opportunity to
appear before the committee.
Senator Graham. Thank you very much, Mr. Lyons.
As I stated earlier, I am going to ask a few questions of you now,
and then we'll move on to the other members of the panel.
You mentioned some of the successes in nonpoint pollution plan-
ning, both in the department and in the Division of Forestry. If you
were going to go out across the country and look at the best exam-
ples of nonpoint source pollution in an agricultural or forestry set-
ting, where would you go? What's the state of the art in nonpoint
source pollution control?
Mr. Lyons. I'm afraid I'd be short on specific places to point to.
That's one of the things I'm trying to do right now. Senator, is get
out and look at our successes and, frankly, look at some of our fail-
ures. But I think some of the programs that have been implement-
1007
ed in the midwest, in Iowa in particular, offer some good examples
of how working cooperatively with landowners in implementing
both the requirements of the 1990 Farm Act with regard to conser-
vation compliance, and using some of the other tools that we have,
such as the Conservation Reserve Program to set aside fragile
lands, looking down the road to the hope of being able to imple-
ment the Wetland Reserve Program which is another mechanism
we think can help in addressing these concerns — I think you would
see that we are making significant progress in working with land-
owners to achieve these goals.
Senator Graham. Mr. Lyons, for you and other members of the
panel, there may be some follow-up questions on which we would
appreciate your response in writing.
I would be interested in some specific addresses of places that we
might look at. I have found it helpful in discussing intangible con-
cepts like this to go to the benchmark of where the best practice is
actually being implemented in order to convert concept into reali-
ty. I would appreciate your recommendations on where your travel
agenda would take you, if that's what you wanted to do.
Mr. Lyons. I will be glad to send you a summary of what we
have ongoing now, Mr. Chairman, and if appropriate, invite you to
come out and join me. We will look at some of these sites.
Senator Graham. Good.
I mentioned that we're going to be talking later with the second
panel about some monitoring data and about how adequate and de-
cision-oriented that data is. From your perspective could you com-
ment on the data that is available to the Department of Agricul-
ture to carry out its responsibility?
Mr. Lyons. I would say generally, Mr. Chairman, that we clearly
would like to see some improvements in the monitoring data. It
makes it very difficult to target programs, to make efficient use of
existing funds without solid data on the status of nonpoint source
pollution concerns.
I could yield to my colleagues from SCS and Forest Service to
talk about the specifics, but let me offer one example.
I think we have found, for example, in implementation of the
land management plans of the Forest Service that one of the areas
that is clearly lacking is investments in monitoring. Each of the
National Forest plans which address, in many respects, water qual-
ity concerns, have has provisions and has a plan for monitoring;
however, we have had a great deal of difficulty in the past in ob-
taining the funds to implement that kind of monitoring activity.
As I mentioned, in the Pacific Northwest where the President
has provided direction for implementation of a new regionwide
forest plan, one of the key elements is the development through an
interagency task force of the protocols for monitoring impacts of
forest management activities on water quality.
Senator Graham. In your statement in a few places you made
some positive observations that the programs seem to be having
the intended result of improving water quality. How effective is
our current data in, first, establishing a baseline of what is the re-
ality of the current state of water, particularly as affected by non-
point source pollution from an agricultural source; and second,
1008
after we have implemented our control measures, what effects they
have had?
Mr. Lyons. I would say, Mr. Chairman, that our baseline data
are not very good. That's a concern. We have been forced to use
biological indicators as a measure of performance and a determi-
nant of what we have been able to achieve.
Having good, solid baseline data would help us tremendously in
understanding both the impacts of agricultural production as well
as those of silvicultural activities. Again, this is one of the things
we're looking at in trying to apply this ecosystem strategy in the
Pacific Northwest, to determine what those baseline characteristics
ought to be as a measure of performance.
Senator Graham. Is there an3^hing that you would suggest —
either today, or if you would like to do this subsequently — on what
we could do within the Clean Water Act reauthorization in order to
give greater attention to monitoring, data collection, the ability to
make improved decisions based on management and decision-ori-
ented data?
Mr. Lyons. Well, I'll get back to you with more specifics, Mr.
Chairman.
I would say most immediately that in establishing protocols for
developing that baseline data, I think a critical element is that the
data be developed in a coordinated, interagency fashion, so that
whatever database is established to monitor clean water concerns
also recognizes some of the other data needs that we have. That
way we don't run into a situation where one agency perhaps devel-
ops the baseline data for water quality, but it has less utility for
some of the activities of, say, the Forest Service and SCS and Fish
and Wildlife Service and other agencies. ^
That approach, a coordinated and consistent approach that
allows us all to agree on what the baseline data should be, would
do a great deal to help us achieve not only our water quality objec-
tives but some of the other management objectives that we all seek
to achieve. So I would offer that concern and that plea, that when
we put this together, we do it jointly and that it address multiple
concerns in addition to the immediate nonpoint source pollution
concerns that we have.
Senator Graham. I would like to submit that question to each of
you that you might be prepared to comment on what we can do
within the Clean Water Act itself in order to facilitate the objec-
tives that Mr. Lyons has just described.
Mr. Lyons, I know you have to leave at 10:00 o'clock, so we have
a couple minutes. Let me ask two questions.
What tactics has the Department of Agriculture employed, from
best management practices to land acquisition to wetlands reserve
programs, etc. — what have you found to be the most cost-effective
and sustainable solutions to nonpoint source pollution in an agri-
cultural setting?
Mr. Lyons. Mr. Chairman, I was saying that it depends on what
watershed you're in and what your pollution prevention objectives
are. I was going to say that I think the most effective tool we've
found is working with farmers and providing them the technical
assistance and information necessary for them to understand pre-
cisely what impact they're having on water quality.
1009
We have a fairly good-sized toolbox to choose from in terms of
the management activities that we seek to put on the ground, and
we have a very important stick in conservation compliance. That
certainly gets the attention of producers, but I think we've found
that, again, producers who have come to understand how their ac-
tivities may be impacting on water quality are more likely to seek
assistance. Where additional financial incentives or cost-share as-
sistance might be available, we are able to get practices in place on
the ground. But I think having a big toolkit, if you will, is essential
so that we can perhaps, for a given landowner, offer technical sis-
sistance to, say, change cropping practices to reduce impacts on
nonpoint source pollution, but in areas where we have a significant
problem, be able to offer a set aside program like the Conservation
Reserve Program or a long-term easement program like the Wet-
land Reserve Program,
Having that capability and being able to go out on the ground
with landowners and tailor a plan to address their particular pollu-
tion concerns is critical and I think probably the most cost-effective
mechanism we have.
Senator Graham. Mr. Lyons, I appreciate your testimony today. I
wish you well in the House of Representatives. We'll be back in
touch with you on some of those questions and maybe we'll have a
chance to visit the places that you would designate as state of the
art.
Mr. Lyons. I look forward to that. Thank you again, Mr. Chair-
man.
Senator Graham. Great, Thank you, sir,
Mr. Hall?
STATEMENT OF DOUGLAS K. HALL, ASSISTANT SECRETARY FOR
OCEANS AND ATMOSPHERE, U.S. DEPARTMENT OF COMMERCE
Mr. Hall. Thank you, Mr. Chairman.
I am glad to be here today to discuss the role of NOAA in meet-
ing the challenge of restoring the quality of our Nation's waters.
Senators Baucus and Chafee have introduced a reauthorization
package that provides a new framework within the Clean Water
Act, and NOAA strongly endorses this restatement of goals and
strategies, to include protecting and restoring ecosystem health.
With this emphasis, NOAA's scientific capabilities and technical
expertise become even more relevant to the Clean Water Act and
more significant in meeting the water quality goals of the Nation.
This shift to a comprehensive and integrated perspective will
enable us to focus on cumulative, systemic causes of environmental
decline rather than individual impacts. Focusing management,
planning, research, and monitoring on entire watersheds is particu-
larly critical for the coastal and marine ecosystems under NOAA's
stewardship. I will focus on four major themes in the proposed leg-
islation that highlight NOAA's role in protecting the health of the
coastal ecosystems. These include the watershed management ap-
proach, regional partnerships, stronger controls on nonpoint source
pollution, and the need for research and monitoring.
NOAA strongly supports the addition of a new section to the
Clean Water Act to encourage comprehensive watershed manage-
1010
ment. NOAA is acutely aware of the effects of poor watershed
planning and management, sometimes occurring tens or hundreds
of miles inland, on the coastal and nearshore resources, of which
we are stewards. We believe that continuing loss and degradation
of habitat is the greatest long-term threat to the viability of com-
mercial and recreational fisheries, the protection of marine mam-
mals and endangered marine species and the preservation of our
coastal zone and special protected areas.
A new strategy based on protecting and restoring living re-
sources that includes full upstream watershed planning and man-
agement, as well as downstream ecosystem management, planning,
research and monitoring is needed to turn the tide on coastal deg-
radation and deal with environmental problems before they
become environmental crises. Under several existing programs and
authorities, NOAA is incorporating the principles of watershed pro-
tection in the management of marine resources.
The Clean Water Act has fostered many regional programs di-
rectly related to NOAA's trust and stewardship responsibility for
fishery habitat and coastal zone management. NOAA participates
in Federal-State partnerships coordinated by the Environmental
Protection Agency, in particular the 21 National Estuary Programs
and the three Great Waters Programs, the Chesapeake Bay, the
Gulf of Mexico, and the Great Lakes. While EPA's strength lies in
its water quality protection authorities, NOAA's strength lies in its
coastal zone, habitat, sanctuary and reserve, fishery management,
research, and monitoring responsibilities.
The partnership approach in the National Estuary Program and
the Great Waters Program builds on each agency's strengths to
create truly comprehensive action plans. This partnership is evi-
dent in NOAA's establishment of a Chesapeake Bay Office to en-
hance our contributions to efforts on cleanup and restoration of the
Bay. In Florida, NOAA is developing an overall ecosystem manage-
ment plan for the Florida Keys National Marine Sanctuary in co-
operation with the State of Florida, EPA, the Interior Department,
other Government agencies, commercial fishermen, environmental-
ists, recreational user groups, and the public. EPA, which is re-
sponsible for the water quality protection component of the plan,
could be aided by components of S. 1114.
NOAA is committed to participating in these ecosystem— based
restoration and protection programs. These types of regionally
based cooperative efforts, organized around a specific watershed,
will be at the forefront of environmental issues in this country and
should be an extension of the watershed management approach
proposed in S. 1114.
With regards to nonpoint source pollution, NOAA believes that
tackling the problems of nonpoint source pollution provides the
greatest opportunity we have to impact profoundly this Nation's
coastal environment in the next century. We strongly support
strengthening the existing section 319 programs under the Clean
Water Act. Given the work today on coastal nonpoint programs
under section 6217 of the Coastal Zone Management Act Reauthor-
ization Amendments of 1990, we believe that it is very important
that amendments to section 319 of the Clean Water Act be compat-
ible with and enhance these programs. Consistency between the
1011
State coastal nonpoint programs and the State section 319 pro-
grams will undoubtedly bolster both efforts.
We are now six months into the thirty-month statutory time-
frame for States to develop and submit their coastal nonpoint pro-
grams, and we are finding general support for the goals of section
6217. We consider the improved dialog and coordination between
coastal management and water quality agencies at the State level,
as well as the Federal level between NOAA and EPA, to be one of
the early successes of this program.
We would like to see this coordination continue and be strength-
ened through amendments to section 319. Increasing national at-
tention on nonpoint source pollution will support the efforts al-
ready underway by the coastal States.
On research and monitoring, NOAA believes that any new legis-
lation outlining management, watershed, and ecosystem perspec-
tives must include appropriate monitoring and research, and we
appreciate the Chairman's leadership in this area. We must be able
to define, detect, and understand ecosystem health criteria in order
to identify real risks, track progress, or adapt management strate-
gies along the way. Each of these are essential ingredients to eco-
nomically sound and environmentally effective management. This
is a very large task, and its undertaking clearly exceeds the limits
of resources and expertise of any single agency.
The goals of the Clean Water Act could be met more quickly and
efficiently by ensuring that Clean Water Act — related monitoring
and research data, information, and expertise from all Federal
agencies are coordinated and used, where appropriate. There are
many opportunities for NOAA's research capabilities to support
the broadened goals of the Clean Water Act. NOAA and its aca-
demic partners conduct interdisciplinary research programs in vir-
tually all aspects of environmental quality and coastal ecosystem
health.
NOAA's existing capabilities for monitoring the marine environ-
ment also offer a considerable opportunity for supporting Clean
Water Act goals. The National Coastal Monitoring Act of 1992,
which mandates the development of a national Federal and State
monitoring program to assess the status of coastal ecosystems of
the United States, has expanded NOAA's historic responsibilities.
NOAA and EPA are currently developing a joint strategy for carry-
ing out the responsibilities mandated by the act.
NOAA believes that there clearly should be a mechanism to co-
ordinate Clean Water Act-related research efforts across the envi-
ronmental agencies. We recommend the use of existing interagency
mechanisms, such as the Intergovernmental Task Force on Water
Quality Monitoring and the Coastal, Ocean, and Water Resources
Subcommittees of the Federal Coordinating Council on Science, En-
gineering and Technology.
In conclusion, we strongly support redirecting the Clean Water
Act to better protect ecological resources by emphasizing biological
criteria for decisionmaking. The watershed approach will assist
NOAA greatly in our efforts to protect fisheries and other marine
resources from the impacts of development and watershed draining
in the coastal waters. Consistency between Clean Water Act non-
point source pollution requirements and those contained in section
1012
6217 of the Coastal Zone Act Amendments will strengthen the ef-
forts already underway in the coastal States.
NOAA offers strong capabilities in research and monitoring of
marine, coastal, and Great Lakes environments, a critical compo-
nent of ecosystem protection and restoration.
Thank you, Mr. Chairman. I will be glad to answer any ques-
tions.
Senator Graham. Thank you, Mr. Hall.
Mr. Peck?
STATEMENT OF DALLAS PECK, DIRECTOR, U.S. GEOLOGICAL
SURVEY, U.S. DEPARTMENT OF THE INTERIOR, ACCOMPANIED
BY PHILLIP COHEN, CHIEF HYDROLOGIST AND CHIEF, WATER
RESOURCES DIVISION
Mr. Peck. Thank you, Mr. Chairman. It is a privilege for me to
appear before you today as you consider the issues of watershed
management and monitoring. I am accompanied by Mr. Phillip
Cohen, who is sitting right behind me. He is the Chief Hydrologist
of the U.S. Geological Survey's Resources Division.
My testimony today will emphasize those aspects of the U.S. Geo-
logical Survey's programs that most directly pertain to the objec-
tives of coordination, monitoring, and assessment. I have included
a more complete description of our activities in my remarks for the
record, and will only summarize them today.
Some of the difficulties in using available information to describe
the Nation's water quality conditions include the differences be-
tween agency procedures; the tendency to carry out measurements
where problems are suspected; and the small number of sites with
long records of constituents of recent concern. Even so, we believe
that improved Federal, State, and local monitoring efforts, together
with our new national assessment programs of the USGS and other
Federal agencies, will provide the support needed to achieve the ob-
jectives of the Clean Water Act, as well as other statutes.
Turning to the matter of coordinating Federal, State, and local
monitoring activities, water data collection responsibilities are dis-
persed at all levels of Government and the private sector. The suc-
cessful establishment of improved coordination and cooperation
promises to improve greatly the availability of reliable monitoring
information and water quality assessments.
The Office of Management and Budget, recognizing the need to
improve the coordination of water information programs, estab-
lished the Water Information Coordination Program in December,
1991, under 0MB Memorandum M-92-01 (See Attachment 1). The
U.S. Geological Survey, through the Department of the Interior, is
responsible for implementing this program. This program builds on
over 25 years of experience coordinating water data under OMB
Circular A-67.
In January, 1992, the Water Information Coordination Program
established the Intergovernmental Task Force on Monitoring
Water Quality, chaired by Elizabeth Jester Fellows of EPA, to
evaluate water quality monitoring activities in the U.S. and to rec-
ommend improvements. The report to OMB on the first-year's ac-
tivities of the task force outlines a proposal to carry out a national
1013
strategy to enhance water quality activities and to better support
management decisions.
USGS and EPA are working closely together to support the
Intergovernmental Task Force with outstanding cooperation from
others, such as NOAA and the U.S. Department of Agriculture. I
am confident that the task force and resulting activities will im-
prove the effectiveness of our monitoring and assessment programs
across the board. A very important aspect of improving programs
involves working with State and local agencies, as well as the Fed-
eral Government.
With regard to monitoring, the USGS has been actively engaged
in assessing and monitoring the Nation's water resources for many
years. For example, our stream-gaging network began operation
over 100 years ago, and ground water, surface water, and precipita-
tion data are now collected on a routine basis at over 45,000 sites
across the Nation. Water resource managers at all levels of Gov-
ernment rely heavily on the information from these sites.
Two USGS programs have major status- and trend-monitoring
components that directly or indirectly support Clean Water Act ob-
jectives. The Federal-State Cooperative Program has been in oper-
ation for over 100 years. This 50/50 jointly funded program is a
unique partnership between the USGS and 1,000 State, regional,
and local government agencies to enhance water resources infor-
mation nationwide. The goals of the program are to collect data
and develop information, and to use that data and information to
appraise the availability, distribution, and characteristics of water
resources.
The National Water Quality Assessment (NAWQA) program is
describing the status and trends in national water quality and is
identifying the factors affecting water quality. NAWQA provides
specific water quality information to those individuals who set
policy, write regulations, establish priorities, or manage water re-
sources. To meet its goal, the program will integrate water quality
information on a regional, local, and national scale. We start one of
the NAWQA areas in south Florida this fall.
We expect that these USGS monitoring and assessment activities
will contribute to the Nation's ability to evaluate the extent to
which programs undertaken pursuant to the Clean Water Act are
helping us to achieve a better environment.
That concludes my formal testimony, Mr. Chairman. I would be
happy to respond to any questions you may have.
Senator Graham. Thank you very much, Mr. Peck. We will have
some questions at the conclusion of the panel.
Mr. Spear?
STATEMENT OF MICHAEL SPEAR, ASSISTANT DIRECTOR, FISH
AND WILDLIFE SERVICE, U.S. DEPARTMENT OF THE INTERIOR,
ACCOMPANIED BY DAVID DENSMORE, ECOLOGICAL SERVICES;
AND TIM KUBIAK, ECOLOGICAL SERVICES
Mr. Spear. Thank you, Mr. Chairman. I appreciate this opportu-
nity to appear before you regarding the role of the Fish and Wild-
life Service in the Clean Water Act. I am accompanied by Dave
Densmore and Tim Kubiak of our Ecological Services staff.
1014
The Service's interest in the Clean Water Act stems from our
stewardship responsibilities for endangered species, migratory
birds, anadromous fish, and several marine mammals, all of which
depend on clean water to survive. The Service also has trust re-
sponsibilities for over 90 million acres of lands in the National
Wildlife Refuge System. Clean water is essential to maintaining
these refuges, as well as to operate our system of national fish
hatcheries.
The Service has several authorities for direct involvement in the
Clean Water Act activities, including the Fish and Wildlife Coordi-
nation Act, the Endangered Species Act, and the National Environ-
mental Policy Act.
The Service has also developed wide expertise in the evaluation
of man's effects on living natural resources. This expertise lies not
only in our research program, but in our network of over 700 field
stations throughout the country. We believe that our authorities,
in conjunction with our field experience, can enhance effective im-
plementation of the law.
Since it was first passed in 1972, the Clean Water Act and its
subsequent amendments have resulted in substantial improve-
ments in the quality of the Nation's waters and a reduction in the
rate of loss of our Nation's wetlands. We believe that the programs
established in the Act are sound, but as with any program, they
can be improved.
The goals of the Clean Water Act are to restore and maintain
the chemical, physical, and biological integrity of the Nation's
waters. In the past, implementation of the Act has focused on the
chemical integrity of those waters, with less effort on biological
and physical integrity. This focus is changing, and we are ready to
assist EPA and others by providing technical assistance and consul-
tation on biological resource issues.
At present, 97 of the 775 species of freshwater fish native to the
United States are listed as endangered or threatened, along with
63 mussel species, 12 crustaceans, and 11 amphibians. Clearly, if
the status of these species is an indicator, the biological diversity of
our Nation's aquatic systems is still being threatened. It makes
sense, both ecologically and economically, for a society to make
every effort to prevent species from reaching such desperate status
as to require listing as threatened or endangered. As Secretary
Babbitt has frequently noted, managing an entire ecosystem for
harmonious development is far more prudent than having to un-
dertake drastic measures to save an endangered species that will
undoubtedly have serious economic impacts on those living in that
ecosystem.
One means to present this is by protecting wetlands. Many fresh-
water, anadromous, and estuarine fish species, more than 50 per-
cent of North America's migratory birds, and more than one-third
of all threatened and endangered species are dependent on wet-
lands.
Another means is through development of water quality criteria
and standards that reflect needs of aquatic resources.
The Service's biological expertise can be used to enhance imple-
mentation of the wetlands provision of the Act and the develop-
ment of Federal water quality criteria and State water quality
1015
standards. With early coordination, problems can be identified
before they reach a level too difficult to resolve. For instance, seek-
ing better water quality standards — and thus better section 402
permits — is more effective than dealing with contaminated sedi-
ments after the discharges have ceased.
Preventing further degradation of the waters of the United
States through more effective implementation of antidegradation
policies and through protection and expansion of our outstanding
natural resource waters are also important to meeting the goals of
the Clean Water Act.
The Service has been involved in numerous watershed restora-
tion efforts around the country, such as the Great Lakes lake trout
restoration and watershed restoration activities on the Clinch
River. We can lend our experience and expertise in any watershed
or river basin planning activities that may be established in the
future.
The Service is obtaining data on the health of trust resources
across the Nation. Let me share an example of our effort.
Our ongoing investigations in the Great Lakes watershed have
confirmed that certain contaminants continue to threaten colonial
waterbirds, as well as bald eagles, with reproductive problems, in-
cluding deformities. This spring, while monitoring eagle reproduc-
tive success, our field personnel located three nestling eagles with
beak defects common to colonial water birds nesting in the Great
Lakes.
I have brought a photograph of one of these eaglets, showing its
deformed beak.
Senator Graham. Where was that picture taken?
Mr. Spear. This might have been taken in a lab, but the eagle
came from Lake Erie.
I have brought a photograph of one of these eaglets, showing its
deformed beak. These young birds have been collected and are un-
dergoing further evaluations. We found that adult eagles which
feed on Great Lakes prey have lower reproductive success than
eagles feeding on inland lakes and rivers. Eagles nesting along the
Great Lakes continue to have significantly higher levels of several
contaminants, as measured in their blood and egg samples, than
inland eagles.
Our National Wildlife Refuges are being directly impacted by
water quality programs. At Salton Sea National Wildlife Refuge in
California, based on surveys in 1992, an estimated 150,000 eared
grebes died by April of that year, about 8 percent of the North
American population. Contaminant analyses of eared grebes indi-
cated elevated levels of selenium, mercury, DDE, and chromium in
eared grebe livers, when compared to previous samples from the
Salton Sea. Selenium has increased over 200 percent in three
years. Endangered species that may be at risk include the Yuma
clapper rail, the California brown pelican, the desert pupfish, and
the peregrine falcon.
Prior to the 1970's, the average annual loss of wetlands was ap-
proximately 450,000 acres. Between the mid-1970's and mid-1980's
this loss rate was reduced to approximately 290,000 acres per year.
Although there is no question that enactment of section 404 of the
Clean Water Act — and more recently, the Swampbuster provisions
69-677 0-94-33
1016
of the Farm Bill — have contributed to the positive trend, wetlands
destruction continues at a high rate.
I would like to provide one more example of how wetland habitat
losses, like other Clean Water Act-related issues, have affected spe-
cies populations.
California's vernal pool wetlands have sustained a significant
and continuing loss from agricultural conversion, flood control ac-
tivities, and residential and commercial development activities,
much of which is currently being authorized through nationwide
general permits. As a result, recent estimates indicate that 99 per-
cent of the original vernal pool habitat in the Central Valley has
been lost.
As a consequence of these losses, the abundance and diversity of
plant and animal species has declined. Currently, ten vernal pool
plant species are listed as endangered, while 55 species are desig-
nated as candidates for possible Federal listing.
Since its inception, the section 404 regulatory program has sub-
stantially reduced the harm to wetlands and other aquatic habitats
due to development activities. Nevertheless, losses to fish and wild-
life resources continue in spite of the program. We must take a
broader view of what is needed to meet the goals of the act and
recognize that wetlands protection must always be a part of this
approach.
I thank you and the committee for providing this opportunity for
discussion of the future direction of the Clean Water Act. Our field
force in the Fish and Wildlife Service stands ready to provide tech-
nical assistance and consultative service to EPA and the States in
meeting our Federal trust resource responsibilities.
Senator Graham. Thank you very much, Mr. Spear.
Mr. Wayland?
STATEMENT OF ROBERT H. WAYLAND, III, DIRECTOR, OFFICE OF
WETLANDS, OCEANS, AND WATERSHEDS, U.S. ENVIRONMENTAL
PROTECTION AGENCY
Mr. Wayland. Good morning. Senator Graham. EPA is delighted
to be here again this morning, having participated in several of the
earlier hearings. My task today is to focus particularly on monitor-
ing and Federal agency cooperation.
Each of these is extremely important to realizing the ambitious
goals of the Clean Water Act. Each will strengthen, and in turn be
strengthened by, the watershed management philosophy advanced
in S. 1114, advocated by Carol Browner in her initial testimony
before you and endorsed by witness after witness over the past
eight weeks.
Although we weren't able to present our detailed testimony on
watershed management due to the large number of witnesses you
needed to accommodate, I hope very much you will have an oppor-
tunity to review that EPA statement, which has now been submit-
ted to the committee.
Monitoring is critical to how well we manage our programs and
how we measure progress toward our strategic goals. It is our con-
tinual feedback loop, vital at all scales, national, State, tribal, local,
watershed, and site-specific. We monitor for a variety of purposes.
1017
and our programs must meet several different purposes which call
for different monitoring designs. These include identifying and
evaluating status and trends of our environment; diagnostic and
problem identification-oriented monitoring, such as is conducted in
the first phases of our National Estuary Program, or even on a
site-specific scale in effluent toxicity testing associated with indi-
vidual dischargers; evaluating program or project effectiveness, and
emergency response.
Many agencies, public and private monitor; but we need to work
closely with them to pool our water resource information and make
the best use of our limited public and private resources.
The mechanism that we are using to try to accomplish that co-
ordination, which Dallas Peck alluded to earlier, is the ITFM,
which we co-founded with USGS, which we chair and on which
USGS serves as vice-chair and provides the executive secretariat
function. Ten agencies participate in ITFM, as do ten State and
tribal governments.
Senator Graham. Excuse me, Mr. Wayland. I would like to
impose a rule, and that is that when an acronym is used the first
time, it is stated in full, and after that it can be used in its short-
ened form. ITFM is
Mr. Wayland. Yes. As Dr. Peck said in his statement, it's the
Interagency Federal Task Force on Water Quality Monitoring.
Senator Graham. Everyone is expected to remember that.
[Laughter.]
Mr. Wayland. I will certainly heed that advice.
As I said, ten agency representatives and ten State and tribal
governments serve on the committee. It is in turn supported by a
public advisory committee. It has subgroups on institutional col-
laboration; indicators; field and laboratory methods; information
management and sharing, as well as assessment and reporting.
In the Clean Water Act context, strong State monitoring pro-
grams are crucial to us. States do much of the monitoring on which
we rely, and about 15 percent of their Clean Water Act program
support grants — the so-called 106 grants — are devoted to monitor-
ing. Precisely half of the membership of our monitoring coordina-
tion effort is provided by States, and we are working with them as
well on a consistency work group to try to make their data and re-
porting more comparable, as required under section 305(b) of the
Clean Water Act. Twenty-one States and seven Federal agencies
are represented on this work group.
Moreover, we are working with the States more generally on
monitoring guidance to help ensure minimum State monitoring
program elements.
Our monitoring supports the strategic directions that we're es-
tablishing. We are ensuring that our strategic plan has goals which
can be evaluated through monitoring data and other assessment
techniques, and we are working closely with our partners and
other Federal agencies to draw upon information that they collect
and manage to evaluate our progress.
"Monitoring program" is really a short phrase for a continuum
of linked activities from sample collection with appropriate meth-
ods, to lab analysis, data storage and analysis, quality assurance,
and quality control, all of which needs to be conducted in an appro-
1018
priate way to support the actions of decisionmakers. The specific
actions that we have underway at present are the development of
methods, protocols, and guidance, most particularly for biological
assessment of streams. We are working on one for lakes and estu-
aries. We are moving toward the use of more sophisticated data
techniques, such as geographic information systems and remote
sensing, including the recent commitment to purchase by the end
of this fiscal year of LANDSAT thematic satellite mapping infor-
mation, which is an effort that we have underway with the other
agencies represented here at the table.
We are also involved in a broader EPA-wide environmental mon-
itoring management council which works to make comparable the
different monitoring methods of different programs so that we can
share data more easily among programs.
We are engaged as well in an EPA-wide effort to develop a stra-
tegic plan for information resource management, data storage and
retrieval. The STORET, which is short for storage and retrieval
system, modernization effort which we have underway is intended
to take the largest water quality database in the country into the
20th century. At present this system allows us to manipulate some
290 million data points.
We issue a biennial report to Congress, the 305(b) report, as I
have mentioned, the only report that describes how well the
Nation is meeting its water quality standards and goals. We are
working with the States to try to make sure that these data are
reported in a more consistent and comparable fashion.
We also support volunteer monitoring very strongly, citizen mon-
itoring. It has two very important values. It helps inculcate a sense
of stewardship on the part of the participants and educates them
about the importance of water quality and the impact of their ac-
tions on water quality, and it can provide useful data, if properly
quality-assured.
The foregoing illustrates the mutual dependence and enhanced
degree of cooperation among agencies. Fiscal realities and environ-
mental imperatives are breaking down historical barriers. I can say
that in my 20 years at the Environmental Protection Agency I
have never seen the level of cooperation that we are now enjoying
with our partner agencies.
We can also point to this kind of cooperation in areas in addition
to the monitoring area, some of which have been touched on by
earlier witnesses, in the policy and program development and pro-
gram implementation areas. To mention a few of these briefly, Mr.
Hall was with me, as was Phil Cohen, Dallas Peck's colleague, at
the meeting in south Florida recently which you gave a generous
amount of time to, to discuss how we can more effectively protect
an entire ecosystem. Several of us are engaged in a Coastal Amer-
ica partnership to try to realize protection and restoration of vital
coastal resources. The Pacific Northwest Forest Plan has been
mentioned, as has the cooperative EPA-NOAA-USGS efforts to im-
plement the Coastgd Zone Act Reauthorization Amendments and
bring about a more robust nonpoint source pollution program for
our coastal areas.
I could enumerate many others but I see that the red light is on,
so let me just say that in all of these endeavors we are seeking to
1019
establish — and we are proving to ourselves — that our combined au-
thorities, expertise, and institutional strengths can create a whole
that is greater than the sum of its parts, and increase the return
on limited Federal resources. We welcome the added impetus that
S. 1114 provides to these endeavors.
Thank you.
Senator Graham. Thank you very much. This has been a very
instructive panel and I appreciate the obvious effort that each of
you committed to the statements that you have delivered today. I
will make a couple of other comments, as I said to Mr. Lyons; there
may be written questions from other members of the subcommit-
tee, as well as from me. I would appreciate your response to those.
Let me start with the same question I asked Mr. Lyons. In the
areas of responsibility of each of you, if you were going to direct
someone to what you think is the state of the art, the benchmark
of effective programs, where would you send them? For instance,
Mr. Peck, in terms of the Geological Survey, what place in the
country would you say you would be the proudest of in terms of the
information that you have gathered and the utilization of that in-
formation for enhanced decisionmaking?
Mr. Peck. There are a couple of recent basins that we have stud-
ied under the National Water Quality Assessment Program,
NAWAQ. We have conducted several pilot projects; one of those
was the Yakima Basin, where we worked very closely with
Senator Graham. Yakima, Washington?
Mr. Peck. Yakima, Washington.
—with the EPA, the State EPA, the Indian tribes, the State
health agency, and with others. We found that elevated levels of
DDT and its metabolites in the water were a problem, even though
DDT was outlawed 20 years ago. It turns out that DDT was re-
maining in the soil under the orchards, v/ashing into the stream,
polluting the stream, contaminating fish, and ending up in eagles
and other birds.
Working with the State agencies, one can come up with plans to
decrease the erosion from the old fields, and hence decreases the
levels of DDT. Furthermore, the State health agencies issued warn-
ings for eating fish, so there was an immediate practical effect. We
have a nice, popular publication on the Yakima DDT problem.
Senator Graham. I would appreciate if you would submit it. We
might include it in the record of this hearing.
Mr. Peck. It's short and it is popular.
[The publication referred to has been received and is retained in
Committee files.]
Mr. Peck. We also concluded a study of the Delmarva Peninsula,
where the issue is nitrates and pesticides related to the poultry cul-
ture and farming. And we analyzed the movement of nitrates and
pesticides through the groundwater into the streams, and the effect
of that movement on rules and regulations used to decrease pollu-
tion into streams. We also worked very closely with the Economic
Research Service of the U.S. Department of Agriculture; they
would gather detailed pesticide data on farms, and then we would
analyze the groundwater pollution related to that pesticide.
1020
So again, there is a nice, popular publication, short, that I would
like to introduce for the record that explains the findings from that
study.
[The publication referred to has been retained in Committee
files.]
Mr. Peck. I think we can anticipate through our National Water
Quality Assessment Program a number of specific findings that
will be important nationally, as far as pesticide regulation, and
also important locally as far as solving immediate problems.
Senator Graham. Good. Mr. Peck, we look forward to including
both of those reports in the record of this hearing.
Any other members of the panel who would like to suggest — I
am asking this question, in part, in terms of planning some activi-
ties for this subcommittee later in the year. We would like to visit
some of the areas that would give us a hands-on example of what
might be accomplished for the rest of the country if all can achieve
what the best have achieved.
Mr. Peck. Could I make a suggestion? The Department of Agri-
culture, through the Agricultural Research Service, has a series of
pilot projects. They are called MSEAs, and I apologize, I can't for
the life of me remember what MSEA stands for.
Senator Graham. Then under our previously stated rule, you are
prohibited from using that acronjmi.
[Laughter.]
Senator Graham. They call it Management System Evaluation
Area.
Mr. Peck. That's what it is.
Anyway, they are farm-sized plots where the Agricultural Re-
search Service, in cooperation with us and a number of other local
and national agencies, carry out a number of different kinds of
farming practices. They plant the rows close together or far apart,
or they put a little bit of pesticide or a lot of pesticide, and then we
monitor the water quality of the runoff. So it is a good experiment
to determine the practical effect of water quality management
practices.
Another neat area where we're working very closely with the De-
partment of Agriculture is near Deep Springs, Iowa; it's in the very
northeast corner of Iowa. It's a Karst terrain with a very deep
spring — well, actually it stands kind of high, so maybe it's above
the flood. But it's a good example where agriculture is doing a lot
of things to avoid erosion and tr5dng different application rates of
agricultural chemicals, but you can sample effects on the water
quality in the springs themselves; thus, you can monitor what's
going into the groundwater from your gigricultural practices, how
much nitrate, how much atrazine, and so on and so forth. So that's
another good practice.
Senator Graham. Thank you.
Mr. Hall?
Mr. Hall. Senator, it may be a couple of years, after you go to
all the places that Mr. Peck has referred to, but if you have any
time left after that, we have a couple of suggestions, too.
One would be Monterey Bay, which is really a model of coopera-
tion between the Federal Government, the State government, and
nonprofits, and I think the private sector plays a major role there
1021
in protecting that watershed. We have a marine sanctuary through
NOAA's program, through the National Ocean Service. I think
that would be a good place to go.
Another would be North Carolina, which has a particularly
strong nonpoint source pollution program. I think that they could
be a model for the rest of the country in the way they deal with
these programs.
Senator Graham. Yes. At one of our recent hearings we had a
representative of the State of North Carolina testify on what they
had done. It is a very impressive record and, I think, an example
and model for other States and communities.
Mr. Hall. Just one other thing that you might want to look at in
terms of monitoring, which you have a lot of interest in, would be
the Chesapeake Bay, where we have been using remote sensing
data through LANDSAT. That is really a prototype in terms of ex-
amining land use there in that watershed, and using that to have a
direct impact on the management decisions being made in that wa-
tershed.
Senator Graham. In a moment I want to return to that question
of satellite utilization as part of the monitoring effort.
Any other recommendations for our travel plans?
Mr. Wayland. Mr. Chairman, my prepared statement referred to
the Upper Arkansas River Watershed Initiative in Colorado, which
we think would offer some interesting insights into the problems
associated with abandoned mines and creative partnerships devel-
oped to address those among agencies here, as well as the private
sector.
We also suggested that the Canaan Valley Watershed would be
another useful site for a field trip, a very unusual ecosystem with
some unusual types of nonpoint source pollution, including sedi-
mentation from an offroad vehicle race which, in one of the true
examples of "picking the low-hanging fruit," the management
entity, if you will, for that watershed worked to identify some
changes in the configuration of the race course which would be
highly beneficial in terms of water quality management. This is
the kind of observation that never would have come, quite frankly,
from looking at tables of SIC codes and gross information on pollut-
ant loadings from different types of sources.
Senator Graham. I have two questions. The Canaan Valley
is
Mr. Wayland. West Virginia.
Senator Graham. And SIC codes-
Mr. Wayland. Canaan was not an abbreviation.
[Laughter.]
Mr. Wayland. It's simply a place name that I didn't establish
too carefully.
SIC is Standard Industrial Classification. That is used quite
widely in tr3ring to characterize the extent to which individual
types of enterprises on average contribute to pollution.
Senator Graham. Good. Thank you.
Mr. Spear. Mr. Chairman?
Senator Graham. Mr. Spear, you get the last shot.
Mr. Spear. Mr. Chairman, I would like to reiterate the comment
made by a couple members of this panel already. Right here in our
1022
back yard, the Chesapeake Bay Program, led by EPA and support-
ed by other Federal agencies, is probably one of the best examples
in the world a program beginning to pay some results. You
shouldn't have to go too far when we have something right in our
back yard.
I would also like to call your attention to something that Assist-
ant Secretary Lyons mentioned. The biggest effort in this regard is
going to be undertaken in the President's Northwest Forest Plan,
where the whole m£inagement of those forests in the future will be
b£ised on provincial plans which are then broken down into water-
shed plans. So while your committee is continuing this develop-
ment of the new law, the administration will be undertaking a
massive watershed planning and improvement approach that hope-
fully is consistent with the concepts that you are bringing forth in
this law.
Senator Graham. Mr. Fodor may publish his book on traveling
to Europe; I think we may publish our book on environmental trav-
els in the United States. I would hope that we might have the same
financial success.
We have now been joined by the ranking member of this commit-
tee and one of the cosponsors of the bill that we have been discuss-
ing today. Senator Chafee of Rhode Island.
Senator Chafee, any questions, comments, or observations?
Senator Chafee. No, Mr. Chairman, and I apologize for being
late.
You are a hard-driving taskmaster. How many of these hearings
have you had?
[Laughter.]
Senator Graham. Seven.
Senator Chafee. Each one has been very good. I am afraid you've
left me panting behind you, tr3dng to keep up with this pace. I
regret that I wasn't here earlier. I'm sorry I missed this panel, but
I will talk with our staff about what everybody said and review the
testimony and look forward to — have you about finished with this
panel?
Senator Graham. I have a couple more questions.
Senator Chafee. OK, fine. I vnll look forward to the next panel.
Senator Graham. Good. Thank you, Senator.
Senator Chafee. No one can say you're not being indefatigable in
the pursuit of truth here.
Senator Graham. Today it has been in the pursuit of acronyms.
[Laughter.]
Senator Graham. I would like to ask a series of questions rela-
tive to the adoption of a watershed management approach, as dis-
tinct from what the focus has been in the past that I would, for
summary purposes, call a "process approach" to fulfilling the na-
tional responsibilities for clean water.
What will be the difference in the type of information that we
will need to collect in order to answer some of the questions that a
watershed approach will require us to respond to? For instance,
under the legislation of Senator Chafee and Senator Baucus, the
issue is unimpaired watershed. Do we have enough data now to be
able to identify the state of impairment of watersheds, and there-
1023
fore be able to pursue the kind of prioritization of efforts that this
legislation will call for?
I ask that as an example of the kinds of questions that this ap-
proach is going to require us to answer.
Mr. Wayland. Mr. Chairman, if I could just take a first pass at
it, I really do think that we at present collect a great deal of infor-
mation. It is not always easily accessible in forms useful to man-
agement decisionmakers, whether they're trying to make decisions
on a national scale or at the watershed scale. I think an important
challenge for us is to try to improve our ability to manage and rely
on that information.
I firmly believe that in many watersheds it will be manifestly ap-
parent when we stand at the foot of that basin and look around us
that there are problems that can be addressed through practicable
and affordable means, without the need for substantial and addi-
tional and more sophisticated data.
Having said that, as a first round, if you will, of "low-hanging
fruit" that may be picked by applying this approach, we clearly do
need to have information management and modelling tools that
are applicable at a watershed scale, where we have tended not to
employ those in most of our nationally based water quality man-
agement schemes.
Our suite of water quality standards is somewhat limited in
terms of indicators of biological health. We are be able to establish,
for example, an aquatic life criterior, adopted by a State as a water
quality standard, which tells us how much of a particular pollutant
is lethal to certain indicator species of fish. But we have further
work to do to establish criterior and standards that will tell us
when we have a truly balanced and healthy indigenous population
of fish as opposed to a lethal level of a particular pollutant. I think
that's part of the evolution that we have underway.
Senator Graham. Do you have any comments, either for today or
for supplementation, on how the reauthorization of the Clean
Water Act could facilitate advancing our ability to be able to get
the kind of information that this new approach of watershed plan-
ning will require?
Mr. Wayland. Yes, Mr. Chairman, I would be happy to provide
something at greater length.
Mr. Wayland. But just very briefly, I would say that the ap-
proaches that are advanced in S. 1114 to strengthen State monitor-
ing requirements, we think, are generally very helpful. In addition,
as I think all of us have said earlier, continuing cooperation among
the Federal agencies that collect and store data so that it is accessi-
ble and usable is very important. I think we have a good start on
that without the benefit of a legislative push, but I think that con-
tinued efforts along those lines are very important.
Mr. Hall. I would just reiterate what Mr. Wayland said. In
terms of consistency, there is a lot of data out there, but in terms
of making sure it is collected in a consistent manner — in many of
these areas the collection of the data is the responsibility of the
States. I think that in focusing on that area, the committee could
make a lot of progress and help us in our work.
Senator Graham. What I have found in my State, and L don't
think it's atypical, is that collection tends to be for a specific pur-
1024
pose. If you have a sewer plant, you have some collection of data to
assess the quality of the effluent coming out of that plant. If you
want to ask a different, broader set of questions about the quality
of the river or bay or whatever that sewer plant is discharging
into, you generally run into a blank wall because those were not
relevant to the purpose for which the monitoring w£is being done. I
might say personally, my major involvement in this issue has not
been in the environment, but rather in education. The typical ac-
creditation of a school, for instance, asks the question, "How many
books do you have in the library?" So we collected data on how
many books were in the library. If you wanted to ask a slightly dif-
ferent question, did anybody read any of the books in the library,
or if they did read them, did they have any contribution to the en-
hanced education of the reader, no data was collected, so you
couldn't get any answers to those questions.
I think we are now trying to ask some of the questions not just of
how many books are in the library — i.e., what chemicals are
coming out of that pipe — ^but rather, what is the effect of all of that
on the broader question on the health of the watershed that we are
attempting to protect?
I think the challenge is to have a system of information that will
support our policy and management goals.
Mr. Peck?
Mr. Peck. Yes. I might comment on a couple of things.
One, I think that the drainage basin approach is a very good one.
It is important in doing that to gather the monitoring data, but
then to build a model, a computer model, so that you can simulate
the impact of different changes, changes in land use and that sort
of thing, on water, quality and water quantity. It is important to
have land use data and the use of geographic information systems.
The coordination of data standards are important.
There is an important activity underway across the Federal Gov-
ernment, the Federal Geographic Data Committee, where Federal
agencies are all working closely together to develop geographic
data standards.
I will say that one potential problem with the watershed ap-
proach is one that was found by John Wesley Powell, the second
Director of the Geological Survey. He advocated that the west be
organized by watersheds rather than by latitudes and longitudes.
That was not accepted. You will find that organizing activities by
watersheds, as you know far better than I, is politically difficult.
As far as recommendations on the Clean Water Act are con-
cerned, I would like to pass on a couple of ideas.
One is that we think we're doing very well with the Water Infor-
mation Coordination Program and the Interagency Task Force on
Water Quality Monitoring. But recognition and support of these ac-
tivities by this committee, and particularly our efforts to reach out
to State and local organizations through that activity, are very im-
portant.
Second, I think that perhaps you need to think about addressing
groundwater as well as surface water in the act. On the average, 40
percent of the flow in streams is from groundwater, and pollution
of groundwater is going to affect the quality of water in streams;
and it's going to do it, perhaps, many years later. Groundwater
1025
flow is a very slow process. So I think that you need to look at the
whole system when you address water quality.
Thank you.
Senator Graham. Yes, Mr. Spear?
Mr. Spear. Mr. Chairman, I would like to bring out a slightly dif-
ferent approach.
The Fish and Wildlife Service has for years collected what we
call "biomonitoring data." In other words, rather than going out
and sampling the chemical factors in the water, we actually collect-
ed birds and fish, sampled them for chemicals, and then studied
those birds and fish and their various types of diets to see how
those organisms might be affected by various levels of contami-
nants.
That work was largely carried on for years under the Migratory
Bird Treaty Act, or other acts, to look at the health of species.
I think what has been apparent throughout a lot of the testimo-
ny today, and I'm sure you've heard it elsewhere, is that we now
need to have that organized in a different way and put a lot more
focus on the biological effects of clean water or not having clean
water.
So I would say that there is a need for legislation that ensures
that there is a large biological component to any monitoring.
In the Department of the Interior, that sort of development of a
biomonitoring component, which is part of other monitoring sys-
tems as well as what the Fish and Wildlife Service does, is coming
together under the National Biological Survey. So I think we're
going to have a home for that sort of activity, working with other
Federal agencies, but it is the biomonitoring part of the thing that
has never been supported anywhere near the way that the chemi-
cal monitoring has been done.
So if we're going to be able to look at the impact on wildlife as
an early indicator for other species, then that part of the program
is going to have to be supported, as well.
Senator Graham. Who is the Chair of the interagency group?
Mr. Peck. Elizabeth Jester Fellows.
Senator Graham. I wonder if we might ask if you could present
the question that I've been asking, which is what if any changes we
should incorporate in the Clean Water Act in order to meet the
new monitoring and data requirements? And a second question,
which is what you think it's going to cost in order to carry that
out, so that when we come back in the fall to start our final
markup we could have your best assessment of those questions.
Ms. Fellows. We would be glad to do that.
Senator Graham. Good. Thank you very much.
Your name is
Ms. Fellows. Elizabeth Jester Fellows.
Senator Graham. Elizabeth Jester Fellows. And you are with?
Ms. Fellows. I am with EPA.
Senator Graham. Would the record note that Ms. Fellows has
committed herself
[Laughter.]
Senator Graham. I have one last question which I alluded to ear-
lier, and that is the use of some of the remote sensing data. Both
Senator Chafee and I happen to serve on the Intelligence Commit-
1026
tee. One of the things I have been interested in is that we have this
large investment in understanding the world for a military and se-
curity purpose; to what degree can that technology be applied to
enhancing our knowledge of these types of issues? That raises ques-
tions of utilization of historic data which is currently classified, for
nonclassified purposes, and in the future redeplo5dng some of our
resources to different applications.
What do you think is the potential in that area?
Mr. Peck. Could I comment?
Senator Graham. Yes, Mr. Peck?
Mr. Peck. As you are aware, stimulated in part by the interest of
the Vice President when he was a Senator, there is an effort going
on to look across the board at the application of classified source
material to environmental problems. Included in that effort is look-
ing at the application of remote sensing to the definition of wet-
lands. Many of the agencies involved here, both the EPA and the
Geological Survey, have been actively involved in that effort.
There are several ways that remote sensing can be applied to the
definition of wetlands. There is a good experiment going on. Earlier
I mentioned the Federal Geographic Data Committee. Under that
committee, there is a subcommittee on wetlands, chaired by Bill
Wilen of the Fish and Wildlife Service. The subcommittee has been
carrying out an effort to compare the definition of wetlands by dif-
ferent agencies using different definitions. They have picked 10
counties from across the country to test. The first one in the Del-
marva Peninsula. Each one of the agencies classifies the wetlands,
sometimes using remote sensing. Then the USGS, using Geographic
Information Systems, compares those, with the delineation of wet-
lands as defined by EPA, NMFS, NOAA, the Fish and Wildlife
Service, the USGS, and determines where they differ and why they
differ.
One of the best approaches to wetlands delineation was by the
State of Maryland, using not satellite data but color infrared data
in order to help define wetland areas. Multispectral scanners on
satellites like SPOT and LANDSAT also have a lot of application
for detecting wetlands. Other satellite data that can record changes
in land use, like development of suburbs or commercial installa-
tions on what once were wetlands, are another useful way of track-
ing trends in wetlands.
Mr. Hall. Senator, NOAA has been in this area for a long time.
They have been working hard to make use of existing satellite data
and are working with the Defense agencies and others to look for
new opportunities. The importance of this data can be demonstrat-
ed just in the recent developments in the midwest, where we've
had a flood that has caused the levels of nonpoint source pollution
in the Mississippi River Basin to be higher than at any time ever
measured. We are tracking the movement of that fresh water,
which will cause problems even without the pollutants, in the Gulf
of Mexico. We are tracking the effects of that through satellite
data. I think it offers tremendous promise for us to determine
many changes there.
We have a program where we distribute remotely sensed data to
eight regional nodes; this data is then used by State and local
coastal resource managers, both in the area of changes in land use
1027
and also in ocean color. The use of ocean color is something we are
still looking at to determine all of the possibilities, but we have al-
ready related that to the management of endangered species and
different changes in water quality, to better define eutrophication
and the quality of those watersheds. So this is an area where I
think, as we get more and more data, we will be able to do more
and more for the States and local governments.
Senator Graham. Yes, Mr. Wayland?
Mr. Wayland. Just to supplement that very briefly, it certainly
is the case that land cover is extremely important in looking at
possible sources of nonpoint source pollution. On the other end,
just to supplement what Mr. Hall said, in terms of looking for indi-
cators within the water bodies themselves of their health, in the
Chesapeake Bay we have looked at seagrass bed viability and re-
covery as one of the indicators of ecosystem health for the Bay. I
think it is an application that may also be available in looking at
Florida Bay. As well, we have been able to look at algae blooms
and their frequency and occurrence as another indicator of wheth-
er we have a problem and what the nature of that problem may be.
Senator Graham. I spent Monday on Florida Bay with some sci-
entists who are doing some research. One of their concerns about
this satellite technology is that it is very expensive for users, such
as academic institutions, to gain access to material that is freely
available.
Is that a legitimate concern? And if so, is it something that we
might be able to ameliorate?
Mr. Peck. If I might comment, there have been complaints that
satellite imagery from the commercial organization that is running
LANDSAT is expensive and prevents academics from using it.
Partly as a result of that concern. Congress passed and the Presi-
dent signed the LANDSAT Amendments Act — that's not the exact
title — that mandated construction of LANDSAT 7 by the Defense
Department and its operation by NASA. The data will be distribut-
ed by the USGS, and those data will be distributed basically at the
cost of distribution. So there is some hope for improvement over
the next couple of years — and that the price of LANDSAT data will
gradually approach that level over the next couple of years. NASA,
Eosat, and USGS are working together to achieve that result.
Mr. Hall. Senator, one of the efforts that we're making through
NOAA's National Oceanographic Data Center is to distribute
images and data collection sets that we think would be useful to
coastal managers. In your State, at Florida Bay, we are providing a
lot of satellite data on Florida Bay to the State of Florida. But we
strongly feel that the cost should be confined only to the cost of re-
production for these types of purposes. There are other commercial
purposes in different situations, but we have invested a lot of
money to collect this data and we should make the best use of it.
The free flow of data is a very strong principle that we support.
Senator Graham. Gentlemen, again, we very much appreciate
your contribution and look forward to hearing from you further.
The second panel consists of Ms. JayEtta Hecker, U.S. General
Accounting Office; Mr. Roger Woodworth, President, International
Hydropower Association; Ms. Hedia Adelsman, Water Resources
Program Manager of the Washington Department of Ecology, rep-
1028
resenting the Western Governors Association; and Ms. Wendy
Nero, Water Conservation Manager for the City of Tampa.
Ms. Hecker, several months ago we requested that the General
Accounting Office do a study on the status of monitoring, one ques-
tion being the degree to which data collection was focused on as-
sisting in enhancing management decisions. I appreciate your ef-
forts in assisting in the preparation of that report, and we look for-
ward to hearing a summary of your conclusions.
STATEMENT OF JAYETTA Z. HECKER, DIRECTOR, RESOURCES,
COMMUNITY, AND ECONOMIC DEVELOPMENT INFORMATION
SYSTEMS, GENERAL ACCOUNTING OFFICE
Ms. Hecker. Thank you, Mr. Chairman. I am really pleased to be
here to support your deliberations on reauthorization of the Clean
Water Act, and specifically to address issues related to the collec-
tion, dissemination, and management of the water quality data.
Let me just highlight the two observations I have today.
One is, and I think you've clearly recognized this in the ques-
tions you've been posing, that inconsistencies in the management
of the data and incomplete and inadequate data have severely lim-
ited the assessment of water quality. That's why, after nearly $500
billion of expenditures on water pollution abatement since the
1970's, it really still remains unclear where that investment is
really benefiting us, what the state of the Nation's water quality is,
and where the priorities really ought to be for the next steps.
The existence of this very severe problem with data quality is a
fundamental problem that needs to be addressed, and we certainly
applaud your attention to this issue.
'The second point I want to make is to support the observations
made by the previous panel, that very noteworthy efforts are un-
derway, both within EPA, across the agencies, and in a number of
the other agencies, although we haven't specifically evaluated
them. They are promising; they are in early stages, but I think we
will share today some concerns about the formidable nature of the
challenges that are really before these agencies and the significant
costs that we think may not have been brought out today to over-
come the significant data problems.
Let me just start by focusing on the issue that there is an abun-
dance of water quality data, but that it's difficult to use and is
quite narrowly focused. I think you have heard that there are over
10 Federal agencies — and, more interestingly, over 165 separate
Federal programs — that collect or manage water quality data. The
problem is that most of them are not really collecting the data to
support the managerial and decisionmaking concerns that you
have raised, but more often than not are data repositories and
have not been designed to focus on the needs of the watershed
management approach, the pollution prevention approach that
we're talking about today.
So despite the volume of data that is available, there are signifi-
cant problems in trying to share or exchange or aggregate the
data. It's incomplete, it's incompatible, and a very important factor
is that it's often of questionable quality. Someone may be able to
use it, but they don't really know what kind of considerations went
1029
into the collection of it and what kind of validity problems may
exist.
Recently we completed a report for Chairman Synar in the
House on the Geological Survey's National Assessment of Water
Quality. This is known as the NAWQA program. That report clear-
ly observed the magnitude of the data management problems and
the problems that the Geological Survey was facing in trying to in-
tegrate and use data from State sources, local sources, and multiple
Federal agencies. In fact, just to create a baseline of the water
quality in only 45 percent of the United States, it is taking 16
years, it won't be done until 2002, and it will cost over half a bil-
lion dollars. So I think that points out clearly that while people are
trying to be cautionary, and although we're all working together
and we're agreed that this is a problem worth focusing on that it
takes substantial resources to really overcome the significant prob-
lems with the way data has been collected, the focus it has had,
and the lack of any standards and consistency in that data.
So that's kind of the baseline of the magnitude of the problem
that I think everyone stipulates to, but is perhaps not recognized as
so significant.
I will quickly summarize the other points so that we have time
to have a few questions in this area.
We do want to recognize the significant efforts in EPA to address
and try to resolve these water quality data problems. We're not
saying anything that EPA doesn't know, but again, our concern is
that they are in the early stages, and the resources are real ques-
tions that ought to be examined.
EPA is also moving to modernize their information systems. Our
view is that these environments are primarily just to improve user
access to data. We are concerned that there really isn't a linkage to
overall water quality goals. We found it difficult to see how these
systems are being reengineered when their goal-setting effort isn't
even finalized. The basic principle of good information design is
that they are built around established, agreed-upon goals that the
top of the organization is already committed to; yet this is happen-
ing only simultaneously in the organization. This modernisation
has been underway for two years. I might also note that it is
funded within existing resources and has very, very little money to
be devoted to this effort.
Another issue that you've expressed concern about is the use of
remote sensing technologies. The real benefit that we found is for a
more complete and timelv understanding of land use changes that
impact watersheds. That s really where you get the value of the
use of remote sensing technologies. In addition, another important
use is safer inspection of toxic accidents and spills.
We think it is important to put it in context, though, that at
least with current technology, remote sensing technologies are defi-
nitely not a substitute for the direct labor-intensive data collection
and analysis of water samples. So there are limits to its use, al-
though they have appropriate uses.
There is a call by the Office of Technology Assessment, OTA, for
better coordination in that area for civilian uses of remote sensing.
We certainly think that is a recommendation that makes sense. It
is mirrored by our own review of EPA's use of remote sensing.
1030
There is no strategy within the agency, let alone coordination with
other civilian £igency uses in a way that OTA thought was really
necessary.
The final area that we looked at was the Interagency Task Force
on Monitoring, the ITFM. We endorse their efforts and think they
are well focused. It is a commendable effort which shows promise
for Government-wide improvement. But I was surprised that the
previous panel didn't call for some clarification of the relationship
of the Water Quality Monitoring Council that your legislation calls
for, with the existence of the ITFM. We think that when Elizabeth
Fellows gives you her comments, hopefully you will get some clari-
fication of how the council you are calling for might relate to the
existing group. The existing group is certainly much broader in its
participation; I think they have far more States and localities, and
even Indian tribes, involved. Your legislation calls for a specific
composition.
However, in our view the benefit of the legislation is that it is a
clear legislative endorsement for what right now is a voluntary
effort.
Second, the legislative mandate or direction would undoubtedly
promote more high-level involvement. It is, in our view, at a rather
low level across the organizations. While that is a good level to get
work done, you really need to see more commitment and involve-
ment at much higher levels. We think the legislation would prob-
ably result in that.
The final observation of the potential benefit of the legislation in
this area is that hopefully it would lead to increased stability in
funding and increased stability in staffing of the organization.
Right now it's completely voluntary. There are very few people on
it on a full-time basis. Given the magnitude of the task that they
face, the legislative mandate might increase the attention to it.
In summary, then, information and the quality and the structure
and the standards that are used for information and monitoring
data are clearly critical factors in the planned moves to watershed
management and pollution prevention. Without significant and fo-
cused and well-supported efforts to improve the data, we believe
that there will be significant problems in achieving those objectives
of improvements in our water quality improvement efforts.
We have some ideas beyond that, but I might leave it for ques-
tioning of what we think some of the priorities are from here.
Senator Graham. Thank you very much, Ms. Hecker.
The next two witnesses are going to give us somewhat the pros
and cons of a specific issue, which is the role of the States in the
siting of hydroelectric facilities. Although the order had Mr. Wood-
worth first and then Ms. Adelsman, since Ms. Adelsman is repre-
senting the Western Governors Association she might be able to
frame this in the public policy context, and then we could have Mr.
Woodworth comment from the perspective of affected users of hy-
droelectric resources. So I would like to suggest a reversal of the
order, with Ms. Adelsman first.
1031
STATEMENT OF HEDIA ADELSMAN, WATER RESOURCES PRO-
GRAM MANAGER, WASHINGTON DEPARTMENT OF ECOLOGY,
REPRESENTING THE WESTERN GOVERNORS ASSOCIATION, AC-
COMPANIED BY CRAIG BELL, EXECUTIVE DIRECTOR, WEST-
ERN STATES WATER COUNCIL; AND KRISTON DILLON, WEST-
ERN GOVERNORS ASSOCIATION
Ms. Adelsman. Good morning. Thank you, Mr. Chairman and
Senator Chafee. My name is Hedia Adelsman. I am the Water Re-
sources Program Manager for the Department of Ecology. I am also
a member of the Western States Water Council.
I have been asked today to testify on behalf of Governor Mike
Lowry from the State of Washington, who is also a member of the
Western Governors Association. With the Western Governors Asso-
ciation and the Western States Water Council, we actually work to-
gether to provide leadership in developing regional solutions in 18
States on water issues. I have been involved extensively in most of
their water-related activities. I am pleased to represent the State of
Washington, the Western Governors Association, and the Western
States Water Council to testify on section 602 of S. 1114. My writ-
ten statement was provided to you with copies of the positions of
both the Western Governors Association and the Western States
Water Council.
Let me say that it is not very often that I do come to the other
Washington. Until you actually fly over five hours, you don't real-
ize the distance and realize the impact that the distance repre-
sents. So I am very pleased to be here to express the interests of
both the State of Washington and the other States.
Like several other States, the State of Washington has a signifi-
cant hydropower development. Over 75 percent of our energy pro-
duction comes from hydropower. Hydropower is a major economic
resource to the State. We also have an extensive and very sophisti-
cated water resource management program which is used to govern
all water uses and related matters, including water quality. The de-
partment that I work for actually has the water resources and the
water quality within the same department, and we work very hard
to integrate both issues.
I think it is very critical that the States do exercise appropriate
jurisdiction with respect to all beneficial uses of water, including
hydropower generation. While section 401 actually extends the
Federal license and permits to any Federal license and permit ac-
tivities, my comments will be mostly concentrating on the licensing
activity of the Federal Energy Regulatory Commission.
Let me first start by saying that no one — and I could speak for
all States — no one questions the need for the exercise of Federal ju-
risdiction in the licensing of hydropower projects. I think the Fed-
eral Power Act establishes a strong Federal role. It also appears to
define the States' significant role as well, and we have seen that
role actually expanding over the years.
While my statement does provide some background on State and
Federal jurisdiction in hydropower licensing, again, my comments
will focus mostly on the 401 certification of hydropower under the
Clean Water Act. It is a mandate that was delegated by Congress
to the States to carry out. The States have viewed the certification
1032
procedure as an appropriate recognition of State jurisdiction over
water resources. It is a view that we believe is consistent with Con-
gressional intent.
Most of the hydropower industry, however, has taken a much
narrower view of State control, and I am here today to describe
why a clarifying amendment, like section 602, is actually warrant-
ed.
The Clean Water Act, as you know, authorizes the State to issue
or deny certification or to condition certification based on certain
appropriate provisions. The breadth of the State's certification is
based on various provisions of the Clean Water Act. However, the
heart of that certification is really section 303, which deals with
the State's water quality standards.
Application of the State certification process has proven to be
very difficult over time. While there is some agreement that the
States should have an important role, there was disagreement as to
the scope of the 401 certification, with some of them seeing them as
narrow and chemical water quality parameters. I was very pleased
today to hear a lot of emphasis on other parameters besides chemi-
cals.
The challenges to the scope of the States' review have really led
to court battles. Some decisions have held against expansive States'
roles in the Clean Water Act. However, others have held in favor
of the States. I would like to give you a very recent example in the
State of Washington. Our State Supreme Court has correctly held
that actually the breadth of State certification under 401 should
not be limited only to chemical parameters; rather, the Court
found that the Washington Department of Ecology, the agency I
work for, could condition its certification of a hydropower project
on maintenance of an instream flow in a portion of the river that
would be affected by the project. The Court found the instream
flow to be a proper condition in the water quality certification. The
Court also stated that inasmuch as issues regarding water quality
are not separate issues from water quantity and flow, then an in-
stream flow is a proper condition in the water quality certification.
Let me say that in the State of Washington the experience has
been that we have had rivers, in some cases, with bypasses for over
50 years, where the fish disappeared and the habitat was complete-
ly wiped out. Through the water quality certification and the re-
quirement of bypass flow, the fisheries are coming back. This is
consistent with efforts in the Northwest by both Federal agencies,
tribes, and the States to restore and maintain the fishery re-
sources, and to — ^very importantly — avoid any further listing of en-
dangered species. We think that that's going to be a critical prob-
lem. It is really beyond the spotted owl, when you start to talk
about the salmon and the implication of that.
You may ask why we are supporting section 602 if our courts ac-
tually decided that we could do this under the existing legislation.
Actually, we feel that it is important because it would clarify the
result that the Washington case has come up with, and would
make it appropriate in other States, especially in light of the con-
flicting court decisions. The amendment itself would settle the area
of conflict by clarifying Congressional intent. The States should act
in partnership with FERC to protect the water quality of the
1033
Nation, and in trying to meet its mandate under the Clean Water
Act.
Originally I thought I was going to come after Mr. Woodworth,
who is also from the State of Washington; actually, it is interesting
that we both come from the same State to testify on the issue,
maybe a little bit on opposing sides. But I will go ahead and, given
that I've read his testimony, actually present some of the argu-
ment— or at least present our views of some of the argument that
will be presented.
You may hear that section 602 is actually unsound because Fed-
eral preemption is necessary in hydropower licensing so that
FERC, as a single agency, can balance the many conflicting public
uses involved in hydropower. When actually examined in the broad
context of water management, however, this argument is rather
calling for special treatment of energy production instead of just
fair treatment among all the other uses.
The States have carried out the premiere role in water resources
management in the west, and Congress has repeatedly deferred to
the State authority in this regard. As Federal interests have in-
creased, this system of dual jurisdiction that would actually enable
both the Federal Government and the State government to protect
their legitimate interests has been developed and is evolving. This
system is functioning very well in many programs.
Actually, opponents of the dual jurisdiction don't seem to be able
to present any evidence that this system would not be able to work
or that it is not in the public interest.
Also, and this is really hard for us to think of this— for them to
argue that the State should now have a very limited role in time,
where we actually try to expand the State's role in trying to bring
the State into a partnership, is to say that the State has virtually
no legitimate interest in this area in protecting the designated use
and water quality. Far from being the case, the argument simply
overlooks the ability and the expertise that the State water man-
agement effort has had in balancing the various goals.
The States are very close to the issue and they are ideally situat-
ed to deal with the very issues.
You also may hear that FERC is already addressing the State
issues, either through comprehensive planning or through the Elec-
trical Consumer Protection Act requirement that the project be
consistent with State comprehensive planning. The difficulty with
this assertion is that FERC really does not do comprehensive plan-
ning. It is not really equipped to adequately consider protecting all
competing uses. Also, FERC has failed, in the opinion of the States,
to give the deference to State water planning that was envisioned
in the Electrical Consumer Protection Act.
So we feel strongly that neither the FERC comprehensive plan-
ning nor ECPA actually is an adequate substitute for the State
water quality certification compliance.
The final argument is that FERC is a necessary arbiter in deal-
ing with possible interstate conflicts. I should say that these con-
flicts are rare. In many cases they are within the State, and in
other cases the can be resolved through existing mechanisms.
In conclusion let me say that the broad authority under section
401, and under the amendment, section 602, would not preclude
1034
FERC from exercising its jurisdiction, but would assure the oppor-
tunity to protect legitimate States' interests. The amendment is
very consistent with the policy statements that are contained in
the document that you have and supported by the 18 governors and
the Western States Water Council officials.
We are in support of this section and we feel that it is needed
because it does provide the clarification that will avoid any further
confrontation.
Senator Baucus and Senator Chafee have both rightly recognized
in the provision of this bill, in its entirety, that State-based water-
shed planning and a more holistic means of managing water re-
sources are necessary, and also to go beyond just the chemical, but
also to get into some of the biological in starting to really look at
integrating the various means. We feel that this section provides us
with the tool to do that.
So we support this amendment and really urge that it be enacted
as part of the Clean Water Act reauthorization, and we would like
to commend the committee for actually introducing it.
I will be more than glad to answer any questions, either related
to the State of Washington or to the Western States Water Council
or the Western Governors Association. I do have here with me
today Craig Bell, who is the Executive Director of the Western
States Water Council, and Kriston Dillon, who is a member of the
staff of the Western Governors Association.
Thank you, Mr. Chairman. ^
Senator Graham. Thank you very much. I apologize; it s Adels-
man, M-A-N?
21Ms. Adelsman. Adelsman, yes. But you said my first name
very well.
[Laughter.] . .
Senator Graham. In this business, being 50 percent right is
pretty good.
Mr. Woodworth?
STATEMENT OF ROGER WOODWORTH, PRESIDENT, NATIONAL
HYDROPOWER ASSOCIATION, WASHINGTON, D.C.
Mr. Woodworth. As Ms. Adelsman has referenced, I am from
the State of Washington. I work at the Washington Water Power
Company in Spokane in the State of Washington. I have had a
rather interesting career myself, first as a fish and wildlife biolo-
gist, then into hydro licensing administration, dealing with the
Federal Energy Regulatory Commission and the licensing process
around hydro facilities, and then on into business strategy and
management. But today I am here as a representative and in my
capacity as the President of the National Hydropower Association;
NHA is how I will refer to that as I go forward.
NHA is the national voice for the entire hydropower community.
We represent public and investor-owned utilities, independent de-
velopers, and others who provide supporting services. We are an in-
dustry that is entrusted by the Nation through the licenses that we
receive to steward and take care of the waterways which we devel-
op for those interests that we ultimately serve; and those interests
are, of course, the public.
1035
It is in this context that I am here today, and that is to discuss
the impact of the proposed reauthorization, this bill on federally li-
censed hydropower facilities and the important public interest im-
plications that it poses.
I might also mention today that while I am here for NHA, the
views that I will summarize for you from the written testimony are
also shared by the American Public Power Association, the North-
west Hydroelectric Association, and I believe also the Edison Elec-
tric Institute.
Let's begin with some basics. The Hydropower Association is
very pleased to be here today, to have this opportunity to provide
our comments on this very important topic of section 401, specifi-
cally, how that plays out with respect to the energy issues of our
industry. We are also very pleased with this draft of the bill as a
starting point because it demonstrates a good effort to begin to coa-
lesce the very diverse interests, as you are about to hear, that
occur around this particular issue of section 401 and other issues in
the act. Please do know that the members of NHA are very sup-
portive of the protection of clean water and the achievement of
healthy waterways, and support your efforts in reauthorizing this
act.
Hydropower is not a polluting energy technology. There are no
byproducts that it emits that need to be dispersed into our air.
There are no bjrproducts that need to be disposed of in our land.
With respect to the use of water, it simply takes water from a
river, spins a turbine with it, generates electricity, and returns the
water to the river. This is not to say that it does not have water
quality implications. When the water is returned to the river, it is
returned without waste and without chemicals. The water quality
implications that there are occur with respect to the storage of
water and the regulated relesise of water; this occurs not only with
a hydroelectric facility, but also with any dam that would be con-
structed.
Fortunately, there are techniques or methods that can be used to
ameliorate those adverse effects and assure the maintenance of
State water quality standards. So we are not working from a
vacuum here; there are ways that these issues can be addressed
and are addressed.
As project owners, our members are committed to working close-
ly with State and Federal interests, and the other authorities re-
sponsible for these issues, with the objective of serving a very broad
public interest. To that end, the comprehensive approach that is
proposed in S. 1114, to maintain ecological integrity of the water-
ways and the surrounding watersheds — quite simply, it's a great
idea. The more comprehensive we can be in considering the multi-
ple interests around those uses of waterways is to our advantage
and the advantage of our customers and the public.
The challenge will be to be sure that we don't end up with regu-
lations or statutes that become duplicative or, worse, are conflict-
ing. This will be the crux of the issue between what Ms. Adelsman
has shared with you today and what I will share.
To work, a holistic or comprehensive approach in S. 1114 needs
to take account of other equally vital interests that the Nation
1036
holds, particularly where the issues are subject to comprehensive
regulatory authority, such as under the Federal Power Act.
Let me turn to the Clean Water Act. Under it, the State water
quality agencies do have the authority to require that the construc-
tion and continued operation of any hydroelectric project will
maintain State water quality standards. And when properly con-
strued, this process distinguishes between the authority to protect
water quality and the authority to mandate or exclude a particular
use of the waterway.
The former is within the authority of the State to protect; the
latter is not. This approach is complimentary and integral to the
comprehensive assessment of all beneficial public uses of the water-
way, and that is a responsibility that Congress, starting in 1920
and continuing since then, has vested in the Federal Energy Regu-
latory Commission on rendering any hydroelectric licensing deci-
sion.
In contrast, S. 1114 proposes to extend section 401 authority
beyond the maintenance of water quality to include authorities to
allow for the protection, attainment, and maintenance of designat-
ed uses that are included in the standards. We are very apprecia-
tive of the States' desires to control both the quality and the uses
of waterways in the States, but the added degree of control is nei-
ther necessary nor appropriate with respect to the regulation of hy-
droelectric development, particularly given the critical Federal in-
terests that are involved in the use of the Nation's waters.
Ms. Adelsman's written testimony candidly explains that this
issue is one of jurisdiction: who decides, as opposed to just how the
health of the waterway is achieved. She made reference to some
specific cases, the Tacoma case and others, and we need to note
that the Tacoma case, while cited as Ms. Adelsman has described,
is not the only case out there on this topic. There are many that
contradict it, just as there are others that are supportive of it. The
issue and the conflict are around jurisdiction, not how water qual-
ity or whether water quality is achieved.
In making licensing decisions under the Federal Power Act, the
FERC is required to consider all beneficial public uses of the water-
way. This is key when we talk about a comprehensive or holistic
approach to waterway management. In this case with FERC, those
beneficial uses include energy conservation, navigation, irrigation,
flood control, water supply, water quality, water use, fish and wild-
life protection, recreational opportunities, and other aspects of en-
vironmental quality, not to mention our national energy supply
needs.
With respect to hydropower, the Federal Power Act should con-
tinue as the forum for adjudicating questions of competing water-
way uses. Why? The simple answer is that ceding its authority to
the States would fracture the carefully integrated Federal and
State authorities that now encompass the current regulatory proc-
ess.
In recognition of the States' interest — again, as Ms. Adelsman
has alluded to — the Federal Power Act process and other Federal
statutes have been expanding States' influence quite heavily now
in that process, in the process for licensing hydroelectric facilities.
But the approach that we have now does give full effect to the pur-
1037
poses of the Clean Water Act, and importantly, it assures full con-
sideration of the States' interests and preserves the intent of Con-
gress that Federal interests in the use of the waterway will be reg-
ulated in service to the broadest public interest.
The States' interests in the use of the waterway are legitimate,
there's no question about that, and they must be accommodated.
But those interests should not, however, serve as a pretext for em-
powering States to provide or encumber waterway uses which are
otherwise supportive of Federal interests.
Unfortunately, S. 1114's proposal to grant State water quality
agencies the power to maintain and protect State-designated uses
would have precisely that effect.
Senator Chafee [assuming Chair]. The red light is on, Mr. Wood-
worth.
Mr. WoODWORTH. I am at my concluding paragraph, if you would
like me to finish.
Senator Chafee. Sure. Go right ahead.
Mr. WooDWORTH. As you proceed with reauthorization of the
Clean Water Act, we urge you to do so in full recognition of these
broader Federal interests in addition to the maintenance of water
quality.
My written comments address other concerns of the hydropower
industry regarding reauthorization of the act, and of course we will
continue to work constructively with this committee and others on
these and other issues.
My final note in closing, the approach of S. 1114 to resource pro-
tection has recognized the need to expand its scope to encompass
entire watersheds and ecosystems. In so doing, an expanded scope
of consideration is called for. Perhaps it goes without saying, but
this is a critically important piece of legislation. It deserves to be
crafted, in light of the broader universe of economic energy supply
and other compelling public needs that we as a Nation must serve.
Thank you.
Senator Chafee. OK, fine.
Ms. Nero?
STATEMENT OF WENDY NERO, WATER CONSERVATION
MANAGER, CITY OF TAMPA, FLORIDA
Ms. Nero. Good morning. Senator Chafee.
Senator Chafee. Do you have a statement? I don't seem to have
a copy of yours.
Ms. Nero. No, this came about at the last minute through Sena-
tor Graham's staff. I would be happy to provide a written state-
ment when I return to Florida.
Senator Chafee. OK, fine.
Ms. Nero. Good morning. Senator. I am pleased to be here on
behalf of the Water Department of the City of Tampa. I will
present our water conservation efforts and provide brief comments
on the water conservation features of S. 1114.
The City of Tampa is a community of approximately 500,000 resi-
dents. In 1989, we provided approximately 76 million gallons of
water a day. The water conservation program was created, largely
£is a result of rapidly growing population and a 27 percent increase
1038
in water demands in about a five-year period of time. This, coupled
with prolonged and severe droughts in our State and our region led
us to create a conservation program at that time, was an emergen-
cy response measure. It was intended to simply stretch the avail-
able supplies until we could develop new alternatives.
This is a situation that is very, very common, which we are
seeing more frequently across the country. It is not limited just to
Florida. However, after a few years of implementing our short-term
program, it became apparent that it was a valuable long-term
water management tool and is now a permanent part of our water
supply planning initiatives.
We have a comprehensive program that relies on economic in-
centives, regulations, and education. These together motivate
water-efficient technology usage, as well as encouraging conserva-
tion behavior. Our program targets single and multi-family resi-
dential customers, commercial, and institutional customers as well.
Now I will go into a few features of our conservation program.
One of the technology-based efforts that we have in place is resi-
dential retrofit. We have approximately 90,000 homeowners who
have nonefficient or water-wasting fixtures in their houses. We will
have provided water-saving kits, as of the end of 1994, to all of
these residents. Each kit includes shower heads, faucet aerators,
and displacement devices for the toilets.
Senator Chafee. Don't go too fast. You supply these shower
heads?
Ms. Nero. Yes, sir, we do. We package these kits and provide
them free of charge to our residents. This is a fairly short- to mid-
term measure; however, it does result in approximately a 12 per-
cent savings inside the home.
A second program is considered more of a permanent-type fix.
Again, we're focusing on bathroom uses because they comprise
about 80 percent of residential water use inside the house. We have
a toilet rebate program. This is a program where we provide a cash
incentive, up to $100 for each water-wasting toilet fixture that a
resident replaces with one that is considered a low-consumption
model.
Senator Chafee. How many gallons is that?
Ms. Nero. The low-consumption model? Approximately 1.6 gal-
lons or less. There is new legislation that comes into effect January
1st, 1994, mandating this across the country. However, our pro-
gram is designed to motivate homeowners to replace their fixtures
sooner than they ordinarily would. That's a cash incentive pro-
gram.
Another program we have features landscape water use and irri-
gation systems. In Florida our landscapes require supplemental ir-
rigation, not only seasonally but all year long, which makes us dif-
ferent than most other parts of the country. In this program we
offer landscape audits and irrigation evaluations free of charge to
institutional customers, residential, and multi-family properties. In
addition, we provide them with a free rain shutoff device which
keeps their sprinkler from running when enough rainfall has oc-
curred. That is common in Florida, seeing that we get 52 to 55
inches of rainfall in the Tampa Bay area.
1039
Education is also fundamental to our success. We have a three-
pronged approach to education. Number one, we feature in-school
programs. This is critically important so that we have an educated
public down the road who can make water-wise decisions. We pro-
vide teacher training and support the use of curriculum that has
been developed by our regional water management district. Plus
we provide in-classroom materials, live performances, and other
programs that make the conservation information come to life.
We have a public education program that differs from what the
bill calls for in that our program is not a mass media campaign,
but is rather a very targeted program, it is intended specifically to
generate customer participation in programs like the ones I've just
mentioned.
Third, industry training is a critically important new effort. We
have found that not only can industry be a great help with technol-
ogy transfer to the affected paities, but it can also be a tremendous
hindrance to effective technology transfer. We are working with
the landscape and irrigation industries as well as the plumbing in-
dustry.
Another area of our program deals with utility management.
These are fairly common measures. In Tampa we have gone one
step beyond what is considered routine. We have a modified rate
structure which establishes two blocks; each block is applied to
every customer class. The level at which the second block, or the
surcharge, is applied changes with customer class type.
Second, we conduct an annual water audit. A provision of the bill
call for mandatory leak detection and repair. We feel that this is
not cost-effective but may not be necessary in all communities, as
is the case in Tampa.
Senator Graham. You lost me there. You conduct an annual
water ride?
Ms. Nero. Audit.
Senator Graham. Audit?
Ms. Nero. Busch Gardens provides the ride; we provide the
annual audit.
[Laughter.]
Ms. Nero. This is where we assess where our unaccounted for or
lost water occurs within our system. There are lots of different
ways that water can be lost. Leak detection is mentioned in the
bill, as I said, and we suggest that perhaps the audit be required
instead. In Tampa's case, we found that the greatest potentisd sav-
ings in a cost-effective manner could be achieved through meter
testing, repair, and replacement, and that is our focus.
Regulations, another area of our program — ^we feel that these are
critically important in high-growth areas. They build efficiency in
up front as communities grow over time. We have three separate
ordinances. Lawn watering is limited to certain days per week, the
landscape code requires drough tolerant plants, and the plumbing
code requires low consumption fixtures.
There are several reasons why our program has been effective,
two of which are primary reasons that I will cite.
First has been the commitment from Mayor Sandy Freedman, as
well as the elected officials in our community; and second, grants
that have been made available from EPA, as well as regional water
1040
management districts, have allowed us to implement programs
where we might not otherwise have been able to afford to do so.
Senator Chafee. How about third, good management?
Ms. Nero. Good management is also important, as well, but I fea-
tured the two that I thought were most important.
Senator Chafee. We'll tell the Mayor you are doing a good job.
Ms. Nero. Thank you, sir.
Finally, I have a couple of brief suggestions on S. 1114.
The EPA has been assigned responsibility for coordinating the
conservation features of the bill and are responsible for the clear-
inghouse. Technical assistance has been assigned to the Army
Corps of Engineers. We feel that it would be most effective to com-
bine these functions within one agency, which would provide both
technical assistance and information sharing. We suggest that both
those functions be housed within the EPA.
Second, conservation planning needs to be done in a broader con-
text than is referenced. We suggest that the Integrated Resource
Planning process or IRP, be embraced in this bill. This involves
supply side and demand side planning of resource alternatives; it
also looks at least-cost planning, and one of the unique features of
that approach is that it involves an open and participatory process
with the public.
Another point is that S. 1114 suggests that grants be made avail-
able to study conservation measures. Although study is very, im-
portant, especially with conservation, we fmd it would also be im-
portant to provide grants for implementation. This may be accom-
plished through grants, as suggested, but also we encourage looking
at the existing State Revolving Loan Funds as a source of money,
as well.
Finally I would like to say that I am pleased to have the opportu-
nity to present Tampa's program. I believe that the bill provides
needed direction to utilities, and it establishes a positive Federal
role in motivating conservation.
Thank you again for the opportunity to be here.
Senator Chafee. I know comparisons are probably dangerous in
this business, but do you have any statistics that would show, after
all your efforts, the average consumption of water per day — howev-
er you want to do it — versus some other city of comparable size
that hasn't done this?
Ms. Nero. We have found that our demands have reduced by ap-
proximately 12 percent, which is just under 12 million gallons of
water a day.
Senator Chafee. Twelve percent from what?
Ms. Nero. From 76 million gallons a day to approximately 66 or
67 million gallons a day.
Senator Graham. That's over what time period?
Ms. Nero. That's since 1989. It's over three and a half to four
years.
Senator Graham. So is the number of customers served approxi-
mately the same?
Ms. Nero. It has increased slightly. It has gone up from approxi-
mately 450,000 to 500,000. This is system-wide. We have a lot of in-
dustrial customers as well as commercial and business customers,
as well.
1041
Senator Graham. So you're sajdng that since 1989, when yoa had
450,000 customers and you were using 76 million gallons a day,
now — four years later, since you've implemented those water con-
servation initiatives — ^you have 50,000 more people, but roughly 10
to 12 million fewer gallons of water being consumed a day? Is that
correct?
Ms. Nero. That's correct.
Senator Graham. Is there £iny factor other than the water con-
servation effort that contributed to that reduction?
Ms. Nero. Well, at the same time we were experiencing a serious
drought, a one-in-one-hundred-years drought event. 'The water
management district at that time was imposing a series of man-
dates limiting lawn watering, eventually down to one day per
week. We see that made a difference; however, at the same time
demands also tended to be higher because of the drought and land-
scapes requiring more water. That also had some effect, but since
Tampa now has a code requiring limited lawn watering, we feel
that together helped us achieve our 12 percent reduction in
demand.
Senator Chafee. I suppose that after all these efforts you reach a
level that is pretty hard to get below, is that right?
Ms. Nero. That is correct. I would say the first 8 to 10 percent is
the easiest to achieve; getting the last 5 to 10 percent will be sig-
nificantly harder.
Senator Chafee. As you look across the country is there any
model community that has done this and has a goal for you to
shoot at?
Ms. Nero. I would like to think that Tampa is one of the leaders.
Our goal was 15 percent reduction.
Senator Chafee. From the 1989 level?
Ms. Nero. Yes.
Other communities that are exemplary would be Phoenix, Arizo-
na; Denver, Colorado; the City of Los Angeles. There's not a whole
lot happening in the southeast part of the country.
Senator Chafee. Of course, you get a double winner. You get re-
duced water consumption and reduced demands upon your waste
treatment facility.
Ms. Nero. That's correct.
Senator Graham. You mentioned several linkages that you
thought could be taken in order to encourage other communities to
engage in this. What would you think about a proposal that would
require a community to have a water conservation plan as a condi-
tion of eligibility for the various forms of Federal financial sissist-
ance? Some of this is being done in the utility areas, where a com-
munity or an investor-owned utility or REA has to demonstrate
that they have taken conservation initiatives before they are al-
lowed to expand their generating capacity.
Ms. Nero. I think the requirement for planning is definitely a
good idea. In fact, the State of Florida is already doing this through
our Water Management Districts.
I think we also need to be careful about what the plan should
entail, what it covers, what it does. Equally important is not only
what a utility suggests it will do, but on the backside, what it actu-
1042
ally does. The monitoring and follow-up should also be a compo-
nent of that.
Senator Graham. Ms. Hecker, again, I want to thank you very
much for the very significant report you have issued which, in the
context of the first panel, will help us in our efforts to direct our
data collection and monitoring more toward assisting in answering
relevant questions.
Let me ask a question about the relationship between States and
Federal agencies. It was stated several times during the first panel
that most of the water data that we have is collected by non-Feder-
al sources. What is your comment as to how effectively those non-
Federal sources are being coordinated among themselves and with
Federal agencies?
Ms. Hecker. The example I might use is the required annual
report by States under section 305(b). Those reports form the basis
of EPA's annual report on improvements in water quality. It is our
view that EPA has had sufficient authority to establish guidelines
and standards to get some uniformity in that reporting, but until
very recently there was very, very little direction and guidance
from EPA. As a result what you had is nearly 50 different ways of
reporting, and a complete inability to use those reports to aggre-
gate a national picture of the state of water quality and the trends
in water quality.
EPA is moving forward. They are the natural body to establish
the standards and guidelines, and it is ideal and appropriate — they
are in fact coordinating through that Interagency Task Force. So
we see progress in the right directions.
EPA, as you may know, is largely dependent on data from States
and localities and other Federal agencies to make their decisions,
almost across the board. Every decision requires data from other
agencies. So it is absolutely essential that they work very closely
and try to maximize the ability of that data to be integrated, to tell
a coherent story, as well of course to have the most efficient collec-
tion of that data.
Senator Graham. Senator Chafee?
Senator Chafee. Thank you, Mr. Chairman. Regrettably I have
an appointment at 12:00.
Mr. Woodworth and Ms. Adelsman, your presentations were both
very good. We are in heavy weather when we get into areas that
you are involved in, the questions of water rights and all those
things that we tend to treat very gingerly around here.
Let me ask you this, and I don't say this facetiously, Mr. Wood-
worth, are hydroelectric dams still being built?
Mr. Woodworth. Yes. The FERC does not license nearly as
many new projects as they once did. I would have to consult on the
numbers
Senator Chafee. Again I'm not being facetious, but are any being
built of any sizable scale? For instance, up my way many of the old
dams that the original mills built that have been weakened, or
even semi-destroyed, are being restored for little power generation,
but this is small potatoes compared to what the west has. But the
Bonneville Dam and Grand Coulee and so forth, they are really
things of the past, aren't they?
1043
Mr. WooDWORTH. The major projects, such as Grand Coulee or
Hoover Dam or such as those, are finished, in terms of construction
on the mainstream. But just for example, two years ago the Com-
mission licensed a pump storsige facility for 1,100 megawatts, I be-
lieve it was, over 1,000 megawatts. So there are large capacity
projects that are still making use of the Nation's waters, but they
are not of the same character as what you're referring to, the
Hoover Dams and the Grand Coulee Dams.
Senator Chafee. I was thinking of Telico and things like that.
Mr. WooDWORTH. Not of that character, no. Around the country
there are a number of smaller-scale facilities that are under con-
struction or in the process of license, but they are not on the order
of magnitude of Grand Coulee, no.
Senator Chafee. No.
Well, you and Ms. Adelsman aren't in total accord.
[Laughter.]
Mr. WooDWORTH. Just on this issue.
[Laughter.]
Senator Chafee. Did you come east together?
Mr. WooDWORTH. No, we didn't.
[Laughter.]
Mr. WooDWORTH. But we may go home together.
Senator Graham. Senator Chafee, I would suggest you not con-
tinue that line of questioning.
[Laughter.]
Mr. Woodworth. Senator, I might also add that FERC's respon-
sibilities go beyond new projects, and they also have a responsibil-
ity to license existing facilities, or to relicense those, and a number
of those do propose expansion of their capacities to take advantage
of the facilities that are already there, to make more use of what's
there. So that's another area.
Senator Chafee. Ms. Hecker, as I got your testimony — and I'm
scaling it way, way down — it seems to me that the point you were
making is that the monitoring capabilities in EPA have been devot-
ed to point source pollution
Ms. Hecker. Yes, sir.
Senator Chafee. — and specific discharges.
Ms. Hecker. That's correct.
Senator Chafee. Whereas the problems current are arising from
pollution stemming from millions of nonpoint sources, and that's
not being measured. Is that what you're saying?
Ms. Hecker. That's largely correct, but even in terms of the data
that has been collected on point sources, the data that has been
built are largely repositories. For example, there is one major data-
base that documents all the permits. There's another major data-
base that houses all the ambient data, the statistics on the actual
quality of the water. Those databases weren't built together. They
weren't built for the decisionmaking of whether to continue a
permit, to modify it; they're not linking — they're not readily able
to link the decision, even in the point area, of what the implication
of a given level of discharge really is for the quality of that water
or watershed.
Senator Chafee. All right. Well, I appreciate the thoughts you've
given us. Sometimes the information is alarming; I think in one of
1044
the points you made, the data is collected and managed by over
165, I think you said. Federal and State entities. But some of those
really must be local waterworks, just testing their water. It isn't as
though we have 165 different entities racing around, monitoring
water quality?
Ms. Hecker. Well, there are 10 Federal agencies, and most of the
programs are under those agencies. For example, at USDA — or
even today, here — we have the Geological Survey and the Fish and
Wildlife Service, and the Secretary there is concerned about the
fact that their own data isn't integrated and he is moving toward
integrating it within that department.
So maybe 165 doesn't have to mean there is a complete absence
of coordination, but it's the magnitude of relatively parochial ef-
forts. That's really what it's about, is that the data is collected with
a very narrow perspective to support a specific policy or program
or decision, and that impairs its ability to be used by other parties.
Senator Chafee. OK, fine.
Ms. Nero, you certainly gave a good presentation and showed us
what can be done when serious efforts are made on conservation,
and I hope you get that final 5 percent. You are shooting for 15
percent below the 1989 levels?
Ms. Nero. That's correct.
Senator Chafee. Regardless of your growth in population?
Ms. Nero. That's right.
Senator Chafee. Well, that's a bold goal. I wish you success in it.
It sounds like you're certainly doing everything you can.
Senator Graham. She represents a bold city.
[Laughter.]
Senator Chafee. And a State that has had great leadership.
[Laughter.]
Senator Chafee. Let me just ask you this. When you do things
like provide kits for showerheads, and the installation of the toilets
that are 1.6 gallons as opposed to something around 3 gallons, and
you put that in at a discount of some type, obviously this costs
money. What is the money saving? Or is this just an appropriation?
You don't get a cash saving anjrwhere, do you?
Ms. Nero. No, we wouldn't see a cash saving per se
Senator Chafee. Except not having to build such a big water-
works?
Ms. Nero. Right. And that's precisely how the water savings are
evaluated.
The funds to pay for the program come from a series of grants,
as I mentioned, as well as revenues from the Water Department.
We make sure that our rates create sufficient revenues to fund
these types of programs, as well as future additional supplies,
which we think will also be necessary.
The cost of water we have saved, was done so at a cost of less
than $0.20 per thousand gallons, whereas water is sold at a cost of
approximately $1.00 per thousand gallons. So the cost of conserva-
tion is significantly less.
Senator Chafee. Well, you can collect that from your water
users, can't you?
Ms. Nero. That's right.
1045
Senator Chafee. Tell me this. Is there much of a relationship be-
tween water charges and water consumption? Except if it gets very
high? In other words, if you increase your rates, if you ask any-
body, "What's your water bill," I think they wouldn't know. At
least I don't know what mine is. It's not a big factor that one tosses
and turns at night over.
But is there much of a relationship between what you charge
and consumption?
Ms. Nero. We're finding that our residents are becoming more
and more aware. As our rates were changed in 1990, it was based
on average monthly usage by customer type, so they suddenly
became aware of what their average usage was because anything
beyond that they were subject to a substantial surcharge.
Also, the water bills can get considerably higher in Florida than
other parts of the country due to lawn watering, and that is pre-
cisely where we are trying to get their attention, because that's the
most flexible or discretionary use around the house or, in many
CEises, businesses. So they are becoming more and more aware of
that.
Senator Chafee. Businesses consume a lot of lawn water?
Ms. Nero. Yes, in fact, they do. I don't know what percentage of
their total demand it would be; it would depend on the business
type. But, yes.
Senator Chafee. Well, thank you. These were good witnesses.
Senator Graham. Thank you very much.
A wise man is leaving our presence here.
[Laughter.]
Senator Graham. Ms. Nero, in Tampa, what are you doing in
terms of recycling your wastewater as part of a conservation effort?
Ms. Nero. Tampa has a unique situation. We do not have active
recycling programs right now, the reason being that Tampa has a
central, far-removed wastewater treatment plant, unlike other
communities, with frequent reference to St. Petersburg. We are
looking at the possibility of direct reuse. We are looking at the
Senator Graham. Excuse me, direct what?
Ms. Nero. Reuse, where we would provide reclaimed water back
into our water supply source upstream, or into injection wells
which would be pumped from during the dry season.
We are also looking at cooperative arrangements with Hillsbor-
ough County, in locations where they have wastewater plants in
close proximity to our developed areas.
Senator Graham. Ms. Adelsman and Mr. Wood worth, and I
apologize for having to miss part of Mr. Woodworth's testimony,
but what I heard was that you started off with some positive com-
ments about S. 1114 and how it dealt with the issue. Ms. Adelsman
also had positive comments. I'm a little bit confused because you
have a difference in policy, but from what I gather you both thiink
that the language that is in S. 1114 is a good resolution.
Did I hear correctly?
Mr. Woodworth. You missed part of it.
[Laughter.]
Mr. Woodworth. Let me go first.
S. 1114 proposes a concept to broaden how waterways are viewed,
how the health of waterways is viewed, and it proposes a broad-
1046
ened context for reviewing those watersheds and ecosystems. That
is a good thing, and that's what you heard.
The caution that we're raising here is that as that concept un-
folds, that it not cause duplicative regulation, or worse yet, get into
conflicting regulations in other areas of equally vital national in-
terests. The one that we're here to speak about today from our per-
spective is the hydroelectric industry. It does have a very long and
well-established history of Federal statutes dating back to 1920 in
how it is regulated, and what the paradigm between Federal and
State jurisdiction is.
The testimony that Ms. Adelsman provided is suggesting not
issues surrounding the health of the waterways, but around how
the jurisdiction of that issue is to unfold, what the paradigm will
be. I would suggest that she is suggesting a different paradigm
than the one we've lived under for the last 70-plus years. That is
the crux of the difference between the two perspectives that we
share. The States' interests are legitimate; there's no question
about that, and they do need to be accommodated. But our view
would be that they need to be accommodated in the context of the
existing paradigm, and that as this legislation unfolds it needs to
be cognizant of that context, because if it is not it will lead to du-
plication and, worse yet, the conflicts that we're suggesting.
Ms. Adei^man. Senator Graham, we are endorsing section 602.
We feel that it is a clarification; it is not an addition to the author-
ity that is already there.
The reason we feel it is a clarification is because it does clarify
the scope of the 401 review and the scope of the standards and it
gets to why we are setting standards and for what purpose. Clearly,
section 602 defines the purposes a little more clearly than what we
had before; however, we have to go back to the intent of the Clean
Water Act. It is still the policy to restore and maintain both the
chemical, physical, and biological integrity of the waters of the
States. So the intent from the beginning of the Clean Water Act
was to be beyond just the chemical.
I just want to make a very brief comment to illustrate why this
is critical to us. When Mr. Woodworth was talking about hydro-
power not being polluting, really, when we are dealing with hydro-
power we are dealing with bypasses. Yes, the water is taken and is
put through a turbine and is released downstream; in some cases in
the State of Washington it is maybe 25 miles below where it has
been taken. That reach of the river that has now been bypassed in
many cases has no flow in it. That results in a major disruption of
habitat. It's really difficult to say that that's not an environmental
impact and is not part of the scope of the water quality certifica-
tion, to mainly look at the dissolved oxygen and the temperature of
the water when it is returned, and ignore the 25-mile reach of the
river that is completely dried up and where the fish have disap-
So the State has taken an aggressive role in looking at the 401
scope, both at what's happening to the water when it is returned,
but also what's happening to the water when it's being taken,
what's happening to the reach of the river.
I should say when we have established instream flows, we have
had tribes. Federal agencies, and several State agencies involved.
1047
We look very carefully as to what the designated uses are. The
State of Washington has not yet denied 401 certification to any hy-
dropower, so this has really not been an issue. We actually license
many projects; a lot of these projects are still operating, and they
are still generating the power that is there. However, we have
taken a very assertive role in restoring and maintaining flows in
the bypasses, and we see that as part of the intent of the Clean
Water Act.
I am really glad to see it even strengthened and made even more
clear. I read a statement made by Senator Chafee that said it is
good to have clean water, but if there are no fish there to come
back to it, we haven't really accomplished what we wanted to ac-
complish.
So we don't see it as jurisdiction. We see it as the scope of the
review and the scope of the 401, and this amendment actually
really clarifies it.
Senator Graham. Ladies and gentlemen, I appreciate very much
your contribution to our hearing today and our understanding of
your particular important aspects of the Clean Water Act. Thank
you for the efforts you have made to travel such a distance to be
with us today. Thank you.
[Whereupon, at 12:08 p.m., the subcommittee adjourned, to recon-
vene at the call of the Chair.]
[Statements submitted for the record follow:]
STATEMENT OF JAMES R. LYONS, ASSISTANT SECRETARY FOR NATURAL
RESOURCES AND ENVIRONMENT, DEPARTMENT OF AGRICULTURE
MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE: I am pleased to
have this opportunity to discuss the views of the U.S. Department of Agriculture on
the reauthorization of the Clean Water Act. Today I am accompanied by John Burt,
Associate Deputy Chief, Soil Conservation Service, and William McCleese, Director
of Watershed and Air Management, U.S. Forest Service.
Water quality is a crosscutting concern and has the potential of affecting agricul-
ture and USDA programs more than the current Farm Bill. The quality of water
from a watershed is influenced by the way we farm, harvest timber, graze cattle or
confine livestock for efficient production. This is why USDA must be involved in the
future Clean Water Act.
S. 1114 helps provide the support and program direction needed. The watershed
approach is the most effective way nonpoint sources of pollution can be effectively
managed. In my testimony today, I would like to discuss USDA experience in water
quality, both on privately owned lands and on Federal lands.
Privately Owned Agricultural Land
First, USDA has numerous programs that have had, and are having, an impact
on water quality on privately owned lands. Let me share with you a brief summary
of one such program — the conservation compliance provision in both the 1985 Food
Security Act (1985 Farm Bill) and the Food, Agriculture, Conservation and Trade
Act of 1990 (1990 Farm Bill). Under conservation compliance. Congress linked, for
the first time, an individual producer's performance on environmental issues to
their eligibility for USDA farm program benefits.
To remain eligible for USDA farm program benefits, conservation compliance re-
quires farmers to develop and carry out approved conservation plans on highly erod-
ible cropland. Since the inception of conservation compliance, SCS has worked with
farmers to develop more than 1.5 million conservation compliance plans. Each plan
contains an implementation schedule and the agency uses a system of random spot
checks to ensure compliance.
When fully implemented these plans will significantly reduce soil erosion on some
142 million acres on participating farms in the United States. To date, more than 50
percent of the plans are implemented. Full implementation is due, by December 31
1994.
69-677 0-94-34
1048
SCS estimates that fully implemented conservation compliance plans, combined
with the grass and trees planted on the more than 35 million acres enrolled in the
Conservation Reserve Program, will cut the soil erosion rate on highly erodible
cropland in the United States by about 65 percent. In areas where sediment is the
primary problem, conservation compliance will have the effect of improving water
quality.
Without question, conservation compliance is one of the biggest challenges faced
by USDA. It is also importfmt to realize that conservation compliance is not just a
big undertaking for USDA. For some farmers, the conservation practices called for
under conservation compliance represent a major change in farming practices and
farming culture. So too, will be any agricultural requirements contained in the
Clean Water Act. And cultural changes do not happen overnight.
Second, let me quickly bring you up to date on the Department's water quality
activities on privately owned agricultural land, the most extensive source of non-
point pollution.
Our first major effort began with the Rural Clean Water Program in 1980 to im-
plement nonpoint source abatement practices and to monitor changes in water qual-
ity. It involved 21 projects that were selected on a watershed basis.
USDA's National Conservation Program in 1988 established protection of water
quality from agricultural pollution as a national priority. As a result, agencies
began to redirect resources where possible to address water quality concerns. This
resulted in:
• Increased research in such areas as developing predictive models, evaluating ag-
ricultural chemical transport, searching for plant species requiring less pesti-
cides, and alternative pesticide use.
• Improved technical assistance capability to farmers and ranchers by adding
water quality conservation practice standards in the county SCS Field Office
Technical Guide.
• Increased technology transfer.
• Educational and information materials directed to farmers and ranchers to
make them aware of the water quality concern and to provide guidance on how
to correct obvious problems.
• Financial assistance, where possible, to help farmers and ranchers install cos-
teffective environmental practices and/or to try new methods of farming or
ranching.
We're using all our available resources to help reduce the agricultursd water qual-
ity concern. Today, we have about 135 water quality projects across the country.
These projects deal with surface water, ground water or a combination of both. We
have used the program authorities and resources of 15 programs to implement
water quality planning and implementation.
USDA has also reached out to form partnerships with industry, farm organiza-
tions and with other agencies to help implement water quality improvements. Some
of the progress includes:
• Trade publications featuring information for farmers and ranchers on agricul-
tural water quality issues.
• Work among USDA, EPA, and agricultural organizations to develop a pollution
prevention plan of action.
• Development of the first pesticide characteristics data base to make relative
predictions of risk for pesticide movement to surface or ground water from dif-
ferent soils.
• Staff detailed to industry. The first detail was to the Southeast Poultry and Egg
Association.
USDA is working closely with EPA on many water quality issues and projects re-
lated to agriculture. USDA and EPA have jointly funded SCS staff positions for all
the EPA Regional and National offices, provided support to the National Estuary
Program, and assisted EPA and the National Oceanic and Atmospheric Administra-
tion (NOAA) in developing technology-based management measures for the Coastal
Zone Management Reauthorization Act Amendments. EPA has two persons detailed
to USDA.
In addition, the U.S. Geological Survey and EPA are assisting USDA in monitor-
ing some of our water quality projects and cooF>erating in several research projects.
As you can see, the agencies are cooperating on water quality efforts within the
limits of their resources. The agricultural nonpoint source abatement effort requires
a mix of expertise and program capability to implement effective water quality
projects and conduct research.
1049
We firmly believe the partnerships with agencies, agricultural communities, State
governments and local j)eople must be continued and improved. Federal and State
governments cannot implement water quality improvements without the support of
the local people and the agricultural community. This is the key reason for the wa-
tershed approach and it must be fully supported by all Federal and State agencies
especially USDA.
Our experience — which I've just touched on — has taught us some valuable lessons:
• First, patience. It takes time for water resources to respond to reduced nonpoint
source loads.
• Second, rely on observable results. Monitoring of physical and chemical charac-
teristics of water provides important information for determining impacts on
waver quality and on identified beneficial uses of water. In addition, monitoring
of biological characteristics is important for understanding the impacts of non-
point sources of pollution.
• Third, on-farm application is essential. When farmers were able to relate their
farming activities to the water quality concern, they were willing participants
to the solution.
• Fourth, always remember that a delivery system which can implement pro-
grguns at the local level is absolutely vital.
• Fifth, our experience shows that solutions which come from the bottom up,
rather than the top down, work best. Local solutions and local controls, with
appropriate Federal and State backup, are preferable.
The farmer must make daily management decisions. To include water quality con-
cerns in the decision making process, the person must know how those daily deci-
sions affect water quality. The farmer's decision on the "hack 40" will influence the
water quality from the watershed. This will require USDA to reorient its education-
al and technical assistance to focus more on water quality.
The nonpoint source problem is enormous. Preliminarily, EPA estimates that it
would cost $8.8 billion over 20 years to control agricultural and silvicultural non-
point sources on all lands. We have not yet estimated the needs for the more target-
ed approach we are supporting today, but the cost should be lower. It should be
viewed just as an estimate. But if you add in mining, urban, roads and airborne
sources, you begin to see the magnitude of the problem. In addition, the problem,
once solved, doesn't stay solved. Land ownership and use changes, as does the
weather. The desire of society for a quick fix of the nonpoint source issues must con-
sider the difficulty in making major shifts in farming, mining, building roads and so
forth. This is why the State and local governments must play a key role.
The watershed approach in S. 1114 is very sound and should effectively accom-
plish the objectives of the Qean Water Act without major public resistance. Howev-
er, it wUl require someone with experience in watershed planning and resource
management at the local level to facilitate the process and assist in implementation.
The Sou Conservation Service and Forest Service can assist in providing this service
at the local level in partnership with EPA and State governments.
In the continental U.S., there are well over 10,000 watershed units identified by
the U.S. Geolc^cal Survey Hydrologic Unit Catalogue System that vary in size from
250,000 acres to 450,000 acres. These units are "nested" within 300 to 3,000 larger
basins. Smaller watersheds are preferred because local people can better focus upon
and understand their influence on smaller basins.
From our experience, we would recommend three ways to make the watershed
concept work for water quality.
First, continue to involve USDA.
We have the field staff, the experience and the multiple disciplinary technical
skills necessary to supplement efforts already in other agencies to implement the
watershed approach. You'll need the energy of experienced people to serve as a cat-
alyst to get the process started and you'll need technical and ^ucational assistance
to get the watershed plan implemented.
Second, make the program flexible.
This is especially important because:
• No two watersheds are alike. Some may need only very low intensity evalua-
tions and plans of action because they have obvious or very few problems.
• Watershed management is a new concept for Clean Water Act implementation.
Different approaches will be needed. The States and Federal government need
flexibility in implementation and funding. We must rely on the States, with
1050
Federal government assistance and oversight, to develop watershed programs
tailored to their State resource conditions and local citizen involvement.
Third, involve local people and institutions.
The people involved in the problem need to be involved in the solution. Without
general support, a water quality program is doomed for failure. To illustrate, how
do you know how much fertilizer or pesticide a farmer is applying? How can you
police it? River Basin authorities, State governments, conservation districts, county
governments, or other local organizations should all play a role. Federal govern-
ment agencies should provide their skills and resources to support the process.
Federal Forest Land
Now I will turn my attention to the National Forest System. The Forest Service is
responsible for managing for multiple-use purposes the 191-million acres of forest
and range land that comprise the National Forest System. The challenge for the
Forest Service is to manage with an ecosystem perspective for all uses, while ensur-
ing the protection of the basic soil, water and air resources that are crucial to sound
stewardship of the land.
The Forest Service is actively involved in research, development and implementa-
tion of management practices designed for the control of nonpoint sources and the
protection of forested watersheds. This leadership extends back to the formation of
the National Forests. National Forests were originally withdrawn from the public
domain for the purpose of securing favorable conditions of water flow and to ensure
a continuous supply of timber. It is not possible to maintain favorable conditions of
water flow without protecting watershed condition and water quality. Based on this
experience and knowledge, the Forest Service has developed a watershed memage-
ment strategy for protection of nonpoint sources based on two basic components:
prevention and rehabilitation.
Our prevention program is designed to prevent the creation of problems from on-
going and future resource management activities. Land management prescriptions
are designed to protect water quality and associated beneficial uses. Monitoring is
necessary to ensure that practices are implemented as designed and are effective in
providing the necessary protection. Mitigation is used when monitoring shows that
unforeseen problems have been created. Finally, land management prescription
design criteria are adjusted, where appropriate, to prevent problems with future ac-
tivities. This iterative process is designed to allow for leuid use while protecting
water quality and water dependent resources in the long term. Land management
prescriptions are currently being designed and adapted with the best science avail-
able.
Our rehabilitation program is designed to restore those lands that have been dam-
aged by past activities. I^mds needing improvement have been identified and inven-
toried. These lands will be restored to reduce and eventually eliminate contributions
to the nonpoint source problem.
Forest Service policy is to comply with all State requirements for protection of
water quality in the same manner and to the same extent as a nongovernmental
entity. In most States, we have developed and implemented working agreements.
Under these agreements, the Forest Service is responsible for implementing State
nonpoint source water quality programs on the National Forests. Through review of
proposed Forest Service programs and monitoring of activities, the States are as-
sured that Forest Service programs meet State nonpoint source water quality re-
quirements.
Comments on S. 1114
I will now offer comments specific to S. 1114. We are delighted to see that S. 1114
is taking the watershed approach to help implement water quality improvement
programs — an approach that is consistent with our philosophy of managing ecosys-
tems on a watershed by watershed basis.
We have found this to be the most effective way to control nonpoint source pollu-
tion. It has the flexibility needed to solve a very djTiamic and complex problem. It
allows for the uniqueness of each watershed. It allows for a multi-disciplinary ap-
proach. It virtually demands local involvement. It requires interagency cooperation
and shared resources. It depends upon the implementation of cost-effective, practical
solutions.
EPA, in consultation with USDA and others, should provide watershed program
requirements for the State to follow. The State would be responsible for developing
a watershed program that meets the State land and water resource needs and meets
EPA requirements. EPA would approve the State watershed program and provide
1051
implementation oversight and assistance. USDA needs to be involved throughout
the entire process — from the State level through EPA approval.
As a minimum, a State watershed plan should list the targeted watersheds, iden-
tify water quality concerns in the watersheds, specify a schedule for developing the
plan, and require coordination with appropriate Federal agencies, including land
management agencies, and identify Federal and state assistance available through
existing programs.
We have, however, identified several questions and concerns about S. 1114. Some
of our concerns are directed to those areas where we believe that change in the cur-
rent Act could interfere with effective programs for controlling nonpoint sources of
pollution. USDA's experience in nonpoint source control, gain^ from working coop-
eratively with EPA and State agencies on agricultural land, and research and wa-
tershed management on forest land, gives us confidence that our assessment and
recommendations are sound.
USDA supports the Farm Bill incentive programs now being used to address non-
point source problems. USDA and EPA have been operating with the understanding
that, as watersheds are identified for treatment, critical areas and sources will be
identified, land management prescriptions identified and a schedule set for imple-
mentation. The time frame for implementation will vary with size and complexity of
the treatment. Water quality standards should be used to identify problem areas
and to measure the effectiveness of land management prescriptions.
At the end of the implementation period, if water quality standards are not met,
an evaluation should be made to determine (1) if the level of treatment applied was
adequate but the system has not been given enough time to respond; (2) if additional
treatment is needed; or (3) if existing water quality standards are inappropriate con-
sistent with provisions of section 303 of the Clean Water Act. If it is determined
that additional treatment is needed, the process would be repeated.
Pollutants are stored in the soil profile and sediments, the water and in aquatic
biota. Adequate time must be allowed for these existing materials to be removed
before full recovery can be expected.
Implementation of management measures in impaired and threatened areas could
be based on site specific plans as an alternative to National management measures.
Conservation or management measures should be designed to specifically address
the identified water quality problems.
Section 304(d) entitled Federal Program Coordination is opposed by the Depart-
ment. The provisions of the Food Security Act of 1985 and the Food, Agriculture,
Conservation, and Trade Act of 1990 already have provisions to establish priority to
water quality problems identified in State 319 management plans. The effective
management of these programs for their intended purpose will be jeopardized if the
Secretary is required to restrict their availability.
These programs are administered to be responsive to the natural resource and en-
vironmental concerns of the nation and go beyond water quality alone to deal with
issues such as wetland restoration, endangered species habitat protection and resto-
ration and aquifer and groundwater protection. USDA needs flexibility, not more
restrictive legislation.
In general, USDA is not opposed to a requirement that Federal lands be managed
in a manner that is consistent with that required on private lands. In fact, the
Forest Service does just that. USDA continues to be committed to the use of best
management practices as required in the current law and agrees that is should
comply with management measures in watersheds to the same extent as non-Feder-
al entities in those watersheds. It does not, however, believe that it is necessary to
regulate this activity. While we do not oppose this requirement, we believe the exist-
ing Executive Orders are adequate if carried out by all Federal agencies.
As we have indicated, USDA supports the emphasis on a watershed management
approach to nonpoint source control contained in S. 1114. This is largely consistent
with the direction already taken by the Forest Service and the Soil Conservation
Service in implementing new ecosystem strategies for natural resource manage-
ment. Control of nonpoint sources can be best achieved if approached in a holistic
manner through watershed management. An analysis of watershed conditions, and
an imderstanding of the relationships of land management activities on the water
resource, allows a meaningful way to allocate and distribute land management ac-
tivities in an efficient and effective manner.
While S. 1114 contains direction for the States to designate watershed manage-
ment units, and to determine the entity responsible for developing and implement-
ing a watershed plan, there is no reference to the role of Federal agencies in manag-
ing public lands. It is not clear how State watershed management programs would
affect land management plans developed by the Forest Service for management of
1052
the National Forests. There could be a conflict between Watershed Management
Plans developed by the States for water quality protection and Forest Plans devel-
oped by the Forest Service for multiple-use management. We recommend amend-
ments to clarify the respective roles of both State and Federal agencies which focxis
on a coordinated program that will satisfy both the Federal and State purposes.
Section 202(c) of S. 1114 would add language establishing antidegradation policy.
This section identifies all waters in the "national forest" as Outstanding National
Resource Waters. This designation, coupled with current EPA regulation for such
waters, may interfere with multiple use management of the National Forests. The
basic concept is that such waters cannot be degraded, even where water quedity is
higher than that necessary for protection of the identified beneficial use. While we
agree that the waters originating on National Forests are important, we believe
that it will be difficult, and in some cases impossible, to meet our responsibilities
under other legislative mandates and meet these new requirements. This includes
responsibilities under the Multiple-Use Sustained Yield Act of 1960 and the Nation-
al Forest Management Act of 1976, £md other authorities that direct the USDA to
manage the National Forests for multiple use. We recommend the term "national
forest" be deleted.
Section 304(a) of S. 1114 would add language identifying the "harvesting of timber
or the construction of a forest road" as a "new source." Those lands that have been
identified in the Forest Planning process to be suitable for the production of timber
undergo many activities over a rotation period. This includes planting, stand im-
provement and harvest. While it is true that a long time elapses between harvests,
these lands are often undergoing extensive management during that period. We
have concerns about the definition of "new source" in S. 1114, and we wUl be work-
ing with EPA on a recommended definition for "new source" as it relates to forestry
and will jointly provide that to the Committee in the near future.
Section 304(d) "specifies that any license, permit, contract, special use permit,
lease, agreement, claim, or related operational authority between a Federal eigency
and any person authorizing activities on Federal lands in effect on the day before
the date specified in subparagraph (BXii) may remain in effect for the term of the
authority or a period of 5 years (beginning on the date specified in subparagraph
(BXii) whichever is less. " (Emphasis added.) This section would require that authori-
zations issued by the Forest Service, and currently in effect, to use and occupy Na-
tional Forest System lands for private and commercial activities would be terminat-
ed within a period of five years from passage of this bill which could be before their
scheduled expiration date. These authorizations, which may take the form of con-
tracts, permits, term permits, eeisements, and leases, are issued under several statu-
tory authorities, including the Term Permit Act of 1915, the Federal Land Policy
and Management Act of 1976, the National Forest Ski Permit of 1986, the Mineral
Leasing Act of 1920, the National Forest Roads and Trails Act of 1964, and the Na-
tional Forest Management Act of 1976. Many of these existing authorizations are
for longer than five years, such as the 40 year ski area permits, certain 30 year per-
mits and the 50 year timber sale contracts in Alaska.
The USDA has approximately 72,000 of these use authorizations in effect. Uses of
National Forest System lands tj^jically authorized by these authorities include elec-
tric, telephone, oil emd gas transmission and distribution line rights-of-way, ski
areas, resorts, marinas, water tremsmission facilities, interstate, State, and county
highways.
The impacts of these statutorily-directed terminations would be far reaching. The
costs to the public fisc for terminations, prior to the currently agreed upon expira-
tion dates under the language of the agreements, and takings law could involve
many millions of dollars. In addition, all such terminated uses could be subject to
reconsideration at the same time. The administrative burden of this review could
exceed the agency's capacity to anal5rze and process in a timely manner, as well eis
place a significant paperwork burden on the holders. Furthermore, the extensive
capital investment required to construct and operate these facilities requires a cer-
tainty of period of use so that the investment may be financed and amortized.
The USDA believes that its processes currently in effect properly safeguard water
quality and accomplish the purpose of S. 1114. The USDA, through the Forest Serv-
ice, issues all authorizations with language requiring compliance with all applicable
water quality standards established pursuant to Federal or State law. This also ap-
plies to requirements imposed by Federal legislation subsequent to the date of the
authorization. The USDA strongly believes that this requirement is adequate to ac-
complish the purpose of the proposed legislation. We recommend that section 304(d)
be deleted.
1053
The Department stands ready to work with the committee to develop language to
address our concerns with S. 1114.
I appreciate the opportunity to testify today and will be happy to respond to your
questions.
TESTIMONY OF DOUGLAS K. HALL, ASSISTANT SECRETARY FOR OCEANS
AND ATMOSPHERE, U.S. DEPARTMENT OF COMMERCE
Good morning, Mr. Chairman and members of the Subcommittee. I am delighted
by the opportunity to come before you and discuss the role of the National Oceanic
and Atmospheric Administration (NOAA) in furthering, and benefiting from, the
new approaches for managing our environment proposed in the Water Pollution
Prevention and Control Act of 1993 (S. 1114). I commend Senators Baucus and
Chafee for introducing a reauthorization package to the Clean Water Act that pro-
vides a major advemce in our capabilities to manage environmental resources.
To carry out its Federal trustee responsibilities for coastal, marine, and anadro-
mous fishery resources, NOAA has long championed an approach to environmental
management that recognizes the integrity of ecosystems as the logical focus for re-
source management decisions. New authorities for nonpoint source pollution control
under the joint stewardship of NOAA and the Environmental Protection Agency
(EPA) for coastal zone management have sharpened our interest in the watershed/
ecosystem focus. The Baucus/Chafee legislation provides a new framework of na-
tional policy within the Clean Water Act that will further progress toward restoring
the quality of our Nation's waters. This framework is consistent with NOAA's goals
and management responsibilities and will enable better use of NOAA scientific ca-
pabilities and technical expertise to meet the needs of resource managers.
Over the past two decades, the Clean Water Act has come a long way in control-
ling chemical water pollution, one part of the Clean Water Act's overall goal "to
restore and maintain the chemical, physical, and biological integrity of the Nation's
waters. " And now we can turn to the last element of the original mandate of the
Clean Water Act — to protect the biological integrity of our stream, lake, river, and
coastal ecosystems.
NOAA strongly endorses the restatement of the goals and strategies of the Clean
Water Act to include protecting and restoring ecosystem health. This shift in per-
spective from piecemeal and fragmented to comprehensive and integrated will
enable us to focus on systematic causes of decline rather than individu^ impacts.
The strategy, which directs management, planning, research, and monitoring efforts
on entire watersheds, is particularly critical for the coastal and marine ecosystems
under NOAA's stewardship.
I would like to discuss four major themes in the proposed legislation that under-
pin NOAA's strategic directions for protecting the health of coastal ecosystems.
These include the watershed management approach, regional partnerships, stronger
controls on nonpoint source pollution, and research and monitoring.
Watershed Management
The watershed management approach in the proposed legislation gives us a first
step toward full restoration and protection of living resources, and it should be con-
sidered the umbrella under which most other policies of the Clean Water Act are
carried out. Of course, in order to be effective, watershed management must go
beyond planning. The approach must incorporate adequate means by which to
ensure the full implementation of watershed plans.
NOAA strongly supports the addition of a new section to the Clean Water Act for
the purpose of encouraging comprehensive watershed management. As the agency
responsible for the longterm protection and management of this Nation's coastal
and marine resources, NOAA is acutely aware of the effects of activities resulting
from poor watershed planning and management, sometimes occurring tens or hun-
dreds of miles inland, on the coastal and nearshore resources. We believe that the
greatest long-term threat to the viability of commercial and recreational fisheries,
the protection of marine mammals and marine endangered species, and the preser-
vation of our coastal zone. National Marine Sanctuaries and National Estuarine Re-
search Reserves is the continuing loss and degradation of marine, estuarine, and
aquatic habitats. These declines are a result of physical alterations, nutrient and
toxicant loadings, changes in freshwater flows, siltation, and other human-based en-
vironmental problems. More than half of the Nation's original acreage of coastal
wetland marshes have disappeared and dramatic declines in seagrass beds have oc-
curred. Louisiana alone loses an estimated 35,200 acres of coastal wetland habitat
1054
each year. Because many of our environmental problems stem from the cumulative
effects of development, and other incompatible or poorly planned human activities,
a new strategy — based on goals to protect and restore living resources, and which
includes full upstream watershed management as well as downstream ecosystem
management, planning, research, and monitoring — is needed to turn the tide on
coastal degradation.
The concept of watershed management and planning is not new. It is being prac-
ticed on a number of levels by many state and Federal agencies. The Administration
has formally embraced the development and implementation of watershed planning
in the newly released Northwest Timber Plan, geared toward protecting forest and
fishery habitats along with the economic needs of the region. WhUe NOAA has been
involved in watershed issues on the West Coast for some time through the evalua-
tion of endangered species listings for salmon stocks, this reactive approach is not
the best method to address the broader problems of which salmon declines are only
a sjTnptom. The reauthorization of the Clean Water Act allows for the establish-
ment of national strategies and specific priorities to undertake comprehensive wa-
tershed management in a systematic manner and deal with environmental prob-
lems before they become environmental crises.
In conjunction with several existing programs and authorities NOAA has been
working to incorporate the principles of watershed protection in the mansigement of
marine resources. Within the National Marine Fisheries Service the new Office of
Habitat Protection has worked with the Federal/state Chesapeake Bay Program
partnership to remove blockages to anadromous fish passage. Electric power utUities
in the Susquehanna River watershed have pledged to install by 2000 fish passage
facilities at the three remaining dams blocking American shad spawning runs. As
we restore spawning runs to formerly pristine rivers, it becomes even more essential
to restore the water quality in these areas to support long lost fish populations.
Habitat restoration and water quality protection go hand in hand, euid watersheds
provide the most effective freunework for combined planning and implementation ef-
forts.
In addition, twenty-nine states and territories have coastal zone maneigement
plans under the National Coastal Zone Management Program which NOAA directs.
A number of these states, using grant funds from NOAA, have developed and imple-
mented different versions of watershed maneigement (such as watershed-based local
coastal programs and special eirea management plans) within the context of their
state coastal zone progr£ans. The coastal nonp>oint programs (discussed later in this
testimony) are currently being developed by states and will also be based on coastal
watersheds. The goal of a national commitment to watershed planning, with appro-
priate incentives, as called for in the legislation wUl provide support to the water-
shed concept within state coastal zone memagement programs.
Issues that should be addressed in the development of watershed programs in-
clude nonpoint source pollution, cumulative impacts of point discharges, enhanced
wetland protection over and above that provided by the Section 404 program, and
endangered species. We appreciate the Committee's efforts to provide some policy
direction in S. 1114 in order to assist in ensuring comprehensive programs although
we believe the specifics should be developed through guidEmce issued by EPA in con-
sultation with the relevemt Federal agencies and resource programs.
Regional Partnerships
The Clean Water Act has fostered many regional programs that bear directly
upon NOAA's trust and stewardship responsibilities for fishery habitat and coastal
zone management. NOAA participates in Federal/ state partnerships coordinated by
EPA, in particular the 21 National Estuary Programs and the three Great Waters
Programs (C!hesapeake Bay, Gulf of Mexico, and Great Lakes).
To restore and protect these coastal waters, all environmental agencies at Feder-
al, state, and local levels must work together and develop restoration and protection
goals that are fine-tuned to meet regional needs and concerns. This will depend on
each agency using its particular strengths, skills, authorities and institutional ar-
rangements with other stakeholders. NOAA's focus is in its coastal zone, habitat,
sanctuary and reserve, fishery management, research, and monitoring responsibil-
ities. The advantages of combining expertise are demonstrated by NOAA and EPA's
joint administration of section 6217 of the Coastal Zone Act Reauthorization Amend-
ments. In addition, the partnership approach in the National Estuary Programs and
Great Waters Programs builds on each agency's strengths to create tnily compre-
hensive action plans.
NOAA is committed to participating in these ecosystem-based restoration and pro-
tection programs. They go weU beyond traditional watt,- quality management pro-
1055
grams in that living resources are the ultimate measures of success. NOAA's Na-
tional Marine Fisheries Service recently opened a Chesapeake Bay Office in Annai>-
olis, located adjacent to EPA's Chesapeake Bay Program Office, to tighten coordina-
tion of efforts on the cleanup and restoration of this estuary. Since 1985, our Chesa-
peEike focus has been on strengthening the Federal/state implementation plans on
wetlands, submerged aquatic vegetation, fish passage improvement, oyster reef res-
toration, and fishery management. We have funded major research efforts to design
improved fishery surveys, to understand the ecosystem processes and effects related
to low dissolved oxygen levels, to study ecological effects of low levels of toxicants,
and to monitor algal blooms using aircraft remote sensing. Our partnership with
EPA in this program is our model for interacting in other large and small estuary
programs.
NOAA's protected area programs — the National Marine Sanctuary Program and
National Estuarine Research Reserve Program — complement watershed planning
and implementation efforts proposed in S. 1114, and we look forward to continuing
our coordination with EPA and other Federal, state and local agencies and the
public. In Florida, for example, NOAA is developing an overall ecosystem manage-
ment plan for the Florida Keys National Marine Sanctuary in cooperation with the
State of Florida, EPA, other government agencies, commercial fishermen, environ-
mentalists, recreational user groups, and the public. Both EPA and NOAA are in-
volved in a newly invigorated cooperative effort to integrate the protection of the
sanctuary with the larger South Florida ecosystem of which it is a part, including
the Everglades.
NOAA is also participating with EPA and the National Science Foundation in the
Waquoit Bay, Massachusetts, Land Margin Ek:osystem Project. It is examining land
uses and nutrient loadings in order to characterize the physical, chemical, and bio-
logical processes occurring in the bay and surrounding subwatersheds. Waquoit Bay
has been designated by NOAA as a National Estuarine Research Reserve. The scien-
tific data from this project is used by the Reserve staff to develop and disseminate
educational information for coastal decision makers, educators, and the general
public.
These are the types of regionally based cooperative efforts organized around a spe-
cific watershed that will be at the forefront of environmental issues in this country.
These initiatives set an appropriate framework for the integrated protection of
these and other outstanding natural resource areas and should be an extension of
the watershed management approach propxssed in S. 1114.
Nonpoint Pollution Control
NOAA believes that tackling the problems of nonpoint source pollution provides
an opportunity to have a profound impact on this Nation's coastal environment in
the next century. We strongly support strengthening the existing section 319 pro-
grams. There has been much work to date on coastal nonpoint programs under sec-
tion 6217 of the Coastal Zone Act Reauthorization Amendments of 1990 (CZARA).
While the Clean Water Act amendments do not need to duplicate CZARA, we be-
lieve it is very important that amendments to section 319 of the Clean Water Act be
compatible with these programs. Consistency between the state coastal nonpoint
programs and the state section 319 programs will undoubtedly bolster both efforts,
and will help to address the concerns of the coastal states regarding the contribu-
tion of activities in inland states to coastal water impairments. We support many of
the approaches found in S. 1114 to increase national attention to the control of non-
point sources of pollution, because we believe they will support efforts already un-
derway with the coastal states under section 6217 of CZARA.
Passage of CZARA expanded NOAA's role in nonpoint source pollution preven-
tion and control, directing a new effort by the coastal states and territories. The
new coastal nonpoint program is administered jointly by NOAA and EPA. Section
6217 requires the 29 states and territories with federally approved coastal manage-
ment programs under of the Coastal Zone Management Act to develop and imple-
ment Cosistal Nonpoint Pollution Control Programs. The state coastal nonpoint pro-
grams are required to implement best aveiilable management measures in conformi-
ty with guidance developed by EPA, in consultation with other Federal agencies.
We are now six months into the 30-month statutory time frame for the states to
develop and submit their coastal nonpoint programs. We are finding that there is
general support for the goals of section 6217, and that, in many cases, the statute
complements what many of the states have been trying to do to protect their coastal
waters. However, the states also have several concerns which include 1) limited re-
sources available to accomplish the scope and timing of the requirements, 2) achiev-
ing water quality standards given the contribution of upstream, out-of-state sources,
1056
and 3) the challenge of developing and implementing controls on sources not tradi-
tionsdly subject to such management.
Despite these concerns, coastal states are making an effort to develop coastal non-
point programs to meet the Federal requirements. States are £ilso reviewing their
existing authorities to assess how they could be used or revised to address nonpoint
pollution management. Most states are also undertaking new education efforts to
make the public aware of the nonpoint source pollution problem and to generate
support for future state efforts.
We also consider the improved dialogue and coordination between coastal man-
agement and water quality agencies at the state level, as well as at the Federal
level between NOAA smd EPA, to be one of the early successes of the program. We
would like to see this coordination continue and be strengthened through amend-
ments to section 319. We have additional comments on certain specific aspects of
the bUl, related to our CZARA responsibilities, that we intend to submit for the
record, in response to your July 14, 1993, hearing on nonpoint source pollution.
Research and Monitoring
NOAA believes that any new legislation outlining management from watershed
and ecosystem perspectives must include appropriate monitoring and research. To
design ecosystem protection goals and objectives effectively, we must be able to
define, detect, and understand the meaning of ecosystem health criteria. These chal-
lenges are as important and equally as daunting as the challenges to management.
Without them, we will not be able to identify real risks, track progress, or adapt
management strategies along the way. Each of these is an essential ingredient to
economically sound and environmentally effective management.
Several agencies currently conduct research and monitoring activities mandated
by statutes other than the Clean Water Act. NOAA, for example, currently invests
about $30-$40 million annually in water quality monitoring and research as part of
its mandate to protect and better understand coastal, estuarine, and Great Lakes
ecosystems. Clean Water Act goals can be met more quickly and efficiently by ac-
knowledging these existing programs and ensuring that all related monitoring and
research data, information, and expertise from all Federal agencies are coordinated
and used where appropriate.
There are many opportunities for NOAA's research capabilities to support the
broadened goals of the Clean Water Act, with particular emphasis on understanding
and protecting coastal ecosystem health. In response to the clear necessity to under-
stand the impact of pollution on functioning ecosystems, NOAA conducts extensive
research regarding aquatic ecosystem structures, functions, and impairments. Spe-
cific NOAA research projects range from basic research on aquatic ecosystem struc-
ture to solution-oriented investigations aimed at resolving specific problems. NOAA
and its academic partners are able to conduct interdisciplinary research programs
in all aspects of environmental quality eind ecosystem health, including the influ-
ences of atmospheric deposition and land use on the integrity of aquatic ecosystems,
the response of biological organisms to impaired waters, and the effects of pollut-
ants on whole ecosystems.
In addition, NOAA is conducting research to develop new and more accurate
measurements, and techniques such as bioindicators. NOAA is also developing and
applying new capabilities, such as the use of Landsat remote sensing data to moni-
tor and detect changes in coastal watershed land-cover and habitats and the applica-
tion of ocean color remote sensing data to observe water quality-related characteris-
tics such as turbidity and eutrophication. These capabilities could be an integral
component of an ecosystem monitoring approach and continued research in these
areas is essential.
Our existing network of research and monitoring activities and fishery habitat as-
sessment projects could make a significant contribution to the evaluation and pro-
tection of aquatic ecosystems under the Clean Water Act. Efforts to improve water
quality criteria to protect ecosystem health could benefit from NOAA s extensive
background with ecosystem characterization and evaluation. This is also an opportu-
nity for many elements of NOAA to share their expertise and facilities with region-
ally oriented programs, including the National Estuary Program and the Chesa-
peake Bay, Great Lakes and Gulf of Mexico programs.
NOAA s strategy of improving our basic understanding of ecological processes,
with a focus on developing the information needed to support decision making, has
been employed and refined over a number of years in key locations, including Puget
Sound, northern Gulf of Mexico, Chesapeake Bay, New York Bight, Narragansett
Bay, and the Great Lakes. For example, the on-going Great Lakes ecosystem pro-
gram focuses on a range of issues including toxic substances, nutrient over enrich-
1057
ment, habitat modification, water quantity/quality, and physical processes/hazards.
This program is interdisciplinary, uses modeling techniques to integrate research re-
sults, and is effectively coordinated with programs of other Federal, state, regional,
and Canadian agencies.
NOAA's existing capabilities for monitoring the marine environment also offer a
considerable opportunity for supporting Clean Water Act goals. NOAA conducts the
National Status and Trends Program, a national monitoring program that evaluates
the state of contamination of our coastal waters by toxic substances released
through human activities and assesses the trends in these conditions. This program
has collected data since 1984, long enough to detect national and regional trends in
the levels of certain contaminants. The recent National Coastal Monitoring Act of
1992, which mandates the development of a national Federal-state monitoring pro-
gram to assess the status of coastal ecosystems of the United States, has expanded
NOAA's historical responsibilities. NOAA and EPA are currently developing a joint
strategy for carrying out the responsibilities mandated by the Act and are working
to develop an initial report on the status of coastal systems to be completed this
year.
Monitoring and research needs and programs mandated by the Clean Water Act
should be coordinated with those of NOAA and other agencies to create a more effi-
cient Federal effort to meet the goals of the legislation. NOAA recommends that
there should be ein interagency mechanism for coordinating the agencies water mon-
itoring programs. However, we believe that the Clean Water Act should not include
a monitoring council that would duplicate existing mechanisms. Rather, we recom-
mend that the Clean Water Act defer to an existing mechanism. At present, NOAA
is participating with EPA and other agencies in the Intergovernmental Task Force
on Water Quality Monitoring (ITEM). ITEM has proposed an overall Federal strate-
gy for conducting a national water quality monitoring program and a permanent
structure for coordinating its implementation. We recommend that the Clean Water
Act recognize this or another existing body as the forum to develop a monitoring
strategy and design and to establish quality assurance procedures for data and in-
formation.
Conclusion
In conclusion, over all, we support the concepts and principles contained in S.
1114. In particular, we strongly support the movement in the Clean Water Act to
use biological resources and criteria as environmental indicators for decision
making. The holistic approach to management of watersheds will also greatly assist
in our efforts to protect fish and wildlife resources from impacts stemming from de-
velopment in watersheds which drain into coastal waters. Research and monitoring
at the ecosystem level are critical to adopting a holistic approach to ecosystem pro-
tection and restoration. NOAA offers unique capabilities needed to deal successfully
at the ecosystem level in marine, coastal, and Great Lakes environments. Activities
of NOAA and other Federal agencies related to the Clean Water Act should be ac-
knowledged in the Act to ensure use of this expertise and information in meeting
Clean Water Act goeds.
While each of these areas could be further strengthened, such recommendations
are more suited for a follow-up legislative report, which we will gladly provide.
Mr. Chairman, this concludes my testimony. I would be pleas^ to respond to your
questions or those of other members of the Subcommittee.
TESTIMONY OF DALLAS PECK, DIRECTOR, U.S. GEOLOGICAL SURVEY, U.S.
DEPARTMENT OF INTERIOR
I. Introduction
Mr. Chairman and members Of the Subcommittee, it is a privilege for me to
appear before you today as you consider the issues of watershed management and
monitoring. My testimony will emphasize those aspects of the U.S. Geological Sur-
veys (USGS) programs that most directly pertain to the objectives of coordination,
monitoring and assessment.
The objectives of the Clean Water Act, as well as an evaluation of how well we
are meeting those objectives, can only be achieved with the support of good science.
Good science, however, requires reliable information to identify and quantify the
causes and effects and trends of existing and emerging water-quality problems, and
there is general agreement that the information obtainable from existing monitor-
ing efforts still provide an incomplete and fragmented picture of national water
1058
quality and its trends in improving water quality and reducing public health and
environmental risks.
These monitoring efforts have certainly contributed to our understanding of
water-quality conditions in the country. However, they have not provided the kinds
of coordinated, consistent and comparable information necessary to answer the
types of regional and national policy and management questions that are facing the
Nation. Some of the difficulties in using these data to describe the Nation's water-
quality conditions include:
1. Field sampling and laboratory analytical procedures commonly differ among
agencies and with time;
2. Water-quality sampling sites commonly are clustered around known or suspect-
ed areas of contamination-thus assessments based largely on these data have a
potential for substantial bias;
3. Few sites have been sampled long enough and on a consistent enough basis to
assess changes in water-quality conditions over time; and
4. Historically, there is a lack of data for potentially toxic trace elements, pesti-
cides, and other organic compounds that are of recent concern.
5. Historically, assessment of trends and changes in public health and environ-
mental risks have not received sufficient attention.
Even so, we believe that improved Federal, State, and local monitoring efforts, to-
gether with the new, more broadly-based national assessment programs of the
USGS and other Federal agencies, will provide the support needed to achieve the
objectives of the Clean Water Act as well as other resource management and envi-
ronmental statutes, and to evaluate success in meeting those objectives.
II. USGS Mission and Capabilities
Let me now describe briefly some activities of the USGS that support water-qual-
ity programs, including those authorized in the Clean Water Act-but first, some or-
ganizational background:
Our mission related to water resources is to develop and provide hydrologic infor-
mation to a wide range of organizations in both the private and public sectors. We
assist all levels of government in carrying out a broad spectrum of activities includ-
ing basic data collection and assessment of the quantity and quality of surface water
and ground water. Our programs are carried out in each of the 50 States, Puerto
Rico, and the Territories. We maintain close technical ties with State and local gov-
ernments, and participate currently in jointly-funded water resource investigations
involving more than 1,000 formal written agreements that are renegotiated annual-
ly. We also provide technical support for about 40 Federal agencies that transfer
funds to us to accomplish tasks in support of their respective missions.
III. Coordination of Water-Quality Monitoring
Turning now to the matter of coordinating Federal, State, and local monitoring
activities:
Water-data collection responsibilities are dispersed among all levels of govern-
ment and the private sector. Cooperation and coordination among data collection or-
ganizations is essential if this pool of usable information is to be increased. Inter-
agency agreements must be reached to establish comparable methods of data collec-
tion and laboratory analyses, techniques for quality assurance and quality control,
and procedures for exchanging information. The successful establishment of such co-
operation promises to greatly improve the availability of reliable and valid monitor-
ing information and water quality and ecological assessments.
The Office of Management and Budget (OMB), recognizing the need to improve
the coordination of Federal water information programs and to develop effective
working relationships with State and local agencies, Indian Tribes, and the private
sector, established the Water Information Coordination Program (WICP) in Decem-
ber 1991 (OMB Memorandum No. M-92-01). The U.S.Geological Survey, through the
Department of the Interior, is responsible for implementing this program.
In January 1992, the WICP established the Interagency Task Force on Monitoring
Water Quality (ITFM) to evaluate water-quality monitoring activities in the U.S.
and recommend improvements. This study was mandated in the OMB memoran-
dum. We are working closely on the ITFM with EPA which chairs the group. The
ITFM includes both State and Federal members. A report to OMB of the ITFM's
first year's activities outlines a proposal to carry out a national strategy to enhance
water-quality activities and to support better management decisions.
Part of the strategy proposes to initiate a Methods and Data Comparability Coun-
cil to provide guidance on the development of data collection methods and protocols.
Representatives of Federal, State, and local agencies, Indian Tribes, and the private
1059
sector are involved with ITFM at the regional and State levels throughout the coun-
try to discuss the proposed strategy and to identify the next steps to improving the
field coordination of monitoring activities.
The USGS and the EPA are working closely together to support the ITFM. The
degree of cooperation we are receiving from other Federal agencies such as the De-
partments of Agriculture and Defense, NOAA, and State agencies is outstanding. It
is gratifying that other agencies afford this coordination a high priority, and I am
confident that the Task Force and resulting institutional mechanisms being estab-
lished by executive action will improve significantly the effectiveness of our moni-
toring and assessment programs across the board.
IV. USGS Water-Quality Monitoring and Assessment Programs
The USGS has been actively engaged in assessing and monitoring the Nation Is
water resources for many years. For example, our stream-gaging network began op-
eration over 100 years ago, and ground-water, surface-water, and precipitation data
are collected now on a routine basis at over 45,000 sites across the Nation.
We become involved iTl compliance monitoring as part of our technical assistance
activities with Federal regulatory agencies such as the EPA, Bureau of Reclamation,
and Corps of Engineers; and in some of our cooperatively-funded programs with
State and local agencies. We are not, ourselves, regulators, so our involvement in
compliance monitoring is usually limited to network design, the determination of
sampling strategies and methods, the choice of laboratory methods and standards,
and, occasionally, the construction and operation of gages and observation wells for
others.
By contrast, our own status and trends monitoring activity is continuous, compre-
hensive, generally regional in scale, and oriented toward assessing the resource
itself. The purposes of status and trends monitoring are: (1) to understand water
quality and the factors that affect it; (2) provide a broad picture over time of the
situation in different regions with different land-uses, climates, and hydrologic char-
acteristics; and (3) provide an overall measure of the transport of substances
through the surface- and ground-water systems of the Nation. The following six
USGS programs have major status and trends monitoring components that directly
or indirectly support Clean Water Act objectives:
The Federal-State Cooperative Program has been in operation for about 100 years.
This 50:50, jointly-funded program is a unique partnership between the USGS and
State, regional, and local governmental agencies to enhance water-resources infor-
mation nationwide. Although the cooperating agencies provide at least half the
funds, the USGS conducts most of the work. The goals of the program are to collect
data and develop information, and to use that data and information to appraise the
availability, distribution, and the physical, chemical, and biological characteristics
of water resources during the conduct of investigations of interest both to the Feder-
al Government and the cooperating State or local agency. Since the early 1970's, the
emphasis of Cooperative Program investigations has shifted toward water quality
issues such as aquifer contamination, river-quality assessments, the quality of storm
runoff, and the effects of coal mining and agricultural runoff on the Nation Is
waters.
The Hydrologic Benchmark Program, established in 1964, is a network of 58
streamflow and water-quality monitoring stations installed in small pristine water-
sheds that have experienced little human influence on their hydrologic characteris-
tics. This network provides a baseline estimate of water-quality conditions with
minimal point-source or land-use influences, and has been instrumental in the early
detection of the effects of acidic deposition on the water quality of certain pristine
areas.
The National Stream Quality Accounting Network is a water-quality network of
384 monitoring stations, established in 1973 at the mouths of most of the larger
river basins in the country to relate water-quality trends to upstream land- and
water uses, and to account for the mass transport of selected constituents from the
American continent. Examples of results from this network include the relation-
ships between: (1) point-source controls and fecal bacteria counts; (2) nitrate in
streams and atmospheric emissions of nitrous and nitric oxide; (3) nitrate in streams
and agricultural activity; and (4) dissolved solids in streams and the effects of cli-
mate, geology, and various human activities.
The Acid Rain Program was initiated in 1982. As the lead Federal agency for at-
mospheric deposition monitoring, the USGS coordinates the design and operation of
the interagency National Trends Network, a 150-station network for collecting data
on the quality of atmospheric deposition in the United States. This a rural network
that reflects regional characteristics of precipitation chemistry without the localized
1060
effects of nearby sources of air pollution. The Acid Rain Program also includes con-
tinuing, long-term, more intensive data collection and analysis in 13 representative,
sensitive areas to provide a basis for evaluating the effects of acid deposition on
lakes, streams, and ground water.
The quantity and quality of water used in the Nation is of vital importance to
water policymakers, planners, resource managers, and water users. In 1978, the Na-
tional Water-Use Information Program was established to determine how much
water is withdrawn for use, how much water is consumptively used, the purpose for
which the water is used, and how much water is returned to the environment.
State-level water-use programs and associated computer information systems have
been cooperatively developed in 48 States and Puerto Rico.
Beginning in 1986, the USGS began efforts to test and refine concepts for a Na-
tional Water-Quality Assessment Program which we refer to as NAWQA. The ques-
tions being addressed by the NAWQA program include:
1. What are current national water-quality conditions? In other words, what are
the occurrences, concentrations, and loads of specific physical, chemical, and bi-
ological measures in selected parts of river basins and aquifer systems, nation-
wide?
2. Are water-quality conditions getting better or worse?
3. What are the causes of poor water quality?
4. What are the implications of our findings on monitoring, resource management,
and regulatory practices?
Major river basins and aquifer systems, referred to as study units, are the princi-
pal building blocks of the NAWQA Program. The full-scale program is accomplished
through investigation of a set of 60 study units distributed throughout the Nation.
The study units are large and range in size from about 1,200 to 45,000 square miles.
Collectively, the study units encompasses about 45 percent of the land area of the
conterminous United States, and about 60-to-70 percent of the Nation's water use.
NAWQA provides specific water-quality information to those individuals who set
policy, write regulations, establish priorities, or manage water resources. For exam-
ple: results from the NAWQA study conducted in the Yakima River basin showed
that concentrations of the pesticide DDT in fish are among the largest measured in
the Nation and commonly exceed guidelines for the protection of birds and other
fish predators. This finding was somewhat of a surprise because use of this pesticide
was banned almost two decades ago. Based on these findings, the Washington De-
partment of Health is conducting follow-up studies to evaluate the potential human
health effects of eating fish in the basin, and has issued recommendations to the
public that they limit their consumption of bottom-dwelling fish.
Another example is the findings related to the pesticide atrazine in the lower
Kansas River basin. This NAWQA study contributed to the decision by the State to
establish a pesticide management area in the Delaware River basin in northeastern
Kansas. This would decrease concentrations of pesticides to acceptable levels in sur-
face water and ground water by a combination of management and conservation
practices.
V. Role of Monitoring and Evaluation in Gauging the Success of the Clean Water
Act
We expect that USGS' monitoring and assessment activities will contribute to the
Nation's ability to evaluate whether, and to what extent, the programs undertaken
pursuant to the Clean Water Act (and other acts) are helping us reduce public
health and environmental risks.
VI. Watershed Management
Our only comment on the watershed management provisions of the Clean Water
Act reauthorization is technical in nature and relates to the important hydrologic
aspects of ground water.
In many watersheds, ground water should be an important component of water-
shed management strategy. Ground water has been estimated to supply an average
of 40 percent of streamflow, nationwide, but in some areas (for examplel Long
Island, the Delmarva Peninsula, or the Sand Hills of Nebraska) the figure may be
as high as 95 percent. In developing measures to control and prevent nonpoint
sources of pollution, attention should be given to the complex interactions between
surface water and ground water, and the extent of ground water influence in a par-
ticular watershed system. It is a fact that many remediation techniques that retard
or reduce surface-water runoff can cause an increase in ground-water recharge. This
only delays rather than eliminates the discharge of pollutants into surface water.
Finally, arbitrary time frames that may be enacted to attain standards may not
1061
produce desired results in certain watersheds because polluted ground water may
continue to discharge to streams many years after the source of pollution has been
eliminated.
VII. Ending statement
Mr. Chairman, that concludes my formal testimony. I would be happy to answer
any questions you may have at this time.
TESTIMONY OF MICHAEL J. SPEAR, ASSISTANT DIRECTOR, FISH AND
WILDLIFE SERVICE, U.S. DEPARTMENT OF INTERIOR
I appreciate this opportunity to appear before you regarding the role of the Fish
and Wildlife. Service in the Clean Water Act (Act).
Service Trust Resources Associated with the Clean Water Act
The Service's interests in the Clean Water Act stem from our stewardship respon-
sibilities for endangered Species, migratory birds, anadromous fish and several
marine mammals, all of which depend on clean water to survive. A majority of
these species also live in wetlands and other aquatic habitats for much of their life
histories, and are therefore directly dependent on the success of the Act in achiev-
ing its goal of maintaining the biological integrity of the waters of the United
States. The Service has trust responsibilities for over 90 million acres of lands in the
National Wildlife Refuge system. Clean water is essential to maintain these refuges,
as well as to operate our system of National Fish Hatcheries.
In addition to our need to comply with the Act on our own lands and facilities,
the Service also has authorities for direct involvement in Clean Water Act activi-
ties, including section 404(m) of the Clean Water Act, the Fish and Wildlife Coordi-
nation Act, the Endangered Species Act, and the National Environmental Policy
Act.
The Service has developed widely acknowledged expertise in the evaluation of
man's effect on living natural resources. This expertise lies not only in our research
program, but in our network of 70 Ecological Services field stations; 54 Fish and
Wildlife Management Assistance Offices; 78 hatcheries; 15 fish health and technolo-
gy centers; and over 500 National Wildlife Refuges and wildlife management areas.
We believe that our authorities, in conjunction with our field expertise, can enhance
effective implementation of the law.
Clean Water Act Issues
Since it was first passed in 1972, the Clean Water Act and its subsequent amend-
ments have resulted in substantial improvements in the quality of the Nation's
waters and a reduction in the rate of loss of our Nation's wetlands. We believe the
programs established in the Act are sound, but, as with any program, can be im-
proved.
The goals of the Clean Water Act are "to restore and maintain the chemical,
physical and biological integrity of the Nation's waters". In the past, implementa-
tion of the Act has focused on the chemical integrity of the Nation's waters, with
less effort on biological and physical integrity. This focus is changing, and we are
ready to assist the Environmental Protection Agency (EPA) by providing technical
assistance and consultation on a variety of biological resource issues. One reason
why we are committed to provide this assistance is because of our strong belief that
effective implementation of the Clean Water Act can help prevent the need for fur-
ther listings of threatened and endangered species.
At present, 97 of the 775 species of freshwater fish native to the United States are
listed as endangered or threatened, along with 63 mussel species, 12 crustaceans
and 1 1 amphibians. The Service also maintains a list of candidates for potential list-
ing which includes an additional 157 native fish, 59 species of aquatic mussels and
60 amphibians. Clearly, if the status of these species is an indicator, the biological
diversity of the Nation's aquatic systems is still being threatened. It is smart both
ecologically and economically for our society to make every effort to prevent species
from reaching such desperate status as to require listing as threatened or endan-
gered. As Secretary Babbitt has frequently noted, managing an entire ecosystem for
harmonious development is economically far more prudent than having to under-
take drastic measures to save an endangered species that will have serious economic
impacts on that ecosystem.
One means to prevent this is by protecting wetlands. The protection and restora-
tion of the Nation's wetlands are essential to meeting the goals of the Clean Water
1062
Act, not only because they are key components of hydrologic systems, but because of
their particular importance to living biological resources. Many freshwater, anadro-
mous and estuarine fish species, more than 50 percent of North America's migrato-
ry birds, and more than one third of all threatened and endangered species are de-
pendent on wetlands. The Service can assist more effective implementation of sec-
tion 404 of the Act through expertise gained during a long history of wetlands in-
ventory, protection, restoration, monitoring and management activities.
In the same vein, the Service's biological expertise and the Department of the In-
terior's hydrological expertise can be used to enhance development, review and im-
plementation of Federal water quality criteria and State water quality standards.
The Service's goal is to resolve potential conflicts between proposed alterations of
habitat and the resources we hold in trust for the public. With early coordination,
problems can be identified before they reach a level too difficult to resolve. For in-
stance, setting protective water quality standards, and writing Section 402 and 404
permits that are consistant with those standards, may be more cost-effective and
better for the environment than seeking remediation of contaminated sediments
after the discharges and releases have essentially ceased.
Preventing further degradation of waters of the United States, through more ef-
fective implementation of antidegradation policies, and through protection and ex-
pansion of Outstanding National Resource Waters are also important to meeting the
goals of the Clean Water Act. Maintaining high quality waters will help maintain
the aquatic resources that live in them.
Effective management of our aquatic ecosystems requires a watershed-based ap-
proach to program planning, monitoring and assessment. The Service has been in-
volved in numerous watershed-wide fish and ecosystem restoration efforts around
the country, such as the Great Lakes lake trout restoration, and watershed restora-
tion activities on the Clinch River, Virginia and Chehalis River, Washington. From
these experiences, we have learned the value of taking a landscape perspective in
management activities, and can lend our experience and expertise in any watershed
or river basin planning activities that may be established in the future.
Water Quality
Our Division of Environmental Contaminants is obtaining data on the health of
trust resources across the nation. These investigations have provided us insight into
the "biological integrity" of the Nation's waters and have helped identify where ad-
ditional emphasis on Clean Water Act activities may be needed. Let me share some
examples of our effort. During a recent Clean Water Act Reauthorization Hearing,
Senator Baucus commented on continuing threats posed by persistent, bioaccumula-
tive toxic compounds in the Great Lakes ecosystem and other areas of the country.
He referred to reports of continuing impacts on trust resources of the Service, in-
cluding reproductive effects such as bill and leg deformities, endocrine disruption,
and embryo mortality in migratory colonial waterbirds.
Our ongoing investigations in the Great Lakes watershed have confirmed that cer-
tain contaminants continue to threaten colonial waterbirds, as well as Bald Eagles,
with reproductive impairments including deformities and other developmental prob-
lems. This Spring, while monitoring eagle reproductive success, our field personnel
located three nestling eagles with beak defects common to colonial waterbirds nest-
ing in the Lakes.
I have brought an enlarged photograph of one of these eaglets showing its de-
formed beak. These young birds have been collected and are undergoing further
evaluations. We have found that adult eagles which feed on Great Lakes prey have
lower reproductive success than eagles feeding on inland lakes and rivers. Eagles
nesting along the Great Lakes continue to have significantly higher levels of several
contaminants measured in their blood and dead egg samples than inland eagles.
The problem is widespread across the Great Lakes and requires a basinwide, wa-
tershed approach to seek additional reductions in persistent contaminants from sig-
nificant contributing sources in a cost-effective manner. The Service has been work-
ing with the EPA and the States on a variety of fronts, including the Great Lakes
Initiative which is addressing wildlife water quality criteria guidance. This coordi-
nation should assist in development of protective and restorative actions to be insti-
tuted regarding these continuing biological problems.
In addition to wildlife, fish are also still being affected by contaminants in waters
and sediments. In a recent article in The Washington Post (Monday, July 12, 1993)
entitled, "Medical Detective Finds Clues on Cancer Among Fish and Pollution"
John Harshbarger, the head of the Registry of Tumors in Lower Animals at the
Smithsonian, stated that, "all the evidence supports the idea that if you find liver
cancer in fish, it's caused by chemicals."
1063
The article notes that liver cancers have been found in at least 18 species of fish
that live and teed primarily near the bottom of lakes, streams, and rivers. Some of
these findings are the result of studies conducted by Service field investigators in
our Ecological Services and Research programs. Investigators have found tumors in
fish from many polluted waterways, including: the Buffalo, Niagara and Hudson
rivers in New York; the Cuyahoga and Black rivers in Ohio; the Elizabeth and York
rivers in Virginia; Black Rock Harbor near Bridgeport, Conn.; Narragansett Bay,
Rhode Island; New Bedford Harbor and Quincy Bay in Massachusetts; and Puget
Sound in Washington state.
Refuge Lands
Our National Wildlife Refuges are being directly impacted by water quality prob-
lems. A few examples include:
• Salton Sea National Wildlife Refuge — Based on shoreline surveys, aerial sur-
veys and clean-up efforts in 1992, an estimated 150,000 eared grebes had died
(about 8% of the North American population). Contaminant analyses of eared
grebes indicated elevated levels of selenium, mercury, DDE and chromium in
eared grebe livers, when compared to previous samples from the Salton Sea. Se-
lenium has increased over 200 percent in three years. All liver samples from
dead, sick, and healthy (defined by normal behavior) eared grebes had selenium
levels above threshold levels known to cause adverse impacts. Endangered spe-
cies that may be at risk include the Yuma clapper rail, California brown peli-
can, desert pupfish, and peregrine falcon. Adverse effects on the reproductive
success of the eared grebe may be expected as a result of documented elevated
concentrations of selenium and DDE. Elevation of selenium and mercury may
have contributed to the die-off indirectly by compromising the birds' immune
systems.
• Wheeler National Wildlife Refuge — Over 400 tons of DDT and metabolites are
in bottom sediments of Huntsville Spring Branch located on the refuge.
• Eutrophication of water bodies located on various refuges, including Buffalo
Lake on the Buffalo Lake National Wildlife Refuge, Texas; Camas wetlands on
the Cam£is National Wildlife Refuge, Idaho; and the Bear River, which runs
into the Bear Lake National Wildlife Refuge, Idaho. Eutrophication is the proc-
ess by which a body of water becomes over-enriched with nutrients and sedi-
ments. This results in a plant populations explosion, causing serious degrada-
tion of water quality, extreme changes in species composition, and alteration of
beneficial uses.
Wetlands Regulation
Prior to the 1970's, the average annual loss of wetlands was approximately
450,000 acres. Between the mid-1970's and mid-1980's, this loss rate was reduced to
approximately 290,000 acres per year, and further reductions in the rate of loss
have probably been realized since the 1980's. Although there is no question that en-
actment of section 404 of the Clean Water Act and the Swampbuster provisions of
the 1985 and 1990 Farm Bills have contributed to this positive trend, wetlands de-
struction continues at an alarming rate. Yet less than half of the historic wetlands
of the lower 48 states remains, and a significant portion of what remains is signifi-
cantly impaired. These factors have contributed to the progressive impoverishment
of our biotic systems.
I would like to provide you with two examples of how wetland habitat losses, like
other Clean Water Act-related issues, have affected species populations the Service
is entrusted to protect.
Bottomland Hardwood Forests. Bottomland hardwood forests are in greatest abun-
dance in the Lower Mississippi River Valley, which once supported the largest ex-
panse of forested wetlands in the United States. Of the 24 million acres of forested
wetlands which formerly existed in this region, less than 22 percent remained in
1978, and only 20 percent were projected to remain by 1991. Most of these losses
have been due to pre-Swampbuster era conversion of forested wetlands to farmlands
through drainage and landclearing.
The Louisiana black bear, listed as "threatened" under the Endangered Species
Act, historically inhabited the bottomland hardwood forests of Louisiana, southern
Mississippi, and eastern Texas. It is dependent on the maintenance of large tracts of
high quality bottomland hardwoods, as well as forested corridors to connect those
tracts. Landclearing for agriculture and other purposes reduced this species habitat
by nearly 80 percent, thereby necessitating its listing as threatened in 1991. At
present, the Louisiana black bear's range is restricted to small populations within
1064
the bottomland hardwoods of the Tensas and Atchafalaya River Basins of Louisiana,
and scattered populations in Mississippi.
Vernal Pools. California's vernal pool wetlands have sustained a significant and
continuing loss from agricultural conversion, flood control activities, and residen-
tial/commercial development activities, much of which is currently being authorized
through nationwide general permits. As a result, by 1978 it was estimated that 90
percent of the original vernal pool habitat in the Central Valley had been lost. More
recent estimates place this loss figure at nearly 99 percent.
As a consequence of these losses, there has been a corresponding decline in the
abundance and diversity of plant and animal species dependent on vernal pool wet-
lands. Currently, ten California vernal pool plant species are listed as endangered,
while 55 rare vernal pool plant species are designated as candidates for possible
Federal listing. In addition to plants, five freshwater invertebrate species restricted
to vernal pools are now proposed for listing as endangered. Many more vernal pool
species are likely to be added to the Federal list as threatened or endangered if
losses of these wetlands are not curtailed.
There are a variety of mechanisms through which the loss or degradation of wet-
land habitats I have described has continued to occur. Many activities have not, in
the past, been regulated under the Clean Water Act, such as discharges associated
with landclearing, ditching, channelization, and other excavations in wetlands. In
addition, unauthorized activities frequently go unobserved. Finally, there are the ad-
verse effects of land use practices adjacent to wetlands and other aquatic habitats,
such as stormwater and other runoff from agricultural, municipal, and industrial
sources, which significantly impair wetland functions.
Since its inception, the section 404 regulatory program has substantially reduced
the harm to wetlands and other aquatic habitats due to development activities. Nev-
ertheless, losses to fish and wildlife resources continue in spite of the program. In
order to attain a greater degree of protection, and truly minimize, if not avoid, net
habitat losses, we must take a much broader view of what is needed to meet the
goals of the Act, and recognize that wetlands protection must always be a part of
this approach.
I would like to close by commending the Committee for providing us this opportu-
nity for discussion of future directions of the Clean Water Act. I would reiterate
that the Service has a major role to play in the successful implementation of the
Clean Water Act. We have a substantial land base that is directly regulated and
affected by Clean Water Act programs. Thus, we are committed to managing our
lands and other trust resources in a way that fulfills the goals of the Clean Water
Act. Our field force stands ready to provide technical assistance and consultative
services to EPA and the States in meeting trust resource responsibilities.
We look forward to continuing our collective efforts with this Committee, the En-
vironmental Protection Agency, other Federal agencies and the State agencies in
improving the Clean Water Act.
TESTIMONY OF ROBERT H. WAYLAND, III, DIRECTOR, OFFICE OF WET-
LANDS, OCEANS, AND WATERSHEDS, ENVIRONMENTAL PROTECTION
AGENCY
Good morning, Mr. Chairman and Members of the Subcommittee, I am Bob Way-
land, Director of the Office of Wetlands, Oceans, and Watersheds within the U.S.
Environmental Protection Agency's (EPA's) Office of Water. My testimony today
will address three topics: water quality monitoring, federal coordination, and water
conservation.
MONITORING
Water quality monitoring is the means by which we know the physical, chemical,
and biological condition of our waters, and the effectiveness of actions undertaken
under the Clean Water Act (CWA) or other laws for improving water quality.
Through scientifically-valid monitoring, we detect water quality problems, ascertain
if our waters are meeting societal goals such as State water quality standards,
design protection or remediation measures Where necessary, and measure the effec-
tiveness of our programs over time. Monitoring is our continual feedback loop, es-
sential to set strategic planning goals and agency directions, direct resources and set
informed program priorities, and measure how well strategic goals are met.
Monitoring and information management activities are critical at all levels of
water management — at an individual stream or estuary, at a discharge facility or
on a farm, in a watershed, or at a State or national program level. To manage and
1065
to monitor well, and to evaluate, it is essential to set strategic goeds and to articu-
late the environmental results we desire.
Strategic Planning/Environmental Indicators
In EPA's water programs we are well advanced in our strategic planning process.
Monitoring information is the cornerstone of our efforts. We begin with monitoring
information to tell us what physical, chemical, or biological water quality problems
are preventing us from reaching the strategic goals we set, and we end with moni-
toring to evaluate if our management programs have resulted in the environmental
improvements we seek.
To measure if we are meeting our strategic goals, we have chosen specific environ-
mental indicators. Environmental indicators are identified data or sets of data that
we can measure and that clearly communicate information to managers and the
public. For instance, one of our goals is to conserve and enhance ecosystems, and
the indicator for that goal is the health of the fish and the insect communities that
live in and on the water.
We collect data to measure our environmental indicators, but much useful data is
also collected by other Federal, State, local, and private partners. It is therefore crit-
ical to us to work closely with other programs and agencies to use comparable col-
lection and quality assurance/quality control methods, link our data Systems, and
employ new technologies such as Geographic Information Systems and remote sens-
ing.
Range of Programs
A large number of water quality monitoring programs are mandated by the CWA
and by other statutes and agency missions. These monitoring programs cover a wide
range of activities: data collection to fulfill specific objectives; data analysis with ap-
propriate levels of confidence; information storage and retrieval; and, analysis and
reporting to decision makers. Information from these monitoring efforts is essential
to initiate, assess, and improve our management efforts.
Water quality monitoring programs are complex and the many activities included
must be tailored to meet clearly specified and differing objectives such as compli-
ance, ambient water quality, trends, or problem identification monitoring. The mon-
itoring picture is made more complex because many Federal and State agencies
monitor for a wide range of purposes, as do local, private, volunteer, and business
and industry groups. Experience has shown that properly trained volunteers can
perform basic sampling and simple analytic tasks with accuracy and reliability
while keeping expenses low. This program has proved to be an excellent method for
educating the public and fostering the stewardship of waterbodies, particularly estu-
aries.
There are several major Federal monitoring programs to measure status and
trends regarding the quality and quantity of the nation's waters for specific pur-
poses, such as EPA's Environmental Assessment and Monitoring Program, the Na-
tional Water Quality Assessment Program of the U.S. Geological Survey (USGS),
the National Oceanographic and Atmospheric Administration's (NOAA) National
Status and Trends Program, and the U.S. Fish and Wildlife Service's Wetlands
Status and Trends Program and new Biomonitoring of Environmental Status and
Trends Program, among others. Although mandated by statutes other than the
CWA, the information generated by these and other activities provide important in-
formation to support CWA goals. For example, the USGS focuses on quantity and
quality of water resources, with particular emphasis on hydrologic and geochemical
processes and the impacts of natural and human factors on water quality. "The De-
partment of Agriculture investigates the impacts of agriculture and forestry prac-
tices on water quality. NOAA monitors coastal waters to assess status and trends of
coastal water quality. The Fish & Wildlife Service monitors changes in the physical
acreage of wetlands over time as well as the status and trends of wetlands. The
goals of the CWA will be best met by our continuing use of the wide range of water
quality related information generated by all Federal agencies.
In addition, States, Territories, Tribes, municipalities, industrial dischargers, vol-
unteer groups and private organizations have their own ambient and compliance
monitoring programs. It is essential to use our limited resources wisely by asking
the right questions before we monitor and by sharing data gathered by these many
complementary programs.
Federal Leadership: Monitoring and Information Systems
We are committed to compatible and well coordinated water quality monitoring
programs. We showed our leadership when, in January of 1992, EPA and USGS es-
1066
tablished a three-year Intergovernmental Task Force on Monitoring Water Quality
(ITFM). The ITFM includes EPA, USGS, eight other Federal agencies, and ten
State, Interstate, and Indian government organizations. The group is chaired by
EPA. USGS is the Vice Chair and Executive Secretariat. The ITFM is part of the
Interdepartmental Water Information Coordination Program administered by the
USGS under 0MB Memorandum 92-01.
The ITFM has a workplan and outline of products for five major problem areas in
monitoring: institutional collaboration; environmental indicators; field and laborato-
ry method comparability; information management and sharing; and assessment
and reporting. It recommends a five-pronged national strategy to address these
problem areas. The strategy includes such specific products as environmental indi-
cators to ascertain if water quality standards are being met, an outline for an opti-
mal monitoring program, and creation of a National Water Quality Monitoring
Council to coordinate Federal, State, private and volunteer efforts nationwide.
In this context, I would like to highlight the importance of linking the various
information Systems that store, retrieve and facilitate assessment of monitoring
data. Most Federal agencies have their own information systems to store their pro-
gram's data and to meet their specific objectives, and most agencies can benefit
from using data from other systems. For instance, EPA's system, STOREIT, which is
the country's largest water quality data base, includes water quality data from
States and other Federal agencies as well. As an example, one-quarter of the infor-
mation in STORET is from USGS and they provide monthly updates. As EPA mod-
ernizes STORET, we are committed to do so working closely with USGS which is
also modernizing its water information system, called NWIS-II. NWIS includes data
on both water quantity and quality. Through the ITFM the other Federal and State
agencies are trying to ensure that a large number of new and existing data systems
can share information more easily.
With this as background, let me applaud the efforts of S. 1114, the "Water Pollu-
tion Prevention and Control Act of 1993", to acknowledge the importance of moni-
toring in our water management efforts and increase the effectiveness of monitoring
nationwide.
State Monitoring Programs
We are pleased to see the bill give deserved prominence to State monitoring pro-
grams, and the opportunities for States to also use information generated from Fed-
eral, discharger gmd volunteer monitoring programs. We support the Senate's call
for minimum State water monitoring programs. Stronger State programs will help
to target CWA programs to the impaired waterbodies which need the most attention
£ind to help protect areas that meet water quality standards. Strong and more com-
plementary State monitoring programs will generate a more uniform nationwide
water quality assessment and allow us to aggregate State information into a better
national picture in our reports to Congress. In addition, stronger State water quality
monitoring programs, including both ambient and compliance monitoring, will help
the States, EPA, and other Federal agencies do a better job of determining on a na-
tional and regional level whether our management and control programs are
achieving the environmental results we seek. In addition, stronger State programs
will allow us to begin to address gaps in current monitoring. We must recognize,
however, that the stronger State water quality monitoring programs called for in S.
1114 will significantly increase State costs while, in general, State monitoring pro-
grams have been reduced over the last several years, due to cuts in federal and
State program support and increased mandates in other areas.
We also support the provision in S. 1114 which would change the State and Feder-
al water quality reporting cycle from two to five years. A five-year cycle will help
the States better integrate their monitoring and abatement programs on a water-
shed basis. We support S. 1114's recognition of the importance of volunteer monitor-
ing. These committed volunteer groups can provide quality-assured water resource
data and help States accomplish monitoring objectives. Similarly, the recognition
that dischargers should in some circumstances contribute significant information on
ambient water quality is laudable.
Water Quality Monitoring Coordination
We wholeheartedly agree that there needs to be a mechanism to ensure Federal,
State, local, private, and volunteer monitoring programs are fully coordinated. We
strongly encourage use of existing coordinating mechanisms. We have shown our
commitment to coordination through the ITFM, which has exhibited an impressive
level of interagency cooperation to produce a national strategy for better monitoring
of gdl water resources, including rivers, streams, lakes, ground waters, coastal
1067
waters, associated aquatic communities and habitat, wetlands, and sediment. The
ITFM has already Proposed a national monitoring strategy and a permanent struc-
ture for coordinating its implementation. As ITFM is part of USGS's Water Infor-
mation Coordination Program, its recommendations have received wide agency ap-
proval at the highest management levels.
The ITFM is addressing all of the elements of S. 1114 and more. We should build
on existing efforts, not duplicate them. We therefore question the need to establish
a Water Quality Monitoring Council in the law as proposed by S. 1114. Among other
reservations, I note that the Federal, State and other members of the Council Pro-
posed by S. 1114 are Substantially less inclusive than our current ITFM, and the
ITFM also addresses the important problem of comparability of field and laboratory
methods, which S. 1114 does not.
Relationship to Other Federal Research and Monitoring Activities
We believe S. 1114 should recognize the value of other agencies' research and in-
formation in achieving CWA goals. Different statutes such as the Coastal Zone Man-
agement Act, the Safe Drinking Water Act, the Marine Protection, Research, and
Sanctuaries Act, the Water Resources Development Act of 1992, and the National
Coastal Monitoring Act mandate water-related research programs in EPA and many
Federal agencies. The Water Resources and Coastal Ocean Science Subcommittees
of the Federal Coordinating Council for Science, Engineering, and Technology co-
ordinate research among all Federal agencies. The CWA should provide for close co-
ordination with these other programs where appropriate to achieve CWA goals. This
will also minimize conflict arising from separate research mandates in other legisla-
tion.
FEDERAL COORDINATION
The foregoing discussion on monitoring provides an excellent example of effective
interagency coordination on issues relating to water quality. Other examples
abound in water programs administered by EPA. We have long recognized that, in
order to be effective in protecting and maintaining our nation water resources, the
federal government must provide the leadership in adopting an integrated approach
to water management. Coordination and consistency among federal agencies is es-
sential, and, as you know, will be no small task. It would involve 18 agencies in
seven departments, and seven independent agencies with 25 separate water pro-
grams and some 70 separate appropriations accounts. We are beginning to forge the
working relationships that will allow us to provide this leadership. I would like to
give you a number of examples.
Policy and Program Development
Coastal America is a collaborative, multi-agency effort to solve environmental
problems along the Nation's shoreline. Problems include the loss and degradation of
habitat, pollution from nonpoint sources, and contaminated sediments. All three are
contributing to species declines and severely damaged habitats. This combined effort
originally involved the U.S. Army Corps of Engineers (COE), EPA, U.S. Fish and
WUdlife Service (FWS), U.S. Geological Survey (USGS), the Minerals Management
Service (MMS), National Oceanic and Atmospheric Administration (NOAA), USDA,
the Department of Transportation, and the National Park Service (NPS). More than
a dozen agencies now participate in the Coastal America process. Through a series
of relatively small scale projects. Coastal America provides examples of successful
projects and demonstrates new approaches to addressing coastal living resources
concerns in seven geographic regions.
We are also using an interagency process to attempt to resolve some of the espe-
cially complex and controversial issues associated with the wetlands program. Our
goal is to provide clarity and consistency in federal wetlands policy. As directed by
Congress, EPA has initiated a wetlands study by the National Academy of Sciences.
To assist with this study, a federal committee composed of EPA, U.S. Department of
Agriculture (USDA), the COE, and FWS are working together to ensure that con-
sistent policy and programs will be the outcome of these efforts.
EPA is working with many other federal agencies, at both Headquarters and Re-
gional levels, to provide momentum for the watershed management approach. We
strongly believe that coordination among Federal agencies is necessary to plan and
execute an effective nationwide watershed management effort. In March of this
year, EPA and 12 other federal agencies (including four agencies from the Depart-
ment of the Interior, three from USDA, the Federal Highway Administration, COE,
Tennessee Valley Authority, and NOAA), local sponsors, and numerous nongovern-
mental groups put together a major conference — Watershed '93. More than one
1068
thousand people participated in the conference, including representatives from forty
two States, Puerto Rico, Canada, South Africa and the United Kingdom, represent-
ing citizens and environmental groups, regional and federal agencies, and business
and industry. The conference examined numerous successful watershed manage-
ment projects and generated tremendous enthusiasm and momentum to redirect our
programs and energies toward a locally driven watershed management approach.
The Coastal Zone Act Reauthorization Amendments of 1990 required EPA to de-
velop "Guidance Specifying Management Measures for Sources of Nonpoint Pollu-
tion in Coastal Waters" in order to assist state and local governments, as well as
landowners and operators, in identifying and implementing the most effective man-
agement measures to prevent and control nonpoint source pollution. The guidance
reflected substantial contributions from USDA's Soil Conservation Service (SCS),
Extension Service, and U.S. Forest Service, as well as NOAA, the FWS, other feder-
al agencies, and experts from state water quality and coastal zone management
agencies.
Program Implementation
The National Estuary Program (NEP) exemplifies the watershed management ap-
proach and the potential for coordination among federal and nonfederal stakehold-
ers. The goal of the program is to protect and improve water quality and enhance
living resources. The NEP identifies nationally significant estuaries threatened by
pollution, development or overuse, and requires Comprehensive Conservation and
Management Plans (CCMPs) to ensure ecological integrity. A management confer-
ence is convened in each NEP with a wide variety of stakeholders, who are responsi-
ble for identifying the problems and developing a CCMP to be implemented by par-
ticipating parties. Representatives of federal agencies often serve on Management
Conference committees. All federal agencies have the opportunity to review the
water quality management plan on a continuing basis to determine whether any of
their projects or programs potentially assist or conflict with the goals of the plan.
As part of the estuary program, for example, EPA works closely with NOAA to
assess current coastal conditions and determine whether conditions are improving
or deteriorating. NOAA contributes important scientific information that is now
being used by the NEP management conferences. The Food and Drug Administra-
tion shares its expertise in assuring the safety of fish and shellfish, and representa-
tives of virtually every other agency have been actively involved in planning and
implementation activities.
The Great Water Bodies Programs take a comprehensive, geographically targeted
approach and all include smaller scale watershed projects as an important part of
their overall efforts to restore and protect their waters. At yesterday's hearing, we
discussed the Chesapeake Bay, the Great Lakes, and the Gulf of Mexico programs in
some detail. I would like to highlight aspects of these programs that illustrate grow-
ing federal agency cooperation and coordination.
The Chesapeake Bay Program has not only been at the forefront of federal /state
cooperation, but also has established a framework for cooperative work by federal
agencies. EPA has ten formal Memoranda of Understanding with other federal
agencies to specifically facilitate cooperation within the Chesapeake Bay Watershed.
The Poplar kland Restoration Project, currently in its planning phase, is an exam-
ple. Poplar Island, located off Maryland's Eastern Shore, once encompassed several
hundred acres of forests, wetlands, and shoreline habitat, and provided valuable fish
and wildlife habitat. The Island has eroded into several small remnants, and is in
danger of disappearing entirely. Through the cooperative efforts among EPA, FWS,
COE, NOAA, and the State of Maryland, clean dredged material from Baltimore
Harbor approach channels, that would have been disposed in a nonproductive
manner, is now planned for transport to Poplar Island and placement in order to
restore valuable habitat.
The Bay program has also given high priority to the creation of fish passages for
anadromous species of fish, e.g., shad, herring, and striped base, and catadromous
species , e.g., American eel. Thousands of miles of Spawning habitat within the Bay
watershed have been closed to these species, many by dams built two centuries ago.
A concerted effort begun in 1988 by EPA, NOAA, FWS, DoD, Maryland, Pennsylva-
nia, Virginia, and the District of Columbia, as well as private organizations, has al-
ready opened up 174 miles of historic migratory fish spawning and nursery habitat.
Fifty more miles of habitat are projected to be opened up this year, and hundreds of
miles in the next few years. In addition to the economic value to commercial and
recreational fisheries, these migratory species can play a significant ecological role
for the entire Bay ecosystem.
1069
The Great Lakes Program is another excellent illustration of interagency coopera-
tion. EPA joined agencies that have stewardship responsibilities for the Lakes in de-
veloping a shared five-year strategy and in carrying out "on-the-ground" projects
which rely on multi-agency teamwork. Notable examples include: (1) the Assessment
and Remediation of Contaminated Sediments program to assess contaminated sedi-
ments and test remedial technologies (COE, the Bureau of Mines, and the Bureau of
Land Management); (2) the Green Bay mass balance study, which addressed the role
of bottom sediments in ecosystems contamination (NOAA, the Coast Guard, USGS,
as well as co-leader Wisconsin and the Michigan Department of Natural Resources);
and (3) an EPA and FWS fish monitoring program that has yielded a long-term per-
spective on contaminants in lake trout.
The Gulf of Mexico Program has been the catalyst for many cooperative projects.
One pervasive problem in the Gulf is the high level of bacteria in the near shore
waters from inadequate disposal of human waste. This is often the reason that shell-
fish beds must be closed to harvest. EPA, FDA, and the coastal states are working
together to find ways to address this problem, which is often caused by leaking and
inadequate septic tanks. FDA and EPA are sponsoring educational programs and
demonstration projects of appropriate technologies and have also convened a work-
shop to discuss standardizing Septic tank operations and maintenance requirements
Gulfwide. In addition, EPA, FWS,and the Texas Parks and Wildlife Department
have established the Gulf Ecosystem Management Sites (GEMS) program to identify^
and protect habitats, including those used by threatened or endangered species; fish
nurseries; and rare and threatened habitats, such as mangrove swamps and sub-
merged aquatic vegetative areas.
At the smaller watershed management level, EPA has experienced successful
working relationships with other federal agencies around site-specific problems. I
would like to provide you with just a couple of illustrations.
The Canaan Valley Watershed is a unique combination of fragile wetland ecosys-
tem, drinking water source, prime trout-fishing stream, vacation home and recre-
ational development, and an annual major off-road vehicle race. In 1975, the
Canaan Valley was designated a National Natural Landmark. EPA, the COE,
USGS, FWS, SCS, and many state, local and private organizations are active part-
ners in the watershed management process initiated in 1990.
Federal and state agencies are involved in the Upper Arkansas River Watershed
Initiative in Colorado. Stressors to the watershed are associated with past mining
practices, erosion of rangeland, loss of riparian and wetlands areas, and hydrologic
modification. A 1989 technical study of the basin revealed that improved coordina-
tion among agencies would be essential in tackling water quality problems. Initially,
EPA signed a Memorandum of Understanding with the Colorado Departments of
Health and Natural Resources, and the Bureau of Reclamation. Subsequently, other
federal, state and local organizations have become part of the Watershed Initiative
Team. These agencies include: BLM, Bureau of Mines, FWS, the Forest Service
USGS, and SCS.
Even in our staffing arrangements, we have begun to realize the importance of
obtaining interagency cooperation and coordination as well as obtaining multidisci-
plinary perspectives on shared issues. Toward that end, EPA and other federal
agencies and departments have established full-time interagency liaison positions.
For example, the U.S. Forest Service has two liaisons in EPA's Headquarters offices,
and four in EPA's Regions, one at the Chesapeake Bay Program office, one with the
Puget Sound Cooperative River Basin Study Team, and one in EPA's Montana field
office. NOAA and USFWS have complete offices in Annapolis, Maryland to coordi-
nate directly with EPA's Chesapeake Bay Program. The Soil Conservation Service
also has a liaison with EPA's Headquarter's office and liaisons in all of EPA's 10
Regions. The liaison position has not only improved the process of communication
among federal partners, but also has proven to be invaluable in understanding
other federal perspectives on environmental issues. Consequently, the opportunity
for resolutions on complex issues has increased substantially through this staff posi-
tion.
The wetlands program in EPA's Region HI (VA, MD, PA, WV, DE, D.C.) is, in
part, implemented through a series of Memoranda of Agreement with the FWS,
COE, National Marine Fisheries Service, and the FHA. Thus, we have obtained a
broader and more coordinated perspective toward wetlands, integrating the permit-
ting process ANd achieving compliance with the National Environmental Policy Act
via the environmental impact statement process.
1070
WATER CONSERVATION
S. 1114 also addresses water conservation, which it proposes to promote by coordi-
nating federal policies, authorizing technical assistance to public agencies, and es-
tablishing a national information clearinghouse. Up to $10 million per year is au-
thorized for this effort.
In general, EPA Supports the intent of the water conservation provisions of S.
1114. By using water more efficiently, we can both prevent pollution and reduce the
need for and cost of water supply and wastewater treatment facilities. Thus, water
conservation can be a very cost-effective approach to addressing significant water
quality problems. Ek;onomic and environmental benefits of water conservation in-
clude reducing industrial pollutants through recycling, reducing the need for new
water supplies, protecting aquatic habitats (because using less water helps maintain
streamflows), and conserving energy used to pump, treat and heat water. Several
recent studies, including the report of the Working Group on Water Infrastructure,
Water Quality 2000, and the Long's Peak Working Group, have all pointed to the
importance of more efficient water use in maintaining our nation's water quality.
I am pleased to see an emphasis on technical assistance and information transfer
in the bill. As infrastructure capital costs increase and the availability of sites for
water supply and wastewater projects decreases, I believe we will see information
needs for water conservation and its relationship to water services planning grow
exponentially over the next several years. Municipalities, utilities. States, business-
es, and industries urgently need reliable information on cost-effective water conser-
vation technologies and practices as part of their overall water resources planning.
EPA has already taken steps to initiate a national clearinghouse of water efficiency
information to help fill these information needs. We also applaud the bill's volun-
tary approach to water conservation set forth in section 403 of S. 1114, and we sup-
port the requirement in section 205 of the bill that pollution prevention plans ad-
dress water use efficiency. At present, encouraging water conservation and integrat-
ed resources planning first through better coordination, technical assistance, and in-
formation transfer, as this bill does, is our preferred approach. We also recommend
that the Committee consider an additional approach: allowing some limited eligibil-
ity of SRF funds for water conservation programs that can reduce the need for
costly wastewater infrastructure.
Let me take a few moments to update you on some of EPA's water efficiency ac-
tivities. I have already mentioned the national clearinghouse that we are planning
to initiate this Fall. We are also very excited about a voluntary partnership pro-
gram with the commercial and institutional sector that we recently introduced. The
program is called Water Alliances for Voluntary Efficiency (WAVE) and will initial-
ly focus on the lodging industry. Similar to other EPA "green" programs, WAVE
partners will voluntarily commit to making water efficiency improvements in ex-
change for technical assistance and favorable publicity EPA will provide. Although
the program is just a few months old, EPA has already signed agreements with six
major hotel chains, which comprise over ten percent of the hotel rooms in the
United States.
We are also helping to define and promote the concept of integrated resource
planning as it relates to water resources. Integrated resource planning emphasizes a
multi-disciplined, participatory approach to decision making, as does the watershed
management approach, and takes into account both water supply and demand man-
agement options. We have sponsored, with the American Water Works Association,
several roundtables and workshops on the subject. Based on this experience, we
urge the Committee to consider the relationship between integrated resource plan-
ning and the conservation provisions of Section 403 of the bill.
To help coordinate federal water conservation activities, we have held a series of
workshops with representatives of a number of federal agencies to promote water
efficiency in federal policies, programs and facilities. Lastly, we have awarded close
to $1.5 million over the last several years in small incentive grants to stimulate in-
terest in and understanding of water efficiency. Projects include research, demon-
stration, out reach, and the development of tools to aid local governments imple-
ment water conservation programs, and workshops such as one on the role of water
efficiency in State programs sponsored by the National Governors Association.
In closing, I thank the Members of the Subcommittee for this opportunity to dis-
cuss some of EPA's extensive efforts in working with our federal agency partners.
We intend to expand these efforts in the future to ensure that our polices and pro-
grams are clear, consistent and effective.
1071
TESTIMONY OF JAYETTA Z. HECKER, DIRECTOR, RESOURCES, COMMUNI-
TY, AND ECONOMIC DEVELOPMENT INFORMATION SYSTEMS, GENERAL
ACCOUNTING OFFICE
Chairman Graham and Members of the Subcommittee:
I appreciate this opportunity to discuss work we conducted to assist the Subcom-
mittee in its dehberations on the reauthorization of the Clean Water Act. As you
know, we have conducted numerous reviews of EPA's water progrjuns over the
years to assist in Congressional oversight and to offer recommendations for improv-
ing program management. More recently, we have focused on the collection, man-
agement, and dissemination of water quality related data. As it has for several of its
other environmental missions, EPA has been given leadership responsibility for en-
suring the integrity of the nation's water resources. Deciding what scientific data
and information to collect and how to best manage it is a central factor in water
quedity policies, influencing EPA's ability to perform specific statutory responsibil-
ities.
In preparation for this hearing, you specifically asked us to identify (1) EPA's ef-
forts to address water quality data shortcomings that are impeding performance-
based assessments; (2) EPA's plans to improve water information systems; (3) factors
affecting the use of remote sensing and satellite imagery for water quality-related
purposes; and (4) progress made by the Intergovernmental Task Force on Monitor-
ing Water Quality (ITFM) in addressing governmentwide data management issues.
Over the last two months, we have discussed these matters with officials at EPA,
the United States Geological Survey, the Office of Technology Assessment, and
members of the ITFM.
Summary
Inconsistencies in how data are collected and managed by over 165 federal and
numerous state water programs, £dong with problems involving incomplete or inad-
equate monitoring data, are recognized as key contributing factors that limit com-
prehensive assessments of water quality gmd safety. Initiatives are underway at
EPA emd on a governmentwide basis to address these data problems. First, EPA's
Office of Water is reassessing strategfic goals for its water programs and considering
steps necessary to implement more comprehensive, performance-based me£isures of
water quality improvements. Second, the Office of Water is proceeding with im-
provements to some of its important databases to facilitate access and use of data
from several sources. Third, remote sensing and satellite imagery technologies could
complement other analyses of physical environmental conditions, such as land use
patterns, that impact water quality. Finally, EPA is chairing an intergovernmental
task force that is preparing a governmentwide strategy to (1) coordinate water qual-
ity monitoring and assessment standards and procedures, and (2) improve data col-
lection and dissemination. These efforts hold promise for improving decisions about
the effectiveness of water quality progreuns. However, they are in early stages and
face enormous challenges because of the resources and cooperation needed across
federal and state governments.
Water Quality Data Are Abundant but Difficult to Use and Narrowly Focused
To begin, I think it is useful to frame the challenges that confront the federal
government as it seeks to improve its management of water quality data. Although
EPA has prime responsibility for the bulk of federal laws that pertain to water
quality, nine other federsd departments or independent agencies collect or manage
water data. In addition, over 165 different federal programs — supported by at least
75 different federal data holdings — and numerous state water programs exist for
water quality matters. Despite this proliferation of data, opportunities for greater
data exchange and aggregation are often lost because data are incomplete, incom-
patible, or of questionable quality. Our recently released report on the Geological
Survey's National Water Quality Assessment Program illustrates the formidable
barriers — the absence of common data standards and definitions, uncertainties
about quality assurance controls, and differences in S£impling and emalysis tech-
niques— that government agencies face as they strive for greater efficiencies in
using and sharing data across organizational lines. ^
Moreover, much of the data collected for water programs today are used to moni-
tor facilities for point source pollution compliance and enforcement purposes under
the Clean Water Act, such as specific chemical discharges from industrial and
' National Water-Quality Assessment: Geological Survey Faces Formidable Data Management
Challenges (GAO/IMTEC-93-30, June 30, 1993).
1072
sewage treatment plants. However, according to EPA, many of the nation's water
quality problems are attributable to pollution from millions of diffuse or nonpoint
sources. For example, rainfall (or snowmelt) moving over or through the ground
picks up natural and manmade pollutants, including fertilizers, toxic chemicals
from urbem runoff (oil, grease) and abandoned mines (acid), and sediment from
poorly managed construction sites, crops, and forest lands. Vital monitoring data,
nonetheless, are often missing on both the scope and the impact of nonpoint source
pollution and on the effectiveness of potential solutions. As noted in our past work,
without this data, public officials have had difficulty reallocating resources to deal
with the most serious nonpoint source problems. ^
EPA and Congress, as evidenced by provisions in pending legislation amending
the Clean Water Act, are outlining actions that would move the agency towards a
watershed management and pollution prevention approach to improve water qual-
ity. ^ As you know, this proposed shift would focus resources on identifying the pri-
mary threats to human and ecosystem health within a watershed as a whole, in ad-
dition to pollution treatment and disposal through point source monitoring and dis-
charge permitting controls. EPA believes that examining both the point and non-
point sources within a watershed collectively will allow comprehensive assessments
of a full range of water quality factors — chemical, physical, biological — needed to
target risks and priorities more effectively. However, collecting, analyzing, and re-
porting on water quality problems in such a comprehensive, integrated fashion is a
daunting task, given the many federal, state, and local agencies that share responsi-
bility for amassing nonpoint pollution information.
Let me amplify on these issues by first turning to water quality data problems
related to EPA's current responsibilities under the Clean Water Act, as well as the
agency's plans for improvements that are applicable to the Subcommittee's interest
in performance-based assessments of water quality improvements.
Potential Solutions for EPA's Water Data Problems Are Being Examined
Previously, we have reported on problems with EPA's discharge permit and non-
point source pollution data and EPA has also acknowledged many problems with its
305(1d) information— status reports submitted by the states on their water quality
monitoring programs. * Besides the use of different monitoring approaches and as-
sessment methodologies, longstanding data problems include inconsistent defini-
tions, unknown or nonexistent quality assurance controls, and incomplete informa-
tion about data collection procedures and sampling sites. As a result, it is difficult
for EPA to combine data to provide a consolidated picture of national water quality
improvements, both spatially and temporally.
EPA has several activities underway to address these problems. The Office of
Water's 305(b) Consistency Workgroup has constructed new guidelines to expand
statesknowledge and use of data to make evaluations of biological conditions of wa-
terbodies and to improve the consistency among state reported information. EPA ex-
pects these guidelines and clarifications to be incorporated into the 1994 state re-
porting cycle, with additional changes likely to follow in 1996. EPA program offi-
cials also indicated that they are making progress in developing guidance for crite-
ria to be used in monitoring, evaluating, and reporting nonpoint source pollution for
rivers.
Further changes in identifying and collecting data are being considered as part of
a strategic planning exercise within the Office of Water to reexamine and redefine
goals expected to be supported by performance-based assessments of water quality
changes. Working with other EPA and federal offices and state water agencies, the
Office is considering four broad goals covering all of EPA's major water quality re-
sponsibilities: (1) protect and enhance public health; (2) conserve and enhance eco-
2 Water Pollution: EPA Budget Needs to Place Greater Emphasis on Controlling Nonpoint
Source Pollution (GAO/T-RCED-92-46, Apr. 7, 1992).
^ A watershed is a hydrologically defined drainage basin that includes not only the water re-
source stream, river, lake, estuary, or aquifer — ^but also all the land from which water dreiins
into that resource.
* Water Pollution: Greater EPA Leadership Needed to Reduce Nonpoint Source Pollution
(GAO/RCED-91-10, Oct. 15, 1990); Water Pollution: EPA Budget Needs To Place Greater Empha-
sis on Controlling Nonpoint Source Pollution (GAO/T-RCED-92-46, Apr. 7, 1992); Water Pollu-
tion Monitoring: EPA's Permit Compliance System Could Be Used More Effectively (GAO/
IMTEC-92-58BR, June 22, 1992); National Water Quality Inventory: 1990 Report to Congress,
United States Environmental Protection Agency, Office of Water, Apr. 1992.
1073
systems; (3) improve ambient water systems ^; £md (4) reduce pollutant loads (toxic
and conventional). The Office of Water is working to establish measurable, perform-
ance based subgoals based on quantifiable administrative and environmental indica-
tors.
These efforts are constructive steps and complement congressional and executive
branch interest in establishing performance goals, indicators, and measurements for
federal progrsmis. However, reaching consensus among EPA, other federal agencies,
and the states on (1) targets for outcome performance that can be measured, and (2)
performance indicators to measure progress is a formidable task that will require
significant coordination and leadership from EPA. Office of Water officials have
stated that severe limitations on staff and resources have restricted EPA's efforts to
develop better techniques for monitoring nonpoint source pollution, help states de-
velop water quality standards, and perform other critical functions identified as
part of its Clean Water Act responsibilities. Still, EPA's water quality budget prior-
ities have been consistently and heavily oriented towards point source problems and
the Office of Water has not identified the program costs associated with its more
comprehensive water quality approach.
EPA Plans to Improve Information Systems
As you know, the Office of Water maintains some of the largest and most impor-
tant national water-related databases, containing millions of monitoring and compli-
ance observations used by EPA, other federal and state agencies, researchers, public
interest groups, and private citizens. Improvements are being planned for four key
databases: (1) Storeige and Retrieval of U.S. Waterways Parametric Data
(STORED — EPA's largest single repository for water quality ssmipling and monitor-
ing data; (2) Ocean Data Evaluation System (ODES)— ia system containing monitor-
ing data on facilities discharging into marine waters; (3) Biological Information
System (BIOS) — a subsystem of S'TORET containing data on aquatic organisms; and
(4) Permit Compliance System (PCS) — the primary system used to track discharge
compliance of regulated facilities.
In an effort to improve users' access and data-sharing with other EPA systems,
the Office of Water is redesigning the STORET, BIOS, and ODES databases. En-
hancements are also planned for PCS on an annual basis to address users' concerns,
such as improved database query capabilities. The approach for improving STORET,
BIOS, and ODES is not targeted at meeting broader management goals l^ing devel-
oped by the Office of Water; instead, heavy emphasis is being placed on better sup-
porting users' existing practices. As a result, the Office of Water may have an im-
proved method for storing data, better user access, and larger capacity for storing
water quality data, but the systems will not necessarily respond to the broader man-
agement goals currently under development. At the conclusion of our work, EPA
officials stated they would begin addressing the broader goals in their redesign ef-
forts.
Resources Not Yet Estimated for Use of Remote Sensing Technologies
EPA's watershed and pollution prevention approach needs comprehensive data
consolidated from many sources to pinpoint water quality chemges and their proba-
ble causes. Accordingly, you asked us to determine how EPA was using remote sens-
ing technologies for water quality purposes, particularly satellite imagery and aerial
photography, and factors affecting their greater usage. In pursuing this matter, we
held discussions with officials from the U.S. Geological Survey because of their re-
sponsibilities and established, well-recognized expertise in water quaJity assessments
and land mapping. We edso talked with an official from the Office of Technology
Assessment who is leading a series of comprehensive assessments of the civilian use
of satellites across the federal government.
According to EPA officials, the agency uses data from remote sensing technologies
for several important applications related to its water quality mission. TTiese in-
clude (1) mapping and analysis of land uses that impact water quality, such as agri-
culture, forestry, and mining; (2) assessments of the physical habitat of aquatic spe-
cies; and (3) detection of pollutant and thermal releases to waterbodies to assist in
water pollution enforcement activities. In addition, U.S. Geological Survey officials
said they used remote sensing data for planning of water quality surveys. EPA offi-
cials noted that severed important benefits accrue from the use of remote sensing
' Ambient water quality refers to the general prevailing physical, chemical, and biological
characteristics of water in a given waterbody. Ambient water quality conditions may or may not
include effluents — treated or untreated waste material discharged into the environment from
sources such as wastewater treatment plants, industrial complexes, or landfills.
1074
technologies, including more complete and timely understanding of land-use
changes and their impacts on watersheds, reduced litigation costs because of photo-
graphic evidence of noncompliance, and safer inspection of toxic accidents and
spills. However, remote sensing cannot be used as a substitute for the direct, labor-
intensive collection and analysis of water samples. For example, remote sensing
technologies cannot measure the quantity or concentration of chemical pollutants in
water bodies. Also, coverage provided by the principal U.S. land resource satellite
with the best resolution capabilities (LANDSAT) is so infrequent — once every 16
days that many short-lived pollution run-off events that follow rainstorms are
missed.
Despite these drawbacks, aerial photography and satellite imagery could comple-
ment other data gathering technique* and provide important information on land
use changes and landscape characteristics affecting watersheds. However, the Office
of Water has not yet developed specific plans or estimated resources for using these
technologies to support its watershed approach.
Interagency Task Force Is Examining Governmentwide Water Quality Data Im-
provements
Because water quality data problems transcend agency jurisdictions and responsi-
bilities, the Intergovernmental Task Force on Monitoring Water Quality (ITFM) has
been established to develop an integrated, voluntary, nationwide strategy for ambi-
ent water quality monitoring. This strategy is expected to provide an organized
process for water-quality monitoring that can meet the objectives of various moni-
toring activities, better integrate existing monitoring efforts, make more efficient
use of available resources, distribute information more effectively, and provide com-
parable data and consistent reporting of water quality status and trends. Member-
ship includes more than 90 representatives from 10 federal agencies, 8 state agen-
cies, one interstate organization, and one Indian nation, with a representative from
EPA's Office of Water serving as the Chairperson. The ITFM expects to submit a
final report to the Office of Management and Budget in December 1994 outlining
recommendations for strengthening coordination of a wide range of water quality
activities, including improvements in monitoring data used for decision-meiking and
program evaluations.
Several working groups from the task force are focusing on data collection and
management problems and expect to make recommendations on data standards,
common definitions, and metadata requirements. ^ Decision papers on many of
these topics are expected to be circulated for review by September 1993. These ac-
tivities, while still in working stages, show promise for identifying and planning
measures to address governmentwide improvements to water quality monitoring,
data collection, and information sharing. However, the federal and state resources
necessary to implement the suggested changes remain undefined, and developing
and implementing a nationwide strategy is an enormous task and will require com-
mitment and cooperation from all levels of government.
Concluding Remarks
In summary, EPA is confronted with formidable challenges in defining and
achieving clean water goals that emphasize watershed management and pollution
prevention approaches. Without adequate resources and funding, these approaches
stand little chance of making progress in improving the nation's water quality. Suc-
cessfully supporting these new approaches requires (1) strategically reexamining the
capabilities needed from its information technology investments to support this new
direction, (2) defining the requisite resources; and (3) securing interagency and inter-
governmental cooperation.
That concludes my statement, Mr. Chairman. I would be happy to answer any
questions that you or other members of the Subcommittee may have about our
work.
* Metadata describe such things as how the data were collected, what limitations exist, and
how the data are stored and can be retrieved.
1075
TESTIMONY OF HEDIA ADELSMAN, WATER RESOURCES PROGRAM
MANAGER, WASHINGTON DEPARTMENT OF ECOLOGY
INTRODUCTION
Good morning. I am Hedia Adelsman, Water Resources Program Manager of the
Washington Department of Ek;ology. I am also a member of the Western States
Water Council (WSWC). I have been asked to testify today on bnehalf of Governor
Mike Lowry, who is a member of the Western Governors' Association (WGA). WGA
and WSWC work together to provide leadership in developing regioned solutions for
water issues in 18 western states, and I have been involved in most of their water-
related activities. I am pleased to represent Washington, WGA, emd WSWC in testi-
fying on Section 602 of S. 1114— STATE CERTIFICATION. Copies of WGA and
WSWC positions are attached.
Like several other states, Washington has significant hydropower development.
We also have an extensive and sophisticated water resource management program
which is used to govern all water uses and related matters. We believe that it is
critical for the states to exercise appropriate jurisdiction with resj)ect to all benefi-
cial uses of water, including hydropower generation. While Section 401 applies to all
activities requiring a federal license or permit, its application regarding hydropower
projects has engendered the context for this proposed clarifying provision of S. 1114.
For this reason, before I discuss the specific Isinguage of S. 1114, I will explain in
some detail the licensing activities of the Federal Energy Regulatory Commission
(FERC), as they have called into question the states' legitimate role in water re-
source management.
BACKGROUND— STATE/FEDERAL JURISDICTION AND HYDROPOWER LI-
CENSING
No one seriously questions the need for the exercise of federal jurisdiction in the
licensing of major hydropower projects. The Federal Power Act (FPA) establishes a
strong federal role, but appears to define a significant state role as well. The act
contains "savings" language that shows deference to state water law in harmony
with Congress' longstanding efforts to assure that states control the appropriation,
use and distribution of water. In the 1940s, when faced with a situation where the
exercise of state law threatened the veto of a large hydropower project, the United
States Supreme Court held, in a case referred to as First Iowa, that FERC's author-
ity to license federal hydropower projects preempts conflicting state control under
the FPA. Previous to this case, the Federal Power Commission had carried out its
programs based on dual federal/state authority, where the Commission licensed
electric generating facilities while the states issued related water rights. Under-
standably, following the decision, the Commission paid less attention to state au-
thority to regulate water resources. However, the dearth of hydropower projects al-
lowed hydro development to proceed with a relative lack of problems. States turned
to informal methods of conflict resolution in most instances, and hydropower devel-
opment under federal law and state water resource management coexisted, albeit
somewhat uneasUy.
In the late 197(fe and early 1980s, federal energy statutes prompted a significant
increase in hydropower permit applications, which magnified controversies caused
by FERC's unwillingness to defer to water use decisions made by state agencies.
TTiese state agencies not only manage and allocate water rights, but also conduct
water planning, protect the public interest in water use, certify compliance with
state and federal water quality laws, verify the structural safety of dams, and carry
out other related functions. Eventually, controversy between FERC and the states
over some of these functions led the Supreme Court to review a case that offered an
opportunity to revisit the First Iowa holding.
In the Rock Creek case, California imposed requirements on a hydropower project
to protect a downstream fishery. These bypass flows were more stringent than
FERC's proposed requirements. "The Supreme Court found that the case presented a
close question, but upheld its earlier First Iowa interpretation. "The Court concluded
that it was better to have the matter of federal/state jurisdiction under the FPA
settled than to have it settled right. The decision disrupted California's comprehen-
sive water management system and displaced its authority to balance competing
water uses.
FERC's position of exclusive jurisdiction has caused other significant problems.
These difficulties have dealt with the imposition of instream flows by FERC and
FERC's refusal to recognize such flows when established by states, the subordina-
tion of water rights for hydro development to other water uses, FERC's failure to
1076
recognize state water planning decisions, and FERC's efforts to subvert the state
water quality certification process, among other things.
One such example of a specific licensing decision by FERC that demonstrates the
need for joint FERC/state jurisdiction over hydrolicensing occurred in the state of
Idaho in June 1992. Idaho had determined that protection of the stream environ-
ment in the Falls River in the eastern part of the state was necessary to preserve
outstanding fish and wildlife, recreation, geologic and aesthetic values. The state
contended that FERC should not license a hydroproject on a protected stream. After
FERC licensed the Marysville project on the river a penstock failure caused tens of
thousands of tons of sediment to wash into what Idaho Governor Cecil Andrus
called "one of the premier fishing streams of the nation." Governor Andrus said, "It
is my belief that the cause of the failure was due, in large part, to FERC's remote-
ness and lack of oversight and supervision of construction activities of the licensee.
. . ." He concluded, "FERC's actions in this matter have done little to impress me
that it is qualified to assure protection of public values. To the contrary, not only
was the setting of bypass flow conditions and failure to give due recognition to exist-
ing water rights and state water quality stemdards a comedy of errors, but now we
have an ecological disaster on our hands." This disaster is in the process of being
cleaned up.
OVERVIEW OF CLEAN WATER ACT SECTION 401.
Another area of dispute has been the certification of hydropower projects under
Cleem Water Act (CWA) Section 401. The states have viewed the certification proce-
dure as an appropriate recognition of state jurisdiction over water resources, a view
which they are convinced is consistent with congressional intent. FERC, and most of
the hydropower industry, have taken a much narrower view of the state role. I am
here today to describe why a simple clarifying amendment like Section 602 of S.
1114 is warranted.
CWA Section 401 authorizes states to deny certification of a federally permitted
or licensed activity if the activity would result in violation of state water quality
programs. In the alternative, a state is allowed to certify that an activity, such as a
hydropower project, may be carried out in harmony with state programs, provided
certain conditions are met. The breadth of state certification is based on "the appli-
cable provisions of [CWA] Sections 301, 302, 303, 306, and 307 . . ." The heart of the
certification is determined by Section 303, which deals with state water quality
standards.
Application of the state certification process has proven difficult over time. While
there is some agreement that the states should have an important role under Sec-
tion 401, FERC and its hydro-applicants contend that a state must act based on
narrow, chemical water-quality parameters. They also contend that state determina-
tions should be made quickly, on a "thumbs-up or thumbs-down" basis.
Challenges to the scope of state review have led to court battles. While some deci-
sions have held against an expansive state role under CWA Section 401, others have
held in favor of the states. For example, a recent decision from the state of Wash-
ington Supreme Court, as I will explain, correctly held that the breadth of state cer-
tification under Section 401 should not be limited only to chemical parameters.
Rather, the court found that the Washington Department of Ekiology could condition
its certification of a hydropower project on maintenance of an instream flow in a
portion of the river that would be aiffected by the project. This instream flow re-
quirement was found to be a proper condition in the water quality certification. In
other words, a water quantity-based condition was allowed as part of the Section 401
water quality certification.
S. 1114 Section 602 would clarify that the result in the Washington case is appro-
priate in other states, by allowing states to certify whether an activity complies
with state water quality standards and provides for the protection, attainment, and
msiintenance of designated uses included in the standards. Such certification gener-
ally requires a more complex approach than a simple determination of whether the
chemical parameters of a state's water qusdity standards would be violated. States
maintain that they already have the authority to meike this t5T)e of certification
under Section 401 as it is currently written. Nevertheless, in light of conflicting
court decisions, the amendment contained in S. 1114 Section 602 would settle this
area of conflict by clarif5dng congressional intent that states should act in partner-
ship with FERC to protect the quality of the nation's water and related values and
uses. Given the states' history in dealing with FERC on hydropower licensing, this
cleirification should be made by Congress.
1077
WASHINGTON EXPERIENCE
Specifically, the Washington Supreme Court held that the FPA does not preempt
the Washington Department of Ecology from including minimum streamflow condi-
tions in a CWA Section 401 certificate issued in conjunction with a hydropower
project licensed by FERC. In that case, the City of Tacoma and the Jefferson County
Public Utility District No. 1 planned to build a hydroelectric facility on the
Dosewallips River. The applicants were required to obtain a Section 401 certifica-
tion, which was granted but conditioned upon maintenance of a minimum stream-
flow in an affected portion of the river. The applicants argued that federal law pre-
empted the state from establishing the streamflow requirement, and that in any
event my department was outside its authority because its suggested stresunflow
was calculated to enhance, rather than preserve, the fishery.
The court found that the CWA authorized Washington to include baseflow re-
quirements in the Section 401 certificate to ensure compliance with state water
quality standards. The applicant argued that the standards, and therefore the scope
of the Section 401 certification, should be limited to control of pollution discharge,
and could not include streamflow levels. We maintained that the Section 401 certifi-
cation was an appropriate method of carrying out a provision of state law which
provides that "perennial rivers and streams... shall be retained with baseflow neces-
sary to provide for preservation of wildlife, fish, scenic, aesthetic, and other environ-
mental values. . . ." The court agreed that the streamflow conditions were neces-
sary to assure compliance with state law, as envisioned under CWA. The court said,
"The Section 401 . . . certificate may include conditions to enforce all state water
quality-related statutes and rules. . . . Inasmuch as issues regarding water quality
are not separable from issues regarding water quantity and base flows, we . . . hold
that [Washington law on base flows] qualifies as an 'appropriate requirement of
state law for purposes of [CWA] Section 401."
The court considered the contention that the FPA preempted the state's action.
The FERC applicants relied on the U.S. Supreme Court's line of decisions beginning
with First Iowa and ending with Rock Creek. The Washington Supreme Court distin-
guished these cases, noting that they dealt with the scope of powers saved for states
under FPA Section 27, whereas in issuing a CWA Section 401 certificate Ecology de-
rived its authority to act directly from provisions of federal law. The court noted
that CWA Section 401 "completely alters the legal context and renders untenable
[the applicant's] preemption argument." The court continued, "When the FPA and
the [CWA] are considered together, the comprehensive scheme that emerges is one
in which Congress left room for the state to supplement the FPA through the
[CWA] Section 401 certification process." "Simply put," the court said, "Federal pre-
emption . . . does not apply . . . where a state is acting to fulfill its federally man-
dated role." This ruling is consistent with the Department of Ecology's application
of the law, an application which has proved successful. Several streams in the state,
some which had been dewatered for up to 50 years and from which salmon popula-
tions had disappeared, now have water in them because of state imposed bypass
flow requirements. This enhanced fish habitat, especially the creation of spawning
areas, has allowed anadromous fish populations to return. The presence of salmon
in previously dry streams is consistent with current major efforts in the Northwest
to restore aquatic habitat and prevent further listings of endangered species.
COMMENTS ON OPPOSITION TO S. 1114 SECTION 602
Opponents to Section 602 of S. 1114 may argue that it is unsound because federal
preemption is necessary in hydropower licensing so that FERC can balance, as a
single agency, the many conflicting public uses involved with hydropower produc-
tion. When examined in the context of western water law and management, howev-
er, this argument, rather than calling for fair treatment, calls for special treatment
for energy production uses only. States have carried out the primary role in water
resource management in the West since the region was settled. Congress has repeat-
edly deferred to state authority in this regard. As federal interests have increased,
it is quite common for state water rights applicants to also be required to obtain
various federal permits to exercise their water rights. This system of dual jurisdic-
tion enables both federal and state governments to protect their legitimate inter-
ests. It represents a S3rstem that functioned well with hydropower Licensing before
the First Iowa decision was handed down. Even today, in most instances, hydropow-
er applicants come forward to obtain state water right permits because they under-
stand the protection that those permits provide under state law. Opponents of dual
jurisdiction seem unable to present evidence that such a system is unworkable, or
inimical to the public interests.
1078
To argue that states should now have a very limited role, under Section 401 of the
CWA, is to say the state has virtually no legitimate interest in this area. Far from
being the case, this argument simply overlooks the ability of state water manage-
ment efforts to balance the conflicting goals of protecting both private rights and
the public interest for the greater good. Given the closeness of state regulators to
the issues and watercourses involved, and the fact that water uses are interdepend-
ent because each use affects the quality and quantity of water available for other
uses, states are ideally situated to exercise significant and broad authority to assure
that hydroprojects comply with state water quality programs.
Opponents may also argue that Section 602 of S. 1114 is unnecessary because
state interests are protected under FPA Section 10(a), which gives FERC the respon-
sibility to balance many public uses by ensuring that licenses are best adapted to a
comprehensive plan for the affected waterway. Also, they may assert that, under
the Electric Consumers' Protection Act (ECPA), FERC must determine whether a
project is consistent with state comprehensive water planning. The difficulty with
these assertions is that FERC does no comprehensive planning and is not equipped
to adequately consider or protect all comp)eting water uses and interests. FERC has
failed to give the tjije of deference to state water planning that was envisioned
when ECPA was passed. It considers state comprehensive water plans in licensing,
but does so only on an equal basis with many other documents submitted for the
record in hydropower licensing cases. Thus, neither FERC's "comprehensive plan-
ning" responsibility nor the ECPA amendments are adequate substitutes for compli-
ance with state water allocation or quality certification procedures.
In reality, FERC does not have at its disposal, nor can it develop and review, the
extensive state water rights records, hydrologic and water quality-related data, and
other information necessary to make informed decisions regarding water quality
and water needs and uses in a state. Such information can only be available to
FERC if every affected water right holder files a protest in a FERC proceeding. The
FERC licensing process is clearly not structured to accommodate the thousands of
parties that would have to participate in such a proceeding.
As to the argument that FERC is a necessary arbiter in dealing with possible
interstate conflicts, such conflicts are relatively rare. The great majority of hydroli-
censing decisions affect local interests and cause or have the potential to cause con-
flicts that can be resolved through compliance with state water management proce-
dures. Where interstate problems arise with respect to large projects, they can be
settled through proceedings similar to equitable apportionment or interstate com-
pacts, which are understood well by western water officials, but not by FERC.
CONCLUSION
Policy statements of WGA and WSWC recommend that legislation reauthorizing
the CWA include an amendment to Section 401 to ensure that any federally li-
censed activity resulting in an alteration or hydrological modification of surface
waters be proceeded by Section 401 certification that assures compliance with all
provisions of state law. Section 602 of S. 1114, as a clarifying amendment to current
Section 401 language, would essentially accomplish this result, and therefore is sup-
ported by WGA, WSWC, and the state of Washington. Under it states would retain
primary jurisdiction over water quantity issues and, under the CWA, jurisdiction
over the integration of water quantity and quality considerations through the Sec-
tion 401 certification process. The CWA and FPA should work together to encourage
cooperation, rather than confrontation, in the process. A balanced and cooperative
approach is needed.
The western states recognize the linkage between water quantity and water qual-
ity and the fundamental role these considerations play in effective and comprehen-
sive water management. As Senators Baucus and Chafee have rightly recognized in
the provisions of this bill which address state-based watershed plsinning, a more ho-
listic means of managing our nation's water resources is necessary. States, by virtue
of their primacy over water resources and their extensive experience with, data on,
and understanding of the existing rights and public values associated with their
water resources, have rightly taken the lead in this area. The clarification of Sec-
tion 401 included in S. 1114 is fundamental to the success of any comprehensive
water management effort, including the state-based watershed planning program in-
cluded in this bill. Without the assurance provided by Section 401 that states will
have a role in assuring federal compliance with all provisions of state law, there is
no means of ensuring that watershed planning efforts, as well as other state water
qusJity and quantity management activities, are recognized and not disrupted arbi-
trarily. We support this amendment and urge that it be enacted as part of the CWA
reauthorizing legislation.
1079
Western Governors' Association
Resolution 93-009
SPONSOR: Governor Andrus
SUBJECT: Reauthorization of the Clean Water Act^-Section 401
A. BACKGROUND
1. Clean water is essential to the health and quality of life of the citizens in the
arid western United States. Since water is a scarce and precious resource in the
West, any alteration, modification or degradation of water quality must be man-
aged with a full understanding of local social, environmental and economic in-
terests.
2. Over the past twenty years it has become evident that water quantity issues —
specifically water resource allocation and the determination of beneficial uses
are intricately related to the maintenance of water quality, specifically the pro-
tection of beneficial uses.
3. Western states have developed a high level of expertise in integrating water
quality criteria with their longstanding authority in allocating water resource
through legislative action, planning strategies, and regulations to ensure protec-
tion of water quality while promoting water conservation and reuse.
4. Hydrological modification and alteration of western waters by federally li-
censed hydroelectric projects often result in water quality degradation, since
under the Federal Power Act decisions integrating water quantity and water
quality are often made by bureaucrats in Washington, D.C. that are unfamiliar
with, and insensitive to local environmental and economic interests.
5. Reauthorization of the Clean Water Act is now being considered in Congress.
The experience of western states in managing programs under the Clean Water
Act is that the Act needs to be expanded to ensure that the states and not the
federal government make crucial decisions on integrating water quantity and
water quality in the context of federal licensing actions.
6. Presently under Section 401 of the Clean Water Act, the states have explicit
authority to issue or deny water quality certification for federally licensed ac-
tivities that result in discharge of pollutants to state waters. In order to ensure
that the integration of water quantity and water quality issues occur at the
state level, it is necessary to expand Section 401 of the Act to include water
quality certification for hydrological modification and edteration of state waters.
B. GOVERNORS' POLICY STATEMENT
1. The states should retain primary jurisdiction over both water quantity and
water quality issues through the water quality certification process set forth
under Section 401 of the Clean Water Act. The Clean Water Act reauthoriza-
tion should include an amendment to Section 401 that would ensure that any
federally licensed activity that results in an alteration or hydrological modifica-
tion of surface waters must be preceded by a Section 401 certification that en-
sures state authority to determine the integration of water quantity and water
quality issues.
C. GOVERNORS' MANAGEMENT DIRECTIVE
1. WGA staff is directed to transmit this resolution to the appropriate committees
of Congress, the President, the Administrator of the Environmental Protection
Agency, and the western congressional delegation.
2. WGA is to monitor this legislation and implementing regulations and to work
with the appropriate public policy organizations in support of the governors'
policies.
POSITION OF THE WESTERN STATES WATER COUNCIL
BACKGROUND
Clean water is essential to the quality of life and health of the citizens of the
nation. This is particularly true in the arid West, where water is a scarce and pre-
cious resource that must be managed considering all social, environmental, and eco-
nomic values and needs. Because of their unique understanding of these needs,
states are best able to manage the water within their borders. Much progress has
occurred under the Clean Water Act (CWA) toward the goal of controlling water
pollution. Western states have made great strides in integrating water quality and
water quantity decision-making and have developed legislative and planning strate-
69-677 0-94-35
1080
gies for promoting these goals as well as promoting water conservation and water
reuse.
The CWA is now being considered in Congress for reauthorization. The outcome of
the debate will affect the ability of state, federal, local, and tribal governments to
protect water quality, and could affect the ability of state governments to adminis-
ter water rights. The Western States Water Council encourages the reauthorization
of the CWA based upon the following principles. As issues become more clearly de-
fined, the council will provide further comments in future position statements.
CROSSCUTTING ISSUES
There are two issues of importance, pollution prevention and watershed manage-
ment, which deserve special consideration during the CWA reauthorization process,
because they potentially impact all programs authorized by the CWA.
POLLUTION PREVENTION
Pollution prevention has recently received a great deal of attention, but needs to
be given more emphasis. The concept of pollution prevention cuts across all CWA
programs by offering a means of avoiding complex and costly "command and con-
trol" approaches to water pollution control and clean up. Expanded funding should
be provided to states for development of pollution prevention programs, and incen-
tives such as greater flexibility in using existing grants should be provided to states
with strong pollution prevention programs.
WATERSHED MANAGEMENT
The watershed approach offers great opportunities. It allows focus on the most
critical problems that affect the watershed while eliminating duplication and incon-
sistency between regulatory entities. It allows public involvement to be focused on a
defined area where results can be measured. It has the potential to foster coopera-
tive problem solving where the important players can help each other solve mutual
problems in a way that can result in an improved environment at less cost. It pro-
vides a feasible means of developing an "ecosystem approach" relative to the protec-
tion of water quality and related values. To encourage these benefits the CWA
should embody the following principles:
1. States should be encouraged, but not mandated, to utilize a watershed approach
for water quality and resources management.
2. Any absolute mandate contained in the CWA should be limited to water quality
concerns.
3. While states should be allowed to craft their watershed management to meet
their needs, the goals and the scope of such programs must be clearly defined. This
definition is essential since "watershed management" has many different meanings
to different people. In general, basin-specific goals and programs should be selected
and prioritized on the basis of risk to quality-of-life, human health, and ecological
concerns.
4. Watershed management should emphasize performance, not planning. A uni-
form set of best management practices should not be mandated. States should be
allowed to identify appropriate individusd strategies to be applied within, and for, a
given basin.
5. There should be no interference with the rights of the states to manage alloca-
tion of their water supplies.
6. The internal structure of state government should not be mandated. States
should be allowed to use existing authorities and programs or set up advisory com-
mittees and watershed councils to meet their needs as they understand them.
7. Flexibility should be provided in both the procedural and substantive require-
ments of clean water programs to meet the goals of improving water quality and the
environment as soon £is possible.
8. EPA should provide technical, financial, and research assistance. It should not
mandate any particular approach or try to mandate its preferred methods.
9. Federal funding should be made available to the states to support watershed
management. The funding should not be tied to following processes specified by
EPA. There should be sufficient flexibility in funding to allow states to deal with
watershed problems according to the priorities they have identified.
FUNDING
1. The minimum funding at the national level for the state revolving fund (SRF)
should be $2.4 billion annually for at least five additional years beyond the current
authorization to meet the original funding commitment of the CWA. Funding levels
must be restored in response to changes from the "stimulus package" which caused
1081
a reduction of funding to unacceptable levels. This funding is also needed to provide
adequate assistance for new needs created by the 1987 reauthorization, such as con-
trols on non point source pollution, stormwater, and toxics. Adequate funding
should also be provided to meet the water quality needs of small communities and
rural areas. A grant program or combination loan/grant program with loan terms
greater than 20 years should be implemented through new funding and/or in a
manner that does not deplete SRF assets.
2. CWA Section 106 funding should be increased to a level that enables states to
maintain effective water quality planning, ambient monitoring, permitting, and
compliance. Funds available to states under CWA Sections 104, 319, and any new
funding for pollution prevention and watershed management should be combined
into Section 106, and a single grant should be awarded to each state. States should
then have flexibility in targeting the expenditure of funds.
3. For any new federally mandated programs, new federal funds should be provid-
ed. The Ckjuncil opposes any increased matching requirements for federal funds.
4. In providing SRF financial assistance to municipalities, federal requirements
other than those specified by CWA Title VI should not be imposed. Once federal
capitalization of the program ceases, EPA oversight should be limited to ensuring
that the SRF is maintained. Federal crosscutting laws associated with the SRF pro-
gram should be eliminated. Costs associated with the purchase of land, easements,
and rights of way should be eligible for SRF funding.
5. The 4% limitation on SRF administrative costs should be based upon the au-
thorized level rather than the appropriated capitalization grant amount, and provi-
sions should be made for a minimum amount of federal assistance per state for ad-
ministrative costs.
6. Separate funding and administrative requirements should be provided for any
drinking water state revolving fund program. Money allocated for the drinking
water fund should be from a source separate from the wastewater SRF.
7. Alternatives to typical "command and control" programs can be promoted
through creative funding incentives. The elimination of "cross-cutter" requirements
for states with 90% of point sources meeting secondary treatment or for states with
no or minimal National Pollution Discharge Elimination System (NPDES) permit
backlogs are two examples.
NON-POINT SOURCE POLLUTION CONTROL
1. Maximum flexibility should be provided to states to effectively implement non-
point source (NPS) pollution control programs. NPS funding should enable states to
balance program elements and focus, as needed, on technology development and
transfer, monitoring, assessment, demonstrations, local community technical assist-
ance, and institutionalizing non-traditional water quality management programs.
2. NPS plans, demonstration projects, and program development as envisioned in
the 1987 CWA amendments are not yet complete. To produce needed results, states
must have the ability to use a significant portion of their CWA Section 319 funds to
establish and maintain long term, consistent programs as envisioned by the 1987
amendments.
3. A provision should be added to the CWA to ensure that Section 319(k), requir-
ing federal agency activities to comply with state NPS management plans, is imple-
mented.
4. EPA should not define national, mandatory management practices to control
agricultural runoff and other forms of NPS pollution. States, however, should be re-
quired to control such pollution where it causes violation of water quality standards.
Both the management practices and the specific waters affected should be defined
by the states. A voluntary approach should be acceptable if the states have author-
ity to enforce mandatory requirements where water quality standards violations
occur. The irrigation return flow exemption from the NPDES should not be rescind-
ed.
5. Federal agencies should be required to develop incentives for implementing
NPS controls on federal lands and for federally supported activities. For example,
support payments could be increased to farmers with effective conservation plans
and bonus acreage awarded to lumber companies with successfully implemented
NPS plans.
WATER QUALITY STANDARDS
1. The states must have the primary role in establishing and interpreting water
quality standards that meet the intent of the CWA. EPA should be required to pro-
vide necessary criteria development guidance to states in a clear and timely
1082
2. The CWA should clearly acknowledge that municipal stormwater systems are
to implement best management practices to the maximum extent practicable with
the goal of meeting water quality standards.
3. The various water quedity assessment requirements should be integrated into a
single, streamlined assessment under CWA Section 305(b)- The assessment require-
ments should not be overly burdensome and the 305(b) assessment should be pre-
pared every three to five years rather than every two years.
4. The states should continue to review and revise water quality standards on a
triennial basis. EPA should continue to be responsible for approving adopted state
water quality standards to assure interstate compatibility and compliance. However,
the application of water quality standards in support of state water quality protec-
tion goals must continue to be the prerogative of the states.
5. States must be allowed to establish water quality standards flexible enough to
account for natural variations in water quality and background levels.
6. Not all waters should be classified as fishable, swimmable. For example, the
CWA should be amended to recognize the unique nature of constructed drains and
canals and allow water quality standards to be set that recognize the benefits pro-
vided by these waterways (many of which would not exist without the agricultural
activity) and the nature of agricultural operations and their ability to reduce pollut-
ants from non-point sources. In such cases, protection of receiving waters for desig-
nated benefici^ uses should be assured. Also, there are waters which historically,
for natural reasons and causes, cannot meet fishable/swimmable criteria.
EFFLUENT DOMINATED WATERS/WATER REUSE
1. Natural channels are often needed to transport reclaimed water to an area of
reuse. Reuse of wastewater is an increasingly important source of water in the
West. Effluent dominated waters also support riparian habitat. In the CWA reau-
thorization, Congress should recognize the interrelationship of such waters and
water quality standards, riparian habitat, and water rights issues, and should devel-
op policies that support the objectives of state and federal law, by allowing estab-
lishment of appropriate water quality standards, based on intended uses, for natured
conveyance systems and man-made waterways that discharge flows to waters of the
United States.
2. A policy statement should be added to the CWA such as: It is the policy of Con-
gress to allow states to encourage the reuse of treated wastewater, as a component
of water quality control as well as comprehensive water management.
3. The CWA reauthorization should allow the permitting authority maximum
flexibility in establishing requirements pertaining to effluent dominated waters and
ephemeral and intermittent streams based upon net environmental benefit under
applicable law. States should be encouraged to adopt water quality standards for
reclamation projects to control toxicity, nutrients, and other water quality param-
eters to provide for reasonable protection of designated water uses. EPA should
assist with research to establish safe effluent discharge parameter levels for human
contact water uses.
FEDERAL/WESTERN STATE ISSUES
1. Water pollution control programs are administered most efficiently and effec-
tively at the state level. Delegated state programs should be approved if they meet
the goals, objectives, £md intent of federal statutes. They should not be less stringent
than, but need not be identical to, EPA regulations, policies, or procedures.
2. CWA Sections 510(2) and 101(g) are clear expressions of Congressional intent
regarding deference to the states' role to allocate quantities of water. This funda-
mental principle of deference, which is manifest in many other federal environmen-
tal statutes, must not be weakened in the context of the CWA reauthorization.
3. Virtually all western states have in place mechanisms to establish and main-
tain instream flows. Statutory requirements in the CWA for maintenance of such
flows would affect water rights and impact water management in the West. No such
requirements, either explicit or implicit, should be included in the CWA.
4. Additional federal research and technical assistance are needed on the follow-
ing topics importent to western states: turbidity, suspended solids, physical integrity
of the water body, biotic methods applicable to ephemeral and intermittent waters,
definition and regulation of ephemeral and intermittent waters, federal land and fa-
cility compliance with state water quality standards, mining activities as they relate
to storm water, and turbidity.
5. To maintain an appropriate federal/state partnership, it is essential that state
officials have a meaningful voice in EPA policy development, particularly in the
early stages of such development before irreversible momentum leads toward pre-
1083
scriptive programs. State participation in EPA policy making should not be subject
to the Federal Advisory Committee Act or the Administrative Procedures Act.
WETLANDS
1. The existing CWA Section 404 regulatory program must be improved. Sole au-
thority for administration of the program should be vested in one agency. The pro-
gram should encourage and enable states to assume full or partial permitting au-
thority. Financial support should be provided to states that assume the federal pro-
gram. The program should include research into and development of techniques to
assess wetlands functions and values.
2. The continuing loss and degradation of the nation's wetlands base is unaccept-
able. A no-net-loss policy is an important step toward reversing that trend. Such a
policy, however, must provide flexibility and be implemented at different rates and
in different ways in various regions of the country to reflect regional wetlands
needs, conditions, and types.
3. National wetlands policy should lend itself to implementation through state, re-
gional, and local plans and programs, and recognize individual state and local plan-
ning and regulatory efforts to preserve and protect wetlands.
4. The diverse needs and types of wetlands nationwide, and concern for human
£md economic impacts, will make it difficult to achieve a no-net-loss goal. To achieve
such a goal, a broad range of non-regulatory programs (such as subsidies and tax
incentives, public acquisition, conservation easements and leases, and other non-pu-
nitive approaches) and regulatory programs will be required.
GROUND WATER
1. A national regulatory program for ground water would be inappropriate and
should not be part of the CWA reauthorization. Ground water protection and man-
agement are primarily the responsibilities of state and local governments. Such gov-
ernments must have the flexibility to develop and continue existing programs ap-
propriate for their own circumstances, including strategies and mechanisms appro-
priate to assure ground water quality protection and preserve their ability to allo-
cate, manage, and protect rights to use ground water.
2. The federal role in ground water management should be to provide technical
assistance, gather data, and promote research to support state programs. Also, any
federal funds that are provided for ground water protection should be made avail-
able to support all phases of program development and implementation of state
ground water quality programs, not just program development.
3. Federal agencies should be required to conduct their activities in accordance
with, and without duplication of, state and local ground water protection programs.
4. EPA's Comprehensive State Groundwater Protection Program strategy is an ac-
ceptable approach to ground water protection to the extent that it is carried out on
a voluntary basis. This approach provides flexibility to address the most pressing
ground water problems within a given ground water basin.
STORMWATER
1. Existing requirements for NPDES permits applicable to storm water discharges
are often unrealistic and may, to a large extent, be unachievable, especially in arid
areas. The CWA should clarify previous congressional intent that municipal storm-
water dischargers are to implement best management practices and should not nec-
essarily be subject to end-of-pipe treatment standards. Best management practices
shall be developed through public participation and be designed to ensure that con-
trol of stormwater discharge is consistent with regulatory implementation of man-
dated stream standards. State regulatory agencies are encouraged to establish addi-
tional monitoring and performance criteria to assure meeting goals of watershed
management programs.
2. The statutory deadlines for implementation of the stormwater program should
be revised to establish realistic deadlines for permit issuance and to accommodate
phased implementation of stormwater regulatory programs.
3. Recognition should be made of the tremendous responsibility placed upon states
by federal stormwater regulations. Significant additional federal resources should be
made available to avoid major cuts in other programs.
4. Stormwater pollution controls may include small ephemeral ponds and injec-
tion wells as part of on-site retention requirements which could result in significant
pollution of ground water. Impact of these requirements may adversely affect the
overall water management process. States need the flexibility to design optimum
water quality/water quantity interfaces.
1084
ANTI-BACKSLIDING
1. The CWA should be revised to clarify the application of anti-backsliding. EPA's
inaction on guidance or regulations regarding anti-backsliding has been detrimental
to the permitting process, resulting in delaying permits or causing less-restrictive
permits to be written.
2. The CWA should be amended to allow removal or modification of effluent
limits in cases where the limit is determined to be unnecessary because of errors in
calculation, publication of new scientifically valid information, or determination
that the substance being limited is not present in the discharge.
CLEAN LAKES
1. CWA Section 314 funding should be increased to a level that recognizes the key
role the Clean Lakes Program plays in managing the nation's lakes for maximum
beneficial use and enjojonent.
2. Appropriations should be sufficient to support meaningful efforts to continue
assessment and identification/implementation of methods and procedures to restore
lake quality.
COMPLIANCE WITH STATE LAW UNDER CWA SECTION 401
States have primary jurisdiction over water quantity issues and should retain pri-
mary jurisdiction under the CWA over integration of water quantity and water
quality considerations through the water quality certification process set forth
under Section 401. The CWA reauthorization should include an amendment to Sec-
tion 401 that would ensure that emy federally licensed activity that results in an
alteration or hydrological modification of surface waters must be preceded by a Sec-
tion 401 certification that ensures compliance with all provisions of state law.
TRANS-BORDER AREAS
EPA needs the authority, responsibility and resources to deal with water quality
issues in trans-border areas. Also, mechanisms should exist for better coordination
and participation between EPA, the states, other agencies, and our neighboring na-
tions.
WATER QUALITY CONTROLS ON TRIBAL LANDS
In order to prevent voids in regulation, state water quedity standards should be
effective on Indian lands until replacement standards have been adopted by tribal
governments which have been designated as states, or promulgated by EPA.
TESTIMONY OF ROGER WOODWORTH, PRESIDENT, NATIONAL
HYDROPOWER ASSOCIATION, WASHINGTON, DC
My name is Roger Woodworth. I am Strategic Counsel to the President of the
Washington Waterpower Company, an investor-owned utility serving 260,000 elec-
tric customers with facilities in the states of Washington, Idaho and Montana, and I
am pleased to appear before you today in my capacity as President of the National
Hydropower Association ("NHA"). NHA is a non-profit organization founded in 1983
to be a national voice for the hydropower community in maintaining the viability of
hydropower technology as a low-cost, clean, reliable and safe source of renewable
energy. NHA's members represent the broad spectrum of the hydropower industry,
including project owners and operators — public utilities, investor-owned utilities, co-
operatives, municipalities and independent power producers — as well as equipment
manufacturers, engineers, and legal and consulting firms from all regions of the
United States. The hydropower industry serves over 40,000,000 customers in 41
states. Most of these customers are residential customers; thus, approximately
100,000,000 Americans benefit directly from hydropower generated electricity. At
the outset, I should also note that this testimony has been prepared in consultation
with and endorsed by the Northwest Hydroelectric Association.
NHA is pleased to have this opportunity to present our views on the reauthoriza-
tion of the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seg., as proposed in S.
1114, the Water Pollution Prevention and Control Act of 1993. NHA commends the
subcommittee for holding this hearing today to focus on the critical water quality
certification process under Section 401 of the CWA, 33 U.S.C. § 1341.
As advocates of hydroelectric power generation, the members of NHA strongly be-
lieve in the protection of clean water and support reauthorization of the CWA. The
CWA, as currently implemented in conjunction with the Federal Power Act
("FPA"), 16 U.S.C. § 791 et seg., maintains a sound balance between environmental
1085
concerns and energy policies at both the state and federal levels. NHA submits that
any reauthorization of the CWA must continue to protect that existing balance.
DESCRIPTION OF THE HYDROPOWER INDUSTRY
The hydropower industry is committed to the production of energy for the Nation
in a manner consistent with the stated goals of the CWA "to restore and maintain
the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C.
§ 1251(a). Construction and operation of hydropower projects can have adverse im-
pacts on the environment, but effects on water quality tend to be minor and readily
controlled. Although the water that hydropower projects use to spin turbines to gen-
erate electricity is returned to the waterway without added chemicals or other
wastesl water quality impacts (water temperature and dissolved oxygen) may result
from water storage and the regulated release of flows. Fortunately, techniques are
generally avail-able to control these problems and assure the maintenance of water
quality consistent with state standards under Section 401 of the CWA. As the
United States Environmental Protection Agency ("USEPA") has acknowledged, hy-
dropower projects can, in some instances, enhance water quality through the regula-
tion of reservoirs and downstream water flows. U.S. Envtl. Protection Agency, Guid-
ance Specifying Management Measures for Sources of Nonpoint Pollution in Coastal
Waters (Jan. 1993).
Moreover, hydropower has a wide variety of environmental and other benefits for
our Nation. Our projects utilize an endlessly replaceable inflation-free fuel — falling
water supplied by rain and snow. Air quality is maintained through this emission-
free generating technology. In fact, hydropower resources have the potential to pro-
vide a greater portion of the Nation's electric power needs without any additional
emissions of carbon. Assuming appropriate measures are available to address other
environmental concerns, the development of additional hydropower resources from
existing projects and non-power dams could offset carbon emissions by six (6) million
metric tons per year by the year 2000.
Hydropower facilities constitute nearly twelve percent (12%) of the Nation's total
energy capacity, representing 85% of all renewable energy generation. This critical
portion of our energy supply is frequently provided in multi-purpose projects that
provide additional benefits by serving a wide array of public needs, including,
among others, irrigation, flood control, navigation, municipal and industrial water-
supply, fisheries improvement, and recreation. Not surprisingly, this clean and envi-
ronmentally sound source of generation is preferred by American consumers by a
two (2) to one (1) margin.
As an active participant in the use and enjoyment of the Nation's waterways,
NHA applauds the general approach adopted in S. 1114 for maintaining the ecologi-
cal integrity of our Nation's waterways and surrounding watersheds. This compre-
hensive approach to protecting water quality is in keeping with the lessons learned
by the hydropower industry and others in our years of stewardship over these im-
portant national resources. NHA is concerned, however, that proposals to license
and construct new hydropower projects and proposals to relicense existing hydro-
power projects will be subject to duplicative and conflicting regulation. 'The holistic
approach of S. 1114 must be expanded to account for the integration of equally vital
national interests represented by the comprehensive authority that Congress has
granted federal agencies in other federal statutes — most particularly for our indus-
try, the FPA.
SECTION 401 WATER QUALITY CERTIFICATION
Although hydropower introduces no pollutants into our waterways, the operation
of our federally licensed projects in waterways has been deemed by the Federal
Energy Regulatory commission ("FERC") and the courts to be subject to federal
water pollution control, primarily through the Section 401 water quality certifica-
tion process. Indeed, the CWA provides that "[n]o license or permit shall be granted
until the certification required by (Section 401) has been obtained or has been
waived." 33 U.S.C. § 1341(a)(1). Thus, certification from a state water quality agency
of compliance with state water quality standards is a precondition to obtaining a
license under the FPA and the water quality certification review serves to supple-
ment the comprehensive review of any proposed new or existing project conducted
by FERC under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321
et seg, and the comprehensive development standards of the FPA. Early in the li-
censing process, the state water quality agency stipulates what conditions will be
included in any license issued to protect water quality.
In rendering a licensing decision, FERC must consider all beneficial public uses of
a waterway, including, among others, energy conservation, navigation, irrigation.
1086
flood control, water quality, use and supply, fish and wildlife protection, recreation-
£d opportunities and other aspects of environmental quality as well as power needs.
See 16 U.S.C. § 803(aXl). As recently as 1986, Congress — after requiring enhanced
consideration of state and federal resource agency recommendation — reaffirmed
FERC's role as the final arbiter of what constitutes comprehensive development of a
waterway in connection with hydropower projects under FERC's jurisdiction. See
Electric Consumers Protection Act, Pub. L. No. 99-495, 100 Stat. 1243 (1986). State
water quality certification stands as an exception to the comprehensive review of all
factors affecting the public interest in hydropower development that Congress has
entrusted to FERC.
Inasmuch as the heart of the licensing decision under the FPA revolves around
the various and often competing uses of a stream, Section 401 needs to be carefully
defined, interpreted, and applied to avoid seriously disrupting this comprehensive
assessment of the broad public interest mandated by Congress in the FPA. State
certification under Section 401 that stipulates the conditions to maintain and pro-
tect water quality, a role the current text of Section 401 fully authorizes, provides
important input to the process, but does not significantly intrude on the broad judg-
ment balancing the uses of the waterway that is required under, the FPA. When
properly conducted to assure compliance with numeric and narrative water quality
criteria, this state function is rigorous but focused and provides a proper prelimi-
nary qualification from which the broader issues of competing federal, state and
other pubic uses can proceed.
Section 602 of S. 1114 proposes an expansion of Section 401 certification authority
beyond maintenance of water quality standards to include authority to "allow for
the protection, attainment, and maintenance of designated uses included in the
standards." This provision would allow states to prohibit or impose conditions on
any use they deem inconsistent with their designated uses even in instances where
the proposed use would otherwise maintain water quality in compliance with state
standards. Indeed some states have erroneously interpreted their current authority
under Section 401 to include this expansive authority over use of the waterway with
frequently serious ratifications for the hydropower industry. Although we appreci-
ate a state's desire to control both the quality and the use of waterways in that
state, we also appreciate the need to protect the critical federal interests involved in
the use of interstate waters. We believe a federal/state cooperative approach is re-
quired here to avoid unnecessary and counterproductive intergovernmental tension.
Accordingly, we submit that the expansion of state authority proposed in S. 1114 is
ill-conceived and would seriously undermine vital national interests that are al-
ready the subject of congressionally mandated comprehensive regulation.
Section 401 applies to "[a]ny applicant for a Federal license or permit to conduct
any activity including, but not limited to, the construction or operation of facilities,
which may result in a discharge into navigable waters." 33 U.S.C. § 1341(aXl). All of
these federally permitted activities are subjected to comprehensive environmental
review under NEPA. Furthermore, some of these activities, including hydropower
development and licensing, are subject to an additional comprehensive public inter-
est review that, by law, includes full consideration of relevant state, interstate, fed-
eral and public interests and concerns.
Contrary to the currently proposed language in Section 602 of S. Iil4, the exercise
of delegated authority by state water quality agencies should not be structured to
duplicate or negate such comprehensive federal review. Rather, state authority in
certifying proposed activities subject to such comprehensive review under a federal
statute should rest exclusively on water quality considerations, i.e., the composition
of the water (criteria established to support a designated use), and should not
assume control over or prohibit the proposed use of the waterway.
Admittedly, this approach falls short of the complete assumption of control over
the use of waterways sought by many state water quality agencies, but does so in
recognition of both the vital federal interests and existing federal regulatory proc-
esses structured by Congress to assure that the activity proposed will be approved
only after comprehensive review of both federal and state interests in the activity.
Under the current federal licensing and Section 401 process, states will continue
to enjoy substantial influence through their participation in comprehensive federal
reviews and additional federal authorities available to the states with respect to
water use. State interests in water resource development beyond concerns related
strictly to water quality are certainly legitimate and they are accommodated in the
federal licensing process through a variety of provisions under federal law. For ex-
ample, in the hydropower context:
1087
1. Comprehensive state plans for waterways are given substantial weight under
Section 10(a)(2) of the FPA, 16 U.S.C. § 803(a)(2), and FERC is required to review
the consistency of any proposed hydropower project with these plans.
2. States have the opportunity to protect a stream under the Wild & Scenic Rivers
Act, 16 U.S.C. § 1271 et seg., and, upon approval by the Secretary of the Interior,
assume responsibility for management of any stream so designated.
3. The recommendations of state fish and wildlife agencies are included in FERC
licenses under Section 10(j) of the FPA, 16 U.S.C. § 8030), unless inconsistent
with the FPA or other applicable law.
4. Other state interests in matters such as recreation, aesthetics, and cultural re-
sources are considered and integrated into — federal licensing decisions under
the comprehensive development standard of Section 10(a) of the FPA, 16 U S C
§ 803(a).
NHA believes that this approach gives full effect to the purposes of the CWA and
assures full consideration of state interests while preserving Congress' intent that
federal interests involved in the use of a waterway will be regulated in a manner
that assures fair treatment.
This approach is also just plain good government. A frequent complaint about
government is that every time there is a proposal that, when viewed in isolation,
seems like a good idea, a law is passed and an additional regulatory structure cre-
ated that adds yet another layer of government approval with duplicative and po-
tentially conflicting jurisdiction. While splintering authority over a proposed activi-
ty among multiple federal and state agencies may be attractive in trying to deal
with the admittedly persistent tens ions between state and federal interests with re-
spect to water use, such an approach is disastrous for any attempt to undertake any
business or activity in support of the Nation's continued economic growth.
To focus this discussion on a more practical level, it seems appropriate to ask
where the problem lies. We all agree that states perform a perfectly proper role in
certifying that the discharge from a proposed activity will or will not meet state
water quality standards. Beyond that, S. 1114 proposes that states be authorized to
maintain and protect state designated uses of a stream. This principle, in the ab-
stract, sounds like a laudable concept. But we need to look closer.
For the federally permitted activities subject to state water quality certification
under Section 401, what is achieved by a state assumption of control or approval of
that use? Clearly, if a state water quality agency is placed in a position to approve,
condition or prohibit each such use, that agency will in essence substitute its judg-
ment for that of the federal agency now designated as decision-maker. Is that a good
idea? It may be if the federal approval process is perfunctory. It clearly is not a good
idea where there is a comprehensive federal approval process assuring that vital
federal interests are fairly adjudicated along with legitimate state interests. A fun-
damental premise of our federal system is that there are interstate interests that
cannot be adequately handled by individual states, whether in the name of the
CWA or by passage of a state law.
A close look at the regulation of federally licensed hydroelectric projects reveals
the unintended and potentially serious consequences that could result from an un-
qualified transfer of control over waterway use to state water quality agencies.
A state agency could impose a level of minimum flow that it deems required to
maintain water quality, and at that flow level a hydroelectric project could be
feasibly developed. In addition to that flow, an agency could determine that an
additional minimum flow is required for some reason unrelated to water qual-
ity. The additional flow, however, will render the project economically infeasi-
ble. A state water quality agency with no mandate or expertise to evaluate the
need for project power or the economic feasibility of the development would
have no reason to do anything other than impose the additional flow. (This is
what basically has happened in the State of Washington and a petition for cer-
tioraris is now pending before the United States Supreme Court. See Washing-
ton V. PUD No. 1 of Jefferson County and the City of Tacoma. Dep 't of Pub.
Util, 121 Wash. 2d 179 (1993), petition for cert, filed, _ U.S.L.W. _ (U.S. June 1,
1993) (No.92-1911)).
To support a designated use such as fishing below a dam, & water quality
agency in the state where the discharge originates could require minimum
flows that interfere with a licensee's responsibility to maintain the water level
required upstream of the dam for navigation and recreation on a reservoir lo-
cated in an adjacent state. Similarly, such minimum flows could affect a licens-
ee's ability to comply with regulation of its reservoir for interstate flood control,
municipal water supply and/or regional power supply needs.
1088
In any of the above scenarios, we do not imply that the state interest is inferior or
necessarily subordinate. The point is that state interests with respect to the use of
interstate waterways are only part of the equation. To place in the control of the
state water quality agencies — through the power to maintain and protect state-des-
ignated uses — the ability to prohibit or encumber uses supporting criticed federal in-
terests is the equivalent to declaring all such uses subordinate to state-designated
uses and abdicating the federal government's responsibility to protect the broader
interests of the Nation's waterways. Certainly such drastic action is not required to
maintain the quality of our Nation's waterways.
ANTIDEGRADATION POLICY
NHA does not oppose the development of state antidegradation policies for main-
taining the integrity of our Nation's waterways. In fact, NHA recognizes that the
proposal to add an antidegradation policy to the CWA essentially codifies existing
USEPA policy. NHA, however, has severed concerns about S. 1114.
Section 202(c) of S. 1114 proposes to add a new Section 303(b) to the CWA to re-
quire states to develop and implement a plan to maintain and protect existing in-
stream uses and the water and sediment quality needed to protect those uses. Fur-
ther, states must mainta in and protect existing water and sediment quality even
when that quality exceeds the water and sediment quality standards established as
necessary to maintain and protect fish, wildlife and recreation.
State application of these standards could prevent the development of projects
that propose uses other than those already existing even when the state's estab-
lished water quality stemdards are not impaired or when existing uses are not the
most beneficial. An exception to this requirement is permitted when necessary to
accommodate important economic or social development as determined by the state
under proposed Section 303(bX2)(B).
NHA proposes that, as part of the comprehensive public interest reviews conduct-
ed by relevant federal agencies, i.e., the Secretary of Interior, the Secretary of
Energy, the Secretary of Agriculture, and FERC, be granted independent authority
to make a determination regarding the importance of economic and social develop-
ment based on federal interests. Where state determinations conflict with a federal
determination on economic necessity, federal agencies may override the state deter-
mination as long as the federal determination is consistent with its federal author-
ity for comprehensive review and the proposed activity otherwise complies with
state water quality standards.
WATERSHED MANAGEMENT PLANS
Before NHA can meaningfully comment on the proposal to permit states to devel-
op watershed management plans, clarification on a number of fundamented issues is
required. For example, it is not clear what the intended use of watershed manage-
ment plans is in the federal review of proposed projects, whether the management
plan will have independent regulatory effect apart from established state water
quality standards, and who makes the determination that each federal agency activ-
ity will be carried out in a manner that is consistent with the policies established in
watershed management plans.
The NHA views watershed management plans as potentially helpful planning ve-
hicles to coordinate relevant regulatory activities and provide guidance with respect
to proposed activities within the watershed management unit. As such, watershed
management plans could and should be treated as other comprehensive state plans,
which are considered under Section 10(aX2) of the FPA, 16 U.S.C. § 803(aX2). Such
plans could assist federal agencies and applicants for federal licenses in determining
whether a proposed activity would be consistent with the state's plans for the water-
shed unit. As part of its overall review of a project, the federal agency must consid-
er the consistency of the proposed activity with the state plan in making its compre-
hensive public interest finding.
Apparently, Section 302 of S. 1114 intends to make watershed management plans
more than just state comprehensive planning documents. To the extent a determi-
nation of consistency with the plan is intended as a second tier state evaluation of
whether a proposed federal activity would meet state water quality standards, we
believe this mechanism would create an unwieldy and burdensome regulatory proc-
ess. As a second tier review of a federal agency activity, each state could require an
applicant for a federsd license to meet established water quality standards for a
standard Section 401 certification and then impose an additional and potentially
more stringent set of criteria for a separate finding of consistency with a watershed
management plan. A more appropriate approach would be to integrate the results of
1089
the watershed planning process into the relevant requirements of existing approvals
and standards.
Any independent consideration of the consistency of a proposed activity with the
state watershed management plan should be conducted by the federal agencies
charged with authorizing the relevant activity. The plans should be taken into ac-
count with deference by the federal agency in making its determination of the
public interest in acting on a specific proposal and could be particularly helpful in
assessing the relative merits of competing stream uses. The requirement that any
federal activity unequivocally shall be consistent with such plans and may be ex-
empted therefrom only on the basis of a Presidential exemption is unnecessarily
stringent for this, as yet, untested program.
NHA recommends an incremental approach be adopted in implementing this wa-
tershed planning concept. This may indeed be a useful vehicle for integrating and
coordinating a wide variety of activities, but Congress should not act precipitously
to convert such plans into a new regulatory context with potent and largely unde-
fined powers.
Our concerns about elevating watershed management plans to independent regu-
latory status are heightened by broad definition of eligible management entities for
watershed management units. The wisdom and legality of vesting governmental or
quasi-governmental authority in the listed entities, especially nonprofit entities, is
questionable and of considerable concern.
Inasmuch as the hydropower industry could be critically affected by this water-
shed management planning process, we are eager to pursue this concept with you
further to clarify the ambiguities in the current proposal and recommend revisions
that will insure that this becomes a workable and productive initiative that will pro-
tect the valuable resources and ecological integrity of our Nation's watersheds.
NONPOINT SOURCE MANAGEMENT
Section 304 of S. 1114 proposes revisions to Section 319 of the CWA, 33 U.S.C.
§ 1329, with resp>ect to nonpoint source management programs. Under the proposed
amendments, the President would be required to direct federal agencies that own or
manage land to implement regulations to ensure implementation of measures to
control nonpoint source pollution. Through the special-use permit and rights-of-way
granted under the Federal Land Policy and Management Act, these requirements
would apply to federally licensed hydroelectric projects located on federal lands.
S. 1114 further proposes to require that any license or permit granted "between a
Federal agency and any person authorizing activities on Federal lands" and in
effect upon passage of the bill may remain in effect for no longer than five (5) years.
The reference in this provision to "any Federal agency" should be deleted. Other-
wise, this provision would overturn federal Incenses and permits on which individ-
uals, utilities, businesses and communities now rely. Furthermore, it would leave
open the possibility that federal agencies other than federal land management agen-
cies may be constrained by this provision. Licenses issued by FERC for periods of up
to 50 years arguably could be modified contrary to Section 6 of the FPA, 16 U.S.C.
§ 799, which prohibits' unilateral alterations by Congress or FERC of any license
issued.
Even assuming this proposed amendment applies only to permits and approvals
issued by federal land management agencies, the five (5) year limitation poses seri-
ous obstacles to successfully financing and carrjdng out many such federally ap-
proved activities. In the case of a hydroelectric project, the expiration of any related
special-use permit or right-of-way every five (5) years would present an impossible
situation. The development of new hydroelectric capacity, whether at a new project
or an existing dam, is a capital intensive undertaking, requiring the amortization of
a substantial investment over a long period of time. The typical license for a new
capacity project involving the construction of a new dam is issued for a period of 50
years. Redevelopment of capacity at existing projects is authorized with a minimum
30 year license. The security of the right to operate a project under stated terms
and conditions for these time periods is a prerequisite to successful financing of this
renewable energy development.
Failure to apply this five (5) year limitation to federally licensed hydroelectric
projects does not mean that the regulation of these projects will not be adapted and
updated to changing environmental and other needs. Licenses issued by FERC pro-
vide for future resource needs through specific license conditions that require moni-
toring and modifications for anticipated eventualities. FERC licenses also provide
for unanticipated resource needs through standard license conditions that allow for
reopening and reexamining license terms to address fish and 'wildlife, water quality
and other resource needs. This examination is conducted under the comprehensive
1090
development standard, which assures that any new conditions — although they may
impose additional expense or inconvenience on a project — will not undermine the
fundamental economic feasibility of project operations or other resource interests
during the license term.
CONCLUSION
NHA supports a comprehensive and fair approach to maintaining and improving
water quality on the Nation's waterways. As a federally regulated industry that di-
rectly uses the waterways, the hydropower industry has an overriding interest in
the proper and fair regulation of that use. Any action taken that would grant states
authority over the use — as opposed to the quality of — interstate waters must pro-
ceed in full recognition of federal interests in addition to maintenance of water
quality. Just as the approach to resource protection has recognized the need to
expemd its scope to encompass entire watersheds, ecosystems, and bioregions, so too
must water quality or other environmental protection legislation look beyond itself
and embrace a broader universe that includes the economic, energy supply and
other compelling public needs that we as a Nation must serve.
We very much appreciate the opportunity to address these critical issues facing
the Committee. You are to be commended for holding these hearings and taking on
the daunting task of improving the implementation of the CWA in a msmner that
will serve the goals of that act, while preserving equally important national policies
and programs. NHA stands ready to assist in this process to assure that an im-
proved CWA will work effectively in conjunction with such other federal statutes,
including the FPA.
TESTIMONY OF WENDY NERO, WATER CONSERVATION MANGER, CITY OF
TAMPA, FLORIDA
Good morning Mr. Chairman. My name is Wendy Nero. I am the Water Conserva-
tion Manager for the City of Tampa, Water Department. The Tampa Water Depart-
ment is a publicly owned utility which provides drinking water to about sOO,000
residents through 120,000 service connections. We have been actively implementing
a water conservation program since 1989. To date, we have reduced water usage by
almost 10 million gallons a day, which represents 12 percent of the city's average
daily usage.
I am here on behalf of the City of Tampa and represent the views of a public utili-
ty, with regard to the water efficiency provisions of Senate Bill 1114, amending the
Clean Water Act. I am also involved with the conservation committee of the Ameri-
can Water Works Association at the state and national level.
Introduction
The Tampa Water Department believes that the efficient use of existing water
supplies is becoming increasingly important, not only in Florida but across the
country. Recurring drought and population growth in areas with limited water sup-
plies, and the costs associated with new supply development, further emphasize the
need to use water wisely and efficiently.
The conservation program in Tampa grew from a combination of problems similar
to the above scenario. In the 1980's, we experienced rapid population growth and
saw an increase in water demands of 27 percent. This, coupled with severe drought,
left us in a situation where demands for water would exceed available supplies by
the middle 1990's. Conservation was originally intended to "stretch" existing sup-
plies until new alternatives could be developed. That strategy quickly changed from
one of emergency response to a long-term, water management tool.
The Tampa progreim is a comprehensive one which relies upon economic incen-
tives, regulations, and education to motivate the use of water efficient technologies
and conservation behavior. Our efforts target single and multi-family residential,
commercial and institutional customers and seeks to improve efficiency indoors and
out. The following is a brief description of Tampa's major initiatives.
Technology Based Conservation
RESIDENTIAL RETROFIT: In this program we provide single-family customers
with water saving kits, free of charge. Each kit contains showerheads, faucet aera-
tors and a displacement device for the toilet. In 1994, the city AviU complete the final
phase of it's ongoing retrofit program — in which roughly 90,000 homeowners in
Tampa will have been given a water saving kit. Program evaluations demonstrate a
nine g£illon per capita per day savings from this program.
1091
TOILET REBATE: This program offers homeowners up to $100 for each conven-
tional toilet they replace with a low consumption model. This year we have issued
800 rebates and plan to issue an additional 2,500 in 1994. Savings are expected to be
approximately 16 percent of average indoor water usage, or 13 gallons a day.
LANDSCAPE WATER AUDIT: In Florida, most landscapes require supplemental
irrigation all year long. There is tremendous waste in landscape water use in
Tampa and great potential to increase efficiency. Landscape and irrigation evalua-
tions are offered, free of charge to interested residents and commercial customers.
In addition, customers will be provided with a free rain shut-off device, which they
must install. If we have not received installation receipts within 30 days, the cus-
tomer will be billed for the cost of the device.
Educational Efforts
IN SCHOOL: Education is fundamental to the success of any conservation effort.
In-school programs include a cooperative effort with the Southwest Florida Water
Management District involving teacher training and a live production of a conserva-
tion play. More than 30,000 students in 40 schools will be included in the classroom
training and will see the live performance.
PUBLIC EDUCATION: Additional educational efforts promote specific conserva-
tion programs offered by the City and are designed to encourage customer participa-
tion in the program targeted. Demonstration projects wUl also be developed to show
the water saving ability of new technologies or practices.
INDUSTRY TRAINING: Additional plans for education include seminars on con-
servation techniques for businesses, homeowners and other water users. Workshops
for the plumbing, landscape and irrigation industries are also planned. These efforts
will enhance technology transfer efforts.
UtUity Management
RATE STRUCTURE: Tampa is fully metered. In 1990, Tampa modified it's rate
structure for all customer types. A two block structure, based on average monthly
water use by customer class, was established. Once a customer exceeds it's class av-
erage a conservation rate, or surcharge, applies.
ANNUAL WATER AUDIT: Each year, we conduct an annual water audit to iden-
tify lost or unaccounted-for water in the system. This information provides the ra-
tionale for pursuing loss reduction strategies. In Tampa, the greatest reduction in
unaccounted-for water could be achieved through a meter testing, repair and re-
placement program. A system-wide leak detection and repair progreim was not justi-
fied based on the results of the audit.
Regulatory Programs
CODES: Over the past several years, the City has amended ordinances to require
certain conservation measures. The landscape code, irrigation ordinance and plumb-
ing code have all been modified to maximize water efficiency. For example, the
landscape code calls for native and drought tolerant plant material, the irrigation
code limits lawn watering to two days per week gmd the plumbing code requires the
use of low consumption fixtures.
Conclusion
There are several reasons why Tampa's program has been successful. First, con-
siderable support from Mayor Freedman and other elected officials, as well as from
the leadership within the water department, has been crucial. Second, grants from
the Environmental Protection Agency (EPA) and the regional water management
district provided funds to implement programs when we might not have otherwise.
Third, technical assistance from experienced utilities, the American Water Works
Association and the Southwest Florida Water Management District was key to de-
veloping expertise in Tampa.
Finally, I would like to offer a few thoughts on the proposed amendments to the
clean water act.
1) EPA is assigned primary responsibility for overall coordination of Section 113,
as well as administration of the Clearinghouse; but all aspects of technical assist-
ance are to come through the Army Corps of Engineers. Both functions should
reside in the same organization, and it is suggested that the EPA be the responsible
agency.
2) Conservation plemning needs to occur within a broader comprehensive planning
context than is referenced. Integrated Resource Planning (IRP) is becoming the
standard approach used by utilities. IRP is defined as "a comprehensive approach to
evaluating supply-side and demand-side resource alternatives with respect to explic-
1092
itly defined and often conflicting objectives. IRP encompasses least-cost planning,
but is broader in it's emphasis on an open and participatory decision making proc-
ess, the use of planning scenarios that incorporate variations in uncertainty and
long term community needs, and consideration of the multiple institutions con-
cerned with water resources and the competing policy goals among them.
3) The proposed bill calls for public awareness campaigns. A provision for youth
based education should also be considered, and should include curriculum as well as
materials.
4) It is also stated that utilities should provide financial incentives to encourage
water conservation. These incentives should also include rebates, credits and re-
duced impact and/or connection fees.
5) S. 1114 requires leak detection and repair. This may not be necessary or cost
effective, based on the results of utility level water audits. It is preferable that an
annual water audit of the utUity be required instead and appropriate action taken.
6) Section (b)4.A. provides grants to "study" conservation measures. Although this
is very important, it is equally important that funds be made available for project
implementation as well. This could be accomplished through grants or possibly
though the existing state revolving loan funds.
7) A national clearinghouse is very strongly supported, whether administered in-
ternally or through contract. This will provide necessary, well documented informa-
tion for entities undertaking conservation initiatives.
Mr. Chairman, the Tampa Water Department appreciates the opportunity to
present it's conservation program and views on the proposed amendments to the
Clean Water Act. I believe that this bill provides needed direction and establishes a
positive federal role in motivating conservation. Thank you very much for the op-
portunity to comment.
REAUTHORIZATION OF THE CLEAN WATER ACT
WEDNESDAY, SEPTEMBER 15, 1993
U.S. Senate,
Committee on Environment and Public Works,
Subcommittee on Clean Water, Fisheries,
AND Wildlife,
Washington, DC.
WETLANDS ISSUES
The subcommittee met, pursuant to recess, at 9:37 a.m. in room
SD-106, Dirksen Senate Office Building, Hon. Bob Graham [chair-
man of the subcommittee] presiding.
Present: Senators Graham, Kempthorne, Faircloth, Reid, Lieber-
man and Baucus.
OPENING STATEMENT OF HON. BOB GRAHAM, U.S. SENATOR
FROM THE STATE OF FLORIDA
Senator Graham. Let's call the meeting to order.
Today this subcommittee completes its schedule of hearings on
the reauthorization of the Clean Water Act. This is the eighth in
our series of hearings. Today, we will focus on the issue of wet-
lands.
In July, I announced that this hearing would be postponed until
September to allow the administration to complete its review of
wetlands policies. Since then, two relevant events have occurred.
On July 28th, Senators Baucus and Chafee filed wetlands legisla-
tion for our review. On August 24th, the administration announced
a set of wetlands' principles. We will review both the legislation
and the administration's recommendation today.
Wetlands are generally considered to be one of our most valuable
aquatic resources. That has not always been the case. Wetlands'
functions and values have been historically misunderstood and mis-
directed policies have led to an alarming rate of wetlands destruc-
tion. Since our country was settled, we have lost half of our Na-
tion's wetlands. We continue to lose them at an alarming rate, a
rate of 300,000 acres per year. To put that in context, that means
that every second, every second, we lose an the area of wetlands
slightly larger than this hearing room.
Today, we understand the values of wetlands more clearly. Some
estimate that half to two-thirds of our threatened and endangered
species depend upon our fresh water, coastal and riparian wet-
lands. In Florida, for example, nearly 30 threatened and endan-
gered species depend on wetlands for their survival. Wetland habi-
(1093)
1094
tat destruction threatens each of them, including the American
Crocodile and the West Indian Manatee.
More than just the home to a rich and diverse number of species,
wetlands serve critical ecological and economic purposes. Wetlands
improve water quality by abating floods, recharging groundwater,
trapping soil sediments and filtering water that moves through
them. Wetlands also contribute 60 to 90 percent of our commercial
fish catches valued at $10 billion a year and support billions of dol-
lars in recreational fishing. Incredibly, despite their obvious value
as a water resource and despite the continued rate of loss, the word
wetland does not appear in the Clean Water Act.
One consequence of the absence of clear direction from Congress
has been much criticism of regulatory programs. The regulation of
the discharge of dredge and fill into wetlands has been criticized as
unpredictable, inconsistent and unfair. The harshest critics have
seen regulation as a taking of private property. Many question
whether all wetlands are the same, whether we should limit our
regulation to those of the greatest value. Others point to the func-
tions that wetlands serve and contend that we've lost too many
acres of wetlands already. They urge Congress to adopt a no net
loss policy.
Before we can discuss these issues, I believe we must take this
opportunity to clearly articulate in the Clean Water Act, what is
the national role in the protection of wetlands. To do that, we must
first explore the Federal interest in protection. Most actions that
are designed to protect wetlands fall within traditional responsibil-
ities of States, responsibilities over land and water use planning.
Consequently, I believe we must determine the appropriate alloca-
tion of responsibilities between the Federal Government and the
States.
To help us do that, today we will hear from the administration
on the proposals of the Interagency Task Force convened in re-
sponse to the urging of several Senators. Most of the recommenda-
tions are reflected in the legislation which has been filed by Sena-
tors Baucus and Chafee.
We will also hear from Senator Boxer on her proposal for wet-
lands reform. We will review the programs in a number of States
and hear from a diverse number of interested parties. We will dis-
cuss with Senator Murkowski and others problems unique to
Alaska.
Significantly, we will also learn from two distinguished scientists
the functions and values of wetlands in both the eastern and west-
ern United States to help guide our view of existing problems and
their solution. I am struck by their statements demonstrating both
ecological and economical value to the protection of this resource.
Before we begin, I would like to briefly announce how we intend
to proceed when this hearing has concluded. By the end of today,
the subcommittee will have held eight hearings and taken testimo-
ny of just over 100 witnesses. In addition, dozens of organizations
have submitted statements for the record. We have received over
1,000 specific recommendations. Subcommittee staff has begun the
process of reviewing the record and will begin in earnest the proc-
ess of developing a mark-up vehicle that will incorporate many of
those suggestions as well as wetlands issues which will be discussed
1095
today. Included in that review will be over 20 separate bills that
have been filed, most of which were discussed at our regional hear-
ing on August 4th. We hope that in the next few weeks a draft of
the markup will be available for subcommittee review.
At our first hearing on June 16th, I announced my intention to
hold a subcommittee markup for the reauthorization of the Clean
Water Act in October. We are still on that schedule. It is still the
intention of Senator Baucus that the bill be presented to the full
committee for mark up this fall as well.
To accommodate a scheduling problem, we will begin with a
panel of Federal agencies to hear the administration position. Un-
fortunately, I will have to leave shortly for a brief appearance at
another committee but will then return.
I wish to express my appreciation to all of the witnesses, some of
whom have been of assistance to this subcommittee at previous
hearings. For that, I thank you. A repeat appearance is especially
appreciated.
We are joined by Senator Kempthorne, a very diligent and dedi-
cated member of this subcommittee. Senator Kempthorne, do you
have an opening statement?
OPENING STATEMENT OF HON. DIRK KEMPTHORNE, U.S.
SENATOR FROM THE STATE OF IDAHO
Senator Kempthorne. Mr. Chairman, thank you very much. I ap-
preciate your leadership on this entire effort.
It is an issue that I believe we definitely must resolve, not only
being able to define what is a wetland, but just as importantly,
what is not a wetland. While I've heard from a number of my con-
stituents regarding many of the provisions of Senate Bill 1114, the
proposed wetlands reform has perhaps sparked the broadest inter-
est in my State. It is this area of law that has brought me back
into the Constitution's protection for private property rights. It is
the one that has led many average Americans, and I believe par-
ticularly those who have saved and invested in land, to view Gov-
ernment acts of environmental protection as increasingly slow, un-
predictable, arbitrary and intrusive. I believe that many of these
problems are attributable to a wetlands regulatory regime that has
grown up in a haphazard manner without clear imprint by the
United States Congress.
Now is the time to correct that fault. Perhaps better than at any
other time in the past, we understand the unique role that wet-
lands play in filtering pollutants, providing natural flood protec-
tion and supporting critical habitat for all sorts of wildlife.
To that equation we can add, I hope, a greater willingness on the
part of this committee and our colleagues in the Senate to mini-
mize the kind of regulatory burdens that we impose on our fellow
citizens who must live under this law. I'm encouraged by the rec-
ommendations announced by the administration. We've not seen
the details but the recommendations attempt to redress some of
the long-standing concerns held by my fellow Idahoans. For exam-
ple, the proposal to designate the Soil Conservation Service as the
lead agency for wetlands determinations on agricultural lands
offers to farmers the prospect that they will have some relief from
1096
bureaucratic indecision and delay. These are the inevitable result
when different agencies assert their competing jurisdictional au-
thority.
Likewise, the proposal to provide an administrative appeals proc-
ess to challenge determinations regarding jurisdiction, permitting
and administrative penalties may mean that Americans caught in
the wetlands web can resolve their conflicts with the Federal Gov-
ernment through means other than costly litigation. On the other
hand, the administration's proposals expand the statutory defini-
tion of wetlands and the scope of regulated activities within wet-
lands. These and other recommendations in the administration's
proposal and Senate Bill 1304, the bill introduced by my colleagues
on this committee, I want to review with great care.
Mr. Chairman, I look forward to working with you on this very
important issue and I know that we have an outstanding panel of
witnesses today and I look forward to their input in helping us re-
solve this issue.
Thank you.
Senator Graham. Thank you very much. Senator.
We've also been joined by another very important member of
this subcommittee, Senator Faircloth.
OPENING STATEMENT OF HON. LAUGH FAIRGLOTH, U.S.
SENATOR FROM THE STATE OF NORTH GAROLINA
Senator Faircloth. Thank you, Mr. Chairman.
I plan to keep my opening remarks short but this is a very im-
portant issue to me and I intend to pursue it with vigor.
No single issue before the Environment Committee this year is
more important to all of us as a Nation than wetlands. I have
spent my entire life close to the land as a farmer. I feel as though I
know wetlands and their importance. There is no doubt in my
mind that certain wetlands deserve the highest protection we can
give them and this country's policy for 150 years, as Chairman
Graham knows better than any of us, was to treat them as end
uses, to drain, develop and farm them. That policy had some validi-
ty for its day but it has no place now. That, I'm aware of.
However, a lot of what is called wetlands by the Federal bu-
reaucracy and the environmental community does not deserve the
fanatical protection which it is now being given and is proposed to
be given.
At the first hearing of this committee I ever attended, Senator
Chafee kept saying don't use the word balance, I don't want to
hear the word balance. If ever there was an issue that needs the
word balance, it's the wetlands issue. The pendulum has swung too
far toward the protection of so-called wetlands and what is called
wetlands. I'm for protecting wetlands but everything isn't a wet-
land.
Farmers have become criminals, bone dry land has become navi-
gable streams, private property has become a public preserve, of-
tentimes without a hearing, an appeal, or logic or any of the other
processes by which we should make wise decisions and by which
any other governmental decision can be appealed or questioned. It
doesn't apply to the wetlands.
1097
Chairman Baucus and Senator Chafee's wetland proposal is a
step in the right direction, but a small short step. It seems to me
that the Baucus-Chafee proposal streamlines a very flawed process.
We need to recognize in law, regulations and treatment that all
wetlands are not created equal, that private property is still a
value in this country and we cannot prosper without it, and that
all who impact wetlands do not deserve to be treated as Federal
criminals.
As an adjunct to that, we'll take a State, Chairman Graham's.
The Everglades probably has attracted more attention nationwide
as an area to preserve than any other wetlands in the Nation by
far. This process of draining the wetlands began at the turn of the
century. In 1916, the builder of the Tamiami Trail brought the flow
of the Shark River into the Gulf. There was continuous drainage as
most of the wetlands in this country have been drained. They've
been drained by the Federal Government. The private sector never
had the money to do it. The SCS, for years and years and years,
paid for engineering, design and the cost of drainage canals. The
entire Florida drainage system began in the Everglades in 1926
which then followed with pulping, levees, and was all Federal with-
out which there would be very little intrusion upon the Everglades.
Senator Graham, as Governor in the early 1980's, began to re-
verse this trend, as well he should. So he is aware, but I think we
need to bear in mind that the drainage of the wetlands of the
United States was not an act of the private sector but an act of the
public sector and the Corps of Engineers and the Soil Conservation
Service. I believe we need to bear that in mind as we move through
this today.
Senator Graham. Thank you. Senator.
Senator Reid?
OPENING STATEMENT OF HON. HARRY REID, U.S. SENATOR
FROM THE STATE OF NEVADA
Senator Reid. Thank you very much, Mr. Chairman.
I appreciate your arranging this meeting. I want to commend
you for the work that you've done on the subcommittee and cer-
tainly on the Clean Water reauthorization issue during the past
few months.
The subject of this hearing, wetlands, is one more major policy
debate facing this committee and the Nation that I think desper-
ately needs a solution. We must resolve this problem so we can get
on with protecting these valuable wetlands and the economic sector
of the country can continue to grow and produce jobs.
It is often said that issues like wetlands are not as significant in
areas like Nevada where people surmise there are few, if any, wet-
lands because of the arid nature of the State. The fact of the
matter is, we certainly have much less area in wetlands than
States like Florida and Alaska and many other States, in fact, most
other States, but those we have are extremely important.
Most people don't realize that we have the only link for migrato-
ry birds going south and then north. If it weren't for the Stillwater
Marshes, the number of migratory birds would be cut down signifi-
cantly. So I've been involved in trying to restore these extremely
1098
valuable wetlands known as the Stillwater Marsh in the northern
part of Nevada and we're making some progress.
There are projects in the southern part of the State to create and
restore wetlands that I support as well, but in truth, when you
have few wetlands to protect, it becomes even more important that
we protect them, at least we think so.
I've seen the new proposal the administration has issued on wet-
lands and combined with the bill the committee has offered, it ap-
pears to me that we are on a course in trying to work out this most
difficult issue. I certainly want to extend my hand of cooperation to
you.
I also want to make a brief mention of another issue the commit-
tee finds itself confronted with. I make it now because there is no
other time to make the statement and that deals with the Safe
Drinking Water Act reauthorization. I've also seen the administra-
tion's proposals on this issue and I'm encouraged but not totally
satisfied by the points that they've made in regard to assisting
small water companies in the communities that they serve across
the Nation, particularly in rural areas in the West, especially in
Nevada. I remain concerned about how we can develop and imple-
ment these ideas in a new Safe Drinking Water Act.
Many of these companies and communities are hard pressed to
find the money to build new systems and have little or no hope of
finding regional or other solutions to their drinking water prob-
lems. I believe this committee has an obligation to go the extra
mile and ensure that the hardships we place on these communities
and the residents, many of whom are on fixed incomes and cannot
afford for their water rates to increase. I had one company indicate
that they would go up as much as 1,000 percent. We have to do
something to mitigate these to the maximum extent possible in our
efforts to resolve the policy issue.
The Administration has made a recommendation to ensure the
viability of small systems, to maintain half of them, half of them
probably would not be able to exist, but at least have some ability
to phase them out so there would not be any violent damage done
to the community and the areas they serve.
In the future, I intend to offer additional comments on how we
can build on some of the ideas the administration has offered re-
garding clean drinking water.
Once again, I look forward to working with you and the members
of this committee on the two issues that I've talked about today,
wetlands and clean drinking water.
Senator Graham. Thank you very much, Senator.
Senator Durenberger of Minnesota.
OPENING STATEMENT OF HON. DAVE DURENBERGER, U.S.
SENATOR FROM THE STATE OF MINNESOTA
Senator Durenberger. Mr. Chairman, thank you.
In 1991, the Environmental Protection Subcommittee held a
series of hearings on wetlands and at that time, I had the opportu-
nity to offer a short list of reforms that I thought would make Sec-
tion 404 of the Clean Water Act work better. I'm pleased that S.
1304, the bill introduced by the leadership of this committee cov-
1099
ered most of those items. I want to commend Senators Baucus and
Chafee for the balanced bill they've presented.
The five items that I listed in 1991 started with a greater role for
the States. I asked that we look for opportunities to enhance the
State role in addition to the delegation of section 404. The water-
shed planning and general permit provisions in 1304 provide the
flexibility necessary to assure broader State and local participation
in the program.
Second on my list was an expansion of the jurisdictional activi-
ties under section 404 to include drainage, channelization, and ex-
cavation which may adversely affect wetlands. That item is not
only in the Baucus-Chafee bill but it is also in the bill introduced
by Senator Boxer and it is in the bill offered by Congressman
Hayes on the House side. So it seems to me that is a consensus to
fix 404.
Third on my list was a concern for the general permits issued by
the Corps of Engineers. We have to find a mechanism to ensure
that the wetlands losses resulting from the nationwide permits are
offset by gains. S. 1304 recognizes the problem both in the goal it
establishes for a long-term net gain in our wetland resources and
in the requirement that Federal agencies account for the cumula-
tive impact of losses under the general permits issued by the Corps.
At the time of our 1991 hearings, the Delineation Manual was at
the top of everyone's list of wetlands issues. Now we're awaiting a
National Academy of Sciences report on the science that should
inform delineation decisions. Those that have criticized the section
404 program for its deficiency in the science underlying some deci-
sions have been right on the mark. The NAS report should help
answer these questions.
In addition to better science, I urge that any future revisions to
the manual be made on the public record with a full opportunity
for public comment. I'd hasten to add that the manual should con-
tinue to be a scientific document and not a reflection of the public
policy dispute about how much of the resource we ought to pre-
serve. S. 1304 requires a revision to the manual to be an informal
rulemaking with full opportunity for public comment.
S. 1304 squarely addresses each of these issues in a balanced way
and deserves our support, but I do have one additional concern
which is not addressed in S. 1304 and maybe it's beyond the reach
of this committee but I hope not.
Some of our witnesses today will point out that 75 percent of our
wetlands resources are in private hands, that we can never have a
successful conservation program without recognizing the private
role, and I agree. We have to provide conservation incentives for
landowners. The whole thing here is an issue of accountability, do
you want negative accountability, the $25,800 a day penalties that
my colleague from North Carolina just pointed out to me or do you
want some positive accountability. I say this particularly on behalf
of farmers and ranchers because in my State — I think the ranking
member of this committee who said he's never seen a wetland res-
toration could come to my State and see some of them. A lot of
them that he comes to see are going to be private restorations as
well as combinations of public and private and so this whole issue
with positive incentives to owners I think is critical.
1100
I'm not talking about a full compensation through public taking,
imminent domain as a requirement for any wetlands class as criti-
cal habitat. That would be a formula for less in my view rather
than more wetlands protection. There have to be ways to encour-
age the private interest in wetlands conservation and I hope in this
audience today there are people who have thought about this
longer, deeper and broader than I. I know Senator Boxer's bill in-
cludes some of these options and I hope that we can explore this
side of the question more fully.
Having said that, Mr. Chairman, you can count on me as one
member of the subcommittee who will enthusiastically support in-
clusion of 1304 in the Clean Water Act reauthorization legislation.
Senator Graham. Thank you very much. Senator.
Senator Lieberman of Connecticut?
STATEMENT OF HON. JOSEPH I. LIEBERMAN, U.S. SENATOR
FROM THE STATE OF CONNECTICUT
Senator Lieberman. Thank you, Mr. Chairman.
I congratulate you for convening this hearing which is an ambi-
tious one on such an important and complex issue.
This Senate Committee on Environment and Public Works is for-
tunate to have your leadership in this matter as well as the leader-
ship of Senators Baucus and Chafee, both strong supporters of wet-
lands protection.
The environmental community also deserves some credit for
bringing us to this point, I believe. Their consistent fight to elevate
discussion of wetlands regulation to a discussion of wetlands
values, which is to say what we give up when we give up swamps
and marshes and bogs and fins, has helped to set the stage for
what I believe is a major breakthrough by the Clinton Administra-
tion in addressing the problems associated with wetlands loss in
our country.
Most people in this room know that the Clean Water Act's 404
Program was not designed for the sole purpose of protecting
against wetlands loss. In some sense, our Nation and our Govern-
ment backed into a wetlands policy. If 404 had been designed for
the sole purpose of protecting against wetlands loss, the activities
which it regulates would not be limited to the disposal of dredge or
fill material, nor arguably would we have designed its regulatory
structure in quite the same way. If we were designing a program to
give wetlands protection under the Clean Water Act, we certainly
would have noted up front the functional values of wetlands, which
is to say why it is we care about preserving them at all. Vernal
pools, salt marsh, prairie potholes, these are not terms easily
worked into the every day vocabulary.
A comprehensive program to protect wetlands would have given
us a picture of them nonetheless and what they do for us. We'd see
their connection to the rest of the Clean Water Act and their im-
portance to the rest of our environmental statutes. Wetlands, after
all, store flood waters and they keep our drinking water pure.
Without them, we must pay to build the infrastructure to perform
these same functions.
1101
In Connecticut, the coastal wetlands service shellfish nurseries.
They filter urban and agricultural runoff before it hits Long Island
Sound. The forested wetlands of New England are where rare song-
birds and other endangered species summer before heading to the
tropical forests of Costa Rica. So there are many connections here
that we would have noted.
If protecting wetlands had been stated as a priority in the Clean
Water Act, we also would not have created a regulatory structure
that at times enraged the very people we were hoping to work with
in order to protect that resource. Since the vast majority of wet-
lands are on private lands, we certainly would not have sought to
alienate private landowners or would-be developers.
By the same token, we wouldn't have sought to make it difficult
for States or municipalities to get a quick answer on whether or
not they could go forward with a project that had a wetlands
impact. Flood control, drinking water purification, important fish
and wildlife habitat all add significantly to a community's quality
of life, and so do, of course, roads and housing and farms and har-
bors and managed forests.
Our efforts should be directed at ensuring now that whenever
possible we can have them all or at least as many as possible, not
pitting one group of societal goals and functions and values against
another. This is where I think the Clinton Administration is to be
most commended. The document released by the White House
Office on Environmental Policy is one of the most lucid attempts
that I at least have seen to try to not only rethink but recreate our
Federal wetlands policy and programs. I commend the administra-
tion for identifying the problems and tackling them head-on.
This is not to say, of course, that the report is beyond question-
ing. For instance, while the report endorses mitigation banking, it
does so conceptually reflecting the need for much more develop-
ment of this idea. I note also, however, that any mitigation bank-
ing endorsement by the administration would be linked to compre-
hensive watershed planning which makes excellent sense. I would
add that I was particularly impressed by the report section on the
perils of national classification.
The heart of the interagency agreements seems to be the consoli-
dation of Federal responsibilities for wetlands protection, assigning
primary responsibility for wetlands decisions on agricultural lands
to the Soil Conservation Service with assistance from the Fish and
Wildlife Service, seems to me to be a sensible and necessary
change.
So, Mr. Chairmein, I think we have here an opportunity not to
repeat what has happened up until now, which is to back into a
national wetlands policy which was too often divisive, but in fact to
create one head-on and so far as possible, to make it a policy that
is not only productive and protective, but unifying.
Thank you.
Senator Graham. Thank you very much. Senator.
If I could, I'd like to ask if you could chair the hearing for the
next few moments. I must leave to participate in another hearing.
Our first panel consists of Mr. Jim Lyons, Assistant Secretary,
Natural Resources and Environment, U.S. Department of Agricul-
ture, who will be the principal spokesman for the administration's
1102
wetlands policy; Mr. Robert H. Wayland, III, Director, Office of
Wetlands, Oceans and Watersheds, U.S. Environmental Protection
Agency; Dr. G. Edward Dickey, Acting Assistant Secretary for Civil
Works, U.S. Corps of Engineers — Dr. Dickey, we appreciate your
being with us again; Mr. Don Barry, Counselor, Office of the Assist-
ant Secretary for Fish and Wildlife and Parks, U.S. Department of
the Interior; and Mr. Doug Hall, Assistant Secretary, U.S. National
Oceanic & Atmospheric Administration, U.S. Department of Com-
merce. Those will be the participants in our first panel.
While the panel is coming to the table, I want to acknowledge
receipt of statements from Senators Breaux and Pryor and, without
objection, they will be included in the record.
[The statements referred to follow:]
STATEMENT OF HON. JOHN BREAUX, U.S. SENATOR FROM THE STATE OF
LOUISIANA
Mr. Chairman, thank you for conducting this hearing on the very important issue
of federal wetlands regulatory policy as part of the Subcommittee on Clean Water,
Fisheries and Wildlife's work on the Clesui Water Act reauthorization. The wetlands
regulatory program has not been debated by Congress since 1977. I also extend my
thanks for focusing on this critical environmental issue to the Chairman and Rank-
ing Minority Member of the Committee on Environment and Public Works, Sena-
tors Baucus and Chafee.
I would have liked to have had the opportunity to appear before the subcommit-
tee, but I am joining the President in Louisiana today on other matters which also
are important to my state.
One of the defining characteristics of Louisiana is its vast amount of coastal and
river bottom wetland. Louisiana possesses 40 percent of our nation's coastal wet-
lands which, in turn, support the nation's most abundant fishery. Unfortunately,
Louisiana also has suffered some of the most significant wetlands losses in the
nation due both to natural occurrences and the actions of mem.
Today, over 50 percent of our state is considered to be a federal jurisdictional wet-
land, with over 75 percent of that land in private ownership. Thus, in my state, the
federal wetlands regulatory system is a very important program, not only with re-
spect to the ongoing efforts to conserve our state s wetlands resources, but also with
respect to necessary governmental infrastructure activities, private sector economic
activities, and the rights of private landowners.
The current federal regulatory system, which has been developed over the last fif-
teen to twenty years, primarily through agency initiatives and judicial decisions,
works neither for the environment nor for private landowners and land users.
With the introduction of S. 1304, the "Wetlands Conservation and Regulatory Im-
provements Act", by the Committee Chairman and the Committee's Ranking Minor-
ity Member, Senators Baucus and Chafee, and with President Clinton's announced
wetlands policy plan, Senate debate on a nationsd wetlands policy promises to be
challenging and lively. I certainly look forward to it.
I take this opportunity to thank President Clinton for responding to the request of
several of my colleagues and myself to form a White House Task Force to develop
wetlands policy proposals. The President's recommendations are a first step in the
right direction and are positive for the most part. Many of the details still need to
be developed and refined. The recommendations establish a framework that we C£m
work with in the days and weeks ahead as we debate amendments to the Clean
Water Act.
Wetlands policy affects private landowners primarily. As such, any wetlands
policy needs to be efficient, fair, and flexible. It must be administered in a manner
which avoids unnecessary and unfair impacts upon private property and the regu-
lated public.
Federal wetlands policy cannot consist primarily of avoidance of all economic ac-
tivity on all wetlands. The President's plan, in particular, seems to add some flexi-
bility to the current process for determining whether a permit for wetlands activity
should be issued.
Some other key features of a national wetlands policy must include wetlands res-
toration, so critical to Louisiana; mitigation banks; coordinated wetlands regulation
between the federal and state governments; an appeal process for private landown-
1103
ers and an end to the difficulties the agriculture community has suffered under the
current program.
In addition, wetlands need to be classified by functions smd values. Not all wet-
lands possess the same functions and values. A regime needs to be established which
not only recognizes this, but also implements an effective, usable classification
system. Without such a system, our national policy will not square with the reality
of the nation's diverse wetlands resources. Without such a system, all wetlands es-
sentially will continue to be treated equally for regulatory purposes, which makes
no sense and ignores reality.
Preserving the rights of landowners and providing an efficient method for com-
pensating those landowners who lose the use and value of their property due to the
operations of a wetlands program also must be addressed and contained in a nation-
al policy. These are some of the wetlands issues about which I continue to be con-
cerned, Mr. Chairman.
The executive summary to the report of the National Performance Review is enti-
tled, "From Red Rape to Results Creating a Government that Works Better and
Costs Less". On page 8 of that summary. Vice > President Gtore is quoted from a
March 26, 1993 statement, which I repeat here in part, "We are going to rationalize
the way the federal government relates to the American People, and we are going
to make the federal government customer friendly. ..."
I believe, Mr. Chairman, that the Senate, the Congress and the nation must be
about the business of creating a government that works better and costs less when
it comes to developing and implementing a wetlands policy. We must make wet-
lands policy customer friendly. We must make wetlands policy work better and cost
less.
Throughout the debate on wetlands, we must be always mindful of one key fact,
that a significant portion of our wetlands are privately owned. In being mindful of
this reality, we must be vigilant in our responsibility to develop and carry out a
customer-friendly policy, one which works better and costs less and one which re-
spects private property rights and treats private landowners fairly.
Thank you for allowing me to submit this statement to the subcommittee. I ask
that it be included in the record of the hearing. I look forward to working with you,
the committee and other Senators as we attempt to develop a balanced f^eral regu-
latory policy that works for the environment and for landowners, for state and local
governments and for the economy.
STATEMENT OF HON. DAVID PRYOR, U.S. SENATOR FROM THE STATE OF
ARKANSAS
Mr. Chairman, I commend this Committee for meeting today to take on the con-
troversial and important wetlands debate. This issue confuses and frustrates so
many Americans, including our farmers and ranchers, and I am delighted to see the
Congress addressing this in what I hope will be a complete and comprehensive
manner. In our eff"ort, we face the challenge of balancing the wetlands as an envi-
ronmental treasure and a natural resource. I appreciate the opportunity to provide
my input on how our government should manage these lands.
Let me also commend the Clinton Administration for tackling this contentious
issue by putting together an interagency working group that has developed what
many have called a balanced and positive approach to solving this dilemma.
The confusing regulations and policies which have evolved over the years are
largely due to agency regulations and court decisions as opposed to statutory guid-
ance. Because the Corps of Engineers, the Soil Conservation Service, the Fish &
Wildlife and the Environmental Protection Agency have all had a hand in past wet-
lands policy implementation, people across America have been baffled as to which
orggmization has either the ultimate responsibility or the most useful information to
resolve wetlands disputes.
Hopefully, the constructive approach used by the Administration and the willing-
ness of Congress and others to work on this matter wiU be the shot in the arm this
debate needs.
To assist in this effort. Senator Stevens and I recently formed the Senate Wet-
lands Caucus. We want it to provide a means for all senators to share information
and provide input during this legislative process. So far, members of the Caucus are
cautiously optimistic that the process can yield real results.
From Alaska to Arkansas, wetlands regulation affects a broad spectrum of unique
situations and an equally broad spectrum of Americans. The caucus will help to
1104
highlight the variety and gravity of the issues that must be addressed in the wet-
lands discussion.
I should point out that even since Senator Stevens and I introduced the Wetlands
Caucus on the Senate floor earlier this year, there has been significant progress and
more reason to hope for an equitable resolution. With the Clinton Administration
Interagency Task Force work and S. 1304, the bill introduced by Senators Baucus
and Chaffee, I believe we have an appropriate starting point to begin debate.
The interest of this committee, Administration involvement, legislation, the
Caucus, and a willingness by most parties to roll up their sleeves and iron out dif-
ferences— all add up to a workable framework for real progress.
Mr. Chairman, we stand at a point of great opportunity in a long and emotional
debate. We must take this opportunity to reach toward new understandings that
will eliminate the confusion and ambiguity that exists in our current wetlands poli-
cies.
I know I can say on behalf of the Wetlands Caucus we want to work with this
Committee and all others to develop laws and regulations that are both concrete
and reasonable.
Again, I thank you for this opportunity to testify before the Committee.
Senator Graham. Mr. Lyons, why don't you begin?
STATEMENT OF JAMES R. LYONS, ASSISTANT SECRETARY, NATU-
RAL RESOURCES AND ENVIRONMENT, DEPARTMENT OF AGRI-
CULTURE, ACCOMPANIED BY ROBERT H. WAYLAND, III, DIREC-
TOR, OFFICE OF WETLANDS, OCEANS AND WATERSHEDS, ENVI-
RONMENTAL PROTECTION AGENCY; G. EDWARD DICKEY,
ACTING ASSISTANT SECRETARY FOR CIVIL WORKS, U.S. ARMY
CORPS OF ENGINEERS; DON BARRY, COUNSELOR, OFFICE OF
THE ASSISTANT SECRETARY FOR FISH AND WILDLIFE AND
PARKS, U.S. DEPARTMENT OF THE INTERIOR; AND DOUG HALL,
ASSISTANT SECRETARY, U.S. NATIONAL OCEANIC AND ATMOS-
PHERIC ADMINISTRATION, U.S. DEPARTMENT OF COMMERCE
Mr. Lyons. Thank you very much, Mr. Chairman and members
of the subcommittee.
It is an honor to be here representing the administration and to
present to you our proposed attempt to deal with the wetlands
policy issues that have plagued the United States for some time
now.
Let me make clear that this statement is being presented on
behalf of not only the Department of Agriculture, but also the En-
vironmental Protection Agency, the Army Corps of Engineers, the
Department of the Interior and the National Oceanic and Atmos-
pheric Administration. This joint statement, I believe, demon-
strates the tremendous cooperation and coordination among the
Federal agencies that have participated in the Interagency Work-
ing Group on Federal Wetlands Policy that has produced the ad-
ministration's wetlands proposal which we present to you today.
Senator Lieberman. [presiding] Mr. Lyons, let me just intervene
for a courtesy and kind of a notification. It is our custom in the
committee to use timing the so that we can hear everyone. The
lights are on an 8-minute cycle. So we'd appreciate it if when the
red comes on you could try to draw to a close.
Mr. Lyons. I'll try to work on an 8-minute cycle.
Senator Lieberman. Thank you.
Mr. Lyons. Three weeks ago, the administration, as you know,
released a comprehensive package of improvements to Federal wet-
lands poHcy and we believe this package reflects a broad-based con-
sensus within the Executive Branch and clearly it's a departure
1105
from the gridlock of the past and contains what we believe is a bal-
anced, common sense, and workable set of initiatives that will
make Federal wetlands policy fairer, better coordinated with State
and local efforts, and more effective in protecting wetlands.
What I'd like to briefly do this morning is to discuss the process
by which we put together this proposal and some of the key ele-
ments of the package.
The Interagency Working Group was formed in response to a re-
quest to President Clinton from seven Senators as Chairman
Graham indicated. The purpose of the group was to provide a
forum to allow the appropriate Federal agencies to work together
with input from members of Congress and the public to develop a
consensus on wetland policy issues. The group was convened by the
White House Office on Environmental Policy in June and included
nine agencies — the Environmental Protection Agency, the Army
Corps of Engineers, OMB, and the Departments of Agriculture,
Commerce, Energy, Interior, Justice and Transportation.
In addition to the Interagency discussions, which occurred over a
long period of time, the working group solicited the views of a
broad range of stakeholders representing all perspectives in the
wetlands debate, including members of Congress, representatives of
State and local government, environmental interests, the develop-
ment community, agricultural interests, and the scientific commu-
nity. With this information in mind, the group met intensively and
developed proposals that we have to present to you today.
The Administration's plan includes both regulatory improve-
ments and what we believe are innovative, nonregulatory ap-
proaches to protect and restore wetlands. It includes administrative
actions, some of which took effect immediately, and others that
will begin during the coming months. It also includes legislative
recommendations for Congress' consideration during reauthoriza-
tion of the Clean Water Act. Some of the themes of this package
are consistent with those addressed in S. 1304 as well as S. 1114.
At this time, I'd like to highlight some of the specific elements of
the policy. A guiding principle in formulating the policy was to ex-
ercise strong Federal leadership while empowering State and local
action. The Administration believes that the Federal Government
should lead by example as well as by directive. To this end, the ex-
isting Executive Order on wetlands will be revised to establish an
interim goal of no overall net loss of wetlands and a long term goal
of increasing the quantity and quality of wetlands in the United
States. We are pleased to note that S. 1304 establishes the same
short and long term goals as does the administration's proposal.
The revised Executive Order will also direct Federal agencies to
take a watershed or ecosystem management approach to wetlands
protection and restoration in working toward these goals.
The Administration policy also identifies voluntary, nonregula-
tory wetlands restoration as an essential vehicle to achieving these
goals. The Wetlands Reserve Program is a crucial part of the ad-
ministration's wetlands restoration plan. The 1990 Farm Bill re-
quires a minimum of 1 million acres to be enrolled in the WRP by
the end of fiscal year 1995. The Reconciliation Act from 1993
amended the WRP acreage provisions to require not less than
330,000 acres be enrolled by the end of 1995, reduced the minimum
1106
acreage target to 975,000 acres and extended the enrollment period
to the year 2000.
In 1992, a 50,000 acre pilot project was very well received. In
fact, we had proposals from 2300 farmers to restore nearly a quar-
ter of a million acres of wetlands. The fiscal year 1994 agricultural
provisions provide for 75,000 new acres to be enrolled and would
more than double the number of States eligible for participation in
the program. Under the policy, the administration will use this
program in the Midwest in conjunction with emergency assistance
programs to help restore wetlands and assist farmers affected by
the recent flooding in the Mississippi.
In addition, the administration will examine opportunities to
expand existing Federal programs that seek to restore wetlands
through cooperative, voluntary agreements with private and other
nonFederal landowners. The Administration is pleased to note that
S. 1304 also promotes a similar wetlands restoration effort.
To increase State and local roles in wetlands protection and to
reduce duplication between wetland protection programs on differ-
ent levels of government, the administration encourages the Con-
gress to adopt several measures.
The first is to authorize the development of State-tribal water-
shed protection programs which should provide for local and re-
gional involvement and Federal approval of State programs, includ-
ing minimum requirements for wetlands protection and restoration
planning.
In addition, the administration recommends that Congress pro-
vide EPA with the authority to use its Wetlands Grant Program to
fund both the development and implementation of State-tribal wet-
lands conservation plans. Congress should also authorize partial as-
sumption of the section 404 Program by States and tribes as an in-
terim step toward full assumption.
Finally, the administration recommends that the Congress
should amend section 404(e) of the Clean Water Act to provide ex-
plicitly for the issuance of programmatic general permits with ap-
propriate environmental safeguards for approved State, tribal, re-
gional and local regulatory programs. Most of these measures, with
the exception of those related to the assumption of section 404 pro-
grams, are in S. 1304.
The Administration policy will streamline and clarify wetlands
programs affecting the agricultural community, something that
we've debated long and hard in recent years. At the heart of this
effort is a commitment on the part of all Federal agencies to mini-
mize duplication and reduce inconsistencies between the swamp-
buster program provided for in the Farm Bill and section 404 pro-
grams provided for in the Clean Water Act.
To that end, the Soil Conservation Service will be the lead Feder-
al agency for wetlands determinations on agricultural lands for
both programs, in consultation with the Fish and Wildlife Service
and under the programmatic oversight of the EPA and the Corps.
The SCS will use agreed-upon methods that are consistent with
those used by EPA and the Corps and will participate fully in an
interagency training program to ensure that field personnel are
properly trained.
1107
In addition, the administration has issued a final rule that af-
firms the exclusion of an estimated 53 million acres of prior con-
verted crop lands from Clean Water Act jurisdiction. These are
areas that prior to December 1985 had been cropped and hydrologi-
cally manipulated to the extent that they no longer perform the
functions they did when in their natural condition.
Consistent with S. 1304, the administration recommends corre-
sponding congressional action to define the term "waters of the
United States," in the Clean Water Act to exclude prior converted
wetlands.
The Administration policy also addresses landowner concerns re-
garding the section 404 Program. The Corps will develop through
rulemaking an administrative appeals process under the regulatory
program so that landowners, farmers and others can seek review of
jurisdictional determinations on permit denials without going to
court. The Corps will also modify its regulations to impose dead-
lines to ensure that permitting decisions are made in a timely fash-
ion. The policy also endorses the use of mitigation banks for com-
pensatory mitigation under the section 404 Program with environ-
mentally sound limits.
The Clinton policy takes several steps we believe to increase the
predictability and public acceptance of efforts to identify areas as
wetlands subject to the jurisdiction of the Clean Water Act. Use of
the 1987 Wetlands Delineation Manual has provided a workable
and broadly accepted delineation procedure over the past two
years. The Administration supports continued use by all agencies
of the 1987 manual pending completion and review of the National
Academy of Sciences study which we expect to have in September
of 1994. To increase public confidence in the Section 404 Program,
the administration is also recommending congressional endorse-
ment of continued use of the 1987 manual which again is provided
for in S. 1304.
To put to rest the notion that Congress did not intend to protect
wetlands in the Clean Water Act, the administration recommends
that an explicit definition of the terms "wetland," and "waters of
the United States," be included in the statute consistent with long-
standing regulatory definitions. S. 1304 includes such a definition
as well.
The plan recommends that Congress affirm these definitional
changes in legislation, as does S. 1304, for the discharge of dredge
or fill materials.
In conclusion, Mr. Chairman, we believe that this reform pack-
age represents a tremendous opportunity to move beyond the polar-
ization that has characterized the wetlands policy debate in recent
years. As indicated in this testimony, there are many similarities
between the administration's policy and the provisions of S. 1304.
We look fonyard to working closely with the committee to enact bi-
partisan legislation that will improve wetlands protection in the
United States.
I want to thank you for this opportunity to appear before you
and welcome any questions you might have to offer.
I also want to acknowledge my colleagues and partners who
worked many hours to put together this policy program.
Thank you, Mr. Chairman.
1108
Senator Lieberman. Thank you, Mr. Lyons.
I gather that the other folks on the panel are not going to make
opening statements but will be available for questioning.
Mr. Lyons. That is correct.
Senator Lieberman. I appreciate that.
We'll run the clock on ourselves. Why don't we do it for five min-
utes for the members?
I'd like to address the structure of the statute and the way you
dealt with it. I made reference to it in my opening statement, that
so much of the authority we now invest in 404 for the purpose of
protecting wetlands resources is really the result of court rulings. I
wonder if the administration feels, that we've reached the point
where we should be coming out and stating clearly the value of
wetlands, why we should protect them, perhaps expanding on a list
of the activities unacceptable in a wetland without a permit and
perhaps having a separate title of the Clean Water Act that would
deal specifically with wetlands. Mr. Wayland, do you want to
answer that?
Mr. Wayland. Yes, Senator Lieberman.
Indeed, we do agree that the time has come and is perhaps past
due to have a comprehensive and cogent series of provisions in the
Clean Water Act which recognize the importance of wetlands and
establish a framework for their protection.
Just to sort of illustrate the nature of the folklore and controver-
sy that has grown up in this program, it is true that much of the
current program has been implemented as a result of an evolution
in our understanding of the value of wetlands and evolution in the
regulatory tools to protect them. However, the word wetlands does
indeed appear in the Clean Water Act but the folklore, of course,
holds it has been repeated so often that even experts sometimes
will assert that term does not appear in the statute. It is certainly
the case that we can't look to the Clean Water Act and find the
kind of comprehensive and straightforward provisions that would
be extremely helpful to those of us who are trying to implement
that statute.
Senator Lieberman. I appreciate that. We look forward to work-
ing with you on that.
Let me ask about mitigation banking which is a topic around
which some controversy swirls. I note that the administration's
policy document endorses mitigation banking conceptually. I
wonder if you would develop that a little bit, anybody on the panel.
Let me just pose a few questions. Should mitigation banking be like
kind; does everyone agree that if a rare coastal wetland or wet-
lands are taken that their loss should be compensated for by restor-
ing other previously damaged coastal wetlands; should the compen-
sation occur in the same State or in the same region? Just, if you
would, develop the administration's thinking on mitigation banlang
a little bit beyond the conceptual.
Mr. Dickey. Let me say something from the Army's perspective
on mitigation banking. I think the focus is that we want to restore
or mitigate the values and functions that would be lost by the per-
mitted activity. So that would certainly be one principle, and if you
accept that principle of maintaining functions and values, then you
look for similar areas, similar geographic locations and so forth.
1109
It is important to keep in mind that the use of mitigation bank-
ing, however, does not preclude or aboHsh the requirement to go
through the sequencing process of avoidance and minimization and
we really look to mitigation banking as a way that in certain cir-
cumstances, can offer a more attractive proposal or alternative to
on-site mitigation. There's generally a preference for on-site mitiga-
tion because that is most likely to give you exactly the same values
and functions but there are disadvantages there, particularly when
you have isolated mitigation lands. It is very difficult, on a small
scale sometimes, to restore the same values whereas if you have a
bank, you do it on a large scale and you can get a better restora-
tion of the functions and values that you lost. Also, you can have
better management when you have a large tract. Also it simplifies
the monitoring process.
One thing we are very concerned about is when you do have
mitigation that you in fact monitor the Federal agencies, monitor
to ensure that mitigation remains effective over time.
Senator Lieberman. Who would monitor under mitigation bank-
ing?
Mr. Dickey. I believe that the Corps or EPA. Again, this is some-
thing which we are going to be working out in our detailed guid-
ance on this.
Senator Lieberman. What is an appropriate period for monitor-
ing?
Mr. Dickey. I would say indefinitely. The idea is the values
there.
Senator Lieberman. I note that the administration endorses miti-
gation banking in the context of comprehensive watershed plan-
ning at the State level. Is that something that we should specifical-
ly write into the Clean Water Act reauthorization?
Mr. Wayland. Senator, if I could, both S. 1114 and S. 1304 do
have watershed management provisions that we believe are a
useful starting point for establishing the kinds of programs we
think would help us to more effectively identify areas where resto-
ration, be it in connection with the mitigation bank or private res-
toration effort or a public restoration effort, will have the greatest
return for the environment from the public or private expenditure
involved.
Senator Lieberman. Finally, on this subject, are there successful
examples of mitigation banking that we can point to now?
Mr. Wayland. There are about 100 operating or planned mitiga-
tion banks around the country of various sizes and scales, most of
them relatively recent in their operation and it may be premature
to declare any of them a complete success at this juncture. Most of
them have been established for relatively specialized purposes, for
example, to mitigate for transportation projects. I think the hope is
that we may be able to see their availability broaden so that rather
than having small developers undertake two acre restoration
projects with limited prospects of success that we can, as Dr.
Dickey said, have larger scale, more appropriately located and
more professionally managed restoration efforts.
Senator Lieberman. Thank you. My time is up.
Senator Faircloth?
Senator Faircloth. Senator Kempthorne was first.
1110
Senator Lieberman. I'm sorry, Senator Kempthorne.
Senator Kempthorne. Thank you, Mr. Chairman. Thank you,
Senator Faircloth.
Mr. Lyons, if I may start with you, from the Department of Agri-
culture's perspective, could you please give me some insight as to
some of the adverse impacts that the current situation concerning
the definition of wetlands has had upon the farmers and ranchers
of the United States?
Mr. Lyons. Well, Senator, I think the most obvious adverse
impact is confusion, frustration and downright anger about the fact
that there was lack of certainty as to what constitutes a wetland;
what does not constitute a wetland. I think Senator Faircloth also
alluded to this. Frankly, from the standpoint of what was applied
under Swampbuster, and then what was applied under section 404.
That is one of the reasons we seek to provide a single authority for
making determinations on the ground so as to clarify for agricul-
tural producers that they have to deal with one agency on the
ground with regard to determinations and not live under the un-
certainty that a ruling made by one Federal agency may be differ-
ent from a ruling made by another.
Senator Kempthorne. Is there consensus that this truly has been
a difficult situation for the farmers and ranchers?
Mr. Lyons. I don't think anyone could doubt that. Senator.
Senator Kempthorne. If I may. Dr. Dickey, a question for you.
Could you describe for me the manner in which an average Ameri-
can comes to find out that he or she has wetlands on their property
that fall under your jurisdiction? Is the burden on the citizen to re-
alize that he or she has wetlands and obtain a permit from you and
what guidance is there when the area or the land at issue is open
to interpretation insofar as it is or is not wetland?
Mr. Dickey. There is a burden on the landowner and I think that
the we have worked hard to publicize the existence of the 404 Pro-
gram and the indicators, if you will, of wetlands and we are avail-
able to make jurisdictional determinations when a landowner sus-
pects that indeed wetlands may be present.
Senator Kempthorne. What guidance do you give to landowners
throughout the United States where they simply may not believe
that they have a wetland and yet the liability apparently is that
the burden of proof is on who?
Mr. Dickey. I think the burden of proof is in terms of the criteria
that are established there and in terms of hydrology, in terms of
the soils, and in terms of the vegetation. As I said, we have under-
taken extensive education efforts to make available to the public
information concerning wetlands. I think there is an exaggeration
here of the obscurity by which one knows whether there is a wet-
land or not. I think it really is not that big an issue, that people
are aware of the regulatory program and are aware under the cir-
cumstances where they may have wetlands on their property.
Senator Kempthorne. Let me just continue that. Does a system
of strict liability make sense in a context where it is not always
clear to a person that the land in question is or is not a wetland,
particularly where criminal penalties, fines and jail terms are im-
posed in some cases where the Corps dispute has been over wheth-
er the land in question is a wetland?
1111
Mr. Dickey. I'm not a lawyer and would like to supply something
for the record on that particular question. Perhaps Mr. Wayland
would like to address it as well.
Again, I think that you will find that the resort to criminal pen-
alties and so forth is a very rare instance, that whenever there
arises a case of where there has been an inadvertent activity in a
jurisdiction wetland, the Corps as a matter of policy looks to after-
the-fact permits and restoration as a way of handling the issue as
opposed to taking court action.
Senator Kempthorne. For the record, Mr. Dickey, I'm not an at-
torney either.
Senator Lieberman. Usually that elicits a stirring round of ap-
plause.
[Laughter.]
Mr. Wayland. If I could just supplement that a little bit because
under the Memorandum of Agreement with Army on enforcement,
EPA generally takes responsibility for addressing instances where
an activity has occurred without a permit which should have re-
quired a permit. I just want to emphasize Dr. Dickey's point that
the criminal penalties are reserved for instances of willful and
knowing violations and I think there would be relatively few ques-
tions that an uninformed landowner who destroyed a wetland un-
intentionally would be subject to the full weight of those kinds of
penalties.
Having said that, I think that the agencies together do need to
do a more effective job of making the public generally aware of the
importance of wetlands and the need to determine whether they
are present when undertaking the kinds of development activities
that can impinge on those wetlands and that is an important ele-
ment of the administration's plan, the emphasis on working more
effectively with State and local governments.
I guess as a former local planning commissioner myself, I can
tell you that rarely did we take the additional step of informing
developers and others of potential Federal requirements and ap-
provals that were needed in addition to those that we levied at the
local level. To the extent that we can recognize appropriate local
decision making which does adequately protect these resources, I
think we can eliminate a great deal of that confusion and duplica-
tion.
Senator Kempthorne. My time has expired. I appreciate that
final comment and certainly would encourage to the greatest
extent local decision-making ability.
Thank you, Mr. Chairman.
Senator Lieberman. Thank you, Senator Kempthorne.
Senator Faircloth.
Senator Faircloth. Thank you, Mr. Chairman.
Since there is confusion as to different responsibilities of the
levels of government and we have an array of people here that rep-
resent the various functions of government with regard to wet-
lands, and there are many of us that find the wetlands responsibil-
ity of each of your agencies confusing, starting with Mr. Hall, could
you explain to me your current wetland responsibilities and how
they differ from Dr. Dickey and the Corps of Engineers and on
down through the panel?
1112
Mr. Hall. Yes, Senator. I'd be glad to.
The National Oceanic and Atmospheric Administration and its
subagency, the National Marine Fisheries Services, has responsibil-
ity for providing biological information about the impacts of wet-
lands loss on commercial fisheries. As I'm sure you're aware, in the
south Atlantic area in your home State, we've lost about 42 percent
of the commercial fishery landings and shellfish landings since
1982. There are a number of reasons for that but one of the pri-
mary reasons is habitat loss and particularly wetlands loss. Coastal
wetlands are now disappearing at the rate of about 20,000 acres a
year. So our responsibility is a trustee responsibility for those
marine resources and protecting the Nation's fisheries.
We operate under a Memorandum of Agreement with the Corps
of Engineers and EPA in which we provide that expertise and that
advice in consultation with the Corps of Engineers enforcing the
law.
Senator Faircloth. In other words, you would deal primarily
with the brackish water?
Mr. Hall. Yes, all the estuaries.
Senator Faircloth. Dr. Dickey?
Mr. Dickey. The Corps of Engineers essentially administers, if
you will, the Permit Program. It receives permit applications, it
acts on them after receiving advice from the resource agencies. It
receives and acts on individual permit requests after consultation
with its sister agencies and with the public under an elaborate
framework that's been established there.
The Corps also issues what are called general permits which
allow various classes of activities to proceed without the benefit of
an individual permit. In fact, the vast majority of activities permit-
ted under the 404 Program are under general as opposed to specific
programs, about 90 percent actually.
So the Corps is essentially the administrator, the agency to
whom an applicant comes for guidance with regard to individual
permit-related issues.
Mr. Lyons. Senator, the Soil Conservation Service and the De-
partment of Agriculture functions under the authority of the Food
Security Act and the 1990 Farm Bill to implement the Swampbus-
ter Program. In so doing, the agency responsible for making deter-
minations and enforcing provisions of Swampbuster which basical-
ly allow no draining of wetlands which were not drained prior to
1985 so as to maintain their integrity.
That authority was modified by the 1990 Farm bill to provide
some exemptions for minimal effects and for some modifications in
the manner in which the overall determination process would
work, but largely, our responsibility is to work with agricultural
producers to provide for enforcement of Swampbuster.
Mr. Wayland. Senator, as the primary administrators of most
provisions of the Clean Water Act, we look not only to section 404
for our responsibilities to protect wetlands but other provisions of
the Clean Water Act as well. To concentrate, for a moment, on Sec-
tion 404, the statute does vest in Army the responsibility to be the
permit issuance and processing agency subject to guidelines issued
by EPA in the form of regulations and called for by Section
1113
404(b)(1). This is the overall environmental framework under which
the permitting program operates.
In addition, the agency determines the extent of geographic juris-
diction of the program, determines the applicability of the 404(f) ex-
emption for normal agricultural and silvicultural activities, and
makes decisions on whether the program should be delegated
through a process known here as assumption to interested and
qualified States.
We, in addition, have authority to elevate for consideration
within the Department of Army chain of command permits which
we believe present important national issues and we can disap-
prove an Army-issued permit if we determine that it is inconsistent
with the 404(b)(1) guidelines, an authority which very rarely has
been exercised by the agency.
Mr. Barry. Senator, the Department of the Interior and the U.S.
Fish and Wildlife Service in some respects almost has the broadest
portfolio for dealing with wetlands conservation of all the agencies.
We have extensive nonregulatory functions as well as regulatory
functions.
For almost 60 years now, the Department of the Interior under
the Fish and Wildlife Coordination Act has been put in a consulta-
tive role with the Corps of Engineers to provide comments on the
biological impacts of proposed activities which could affect the
waters of the United States. So the Fish and Wildlife Service is in-
volved in a consultative role in reviewing all proposed 404 permits,
for instance. This is based on an old statute that came out of the
1930's, the Fish and Wildlife Conservation Act.
The Fish and Wildlife Service also has consultative responsibil-
ities under various provisions of the farm bill and works very close-
ly with the Soil Conservation Service in implementation of parts of
the farm bill program.
In the nonregulatory programs, the Fish and Wildlife Service has
been involved for 75 years in conservation of migratory birds, the
acquisition of wetlands under statutes like the Migratory Bird Con-
servation Act for refuges, the expansion of the refuge system. The
Fish and Wildlife Service has an extensive wetland restoration pro-
gram under the Partners in Wildlife Conservation Program to
assist farmers and other private citizens in the restoration of wet-
lands. We also have had an extensive wetlands mapping program
going on for many, many years.
In both the nonregulatory sense and the regulatory sense, the
Fish and Wildlife Service has been providing consultation and
advice to the Corps of Engineers and EPA or working cooperatively
with the Soil Conservation Service and has had an extensive role
in wetlands conservation.
Senator Faircloth. Thank you.
Senator Lieberman. Do you want to take a few minutes to con-
tinue that line of questioning.
Senator Faircloth. Yes, I would if I may.
Senator Lieberman. Yes, go ahead.
Senator Faircloth. Mr. Hall, how much did you say we were
losing in wetlands?
Mr. Hall. This is just coastal wetlands, about 20,000 acres a
year.
1114
Senator Faircloth. Could you have someone in your office pre-
pare me a map going back say about 5 years delineating what
we've lost and where we lost it and the number of acres?
Mr. Hall. We'd be glad to do that. The primary State is Louisi-
ana.
Senator Faircloth. From about 5 years back. I'd like to see be-
cause I know that we are, I just would like to be able to say where
we are losing it and why.
I have a question for Mr. Lyons if I may. This penalty that Sena-
tor Durenberger mentioned, it is extremely harsh and would
amount to literally a taking of the property. For the average
farmer, some $25,000 a day, it wouldn't take very long to eat up a
lot of farmland and a lot of timber land at that. Would you be sup-
portive of a great reduction of that to say the value of the land or
something of that nature?
Mr. Lyons. Senator, let me point out a couple of things. First of
all, we also are engaged in the practice of monitoring wetlands and
trends in wetland loss. The Swampbuster provisions that you
allude, to I think, have had a great deal of important effect in
curbing wetland loss. From 1983 to 1987, we estimate that wetlands
on private agricultural lands were lost at about 120,000 acres a
year. That has been curbed somewhat; down to about 41,000 acres
per year. I think that is a demonstration of the value of the pro-
gram.
We tackled the issue of the harshness, as you put it, of the provi-
sions of Swampbuster in 1990 in amendments to the conservation
title of the farm bill. Of course there was extensive debate in both
the House and Senate about this. We adopted a provision that al-
lowed for a minimal effects determination. That was, if an individ-
ual inadvertently converted a wetland to cropland, and it was de-
termined looking at the entire watershed that the effect of the loss
of that wetland was minimal on the integrity of wetland resources
in that area, then the farmer could, through mitigation, retain the
farm program benefits that he or she enjoys. So it is an issue that
we have tackled in the p£ist. I think that is an appropriate way of
trying to address that, recognizing the fact that in some cases the
wetland loss may not be as significant as in others.
Senator Faircloth. But you would not support a reduction in the
penalty?
Mr. Lyons. Not at this time, no, sir.
Senator Faircloth. Mr. Wayland, I notice that EPA granted to a
wetland watch group $50,000 as unofficial monitors of private wet-
lands. These wetland watchers would snoop landowners and see if
they could find or report a violation. Are you aware of that?
Mr. Wayland. Senator, citizen monitoring of wetland quality is
actually a very valuable component of our broader Clean Water
Act efforts and literally tens of thousands of citizens annually par-
ticipate in efforts to try to characterize the health of our aquatic
resources, particularly streams and lakes. Those efforts have been
assisted through grants.
I am not aware of the particular grant that you've mentioned.
We make on the order of $10 million in grants primarily to State a
year. Some of these also are also to local and not-for-profit groups.
I'd be glad to try to do some further research on that for you.
1115
Senator Faircloth. Would you get me a list of any grants you
have made to other than States, to any private groups to monitor?
Mr. Wayland. Yes, I will.
Senator Faircloth. That gets into, in my opinion, government
snooping. That becomes an intrusion upon the privacy of the
public.
I don't have any further questions right now.
Senator Lieberman. Thank you. Senator Faircloth.
Mr. Lyons, let me come back to some of the questions asked
about the role of the Soil Conservation Service. As indicated in my
opening statement, I think the recommended change to have the
Soil Conservation Service be the agency which makes wetland
permit decisions for agricultural lands is a sensible and necessary
one, but as you know, there are critics of the proposal and I want
to give you an opportunity to respond to those.
Let me just paraphrase some of the criticisms. The critics argue
that the unspoken mandate of the Soil Conservation Service has
been to help create more cropland, that it has a poor record in the
Swampbuster Program and its field staff lacks the scientific exper-
tise, experience or knowledge to deal effectively with the identifica-
tion of wetlands. More generally, I suppose, building from all this,
the strongest critics basically argue that because of the tremendous
loss of wetlands due to agricultural practices that this proposal es-
sentially puts the fox in with the hens. Why don't you respond to
that series of questions?
Mr. Lyons. Well, I find myself in an interesting position, Sena-
tor, because just a year ago I was with the staff of the House Agri-
culture Committee and might have joined with some of those crit-
ics, but now I'm on the other side of the fence.
Senator Lieberman. So you think you've grown older and wiser?
Mr. Lyons. Yes, much wiser in the last 3 months.
I would say this in all seriousness in response, it's interesting if
you talk to agricultural groups about SCS. They see them as the
green police and they are quite exercised about the belief that they
think SCS performs too much of a regulatory function and in
effect, is too aggressive in its implementation of the conservation
provisions of the farm bill.
I think there is a balance there but more importantly, we have a
good working relationship with the Fish and Wildlife Service and
the Conservation Title of the 1990 Farm Bill strengthened that re-
lationship and brought the Fish and Wildlife Service into close in-
volvement in our activities related to wetlands on the ground.
In addition, we have made extensive efforts in recent years to
beef up the biological expertise and capability of SCS and I think
that has added to our capability on the ground to make things
work better.
Finally, I'd point out that I think this proposal to bring the agen-
cies together, to work cooperatively to come up with a common def-
inition, a common manual for implementation, a common agree-
ment on what constitutes a wetland helps to address the criticisms
of those who say if you leave SCS out there on their own, then you
do in fact leave the fox guarding the hen house because we are not
going to be out there on our own. We are simply going to be the
contact point for implementing a comprehensive and cohesive Fed-
1116
eral policy which reflects an agreement on what wetlands should
look like and how they should be protected. I frankly assume then
that the Corps and EPA, and others, will be making the same as-
sumptions and viewing wetlands in much the same way.
So I think this is a very, very different approach and frankly, I
think that SCS is quite up to the task. In fact, I would point out
that SCS over the past two decades has led the way in promoting
watershed-based planning in a number of ways and as a part of our
effort to lead by example, the two agencies that I work with — the
Forest Service and the Fish and Wildlife Service — are moving ag-
gressively to ecosystem management and watershed-based planning
for all their activities.
I think to the contrary we can stand up to our critics and demon-
strate that we have the capability and expertise and by working
with our partners here at the table have the capability to do the
job to protect the Nation's wetlands.
Senator Lieberman. How is the relationship working under the
farm bill and is it a model for what can happen here?
Mr. Barry. I was the Department of the Interior's representative
on the administration's Wetlands Task Force and when the ques-
tion came up regarding the role of the Soil Conservation Service in
the 404 Program, quite frankly, I turned to the Fish and Wildlife
Service and expected to hear loud complaints from them. I was sur-
prised by the response that I got from the Fish and Wildlife Serv-
ice. The people in Washington told me that they have an excellent
working relationship with the Soil Conservation Service, that they
really have very few complaints in what they see as a changed
commitment within the Soil Conservation Service toward wetlands
conservation. Quite frankly, the people in the Service that I dealt
with on the Task Force were very supportive of the shift to the Soil
Conservation Service and the lead for the 404 Program.
As Jim mentioned, a close working relationship has evolved since
the passage of the farm bill. I think the Soil Conservation Service
and the Fish and Wildlife Service has established at the field level,
which is really the important place, a number of cooperative links.
There are a number of consultative roles that the Fish and Wildlife
Service plays under the farm bill in aiding and assisting the Soil
Conservation Service. The net result of all of that has been that
when I turned to them and said, what do you think, can you really
trust the fox in the chicken coop, the answer from the Fish and
Wildlife Service folks was, you bet.
Senator Lieberman. Good.
Let me ask you a question, before my time runs out, which is on
a different subject and that is that the administration proposal
mentions wetlands creation several times in the report as a poten-
tial option for mitigating wetlands loss. I can't recall any strong
scientific testimony that it is possible to create, as opposed to the
mitigation banking we were talking about earlier, a wetland. What
would be your response to that? Is it possible?
Mr. Barry. I think between the two options you may have for
producing mitigation, wetland restoration or wetland creation,
clearly it is much easier to try and restore a wetland than to go out
and create a brand new wetland. I think wetlands creation science
is still evolving and there is a lot more that needs to be done.
1117
The Fish and Wildlife Service has an extensive wetlands restora-
tion program underway. For instance, it's very easy to restore a lot
of farmed agricultural lands, go back in, break a drain tiles and so
on. Wetlands creation is much more difficult. You need to have a
much more thoughtful approach to it and I think the jury is still
out as to how successful it ultimately will be. It certainly is an area
in which we are interested in pursuing additional research.
I think also it needs to be kept in the broader context or at least
we need to keep a broader context and that is that the most effec-
tive way for preserving and conserving wetlands is to protect what
we have. It's only really after a decision has been made that we
can no longer avoid in a particular area or we can no longer avoid
the destruction of wetlands that we then start to talk about things
like wetlands restoration and creation. Under those circumstances,
I think wetlands restoration is a safer, better way to go. You have
a much greater likelihood of success.
Senator Lieberman. So at this point, wetlands creation is an idea
to explore but if I hear you correctly, we're not certain it is feasible
yet?
Mr. Barry. Well, again, it's an evolving science and I don't think
we're ready to declare victory yet. It's much easier to restore a wet-
land that did exist in nature before and that acts of civilization
have sort of altered it. You go back and you can reconstruct things
frequently. In a lot of these former wetland areas, you still have
seeds in the ground. You go back, restore the hydrology and all of a
sudden you have wetland vegetation popping by up after a number
of years.
Senator Lieberman. My time is up.
Senator Faircloth, do you have any other questions?
Senator Faircloth. Yes.
Mr. Lyons, just recently a blueberry farmer in North Carolina
came to me and told me he wasn't permitted to grow blueberries
on his land because they were not a commodity. Therefore, they
were not subject to the Swampbuster and normal agricultural ex-
emption under 404. Why should he need a permit at all?
Mr. Lyons. Senator Faircloth, I know that blueberries are not a
commodity as defined in the context of the Farm Program. I'm not
sure I can address the question of the normal agricultural exemp-
tion as well as perhaps Bob Wayland might since he administers
that element of the program. Maybe I should turn to Bob.
Mr. Wayland. I'd certainly like to have more information, Sena-
tor, and be able to follow up on this, but the Clean Water Act ex-
emption is for normal, ongoing agricultural operations and if the
intention was to take existing wetlands, waters of the United
States, and convert them for purposes of growing blueberries, that
would be an activity — the draining or drilling associated with that
activity would require a permit. The fact that a permit might be
required is not to say that the permit wouldn't be granted.
As you are probably familiar, there are about 80,000 activities a
year that are authorized to take place in wetlands under the Clean
Water Act, many of them under general permits. It is entirely pos-
sible, depending upon the size of the operation here, a general
permit would have been possible.
1118
If you can provide some additional particulars, we'd be glad to
look further into the specifics.
Senator Faircloth. Mr. Lyons, the administration's position does
not consider haying, cutting hay, and grazing, a normal farming or
ranching activity. If cutting hay and grazing cattle is not a normal
ranching activity, and it is abnormal, would you give me a normal
one?
Mr. Lyons. I can give you a lot of normal activities, but again, I
hate to do this but this issue again gets to the heart of EPA's juris-
diction and implementation of 404 with regard to the normal prac-
tices exemption, so I'll have to ask Bob to address that, if I could.
Senator Faircloth. Would you tell me if cutting hay and grazing
cattle is not a normal ranching activity, what is it?
Mr. Wayland. Senator, if those activities are ongoing agricultur-
al practices, they are certainly permissible under the section 404
Program. The intention in the agreement that the four agencies
have recently reached on determinations of 404 jurisdiction on ag-
ricultural lands is keyed to the Swampbuster definition. Swamp-
buster, of course, applies its sanctions based on program or com-
modity crops — corn, wheat, soybeans, et cetera.
The applicability from a section 404 standpoint comes from our
desire to try to reconcile the two programs. The regulation which
was recently adopted as part of the President's plan exempts the
same set of activities from the 404 Program as are defined "prior
converted crop lands" under the Swampbuster Program. Certainly
S. 1304 includes in its definition of areas which would be exempted
from Section 404, haying among others.
Mr. Lyons. Senator, I believe there are exemptions for those
practices, both under Swampbuster and 404. So again, if you have a
specific case you would like us to address or investigate, we will
certainly do that.
Senator Faircloth. Would you expect a sophisticated farmer to
understand the intricate details of 404?
Mr. Lyons. Well, Senator, I would point out that this is one of
the reasons that we're working together as an interagency team to
try and come up with some ways to simplify the processes and to
clarify for producers precisely who they need to deal with on the
ground. Certainly, an additional part of this will be more informa-
tion provided to producers so that they know when they deal with
SCS, and that is who they are going to have to deal with on the
ground, the information they need to obtain, and what practices
they can and cannot engage in. That's why we're trying to change
the policy, to move in a different direction and make life easier.
Senator Faircloth. That would be nice.
You would not even hint that there might be an over regulation
of the activities on private land?
Mr. Lyons. I would suggest strongly there is always need for im-
provement in how we implement these programs. We seek to move
aggressively to do that.
Senator Faircloth. How long have you been with the Depart-
ment of Agriculture?
Mr. Lyons. Since May 12th.
Senator Faircloth. That doesn't give you much of a background,
does it?
1119
Mr. Lyons. I know a little bit about agriculture, Senator.
Senator Faircloth. When did the Soil Conservation Service do a
180 degree turn to the preserving of wetlands to the drainage of
wetlands?
Mr. Lyons. Well, Senator, the statutory change in authority for
the Soil Conservation Service occurred with the 1985 Farm Bill.
Senator Faircloth. Prior to that, they drained farmland.
Mr. Lyons. I would say prior to that, the Soil Conservation Serv-
ice provided technical assistance for a whole host of activities and
programs and I would say that in 1985, a significant change in
policy did, in fact, occur.
Senator Faircloth. When you say technical assistance, what
does technical assistance mean?
Mr. Lyons. Going out in the field and showing you how to put in
drains or how to tile a field or to do whatever was necessary.
Senator Faircloth. You paid the money too.
Mr. Lyons. No, SCS doesn't provide cost-share assistance.
Senator Faircloth. Whoa. I ran 10 to 12 drag lines for 15 lines
digging ditches and was paid by the ASCS.
Mr. Lyons. That's the ASCS.
Senator Faircloth. No, SCS supervised it and ASCS gave the
money; it came through the same check.
Mr. Lyons. I don't mean to be technical, but that's true.
Senator Faircloth. When did ASCS stop that? When did they do
the 180-degree turn?
Mr. Lyons. They still write checks.
Senator Faircloth. For drainage?
Mr. Lyons. No, sir.
Senator Faircloth. When did they stop?
Mr. Lyons. In 1985, I would say with the change in statutory di-
rection that was provided.
Senator Faircloth. You've got some new information?
Mr. Lyons. No, sir, just a point of clarification. There was also
an Executive Order in 1987 that clarified that we would not fund
activities that would lead to the drainage of wetlands. So that reaf-
firmed the statutory change in direction that was provided in 1985.
Senator Faircloth. We talk about restoring wetlands, which is
certainly an admirable direction, but the major loss of wetlands
came about through the Corps of Engineers and the ASCS. The
Corps of Engineers drained the majority of the Nation.
Mr. Dickey. There is no question that the Federal programs en-
couraged historically the drainage of wetlands, certainly.
Senator Faircloth. Well, the Corps of Engineers is spending vast
amounts of money to operate the drainage system in the Ever-
glades.
Mr. Dickey. To be sure.
Senator Faircloth. Millions and millions of dollars. Any plans to
convert that or stop it?
Mr. Dickey. As you know, we have authorized a major restora-
tion project of the Kissimmee River which will undo the drainage,
if you will, that occurred there.
Senator Faircloth. Well, it wasn't drainage, you just converted
the Kissimmee River to channel 38, I believe was your designation
of it.
1120
Mr. Dickey. That's right, and again, those reflect values of the
past which are no longer the values of today.
Senator Faircloth. How about switching the pumps off?
Mr. Dickey. Unfortunately, just turning off the pumps in and of
itself doesn't restore the natural system.
Senator Faircloth. It would go a long way toward it, wouldn't
it?
Mr. Dickey. To some extent it may, but it also might have other
untoward impacts on private property and so we proceed to do
these things in the context of an authorized project with appropri-
ate compensation to those who lose the benefits. After all, these
things were done for some economic gain and people look for com-
pensation when that service is removed.
Senator Faircloth. Mr. Dickey, Bernard Goode, do you know
who he is?
Mr. Dickey. Yes, I do, Bernie Goode? Yes.
Senator Faircloth. He said, "Even when I was in government,
the wetlands program seemed wrong. I've now come to realize just
how unfair, outrageous, and abusive to landowners it really is."
That is a former colleague. Would you like to comment on his
statement? Do you respect his honesty, integrity, or do you not re-
spect it, or do you agree with him?
Mr. Dickey. I certainly respect his right to have his views and I
guess it is good that he has retired.
[Laughter.]
Mr. Faircloth. I'm sorry, I didn't hear you.
Mr. Dickey. I said I certainly respect his right to express his
views and I understand why he would be retired with views like
that.
Senator Faircloth. You mean you fired somebody?
Mr. Dickey. No. I said he retired and I said it's good because cer-
tainly those are not our views.
Senator Lieberman. Senator Faircloth, if I might, I think we
have to move on if you want to finish this line of questioning but
we've got to move to the next panel.
Senator Faircloth. Thank you.
Senator Lieberman. We do have to go on to the next panel. I had
another question about the terms under which the administration's
program calls for partial assumption of responsibility of the wet-
lands program under 404. Right now, as you know, Michigan is the
only State to assume any responsibility. 'There is a lot of concern at
the State level about the cost of the program and the difficulty.
I just say that by way of noting it and I would like to submit that
question to you in writing and ask you to just define or explain a
little bit more what you have in mind by partial assumption by the
State? Mr. Wayland, do you want to try this quickly?
Mr. Wayland. I could do that very quickly. I think a number of
States have expressed a willingness to operate a program that
would address certain kinds of activities or certain kinds of wet-
lands. There is one mechanism, the programmatic general permit,
through which that could be realized. If their intention is to
progress toward full implementation of a program equivalent to
the Federal program, another intermediate step would be to au-
1121
thorize them to regulate certain activities or only certain classes of
wetlands. That's what we mean by partial assumption.
Senator Lieberman. So EPA would continue to exercise oversight
and set some standards essentially for the delegation?
Mr. Wayland. Yes, absolutely.
Senator Lieberman. Thank you all very much. It has been a very
helpful panel and we look forward to working with you as we pro-
ceed with this reauthorization.
Senator Graham, [presiding] Thank you very much, Senator. It
looks as if I arrived at the end of act one and we are now ready for
act two.
Thank you very much, gentlemen.
Our next panel consists of Dr. Joe Larson, Professor of Biology,
The Environmental Institute, University of Massachusetts at Am-
herst and Dr. David Cooper, Senior Research Scientist, Department
of Fishery and Wildlife Biology, Colorado State University. Dr.
Larson and Dr. Cooper, please come forward.
Dr. Larson and Dr. Cooper, we very much appreciate your join-
ing us today and we look forward to your testimony which will un-
derscore some of the special distinctions between this issue in the
eastern and western portions of our country.
First, Dr. Larson.
STATEMENT OF JOSEPH S. LARSON, PROFESSOR OF BIOLOGY,
THE ENVIRONMENTAL INSTITUTE, UNIVERSITY OF MASSACHU-
SETTS AT AMHERST
Mr. Larson. Thank you, Mr. Chairman, for the opportunity to
provide some scientific background on functions and values of wet-
lands in the eastern United States.
I'd like to open my remarks by recalling that wetland regulation
and the permit process in obtaining permits for wetlands actually
started 14 years before the Federal Government became involved
in the 404 Program and started in my State of Massachusetts. I
hasten to recognize that also the States of Connecticut and Rhode
Island came in quickly after that.
The initiative for wetland regulation did not come from govern-
ment bureaucrats in the various State houses but came from local
towns that wanted to protect the functions of coastal marshes as
nursery grounds for commercially valuable fish and shellfish and
then from inland communities who recognized that wetlands were
critical to reducing downstream flood damage.
Today, many of the eastern States have their own inland wet-
land regulatory programs; all of them have some form of coastal
regulatory program; and some States have local or municipal regu-
latory programs. This is an area in the country where we have a
lot of wetlands and we have a lot of people. It's interesting to note
that the initiative came originally from the people and not from
the State bureaucracy.
The eastern United States is characterized by abundant rainfall,
evenly distributed across the year, and as a result, we have a great
number of wetlands. The Atlantic and Gulf Coasts of the east are
geologically older than the Pacific Coast and have well-developed
and large coastal wetlands often behind barrier beaches and bar-
1122
rier island chains. Large river systems and their sediments have
formed major estuarine and coastal wetlands systems.
The glaciated northern part of the eastern United States is char-
acterized by wetlands that range in size from less than one acre to
many hundreds of acres. They are abundant and scattered across
the landscape. In the unglaciated portion of the east, central Atlan-
tic and southeastern States, wetlands are primarily associated with
small to large river systems and artificial reservoirs.
I'd like to touch briefly on the major functions and values first,
of eastern coastal wetlands. Marine fisheries are an important
product of coastal wetlands in the eastern United States. It has al-
ready been noted before by one of the committee members the
extent to which commercial shellfish and finfish harvested in the
entire United States depend on coastal wetlands as nursery areas
and as a food source.
The importance of this function is high both on a local and a re-
gional scale. For example, in 1980, the economic value of Chesa-
peake Bay seafood, sport fishing and related activities was valued
at about $756 million. The same region, Chesapeake Bay produces
annually 90 percent of the stripped bass harvest along the entire
Atlantic Coast and that species is a species that is closely tied to
the Chesapeake Bay wetlands.
In Louisiana, the multimillion dollar commercial fish in-shore
shrimp industry is directly proportional to the area of intertidal
wetland and losses of these wetlands are having a major effect on
the fishing industry. The National Marine Fisheries Service esti-
mated for the period of 1954 to 1978 annual fishery losses due to
estuarine marsh losses at $208 million.
Coastal wetlands do have a role to play in certain circumstances
in storm damage. When coastal storms move onshore at low tide,
coastal wetlands can provide a measure of storm buffering, but
more importantly, and fully demonstrated by recent east coast hur-
ricanes, coastal wetlands are areas of high risk for human habita-
tion and development. Maintaining these wetlands in their natural
state by prohibiting development is an avoidance of major individ-
ual and public financial losses.
Some comments on the functions and values of eastern fresh
water wetlands. Wetlands on the streams of the eastern and south-
eastern United States provide natural flood storage that reduces
the height of flood crests at substantial savings to downstream
landowners, cities and towns. Especially important in this regard
are the large wetlands positioned in the midstream on the main
stem of major watersheds.
A classic example of this kind of wetland performance and flood
control comes from my home State, the Charles River in Massachu-
setts. The Corps of Engineers did a study of the effectiveness of
those wetlands in reducing flood damage as opposed to creating ar-
tificial structures and found it was more cost effective to preserve
8,000 acres of wetlands to provide prevention of flood damage valu-
ing $17 million a year downstream in the Boston area.
In Wisconsin, floods may be lowered as much as 80 percent in
watersheds that have many wetlands as compared to those that
have few wetlands. The same can be said in general about the bot-
tomland hardwood forests of the Mississippi River. Originally,
1123
those bottomland hardwood forests had the capacity to store flood-
water equivalent to about 60 days of river discharge prior to
human settlement. Human settlement and development and con-
struction of levees along the lower Mississippi River has reduced
that flood storage from 60 days of discharge to 12 days. This is one
of the main reasons for flood damage in the lower Mississippi
River.
Another important function of the inland wetlands is water qual-
ity maintenance. Inland wetlands act to capture sediment and
remove nutrients that if not trapped or removed would degrade
downstream water quality. We are particularly concerned here
about the effects of nitrogen and the effects of phosphorous. An ex-
ample of this role comes out of the Delmarva Peninsula occupied
by Delaware, Maryland and Virginia where forested wetlands play
an important role in reducing concentrations of nitrate in ground-
water and surface water. The economic significance of wetlands in
Chesapeake Bay in terms of water quality can be looked at in
terms of what would happen if the wetlands of the streams moving
into Chesapeake Bay were filled. It would cost $926 million to up-
grade the sewage treatment plants in Maryland and Virginia to
compensate for the lack of sewage treatment capacity of those wet-
lands on the streams going into the Chesapeake Bay.
Some wetlands are intimately involved with groundwater re-
charge and discharge and in some parts of the country, important
municipal well systems draw on wells drilled in wetlands or close
to wetlands.
With regard to forestry and fish, the bottomland hardwoods of
the southeastern United States are important as productive forest
sites and during the flooding season are critical for the mainte-
nance of many fish populations in these bottomland hardwood
streams.
I see that my time has come to an end. I would like to conclude
my summary of written testimony to say something about assess-
ment of functions and values.
You will note in the proposals from the White House and also I
think recognized in the background material of the bill produced
by Senators from this committee, that the notion of a priori catego-
rization of wetlands into high, low and medium value has been re-
jected by the administration and appears similarly to be rejected
by the legislative proposals from this committee.
I concur in that rejection but I would also point out that we
ought not to be rejecting the notion that we can identify wetlands
that have particularly valuable roles and particular functions. We
are already doing this by identifying wetlands under the RAMSAR
Convention on Wetlands of International Importance, we already
do this by acquisition of wildlife refuges.
If the administration and legislation coming out of this commit-
tee proposes that we use as an analog the information about a re-
source such as is encompassed in the soil maps and texts that have
long been used by the Soil Conservation Service to help guide us on
the limitations and hazards of usages of certain soils, if that kind
of investment and categorization is being sought, that certainly I
think would be supported by elements of the science community.
I thank you very much.
1124
Senator Graham. Thank you, Dr. Larson.
Dr. Cooper?
STATEMENT OF DAVID J. COOPER, SENIOR RESEARCH SCIEN-
TIST, DEPARTMENT OF FISHERY AND WILDLIFE BIOLOGY,
COLORADO STATE UNIVERSITY
Mr. Cooper. Thank you, Mr. Chairman. I appreciate the opportu-
nity to come before you today.
The perception that the west is dry really permeates most peo-
ples' thinking in the United States, and for this reason, most
people have come to the conclusion that there are no wetlands in
the west. This was accentuated when the National Wetland Inven-
tory first started mapping wetlands in the west. When they started
mapping wetlands in the United States, they chose some large
areas in the west to map and they quickly got bogged down in the
fact that there were lots of wetlands in the western United States
and fundamentally they were very different from those in the east-
ern United States.
The west is dry. Most areas between Kansas and the Sierras in
California receive less than 15 inches of precipitation. When pre-
cipitation does occur in the form of snow or water, it is seasonal.
Most of the wetlands in the western United States do go dry peri-
odically. However, the water does run off the landscape and we
find that the wetlands are very important for treating water before
it runs into streams and into groundwater and lake systems as
well.
Because wetlands are so scarce, most States in the west have less
than 1 percent of their area as wetlands. The State of Nevada has
three-tenths of 1 percent. Because wetlands are so uncommon,
their value and their function is accentuated even more. They are
vital to wildlife; they are vital to treating runoff from partially
vegetated lands and agricultural lands which are abundant
throughout the west; they are important for retaining floodwaters
because many times when water occurs seasonally, it occurs all at
once and that provides some big problems with flood control as
well.
Information about the functions of western wetlands is fairly
recent in coming and to illustrate some of my points, what I'd like
to do is show you a series of slides about what western wetlands
look like and some of their functions and I'll summarize quickly
after that. [Slide]
This is a photograph of the northern prairies of North America.
What you can see here are a series of basin wetlands that we call
the prairie potholes. These are formed by glaciation. They are all
internally draining; there aren't streams; they are all basically iso-
lated. [Slide]
There is another view. These are wetlands in North Dakota.
They are isolated. Each one basically receives its surface water
from runoff in that area. They can be connected via groundwater,
however.
These don't just occur in the northern prairies but they occur in
large complexes from the Gulf Coast all the way up into Canada to
1125
the Arctic. They are called a variety of different names — playas,
vernal pools, prairie potholes, et cetera.
Senator Graham. Excuse me. On that last slide, could you give
us an indication of the scale? For instance, the water bodies in the
lower left, how many acres?
Mr. Cooper. That would be probably about 10 acres. Most of
them are small.
Senator Graham. Do they tend to occur in clusters such as this?
Mr. Cooper. Yes, they do. They are in large clusters. Some of
them are very significant but they are scattered throughout the
area — the rainwater basin in Nebraska, the playas of North Texas.
They are big complexes but they are formed by different processes
in each region. [Slide]
This is a closer view of one of these. You can see that most of
these potholes are completely surrounded by agricultural land, the
ones that are undrained at least. They are marsh complexes that
are vital to waterfowl. [Slide]
This is a little closer view and you can see that they occur in be-
tween hills. These are basins that can hold a large volume of
water. The value of one wetland in particular is not valuable but
cumulatively, thousands and thousands of these basins provide phe-
nomenal functioning for water retention, sediment retention, nutri-
ent transformations, et cetera. [Slide]
The waterfowl value is very well known. Fully 60 percent of all
the waterfowl in North America use these basin systems in the
prairies and that is a tremendous percentage considering their
small area of the United States. These kinds of basins don't just
occur in the northern prairies but they are scattered throughout
the arid west. This is an intermountain basin in Colorado, they
occur around Great Salt Lake and many other areas throughout
Nevada. Senator Reid this morning suggested that the Stillwater
Marsh was a similar system and indeed, it once was. [Slide]
Some of these are dry seasonally and you have to wonder how
something that can dry up seasonally can be so valuable. The point
is that by drjdng down, they then enhance the amount of water
that they can hold when larger amounts of water come. In addi-
tion, when the area dries, the vegetation created by algae and vas-
cular plants decomposes and the nutrients are then available for
the next wet cycle which are put into solution and create phenome-
nal productivity rivaling some of the salt marshes of the United
States that are very important for waterfowl.
The second major kind of wetland in the west are what we call
riparian wetlands, occurring along streams. The stream is a differ-
ent system but the flood plain dominated by plants here is the ri-
parian wetland. Some of the functions I'll just go through very
briefly. [Slide]
One of them, as you can see here, is the input of organic matter
into the adjacent stream system. The fish that live in these
streams, particularly trout and others, feed largely on inverte-
brates, insects, and the insects are living on organic matter import-
ed from the adjacent riparian wetland. So the riparian system is
feeding the insects that the trout feed on and it supports the entire
aquatic food chain.
1126
Large wood like this shades the stream, provides litter input as
well, particularly in the northwestern U.S. and other areas. The
trees are important, not just when they are alive, but when they
are dead as well. When they are dead, they fall in to the stream,
get lodged together and create the actual pools and riffles that we
find in many western wetlands. So these inputs of large dead wood
is essential as well. [Slide]
Many of these systems can store water. This is a little lower in
the basin. You can see a large meandering stream here in the foot-
hills of the Rocky Mountains. These areas can store lots of water in
the floodplain soils that can be released later on in the summer
when the streams are at much lower base flow. That enhances
stream flow, fishery support and the use of this water downstream
by agriculturists and municipalities.
I can't stress enough the importance of maintaining the integrity
of these systems, both the flood flows and the vegetation. In the
past, the vegetation has been removed from a lot of these systems.
Here you can see on the left bank a big stand of willows holding
the stream side stable. When the vegetation is removed, the whole
system collapses. There is no more input of nutrients in the form of
organic matter, the streami food-chain collapses, the water quality
is degraded by the input of sediment, et cetera. This is really the
general case throughout the west. Many of these systems have
been degraded by vegetation removal which is really dramatic.
[Slide]
Many of the larger rivers fed by snowmelt flood as well or used
to flood. The Bureau of Reclamation has come to the rescue of
many people who were interested in settling flood plains. The im-
portance of flooding is twofold. One is that many of the native fish
in these systems would move out of the channel and into these ad-
jacent wetlands that you can see here. This is along the Green
River in Utah and in those adjacent wetlands they would find
cover and food and move back into the stream in low flows. [Slide]
The diking-off of streams and the regulation of streams so that
there is no more flooding have really limited the distribution of en-
demic fish in the western United States and the function then is
lost. [Slide]
This is a picture of the Missouri River in Montana. You can see
the extent of the former flood plain by the edges of the banks way
back. Now the flood plain is basically the stream and it doesn't
even extend as far as the cottonwood trees which are dominating
this flood plain. Those cottonwood are a relic of a former flood
regime. [Slide]
The cottonwoods, these plants here are really indicative of the
health of the system. They are short-lived plants and they are es-
sential for supporting birds and other animals. [Slide]
Another major kind of wetland in the west are areas that have
high water tables. These are called wet meadows and many of
these, as you can see in this photograph, are created by agricul-
ture, many of them are natural, and these provide tremendous sup-
port for agriculture in the west, particularly grazing. On the right
side of this photograph you can see an area that is irrigated and
has been supported by water taken out of the stream.
1127
To summarize, since my time is coming up here, the west has
wetlands which are of international and certainly interstate impor-
tance. Waterfowl are using wetlands on a global scale or at least on
a continental scale in this part of the world. They are moving from
the Gulf Coast up through the continent's wetlands. Water is also
flowing from State to State to State in floods and the water quality
changes occurring one State certainly affect all the others. So there
is a definite role for the Federal Government in this situation.
We know a lot about the percentage of waterfowl that use these
wetlands; we know quite a bit about some of the fisheries issues
and their support by wetlands and we really know very little about
some of the other functions. Wetland science is just developing in
the west and there are problems in really trying to value economi-
cally some of these wetlands.
Thank you.
Senator Graham. Thank you, Mr. Cooper.
As indicated earlier, panel three, Congressman Don Edwards and
Senator Barbara Boxer when they arrive, will interrupt the com-
pletion of panel two. I understand that Congressman Edwards is
now here. Is that correct? Yes. Congressman Edwards, if you would
please come forward, we would like to hear from you. I understand
that Senator Boxer is on the way and perhaps by the time you've
completed your statement, she will be here.
STATEMENT OF HON. DON EDWARDS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Edwards. Thank you very much, Mr. Chairman and Senator
Lieberman. I am really pleased to be here and thank you very
much for inviting me.
I will make a few short remarks about the Edwards-Boxer bill.
We have 83 cosponsors in the House of Representatives. We had
about the same number last year. It has been very well received by
all of the environmental groups and Barbara and I are very proud
of the bill.
I am particularly concerned about wetlands, their value and the
danger of losing more, because I come from California and have
represented the south San Francisco Bay area for the last 31 years
where we have lost so many thousands of acres of wetlands. In the
State itself, we've lost 90 percent of our wetlands. Nationwide, as
I'm sure other witnesses have testified, we're losing up to 300,000
more acres each year. Very clearly something should be done about
it.
The bill that Senator Boxer and I have authored is a conserva-
tive bill in many ways. It is balanced and realistic and it tries to
address some very real problems that exist in our national policy
toward wetlands. The laws about wetlands are not clear, and the
people dealing with wetlands are entitled to have clear laws. We
need a better review process for the permits. There are some very
serious problems in the present system. They lack consistency, the
delays are intolerable, and the permit process needs to be faster.
There is entirely too much emphasis on regulating and not enough
emphasis on encouraging conservation. Our bill addresses these
issues.
1128
Briefly, Mr. Chairman, what we need is a scientifically based def-
inition of what wetlands are. There is no definition. The National
Academy of Science will give us their report on this issue by the
end of 1994, I believe, and that will help so that we can use the
same criteria when we're talking about wetlands.
The delays in acting on permits are intolerable, as I said, and the
Edwards-Boxer bill provides for a fast track process so that there
can be approvals or denials within 60 days.
Farmers need protection and they need clarification of how to
comply with the law. Our bill provides that artificial wetlands and
abandoned croplands need not be regulated, so farmers need not
worry about their abandoned or unused agricultural lands. We
don't think that they ought to be regulated. We do need incentive-
based programs that encourage conservation. That is why it is im-
portant to fully fund the Wetlands Reserve Program and to give
tax incentives to make conservation financially attractive. That's a
lot cheaper for the Federal Government to do than to have to buy
land or anything like that.
I'd like to point out a couple of more important issues. One that
is really very important is mitigation banking. Mitigation is very
useful but it needs a lot of care and caution. Often when wetlands
are replaced, the newly created wetlands are not as good. In almost
every case, they are not as good as the wetlands that we lost. I ap-
prove, and so does Senator Boxer, of that portion of the Baucus-
Chafee bill that limits mitigation to restoration. Mitigation should
only be met through the restoration, and not the new creation, of
wetlands. Any restoration should be limited to the same watershed
that the lost wetlands are in. We should ensure, which is not done
now, the long-term monitoring of mitigation projects. Too often the
mitigation is initiated and then nobody watches to see how well it
is carried out.
We approve of adding provisions, which are not in our bill, for an
administrative appeals process. But the administration proposal is
one-sided in our view and only allows appeals for the denial of a
permit. We think that the appeal should be open to all affected
parties as long as they were involved in the process from the begin-
ning.
It is very important, and let me say this once again, as I get
ready to close, to provide for expediting permits. I already men-
tioned the fast track for small parcels in the Edwards-Boxer bill,
but the administration's idea that you must get a decision within
90 days is pretty rigid. There ought to be some escape hatch for
cases that are very complicated and should not be rushed to judg-
ment.
In summary, Mr. Chairman, I thank the committee very much
for the good work you're doing and respectfully request that you
take a good look at the Edwards-Boxer approach. We believe that it
does provide flexibility and that if the provisions are adhered to in
this bill, we will stop the loss of wetlands which is inexorably
taking place in our country to our dismay.
Thank you again for allowing me to come over here today.
Senator Graham. Thank you very much. Congressman. I will
assure yourself and Senator Boxer that the very significant contri-
bution which you have made by the thoughtful development and
1129
introduction of your legislation will certainly be a major part of
our consideration of what to recommend to the Senate when we
are at that point in the process.
Mr. Edwards. Thank you very much.
Senator Graham. I'd like to £isk this question which has con-
cerned me. Earlier in his opening statement, Senator Lieberman
made the observation that we've somewhat backed into our current
Federal wetlands policy. If you look through the Clean Water Act,
the word "wetlands" does not appear. This has a been a program
developed largely by regulatory rather than congressional initia-
tive.
I'm concerned as we now face this frontally and try to ask some
hard questions as to what does the Congress want in terms of
policy as to where we should draw the line as between what is a
federally appropriate area of responsibility and where responsibil-
ity for wetlands protection should be at some other level of govern-
ment.
Does your bill suggest where that line should be or do you have
any thoughts that might be of assistance to the committee?
Mr. Edwards. Mr. Chairman, we didn't think it was necessary.
We think it's very clear that there is Federal jurisdiction. Certainly
the wetlands affect all of the States. There should be a national
policy and as is customary where there is a national issue, and per-
haps even a constitutional issue, the Federal Government has the
obligation to preempt where necessary.
Senator Graham. So you believe that wetlands policy should be a
Federal Government responsibility?
Mr. Edwards. I think in the Clean Water Act, as it is amended,
the responsibility we have should be much more explicit. It should
also regulate other ways of destroying wetlands such as dredging
and trenching and things like that which are not included in the
Clean Water Act now. It should be made much more explicit.
At the beginning of my testimony, I said that the people in-
volved, the developers, farmers and others, deserve explicit legisla-
tion.
Senator Graham. Congressman Edwards, we have now been
joined by your colleague. Senator Boxer. Senator Boxer has caught
her breath. We would be very pleased to hear from you at this
time.
STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Boxer. Mr. Chairman, I thank you so much.
I've been on the floor in a little battle with the Senator from
North Carolina regarding the NEA. You know when you battle
with the Senator from North Carolina, it's a battle, so I appreciate
the fact that you would allow me to come now and give my testimo-
ny and then run back to battle.
Thank you so much for this opportunity. As you know, I've intro-
duced S. 1195, the Wetlands Reform Act of 1993 and I'm very hon-
ored to be testifying with my distinguished colleague, the Dean of
the California delegation, and I would say the conscience of the
House of Representatives, Don Edwards.
1130
We do offer a unique perspective on this issue because our State
has the unfortunate distinction of having lost a greater percentage
of its original wetlands than any other State, 91 percent. We real-
ized late in the game, the incredible economic as well as environ-
mental value of wetlands and we want to make sure we can save
our remaining 9 or 10 percent and we want to make sure that the
47 percent of historic wetlands remaining in the rest of the United
States gets saved. I know you share that goal.
Alarming recent estimates indicate that the Nation loses 290,000
additional acres of wetlands each year or nearly 1 percent of its re-
maining total every three years. These losses continue because of
loopholes in the existing law. So the bill that Congressman Ed-
wards and I have introduced will help stem that tide of wetlands
destruction by establishing a national policy preserving the quanti-
ty and quality of our Nation's wetlands.
Unfortunately, Mr. Chairman, wetlands conservation is por-
trayed too often as a luxury that an expanding economy cannot
afford. Nothing could be further from the truth. Saving our wet-
lands is essential for saving our economy. Wetlands play a key role
in minimizing flood damage. In the summer, we witnessed some of
the worse flooding in the Nation's history. Look at the $5 billion-
plus cost of disaster relief. Some say, Mr. Chairman, it will go up to
$10 or $11 billion to address the floods in the midwest.
I will say to you that if you look at the Fish and Wildlife Service
reports, flood damage is directly attributable to wetlands losses.
The Service found widespread flooding in Iowa to be directly linked
to the State's loss of 89 percent of its original wetlands. In Massa-
chusetts, the Army Corps found that preserving existing wetlands
in the Charles River was more cost effective and provided better
flood protection than building extensive new flood control facilities.
Wetlands also play an important role in improving water quality.
As we proceed with the reauthorization of the Clean Water Act —
I'm so pleased to be on the committee with you — we should be
aware that wetlands can control nonpoint source pollution by re-
moving and retaining nutrients processing chemical and organic
wastes and reducing sediment loads to receiving waters. Wetlands
actually act as biological filters of our water supply. In addition,
wetlands provide critical habitat for a wide variety of plants and
animals. The wellbeing of waterfowl and other populations is tied
directly to the status of these habitats.
Fisherman also rely on wetlands for their living. Fish and shell-
fish need healthy and abundant estuaries for spawning and nurs-
ery grounds, migration and food production. Studies have estimat-
ed the fishery value of wetland habitats to be as high as $14 billion
annually. The loss of these habitats can have a devastating eco-
nomic effect. For example, Mr. Chairman, I'm told that shrimp
harvests in your State of Florida have declined by more than 75
percent since the early 1980's due largely to wetlands destruction.
Based on studies done on wetlands by the Fish and Wildlife Serv-
ice, the Army Corps and other agencies, we know there has been
an economic analysis prepared under the direction of the School of
Public Policy at the University of California-Berkeley and the anal-
ysis assigns a range of economic values to the various wetlands
functions.
1131
Using my State of California as an example, remember we've lost
more than 90 percent of our wetlands, the study shows that the
total annual benefit of wetlands to the State, the remaining wet-
lands, ranges from a low of $6 billion to almost $23 billion. That's
the amount the State would lose annually if 100 percent of our
wetlands were lost. The study also arrived at a range of permanent
values of California wetlands. Those range from a lower bound of
$78 billion to an upper bound of $286 billion.
If you apply this method of valuation to the Nation's 104 million
acres of wetlands and taking the conservative lower bound num-
bers, we see that the Nation's wetlands are worth at least $1.4 tril-
lion annually. This doesn't even include the cost of permanent loss
of wetlands species. It is so hard to put a dollar figure on the loss
of biodiversity.
I hope that you'll agree that the economically sound approach to
this issue is one that does the most to preserve those wetlands that
remain. I have to say in a biased way, I believe that S. 1195 and H.
350 in the House take the most effective approach to the issue of
wetlands preservation.
As Congressman Edwards has said, our bill will aid farmers and
others by improving the permitting process. I want to quickly in a
minute or so and then I'll conclude flag for you a couple of issues
that concern me in the administration's proposed wetlands policy.
You've heard Congressman Edwards' view on a couple of those.
As you know, the administration has proposed that Congress pro-
vide funds to allow for State and local assumption of Federal wet-
lands programs. Existing law already provides for State involve-
ment but there are very sensible safeguards that I hope the sub-
committee will retain when it marks up the wetlands bill.
The Clean Water Act provides that a State can assume adminis-
tration of the Federal wetlands program if that State institutes a
wetlands permitting program that is at least as stringent as Sec-
tion 404. In other words, we ensure a floor of national consistency
in wetlands protection. Let us not give up that. I very much favor
the State and local control when it makes sense but I'm concerned
about the administration's vague proposals to turn wetlands pro-
grams back to the States.
They talk about flexibility but I hope that isn't a code word for
weakened protection. We cannot sacrifice the wetlands in the name
of enhanced State participation. That would not be a good tradeoff
for our country.
The second issue I want to flag for you is the issue of the role of
the Soil Conservation Service in regulating wetlands development.
I am concerned and voted against the Bond Amendment as did
many of my colleagues and I see this has come up again in the ad-
ministration's proposal. While I support the work of the SCS,
indeed I've fought to keep them going as an agency, really they are
unfamiliar with the Clean Water Act. They have a little experience
in implementing the wetlands provision of the Swampbuster com-
ponent of the 1985 Farm Bill but I have a serious concern.
If you look at the role of the SCS, it's really to maximize the
amount of productive agricultural land. I think that makes this
agency less than objective on the issue of wetlands protection. So I
urge that proposal be rejected.
1132
In closing, I would say the massive and continuing destruction of
wetlands reflects not only an environmental loss but a staggering
economic loss that must be stopped. I hope that I can work with
you and members of the subcommittee to ensure that the wetlands
bill we eventually include in the Clean Water Act represents the
serious credible response that the situation requires.
Again, I thank you for your courtesy and I really look forward to
working with you on this process.
Thank you very much, Mr. Chairman.
Senator Graham. Thank you very much, Senator Boxer. I might
refer to you as the warrior Senator as you return to the floor. I
appreciate your comments as well as those of Congressman Ed-
wards. I commend you for the obvious serious thought and atten-
tion that you have given to this issue. Having now converted that
into a specific piece of legislation, it will be extremely helpful to
the subcommittee and it will be a major part of our consideration
as to what to recommend to the Senate in this very important
area.
Senator Boxer. Thank you. Congressman Edwards and I thank
you very much for fighting for a clean environment as the Senator
from Florida.
[Senator Boxer's prepared statement follows:]
STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM THE STATE
OF CALIFORNIA
Mr. Chairman, I want to thank you for providing me the opportunity to address
the Subcommittee on the subject of wetlands.
As you know, I have introduced S. 1195, the Wetlands Reform Act of 1993, to pro-
tect our nation's remaining wetlands. I am honored to be testifying today with the
House sponsor of that legislation, Congressman Don Edwards.
As Californians, Congressman Edwards and I offer a unit perspective on this
issue. Our state has the unfortunate distinction of having lost a greater percentage
of its original wetlands than any other state — 91 percent. Californians have realized
late in the game the incredible economic and environmental value of wetlands. But
it is not too late to stop the losses, and it is absolutely imperative that we do so
before we lose the last nine percent of California's wetlands or the 47 percent of
historic wetlands remaining in the rest of the continental U.S.
Protecting the nation's wetlands is one of the most important issues that Congress
will face as it reauthorizes the Clean Water Act this year. Alarmingly, recent esti-
mates indicate that the nation loses 290,000 additional acres of wetlands each year,
or nearly one percent of its remaining total every three years. These losses continue
because of loopholes in existing law.
The bill Congressman Edwards and I have introduced will help stem the tide of
wetlands destruction by establishing as national policy the preservation of the quan-
tity and quality of the nation's wetlands.
We need to make it clear that not only does wetlands conservation make good
environmental sense, it makes good economic sense. Too often, wetlands conserva-
tion is portrayed as a luxury that an expanding economy csnnot afford. Nothing
could be further from the truth. Wetlands serve a variety of valuable economic
functions that we cannot afford to lose.
For example, wetlands can play a key role in minimizing flood damage. This
summer we witnessed some of the worst flooding in the nation's history. I urge the
Chairman and the Subcommittee members to consider the experience of the mid-
west and the $5 billion cost of disaster relief as they mark-up the wetlands provi-
sions of the Clean Water Act. Preserving our remaining wetlands is the best, most
cost-effective way of preventing more extensive flood damage in the future.
Wetlands act as natural sponges for floodwaters, thereby reducing or eliminating
the effects of destructive floods. Floodplains absorb overflows from rivers, streams
and lakes, as well as agricultural and urban runoff, to retain overflows and reduce
rates of flows, reducing damages associated with flooding. Coastal wetlands absorb
and temper the impact of storm surges as wetlands associated with barrier islands.
1133
salt marshes, and mangrove swamps act as giant storm buffers and weather major
storm events without sustaining lasting damage.
The Fish and Wildlife Service reports that flood damage is directly attributable to
wetlands losses. For example, the Service found widespread flooding in Iowa to be
directly linked to that state's loss of 89 percent of its original wetlands. Minnesota's
Department of Natural Resources reports that it will cost the state $1.5 million an-
nually— more than the state's annual flood control budget — to build flood control
projects to make up for flood control functions that are lost along with the 5,000
acres of wetlands drained in the state each year.
In Massachusetts, the Army Corps of Engineers found that preserving existing
wetlands in the Charles River was more cost effective, and provided better flood pro-
tection, than building extensive new flood control facilities. In fact, the Corps found
that loss of the wetlands would have caused $17 million in annual flood damage.
Rather than building the facility, the Corps acquired a portion of the wetlands
Annual costs for the project are $617,000 while the benefit to the Boston metropoli-
tan area is expected to average $2.1 million per year.
Wetlands also play an important role in improving water quality. As we proceed
with the reauthorization of the Clean Water Act, we should be aware that wetlands
can control non-point source pollution by removing and retaining nutrients, process-
ing chemical and organic wastes, and reducing sediment loads to receiving waters.
Wetlands actually act as biological filters of our water supplies. A study performed
by the State of Minnesota found that wetlands destruction in that state have result-
ed in combined federal-state expenditures of $20 million annually to deal with non-
point source pollution.
Wetlands can also replenish and recharge the Nation's groundwater aquifers.
Over 50 percent of our people use groundwater as a primary water source, and yet
we often overlook the importance of wetlands in the maintenance of clean water
supplies.
In addition, wetlands provide critical habitat for a wide variety of plants and ani-
mals. The well-being of waterfowl and other populations is tied directly to the status
and abundance of these habitats. As wetlands destruction has continued, we have
seen waterfowl populations plummet to record low levels. A large number of feder-
ally listed threatened and endangered species also rely on wetlands for their surviv-
al.
In addition to animals, plants and birds, fishermen rely on wetlands for their
living. Fish and shellfish need healthy and abundant estuaries for spawning and
nursery grounds, migration and food production. Studies have estimated the fishery
value of wetland habitats to be as high as $14 billion annually. The loss of these
habitats can have a devastating economic effect. For example, Mr. Chairman, I am
told that shrimp harvests in your state of Florida have declined by more than 75
percent since the early 1980's — due largely to wetlands destruction.
While many wetland values cannot be quantified, economists have clearly estab-
lished that wetlands are an extremely valuable resource. Their destruction should
be weighed as seriously as the loss of any other national resource. The Subcommit-
tee must very seriously consider that weighing process. It is true that quantifying
the economic value of wetlands is difficult — the value of any one acre of wetland
will depend on its particular characteristics and location — but fortunately, most
functions have been analyzed sufficiently to establish ranges of values. Based on
studies done on wetlands located in various states in various regions by the U.S.
Fish and Wildlife Service, the Army Corps of Engineers and other public agencies,
an economic analysis has been prepared under the direction of the School of Public
Policy at the University of California at Berkeley. The analysis assigns a range of
economic values to the various wet land functions.
Using my state of California as an example, the study shows that the total annual
benefit of wetlands to the state ranges from a low of $6 billion dollars to almost $23
billion dollars. Those are the amounts the state would lose annually if 100 percent
of our wetlands were lost to filling and development.
The study also arrived at a range of permanent values of California wetlands.
That value ranges from a lower bound of $78 billion dollars to an upper bound of
$286 billion dollars.
Applying this method of valuation to the nation's 104 million acres of wetlands,
and taking only the conservative, lower bound numbers, we see that the nation's
wetlands are worth at least $1.4 trillion dollars annually. These estimates do not
even include some costs of wetland destruction, such as the permanent loss of wet-
land species and the loss of biodiversity. For many, the value of species and biodi-
versity, though not measurable, are worth many times more than the benefits of
wetlands that can be quantified.
1134
So it should be clear to anyone that takes the time to consider the values in-
volved, that the genuinely conservative, economically sound approach to this issue is
the one that does the most to preserve those wetlands that remain. Considering all
the bills that have addressed this issue in the Congress over the past several years, I
believe S. 1195 (H.R. 350 in the House) takes the most realistic, most truly conserva-
tive approach to the issue of wetlands preservation.
At the same time, this bill will aid farmers and others by improving the wetlands
permitting process. As a Senator from California — the state with the dubious dis-
tinction of having lost the largest percentage of its original wetlands — I understand
the need to both protect our remaining wetlands, and to provide greater certainty
for farmers and developers. The bill Congressman Edwards and I have introduced
will strengthen the wetland protections provided in section 404 of the Clean Water
Act, while streamlining and clarifying the wetlands permitting program.
I want to take a moment to flag a couple of issues raised by the administration's
proposed wetlands policy.
As you know, the administration has proposed that Congress provide funds to
allow for State and local assumption of the federal wetlands program. Existing law
already provides for state involvement, and even state assumption, with some very
sensible safeguards that I hope the subcommittee will retain when it marks-up a
wetlands bill. , , ^ ,
The Clean Water Act provides that a state can assume administration of the fed-
eral wetlands program if that state institutes a wetlands permitting program that is
at least as stringent as the section 404 program. This requirement ensures a "floor"
of national consistency in wetlands protection and is vital for state eissumption to
work without weakening wetlands protection standards.
When the Clean Water Act was first passed in 1972, it was passed for a very spe-
cific reason: local and state efforts to control water pollution simply were not work-
ing, and Congress felt that a strong national presence was necessary to protect the
quality of the nation's waters. This is not to say that state and local protection ef-
forts are irrelevant — but historically they have been inconsistent, frequently subject
to political pressure, and often not structured to take into account the national in-
terest in clean water. ^
This is why I'm concerned about the administration s vague proposals to turn the
wetlands program back over to the states. I am concerned that the administration
policy focuses on providing greater flexibility for state and local governments, with-
out msddng sure that "flexible" does not mean weakened protection standards.
We must not sacrifice wetlands protection in the name of enhanced state partici-
pation. This is why the state and federal roles defined in the Clean Water Act have
been retained in the bill Congressman Edwards and I have introduced.
The second issue I'd like to discuss briefly is the role of the Soil Conservation
Service in regulating wetlands development. As you know, Mr. Chairman, the ad-
ministration has proposed a policy similar to the amendment offered by Senator
Bond last February. The Bond amendment would have transferred all technical de-
terminations regarding wetlands on agricultural lands from the Army Corps of En-
gineers to the Soil Conservation Service. Like most Senators I opposed the Bond
Amendment, and I oppose the administration's proposal for the same reasons.
While I support the work of the SCS, this is an agency which is unfamiliar with
Clean Water Act procedures and which does not have training or expertise to imple-
ment Clean Water Act programs.
The SCS has had some experience implementing the wetlands provisions of the
"Swampbuster" component of the 1985 Farm Bill, but there is a serious concern
that Swampbuster and section 404 are very different and that the SCS does not
have adequate expertise to assume the section 404 program. In addition, its pur-
pose— to maximize the amount of productive agriculture land — may put the agency
at odds with the goal of wetlands protection. I therefore urge that this proposal be
Mr. Chairman, the massive and continuing destruction of wetlands reflects not
only an environmental loss, but a staggering economic loss that must be stopped. I
hope that I can work with you and members of the Subcommittee to ensure that the
wetlands bill we eventually include in the Clean Water Act reauthorization repre-
sents the serious, credible response that the situation requires. I believe S. 1195 is
such a response, and I urge the subcommittee members to give it their serious con-
sideration.
Mr. Edwards. Thank you.
Senator Graham. Thank you very much.
1135
Dr. Larson and Dr. Cooper, again, we appreciate your state-
ments. I have a few questions I'd like to ask.
Dr. Larson, in your comments, you stated that you personally op-
posed and therefore applauded the fact that the administration's
bill as well as the bill developed by the leadership of this commit-
tee did not provide for classification of wetlands into most, least,
medium value, but you also said that you recognize that there were
some wetlands that deserved special attention. There seems to be
some conflict between those two statements. I wonder if you could
elaborate as to your thinking?
Mr. Larson. I hope there is not conflict.
We are already putting wetlands in different classes when we
designate wetlands for the RAMSAR list under the Treaty of Wet-
lands of International Importance. The U.S. Fish and Wildlife Serv-
ice has conducted a survey of wetlands in each of its administrative
regions and has, for their purposes, from the wildlife point of view,
designated certain wetlands that are of prime concern. EPA exer-
cises under 404 the ability to go out and do advanced determina-
tion of critical wetland areas for the purposes that agency pursues.
So in that sense, we already are identifying wetlands that have
special ability to perform certain kinds of functions.
The analog to this are the S&L maps and the texts that accompa-
ny the maps, that are produced by the Soil Conservation Service. If
I'm a developer or a farmer and I'm going to go out and buy a
piece of land either to put a subdivision or I want to grow corn, I'd
be smart to go look at the soil maps because the soil map will tell
me which crops these soils are most suitable for or, if I'm a devel-
oper, which soils are going to give me problems in terms of drain-
age, in terms of stability of my structure and the like. Then I will
act accordingly.
That base of information is well-established in soil science and
my suggestion is that we should start applying wetlands science in
the same fashion. We already have indication that the wetlands on
the headwaters of streams in the eastern United States are much
more important for water quality improvement and maintenance
than are the wetlands in the midstream-downstream section. On
the other hand, from a flood control point of view, those midstream
wetlands are more important than the wetlands on the headwaters.
So if I came along as an applicant for a permit, I would like to be
advised, based on what science understands, on which of these
flaming hoops I should expect to have to go through. I think the
regulatory agencies would also be better positioned to use their re-
sources if the priority functions in these wetlands were laid out
much in the way we have addressed soils.
Another analogy would be from the forestry community. You
map forests but you also attach to that an understanding of what
the stocking is, what the growth rate is and then you make plans
on that basis on whether you're going to convert from hardwood to
softwood, whether you're go to in and create a plantation. That
sort of rigorously based information frame, I think, could be very
useful both in the regulated community and from the regulator
side as well.
Senator Graham. Dr. Cooper, your discussion of some of the par-
ticular issues facing the more arid western States and the graphics
1136
that you displayed raised the question of assuming that the Feder-
al Government has the constitutional reach to cover all wetlands,
is it wise public policy for the Federal Government to attempt to
regulate all wetlands. Would you have any comments as to what
level of government based on scientific, administrative capability,
political will and capacity to make appropriate public judgments
should have responsibility for wetlands?
Would you agree with Congressman Edwards, for instance, in
which he would say the Federal Government should have total pre-
emptive responsibility for wetlands?
Mr. Cooper. The Federal Government provides definitely the
overview for some of these international and interstate functions
such as waterfowl migration, flood waters and water quality which
go beyond any State's boundaries. The Federal Government must
stay involved at that level.
A second issue is that in the western United States, there is only
one State that even has a wetland policy. That is the State of
Oregon. I don't think any other State has a policy. I'm working
with the State of Colorado now using funds from EPA to help them
develop a wetlands policy. We see a lot of resistance even in the
State to develop a wetlands policy. They are afraid to do anything.
In a perfect world, the place to address wetland issues is region-
ally at a watershed level. That's the level at which you can map
and understand the wetland resources that you have, determine
which are the most important ones to preserve, determine where
impacts have occurred and restoration and possible. At that level,
you can really have some decisive action, but again, there is not a
lot of activity in that regard. In Colorado, I know of three or four
advanced identifications as they are called to address regional wet-
land issues, develop priority plans for purchase and conservation
restoration plans. I've worked on all of those and there is not a lot
of others coming down the line.
The States and the regional governments really need some help
and some oversight by the Federal Government to make sure that
there is some protection and some conservation efforts that are on-
going and to help the states get involved at an even more detailed
level.
Senator Graham. Either Dr. Larson or Dr. Cooper, Senator
Boxer raised some concerns about the SCS and its independence to
make judgments in the wetlands area. There also have been ques-
tions about the scientific capacity of SCS to make these biological
judgments. I wonder if, from your experience, you'd have any com-
ment to make on that subject?
Mr. Cooper. Can I start on that? I've thought about that quite a
bit. Obviously the SCS has a big presence in the western United
States.
As you heard this morning, the big switch in 1985 from helping
maximize agricultural gain to becoming a Swampbuster enforcer
seems like a sudden switch. It's hard for me to understand that the
agency entirely can switch that fast.
On the good side, the Soil Conservation Service personnel gener-
ally have excellent relationships with farmers and I think that
gives them an in to avoiding some of the controversy in dealing
with the public.
1137
Several of the controversial things, for example I'm not sure
what agriculture is. Is agriculture just related to commodity crops
or are they looking at the Soil Conservation Service regulating all
agricultural lands — in other words, forested areas, public and pri-
vate grazing lands. This would include the entire western United
States and take the SCS out of the realm of croplands which is
where their expertise is.
The Soil Conservation Service personnel that I work with really
know very little about natural hydrologic regimes, natural plant
communities that are beyond the realm of croplands. I'm not sure
that they are completely capable of handling this administrative
process. I'm pretty sure they could be trained to do so, but it
wouldn't be a rapid transition at all. The Corps of Engineers has
spent a long, long time developing the expertise to regulate wet-
lands.
Senator Graham. Dr. Larson?
Mr. Larson. I would not like to cast gloom over the lovefest that
we saw in the previous panel between the agencies but the fact of
the matter is, first of all, from a political point of view, I think that
it's important that the SCS have a participatory role, not unlike
that the National Marine Fisheries Service and the U.S. Fish and
Wildlife Service have had in the past in the 404 Program. The SCS
is very close to the commodity crop community.
On the other hand, the SCS has a very, very small biological
staff and the SCS statutorily is limited in terms of what it can do
to encourage research, whereas the Corps and EPA both have
brought to the wetland situation, as well as National Marine Fish-
eries Service and the Fish and Wildlife Service, a very robust in-
volvement in the application of scientific research and the support
of research. That has not been a role of SCS.
I would suspect that it would be useful for SCS to be involved but
on a cautious, perhaps step-by-step-basis.
Senator Graham. One other issue that was raised particularly by
Congressman Edwards was the issue of the creation of artificial
wetlands or the regeneration of degraded wetlands as part of a
mitigation program. What is your assessment of the experience to
date in terms of efforts to either revive or create wetlands?
Mr. Cooper. I've done a lot of research into that and I can tell
you that restoring wetlands is a much more successful activity, al-
though not a lot has really been attempted so far in the west. Cre-
ating wetlands in dry landscapes requires a lot of maintenance.
You have to be there to make sure that water is getting to the site,
it's very expensive and it's unpredictable.
An example of the kinds of research that we've just seen, a grad-
uate student at Iowa State University just completed a thesis look-
ing at the restoration of prairie potholes in the northern prairie
States. These are done under the Wetland Conservation Program
and others. She's found that after 5 years or even more — these are
restoration projects — the kinds of vegetation that we see in the
communities that develop are nothing like the undrained wetlands
that existed prior to that or the undrained wetlands that still exist
in the watershed. So our ability to even restore wetlands is defi-
nitely not very good.
1138
The use of a mitigation bank for mitigating impacts is certainly
a lofty goal and I would encourage it on a watershed basis where
we know critical wetlands have been impacted, but still the func-
tioning of these wetlands doesn't come up to snuff for many, many
years. Some of these may never come back if there have been im-
pacts that are as decisive as we know about.
Senator Graham. Dr. Larson?
Mr. Larson. The record is quite clear. Anyone who has taken a
look at the success of wetland creation — usually that's only meas-
ured on the basis of whether plants grew there or not, there's been
no real ability to measure their various functions — there's no
better than a 50-50 chance that you will be able to create a wet-
land plant community.
The frustrating thing from the science point of view is when you
try to go out and learn something from that effort and it's very dif-
ficult to do because in the first place most of these sites have not
been preceded by a careful determination of what the functions
were that were being lost on the original wetland. Therefore, there
were no design criteria for the project. There being no design crite-
ria, there are no criteria on which to measure the success. There
have been virtually no efforts to monitor what has gone on after-
wards, so it is extremely frustrating to know that there are per-
haps thousands of sites at which this has been tried and yet we try
to learn from that, there's very little to learn except that it's a
high risk operation.
Senator Graham. Senator Faircloth?
Senator Faircloth. Thank you, Mr. Chairman.
Dr. Larson, there's a lot of confusion about the growing season
and I realize they vary, but I understand the growing season in
North Carolina for wetland delineation begins in March and ends
in November. That's an extremely long growing season, isn't it?
Mr. Larson. For some wetland plants, there is no end to the
growing season.
Senator Faircloth. Oh, this is the wetland plants, not crops?
The growing season is for wetland plants, not the corn, soybeans,
row crops?
Mr. Larson. For some wetland plants at some latitudes, there ac-
tually is no end to the growing season.
Senator Faircloth. So then why have a growing season; what
does the growing season delineate, wetland plants?
Mr. Larson. Growing season has meaning in terms of crops.
Senator Faircloth. In terms of crops, it's too long. In terms of a
cypress tree, you could add the 13th month, I guess. It keeps grow-
ing.
Mr. Larson. Yes.
Senator Faircloth. So the growing season is for crops?
Mr. Larson. That's the most useful and usual use of that term,
the historic term. I think we're failing to communicate here.
Senator Faircloth. We are. What does growing season mean;
what are we talking about? What's the growing season for corn?
Mr. Larson. That's a different growing season than a cjrpress.
There is a growing season for each species.
Senator Faircloth. That's a revelation, but which are we talking
about?
1139
Mr. Larson. In what context?
Senator Faircloth. The delineation of wetlands is during a spe-
cific growing season?
Mr. Larson. Yes.
Senator Faircloth. As set forth by the EPA?
Mr. Larson. Yes.
Senator Faircloth. It is from the beginning of March until the
end of November. If this is the wetland season, it's far too broad if
we're talking about row crops, crops. If we're talking about wetland
plants, of course you're right, it's year-round.
Mr. Larson. The reason that it's appropriate to look at the grow-
ing season for the wetland plants is that the wetland plants and
the soils are what are providing the functions that the wetland is
performing. So if you're looking at the water quality role of wet-
lands in which plants and sediments are intimately involved, it's
that growing season that's appropriate.
Senator Faircloth. Let me ask you another question. Would you
say that all wetlands are of equal ecological value?
Mr. Larson. I have a problem with the value. They have differ-
ent ecological functions if you'll allow me to make that distinction.
If by value, you're thinking of the use of value in terms of the pro-
posals in the last Administration to put wetlands in high, medium
and low value classes, I have a great problem with that because
that begins to lump functions that are very different and that are
performed differently in different wetlands.
A wetland in the eastern United States at the headwaters of a
river system is much more likely to be important for water quality
than a wetland at the midstream or at the mouth. However, if you
look at wetland flood control, the wetlands in the midstream are
much more likely to be highly important for that particular func-
tion than a wetland at the headwaters.
If you lump disparate functions like water quality, maintenance
and flooding into one value class, there you've got some real prob-
lems.
Senator Faircloth. I'm told the single most reliable factor in
making a wetlands determination is the soil of the land, yet the de-
lineation manuals do not refer to a standard soil textbook, the so-
called Soil Bible, the Soil Taxonomy. Very few Government delin-
eators are familiar with this factor. In your professional opinion,
shouldn't we require anyone who is doing wetland delineation to be
versed in the soil?
Mr. Larson. When the present soil taxonomy was published, the
concept of hydric soils was not very well understood.
Senator Faircloth. When was it published?
Mr. Larson. I can't give you the date.
Senator Faircloth. In the 1980's, 1970's or when?
Mr. Larson. I believe it was in the 1970's. The classic distinc-
tions that manual lays out are distinctions between organic soils
and mineral soils. Hydric soils, which are the saturated soils that
occur in wetlands, are both mineral soils and organic soils. Since
the publication of that manual, the Soil Conservation Service and
the soil experts in the U.S. Forest Service and in the Corps of Engi-
neers have developed a very well understood definition of what
hydric soils are. For each State, there is a published list of hydric
1140
soils. These are the soils that are related to wetlands and it is a
mix of the organic and mineral-based soils. I would say that some-
one who is engaged in wetland delineation needs to be very well
versed in the hydric soils.
Senator Faircloth. The 1987 manual has sections which describe
situations when "on-site inspection is unnecessary." Do you agree
that prior to restricting a private property owner's right to utilize
his own land, an on-site inspection should always be required?
Mr. Larson. I think the private property owners should always
have the right to insist on an on-site inspection. I'here are times
when regulatory agencies are very willing to do a desk review and
may not, on their own initiative, wish to go out, but I think the
landowner always should have the opportunity to have that done.
Senator Faircloth. Do you have any feeling that we have too
many overlapping rules and regulations and that some of the re-
strictions and constraints could be relaxed on private property?
Mr. Larson. I come from a State and a town where we not only
have the Federal Wetland Program, we have a State Wetland Pro-
gram but on our own initiative, we have enacted a local wetland
program.
Senator Faircloth. What State and what town?
Mr. Larson. I'm in Massachusetts and I live in the Town of
Pelham, about 1,300 people.
Senator Faircloth. That explains that.
Mr. Larson. My own forest property where I had a woods road
going through a wetland area and I bogged down wife's my four-
wheel drive, I had to apply for a local permit as a well as a review
under the State level to make sure that my shifting that road out
of the wetland was done in a way that would not harm the wet-
land. I am very comfortable with that. We're in a part of the coun-
try where we have a lot of wetlands and we have a lot of people.
It is curious to me. We started this business of wetland regula-
tion 14 years before the Federal Government got involved and we
seem to have been able to work out a relationship between the
local. Federal and State governments so that we work pretty well
on this. I would suggest that possibility is open elsewhere but it
does mean that you've got to have local involvement, you've got to
have State involvement and it's very difficult to come down from
above and impose these kinds of things.
Senator Faircloth. Would you agree that a $25,000 per day pen-
alty is excessive and out of line with any reasonable realistic ap-
proach to penalizing a farmer? It wouldn't take many days at
$25,000 a day to chew up most of the farms in this country. That is
what the penalty can be. Would you agree that the penalty is out
of line and should be reduced to something more practical such as
the value of the land involved?
Mr. Larson. If I were a willful lawbreaker and if I had ignored
successful warnings from the Corps of Engineers that what I was
doing on my property was in violation of the Clean Water Act, I
think that would be an appropriate level. I think the distinction
has to be made, and it was touched on in the earlier panel, be-
tween the unwitting violator and the willful violator. There needs
to be opportunities for the unwitting violator to undo the damage.
1141
To that extent, that kind of penalty would probably be inappropri-
ate.
Some of the most celebrated cases where citizens have gone to
court, have been fined and jailed are from records of willful viola-
tors, repeatedly ignoring the agencies.
Senator Faircloth. Would you have any problem with codifying
the fact that the penalty should be less rather than leaving it to
the discretion of the Corps of Engineers or, in the case of Senator
Boxer's bill, there isn't even an appeal? Would you agree to codify
what stages it gets to $25,000 a day?
Mr. Larson. I think that might be useful.
Senator Faircloth. Thank you.
Senator Graham. Any further questions?
Senator Faircloth. No.
Senator Graham. Dr. Larson and Dr. Cooper, we appreciate very
much your contribution. Dr. Larson, did you have a concluding
comment?
Mr. Larson. I would like to respond to your question to Dr.
Cooper about the Federal role in wetlands. When you made the ob-
servation at the beginning of the day that this was an interest of
yours, I wrote down a list of directions I thought that already exist-
ed.
Clearly, the Federal Government already has a mandated role
under various international treaties and conventions. The Migrato-
ry Bird Treaty is well known. The Natural Heritage Convention
conveys a certain Federal responsibility in some types of wetlands
and the Everglades is an example.
Under the RAMSAR Convention on Wetlands of International
Importance, I've been on U.S. and lUCN delegations to that con-
vention, the United States already has accepted two obligations
one, to list certain wetlands under the RAMSAR. The second and
less well know obligation under the RAMSAR Convention is the
United States has the obligation to adopt national policies to
ensure the wise use and management of wetlands, whether or not
they are on the RAMSAR list.
I think from the international treaty point of view, there's al-
ready a broad framework in place. Clearly, the Federal Govern-
ment has prime responsibility in international rivers and aquifers
and in wetlands that are contributing to marine fisheries that go
into international waters. The Federal Government's role, I be-
lieve, is also extremely important on interstate rivers, interstate
aquifers, coastal fisheries.
If you begin to build that list and start to draw circles around
the watersheds that contain wetlands that have these functions,
you begin to comprise a very large part of the United States. So I
would suggest that there is already a large role for the Federal
Government but it is not an exclusive role, nor do I think it is a
preemptive role because the whole process has to involve States
and in some places. States may wish to involve municipalities.
Senator Graham. There was a study in the mid to late 1980's I
think done under the aegis of the Conservation Foundation which
contains some recommendations as to what should be the areas of
wetland jurisdiction, not as a matter of constitutional law, but as a
matter of wise public administration policy, the Federal Govern-
1142
ment should direct its attention to and the Federal Government
should have a further role of encouraging States to accept and ex-
ercise jurisdiction over wetlands that fell beyond the appropriate
Federal role. Are you familiar with that?
Mr. Larson. If you're speaking of the Wetland Forum?
Senator Graham. Yes.
Mr. Larson. Yes, I was a science advisor to that activity.
Senator Graham. Using that as a touchstone, to what degree
would you support today its recommendations?
Mr. Larson. I would still support those recommendations. I
think one of the unfortunate events was that Forum produced a
series of recommendations that truly had involved the regulated
community, the conservation community and the regulators, both
Federal and State. For various reasons that agreement fell apart. I
would like to see that brought back together. The recommendations
of the Forum, I think, are still worthy of serious consideration.
Senator Graham. Dr. Cooper, do you have any concluding com-
ments?
Mr. Cooper. I would just like to correct Representative Edwards'
statement that there is not a wetland definition for the United
States. There is a wetland definition published in the Clean Water
Act. It is agreed to by most scientists it is accurate and can be used
in the field, and it is used in the field.
Senator Graham. Gentlemen, thank you very much for your con-
tribution to our consideration of this important issue.
We have arrived at the conclusion of panels one, two and three.
As previously indicated, panels four, five and six will be heard
after the lunch hour. There has been scheduled one or more votes
at 1:30 p.m. Based on that, I would recommend that we reconvene
at 2:15 p.m. with panel four being our first topic.
Without objection, we will recess until the hour of 2:15 p.m.
[Luncheon recess.]
Senator Graham. Call the meeting to order.
The hearing of the Clean Water Subcommittee of the Environ-
ment and Public Works Committee reconvenes to continue our dis-
cussion on wetlands policy.
Our first panel this afternoon will be Senator Murkowski to dis-
cuss some of the specific issues affecting the State of Alaska. As
Senator Murkowski takes his place at the witness table, the Chair
of the Environment and Public Works Committee, Senator Baucus
is here. I'd call on Senator Baucus for any opening statement.
OPENING STATEMENT OF HON. MAX BAUCUS, U.S. SENATOR
FROM THE STATE OF MONTANA
Senator Baucus. Thank you very much, Mr. Chairman.
I want to begin first by complimenting you for your subcommit-
tee's extraordinary work on the Clean Water Act. These hearings
have been very comprehensive, they've been insightful, they've
been productive, and you've done a terrific job. I'd just like every-
one to know, at least from my perspective, you've done a terrific
job and I thank you.
Today's wetlands hearing marks the end of the hearing phase for
the Clean Water Act reauthorization. I also hope it marks the be-
1143
ginning of a long awaited resolution on the divisive debate over
wetlands policy. Wetlands are important to all Americans. Wet-
lands clean our water, wetlands protect us from floods and
droughts, wetlands buffer our coasts against storms, wetlands re-
charge our groundwater aquifers, and our commercial and recre-
ational fisheries depend on wetlands. Wetlands provide essential
habitat for waterfowl, endangered species and other wildlife. Na-
tionwide, support fish and wildlife that generate more than $40 bil-
lion to our economy.
Unfortunately, while wetlands are important to all of us, we
have lost too many of them. When George Washington convinced
Congress to build the Nation's Capital along the Potomac wetlands,
there were more than 220 million acres of wetlands in what would
become the lower 48 States. Since then, we have lost more than
half of those wetlands. In my own State of Montana, we have lost
more than a quarter of our original wetlands. Nationwide, we con-
tinue to lose nearly 300,000 acres of wetlands each year.
Section 404 of the Clean Water Act is our Nation's principal
means of stemming this loss. As such, section 404 is essential to
achievement of the Clean Water Act's goal of maintaining the
"chemical, physical and biological integrity" of the Nation's
waters.
While section 404 is important, it has many problems. It is con-
fusing, particularly for farmers and ranchers who must figure out
how to comply with section 404, the Swampbuster provisions of the
farm bill. Section 404 is often full of needless delays. Applicants for
permits wait for months or years for a permit decision. When a de-
cision finally is made, the only avenue of appeal is through the
equally slow Federal courts.
Section 404 is often difficult to comply with. Determining what is
a wetland and whether a Federal permit is required is beyond the
financial and technical ability of many small landowners. Section
404 does not adequately encourage State involvement in wetlands
protection. It does not provide for adequate coordination on all
levels of government.
Section 404 does not adequately protect against wetland losses.
Drainage and excavation of wetlands has not been regulated under
section 404. The individual permit process under section 404 has re-
sulted in a piecemeal approach to wetlands protection and under
section 404, the cumulative impacts on entire watersheds have
often been overlooked.
To address these problems with section 404 and to promote the
protection and restoration of wetlands, Senator Chafee and I have
introduced S. 1304, the Wetlands Conservation and Regulatory Im-
provements Act. The four has four principal goals. First, the bill
will enhance the protection and restoration of wetlands nationwide.
It will enhance it. Second, our bill will make regulation of wetlands
more fair, efficient and consistent. Third, the bill will make it
easier for farmers and ranchers to comply with efforts to protect
wetlands. Fourth, our bill will strengthen the Federal-State conser-
vation partnership.
I believe that S. 1304 is a fair and balanced approach to wetlands
protection. I'm pleased that the wetlands initiatives recently an-
nounced by the administration so closely parallel our bill.
69-677 0-94-37
1144
Mr. Chairman, I look forward to hearing from today's witnesses
about the problems they see with wetlands protection in this coun-
try and hearing their views on S. 1304 and other wetlands initia-
tives. I look forward to working with you and other members of the
committee as well as other Senators — believe me, we both know
there are many of them who are interested in this issue — in
moving toward the legislation that assures balanced and effective
wetlands protection.
Than you very much.
Senator Graham. Thank you very much, Mr. Chairman. I appre-
ciate that statement.
We are honored to have as our first witness this afternoon. Sena-
tor Frank Murkowski of Alaska. Senator Murkowski?
STATEMENT OF HON. FRANK H. MURKOWSKI, U.S. SENATOR
FROM THE STATE OF ALASKA
Senator Murkowski. Thank you very much, Mr. Chairman.
On behalf of my senior colleague, Senator Stevens, who unfortu-
nately had to go back to Alaska for a funeral of a very dear mutual
friend of both of ours, I'm pleased to say this testimony that I'm
about to give represents the consensus of our delegation.
First of all, let me thank you for the opportunity to testify. I
think the commitment of the Chairman, Senator Faircloth, and
others relative to the necessity of addressing the resolve of our wet-
lands situation with the emphasis on conservation is certainly ap-
propriate.
Someone said, if the shoe fits, wear it. I'm reminded of the open-
ing statements relative to the State of Montana and would ask that
a list of wetland loss of all States be included in the record.
Senator Graham. Without objection.
[The list referred to follows:]
1145
Wetlands
LOSSES IN THE UNITED STATES
1780's TO 1980 's
Principal Author
Thomas E. Dahl
U.S. Fish and WUdlife Service
National Wetlands Inventory
St. Petersburg, Florida
Technical Assistance and
Background Data Assembled by
U.S. Fish and WUdlife Service
National Wedands Inventory Group
St. Petersburg, Florida
Branch of Special Projects
Washington, DC
This report should be cited as follows:
Dahl, T.E. 1990. Wetlands losses in the United States 1780's to
1980's. U.S. Department of the Interior, Fish and Wildlife Service,
Washington, D.C. 21 pp.
TABLE 1: WETLAND LOSSES
IN THE UNITED STATES
1780'S TO1980'S
SUBTOTAL
(CONTERMINOUS US.) 1,899,526.400
ALASKA 362,SI6,480
HAWAU 4,112,000
TOTAL U.S. 2,266,154,880
34.672,000 1,934,198,400
12,787,200 375J03.680
3J0O 4,115,200
47,462.400 2^13,617,280
WetUnd distribution uid changes wy dtvnaikaily within states tlcpendent c
221,129,638
\l%
104374314
5%
-53%
170,200,000
6
453*
170,000,000
7,8
453*
-0 1%
58J00
26
1.4*
51,800
16,26
1.3%
-12%
391388.438
274,426,114
11.9%
-30%
ace area of states llicse dlfictmces ai
United States. 1970
re pnsbabty due to shifting river
cha^^ls
forming su
tcbOftleTS. Tile
both gcognphlcal and /c
)r land use pattefm.
1147
Senator Murkowski. The State of Montana shows approximately
27 percent of its wetlands as being lost. I think Senator Baucus
used the figure of 30 percent. In any event, Florida has a 46 per-
cent loss. My State of Alaska, less than one half of 1 percent has
been lost.
Senator Baucus. Aren't there States with greater loss. Illinois on
that list, isn't that close to 90 percent?
Senator Murkowski. Oh, absolutely. Illinois is 89 percent loss. I
think that I would certainly concede New Jersey is one of the
States with a relatively small amount — no, it's 39 percent. Even
New Mexico is 33 percent. My reference to, "if the shoe fits, wear
it," is reflected on the realities associated with uniformity in the
application of wetlands legislation and the recognition that the
problem is not in my State of Alaska. The problem, as it exists, is
with the other 49 States relatively speaking.
I would implore you as you reflect on my testimony to recognize
that Alaska has only been a State for 34 years. As a consequence,
we find ourselves in a rather unique position. I would ask that you
refer to the fact sheet that is before you relative to the public lands
that are already withdrawn in Alaska under the first portion
which you can read at your convenience relative to the fact that 51
million acres of Park Service land is in Alaska which is 70 percent
of the Park Service acreage, 76 million acres of U.S. Fish and Wild-
life Service refuge are in Alaska, 85 percent of all Fish and Wild-
life Service lands; 90 million acres of BLM lands, 34 percent of all
BLM lands; and there are 57 million acres of wilderness designated
in Alaska, 60 percent of all the wilderness designation in the
United States.
If you go down to the wetlands, you'll see there are approximate-
ly 170 million acres of wetlands in Alaska; 40 percent or 68 million
acres are already protected in perpetuity within Federal and State
conservation units and further, wetlands cover 45 percent of the
surface area of our State. So we are rather unique in that regard.
Seventy-four percent of the nonmountainous areas of the State are
wetlands and on the North Slope, 99 percent of the surface is wet-
land.
Wetland loss in Alaska is 80,000 acres, less than one-half of one
percent. That is over the last 126 years. So as you reflect on this
legislation, please recognize that at the current rate of develop-
ment in our State, it would take about 250 years for Alaska to de-
velop even one percent of its wetlands.
I've also provided you with a national wetland policy issue which
is available to others. I would encourage you to refer to page 14
because I think it makes a reasonable case for consideration that
Alaska's wetlands are well-protected. If you refer to the chart at
the bottom of page 14, you'll see the Federal and State oversight
requirements relative to any activity on Alaska's wetland.
At this time, I'm told that there is a meeting that Vice President
Gore has consented to attend in Senator Dole's office relative to
reinventing government, to try and make government more effi-
cient, more responsive. I would ask that you reflect and the profes-
sional staff reflect as well on the oversight as highlighted in the
document on page 14 because I think it fairly applies to the reality
1148
that indeed the regulatory oversight is established, is functioning
and is balanced between Federal and State.
To be specific, I'm concerned that some of the provisions in the
Senate bill 1304 will simply not solve our wetlands problem in my
State and in some cases, make things simply worse. I think that
the Senate bill 1304 would continue the no net loss, plus it would
set a long-term goal of increasing quality and quantity of wetlands.
The no let loss is unnecessarily restrictive as a goal in my State of
Alaska. Increasing wetlands in my State that has almost 180 mil-
lion acres of pristine wetlands simply doesn't make much sense.
The bill expands the definition of fill and regulates additional ac-
tivities in wetlands such as dredging, draining, building on piling
and the bill doesn't solve the problem of definition of wetlands or
account for wide variations in abundance, function and value. It
does not account for permafrost wetlands. Clearly, when the com-
mittee was reflecting on the definition of wetlands, the application
of permafrost, which is unique to my State and virtually my State
alone, was not a consideration but permafrost in most cases does
constitute wetlands. The restriction there under the definition
means that you simply can't build on this area which makes up a
significant part of the geography in the State of Alaska.
So without modification. Senate bill 1304 will constrict and you
might as well say, strsingle the development in Alaska by providing
more onerous Federal conditions, more compensatory mitigation,
more delays. It will mean less community expansion, less communi-
ty facilities constructed, and less resource development in Alaska.
Again, I would refer to the fact that we've only been a State for 34
years. So what we're attempting to do today, other States achieved
100 years ago without the science and technology, without the safe-
guards, without the regulation that currently exists.
The President's proposed wetlands policy, what about it? I think
it's similar to Senate bill 1304 but it contains four significant
errors which I would like to identify for the committee. The Ad-
ministration policy assumes that the Wetlands Regulatory Pro-
gram is working fine in Alaska. That's not true. It's not working
fine. The President's Task Force on Wetlands received testimony
from the delegation, from the Governor, the Native community,
other residents of Alaska and industry groups and we all pointed
out that serious problems were distinctly associated with the wet-
lands program.
The policy rejected the Alaska 1 percent rule. The Alaska 1 per-
cent rule was simply a way to address the dilemma associated with
development on an area which most of the ground qualifies as wet-
lands. Under the regulatory oversight of no net loss, you simply
cannot get there from here in Alaska because there is no provision
other than mitigation. So the 1 percent rule was to apply to all
States, including Alaska with the theory that all States had al-
ready exceeded the 1 percent rule but Alaska would not. It could
come up to the 1 percent rule and that's all, which seemed rather
simplistic perhaps in the bureaucratic process but nevertheless was
functional and agreeable with some concern on the part of Alas-
kans, but nevertheless, it was a way to get there from here and it
seemed to be reasonable and responsible.
1149
The President's policy rejects the 1 percent rule on the grounds
that the rule would deregulate wetlands development and some 1.5
million acres of wetlands would be destroyed. That's not true. In
fact, the 1 percent rule would only remove the requirement for
compensatory mitigation. How can you have compensatory mitiga-
tion when you don't have anything to mitigate, because you've had
no development. We've got 80,000 acres of wetlands that have been
developed.
Other mitigation measures such as avoidance and minimization
would remain in place. Alaska's wetlands would remain regulated
by the Clean Water Act and all the existing Federal, State and
local laws which we are entirely supportive of.
The President's policy, point three, would claim that potentially
all of Alaska's coastal wetlands would be destroyed if the 1 percent
rule were adopted. This simply isn't true. Alaska has a very effec-
tive coastal zone management program developed in accordance
with the Federal Coastal Zone Management Act and the CZM pro-
gram is developed specifically to protect the valuable resources of
the coastal zone and sets more rigorous standards for approval
than the 404 Program alone.
Fourth and last, the President's policy claims that if the 1 per-
cent rule were adopted, it would hinder management efforts of
threatened and endangered species. That's not true either. Nothing
about exempting up to 1 percent of Alaska's wetlands from com-
pensatory wetlands would interfere with any management activi-
ties required by the very powerful Endangered Species Act which
we all respect. Finding a reasonable policy to allow development of
a small percentage of Alaska wetlands does not equate to total wet-
lands destruction.
As you note, we have 170 million acres of wetlands, equal to the
size of the State of Texas. Alaska has 65 million acres more wet-
lands than all the wetland of the lower 48 States combined. I have
excluded Hawaii. In Alaska, you can find a place to build on but
you might find that it is a wetland more often than not because
wetlands cover 45 percent of the State, 74 percent of the nonmoun-
tainous areas of the State are wetland. On the North Slope, as I've
said, 99 percent of the surface is wetland. So Alaska is completely
saturated with wetlands and you might say we're all wet. I'm sure
by now some of you might agree. But many of Alaska's wetlands
are permafrost wetlands that very frankly have a lesser value. In
areas with an abundance of wetlands, uplands are often the higher
value habitat.
I'd like to show you some photographs because it's pretty hard to
depict Alaska unless you've been there and recognize the realities
associated with the geography and the land mass. Before I do, I
have a little more here.
I'd like to reemphasize that we really don't have a wetlands
problem as the problem exists in the other 48 States because our
wetlands are not really endangered as a consequence of Federal
and State prevailing policies and the fact that we have virtually a
very small amount of wetlands that have been developed, as I indi-
cated, 80,000 acres or less than half of 1 percent over the last 126
years. No other State in the Nation has over 99 percent of its origi-
nal wetlands. In fact, no other State even comes close. California,
1150
I'm told has lost 91 percent of its wetlands. That's nearly 1,000
times greater percentage loss than Alaska. The national average is
53 percent, 500 times greater loss than Alaska.
If you compare this with the lower 48 States where over 50 per-
cent of the original wetlands have been lost, the lower 48 States
loses over 270,000 acres per year, three times more acreage lost in
one year than Alaska has ever lost. We already contribute greatly
to the Nation's wetland resource. We don't feel we should bear the
burden of unnecessary and unworkable wetland regulation that
allows us virtually no growth at all. We do our fair share, as I've
said and you have in the handout, 68 million acres of wetlands are
already protected within Federal and State conservation units.
They will never be developed, they are protected in perpetuity.
Let's go to the photos. Let me show you the dilemma of our prob-
lem. The large photo on the left is the one we're going to start out
with. That photo shows an area 60 miles across, 23 miles north and
south. That photo shows about 1,400 square miles. It shows con-
tinuously poorly drained permafrost wetlands. It shows you an
area that goes on for 1,000 miles across the Beaufort Sea, the coast-
al plain, but it also happens to show you Prudhoe Bay where 25
percent of the U.S. oil production has been flowing for the last 18
to 20 years.
If you look at that photo you can readily see the dilemma. Not
only is it wetlands, it's permafrost. To mandate legislation that
would suggest that in order for any development to occur, you initi-
ate corresponding mitigation, I implore you to reflect on the reality
of where that mitigation is going to occur. You are simply going to
disallow the development within the oversight of both Federal and
State on any areas within Alaska that qualify as wetlands.
Let me show you a small area that is in red because that reflects
on the Prudhoe Bay production and camp facilities which are en-
larged on the next photo. Would you show the audience the large
photo while we're working on the next one so they will know what
we're talking about. That's 1400 square miles.
The Prudhoe Bay facilities are represented in that picture that
Alan has before you which shows you again that is an onshore fa-
cility, not an offshore facility. That's land at the North Slope. It's
mostly water though, isn't it. You have wetland as far sis the eye
can see. A no net loss concept would prevent, prohibit, eliminate
these projects. When everything is already wet, how do you create
more? In my State, where and why do you conduct compensatory
mitigation? This is the dilemma we have which is unique, if you
will.
Let me show you a couple of other photos as well because I think
they represent a reality. What you have in the next photo is a
little different because this represents the closest thing to offshore
activity in the State of Alaska. It represents the Endicott Field.
That field is on a gravel island offshore with a causeway and it
came in as the tenth largest producing field in the United States at
100,000 barrels per day. Senator Faircloth has that and that is a
BP production facility. That's an offshore facility that's not very
far offshore. It's within the 3 mile limit so it really doesn't qualify
as offshore.
1151
The significance of that is it came in £is the tenth largest produc-
ing field in the United States. Today, it's the sixth largest field in
the United States. It's producing at about 100,000 barrels a day.
That's the technology that we've been able to develop. How big is
it? It's less than 60 acres. That's the kind of technology that is ap-
plicable in Alaska today. As a consequence of cost, it's not good
enough to find oil, you've got to find a lot of it in order to bring it
into production. How can we do that in compatibility with the ecol-
ogy and the environment and that's by reducing the footprint.
That's just what we've done. That would be basically eliminated be-
cause it's extended the land by the causeway.
We're proud of this technology and we think that we can add
something if you will to the wetlands problem by Alaska being
used as an example of how to do it right.
This represents a general tundra area in the Arctic, in the North
Slope area of Alaska and represents one of the river drainages that
for all practice purposes is dried up in the wintertime and flows
only in the summer.
This shows the North Slope or ANWR which has received an
awful lot of consideration by Congress on the merits of opening it
up for a limited exploration and drilling. It's believed to be the
largest potential of any major oil discovery left in North America.
That's what it looks like in the wintertime and there's 19 million
acres out there in ANWR. That's a pretty big chunk of real estate,
bigger than the State of Massachusetts.
The proposal by industry, if allowed to develop, is to develop, if
the oil is indeed there, an area of about 12,500 acres out of 19 mil-
lion acres which would be the production facility. It would be like
having the Dulles International Airport in the State of Virginia as
the only single footprint in the State and the rest of the State were
a wilderness. Those are the kind of proportions that I'm trying to
communicate to my colleagues.
We'll go to the next one because this represents the same area of
ANWR in the summertime. That's what those 19 million acres look
like for about 6 weeks of the year.
I guess that's all the photos. So you can see what a no net loss
policy means in Alaska.
In conclusion, gentlemen, the wetlands program as regulated by
section 404 of the Clean Water Act simply has not worked in
Alaska. We have property owners in Alaska regularly experiencing
ridiculous bureaucratic nightmares and I know you folks share
that as well, senseless projects, delays. We have opposition in some
projects from storing snow as it accumulates in parking lots and
roads without the proper 404 permitting. Of course this kind of bu-
reaucracy in an area where you get a lot of winter snow is simply
unconscionable. When you have the responsibility of representing
your constituents with these bureaucratic nightmares, it grows
even more frustrating.
We're faced with realities that the community growth is stymied,
houses cannot be built, community facilities for basic health, edu-
cation, safety and sanitation can't be built. It's true the Corps of
Engineers claims that they rarely deny wetlands permits and this
technically is true, but as you and I know, the Corps requires an
extraordinary amount of permitting information which has been
1152
expanding, endless requests for additional information. The aver-
age person responding to it is absolutely overwhelmed; few individ-
uals are in a position to preserve and persevere through this oner-
ous process. So the effect is basically the same. Denial is probably
the most insidious form of bureaucracy that exists.
I've had constituents come to me and say their property has been
designated as wetlands. That amounts to a taking. Maybe they had
a lot or two in an industrial area in Fairbanks, Alaska. They've
been paying taxes on it as a potential for industrial development
and suddenly, it's determined because of the application of an in-
terpretation of wetlands to be determined as wetlands, therefore,
it's a cloud on the title, the ability to build and develop is stymied
dramatically and the person is left with an appeal through his con-
gressional representative. What I must do obviously is appeal to
you for some kind of rational reason to address those realities as
they exist in my State where I hate to say it, but things are differ-
ent.
We have, in our Native Land Claim Settlement Act of 1971
which the Federal Government under the sanctity of the contrac-
tual commitment, gave the Native Alaskans the right to select cer-
tain lands in exchange for extinguishing their aboriginal rights to
the land and the settlement was to provide for some real economic
incentives for our Native people. Unfortunately, the current wet-
lands program prevents the Natives from developing their own se-
lected lands. The current wetland program violates the spirit of the
Alaska Native Cledm Settlement Act. It also violates the spirit of
the Alaska National Interest Land Claims Act. The land not placed
in conservation units was intended to be available for development.
Development of Aleiska's abundant natural resources was the eco-
nomic promise of Statehood. Those are the terms and conditions
under which we accepted Statehood, that we would have an oppor-
tunity to develop responsibly our resources. I think we have done
that and the reality associated with the modest wetlands develop-
ment that we have, less than one-half of one percent.
So basically both the State and the Nation are being deprived of
the benefit of responsible development. It is simply not right to
solve or attempt to solve the lower 48 wetland problems in Alaska.
We should not be held hostage by the problems and mistakes of the
lower 48.
We recommend some specifics and I would encourage you to re-
flect on them. We think the wetlands legislation should recognize
that wetlands vary in abundance, they vary in functions, they vary
in value. With our 175 million acres of wetlands, much of which is
abundant, we recognize much is low vsdue, much is permafrost.
There should be some priorities. Regulation should be based on the
extent and proportional loss of wetlands. Alaska has nearly all of
our original wetlands in tact.
Some credit should be given for wetlands that are already pro-
tected. We've got 68 million acres protected in perpetuity, 40 per-
cent of our total wetlands are protected in Federal and State con-
servation units in perpetuity. Permitting should be simplified and
streamlined so that the process can basically work. I'm pleased to
say that we hope that the Vice President's commitment to the rein-
vention of government can address this. We all want it to happen,
1153
yet we want to have responsible oversight, but by the same token,
the system has to work.
Gentlemen, I can tell you, if you are on the other end of a wet-
land problem or wetland permitting, God help you. I would venture
to say none of us could basically do it alone without hiring engi-
neers and professional help. That's a terrible burden and a terrible
responsibility to mandate on the public when it's not necessary.
General permits and local government wetlands planning should
be encouraged. Regulations should recognize and protect the prop-
erty rights of private property owners because what we're doing
here in the mandate is a taking with no repayment by the individ-
uals. It will be interesting to see how this committee reflects on the
dilemma associated with the recent floods in the midwest and the
realization of reclassifying productive farmland that clearly is a
wetland designation, is it a taking, do you have an obligation to
make a payment to those landowners. It will be interesting to see
and I don't envy you the difficulty in addressing that dilemma but
it is as much a responsibility for this committee to deliberate and
debate as it is in the inclusion of wetlands legislation that's work-
able.
Regulation should not conflict with the economic goals of the
Alaska Native Claim Settlement Act and the promises of Statehood
under the Alaska Land Claims legislation. The State should be able
to assume the Federal wetlands program more and more and
manage it in a way that makes sense in that State subject to Fed-
eral guidelines and conformance because if the State doesn't meet
the Federal guidelines, obviously the realization is that the Federal
Government will take it over.
Alaska needs a wetland policy that allows the continued respon-
sible development of our abundant natural resources. We've dem-
onstrated the ability to balance the environmental protection with
resource development and the rest of the country simply has not.
So let's solve the wetlands problem where there is a problem.
I thank you for the opportunity to make my extended remarks.
Again, I would appeal to you to recognize the dilemma that is
unique to our State. I would be happy to respond to any questions
you may have.
Senator Graham. Thank you, Senator.
Senator Baucus, do you have any questions?
Senator Baucus. Thank you very much, Mr. Chairman.
Senator, I think you've touched a cord that most people would
agree with, namely the frustration with delays and problems with
the section 404 Program. As I'm sure you know by looking at the
bill that Senator Chafee and I introduced, many areas, in fact
every area that you've mentioned, I would think meeting with your
approval except for the one and that is the failure to have a 1 per-
cent exemption.
For example, there are provisions in the bill which do encourage
State assumption of wetlands permitting process and so forth. In
addition, there are very definite time limits, 90 days within which
the Army Corps must issue a permit. Beyond that, at least with re-
spect to a lot of farmers around the country, prior converted crop-
land as of 1985 is all exempt, so those farmers who did convert as
of that date would have no concern under the Act.
1154
We have one stop shopping at SCS and avoids the problem that
many have with going to the EPA, the Corps, the Fish and Wildlife
Service, et cetera. General permits, we do expand the use of gener-
al permits in the bill. The agricultural exemption is made more
clear. There are many areas in the bill that deal with the frustra-
tions you're talking about.
I grant you Alaska is a different State and I've been up to the
North Slope several times in summer and winter. It's a different
part of the world, there is no doubt about it. I think a 1 percent
exemption, the question that comes to my mind is, because Alaska
is so big, it reminds me of the law of averages, 1 percent of some-
thing isn't very much, but 1 percent of Alaska is a lot. So we're
talking about what part of Alaska. That is, is it the permafrost up
the North Slope, is it wetlands down around Anchorage? There's
lots of different wetlands and different characteristics of wetlands
in Alaska.
I'm wondering the degree to which you could indicate to us
whether some kind of Alaska provision, if that made sense to you,
would have some greater effect on some parts of Alaskan wetlands
as opposed to some others?
Senator Murkowski. First of all, I appreciate your sensitivity
and I would certainly agree that there are many aspects of the leg-
islation which we do agree with, the one stop shopping particular-
ly. As far as the dilemma that we're in with regard to how we ad-
dress some relief for Alaska, we would like to encourage prioritiza-
tion of wetlands and consideration on whatever relief formula we
might come up with would be based upon that prioritization be-
cause we recognize that some areas have a higher value — a bird
nesting area, an area where eagles perhaps have their nests — and
to allow for development initially on the lower value wetlands I
think makes sense and I think all of us would agree in our own
States as we look at the wetlands application that there should be
a prioritization.
What we're looking for is some kind of relief and the 1 percent
gave us that relief. That would be 1.7 million acres which would be
the maximum developed. You talk about that percentage out of the
whole, we have 365 million acres in our state. So we don't think
that is an unreasonable request because 1 percent of our total 170
million acres would be 1.7.
Senator Baucus. The data I have here is between January 1972
and October 1992, roughly a 20-year period, the Corps received
about 4,000 wetlands permit applications for activities in Alaska.
Of these, 108 were denied and the Corps issued permits to 3,017
and of the remaining 872 applications, they were either withdrawn
or otherwise inactivated.
I wonder if you could tell me generally in what parts of Alaska
were those wetlands permits generally denied and where were they
generally granted?
Senator Murkowski. It's pretty hard to tell you specifically but I
can generalize with a good deal of accuracy smd say all over. It can
be an individual's driveway from their home which is located per-
haps by a river up to the highway. The application is the vegeta-
tion, the water content, any number of considerations. If there is a
rivulet coming down a mountain and within so many hundred
1155
yards, you happen to build a school and that rivulet flows into an
anadromous stream within so many hundred yards and that flows
into salt water, that place where you're going to build the school
may be on a mountaintop as it was in Juneau and be denied as a
consequence of it being in violation of the Clean Water Act under
the 404 permitting process.
Senator Baucus. What I'm really getting at though is on the
North Slope, I'm just curious if any oil company applications for
404 from the tundra up the North Slope been denied or not?
Senator Murkowski. It goes a little further than that. Senator
Baucus because as you know, this legislation would require mitiga-
tion. The problem you run into is what do you mitigate? Do we
have to force Alaskans to go down to California and buy some wet-
lands— buy an area in wetlands that have been developed and turn
it into its natural state so that we can develop something in our
State when we have nothing left to mitigate? That's the dilemma
really.
Senator Baucus. Is that what has happened?
Senator Murkowski. What we have as a consequence of Federal
and State policy is to try and initiate mitigation in those areas
where we have had modest development. Let's say there is an oil
pad on the North Slope that's dry, it's mitigated, it's going back. If
you apply your legislation or the adr/xinistration's legislation, we
simply are left without mitigation capability. We have to go some-
place else under the letter of the law. That's the major dilemma
and I think that's where we part in how we get there from here
because there is a lot of your legislation that we can live with that
we can work with.
Senator Baucus. I understand. Indulge me with one final ques-
tion. I'm just trying to get some information here. Have applicants
in Alaska been forced to restore, mitigate wetlands in other States
to compensate for wetlands that have been filled say in Alaska?
Senator Murkowski. The problem is very complex because there
is a delay factor here. If you have a major project in the North
Slope, the permitting, there's over 44 permits that have to be
granted. Development can take as long as 5 years and that is a re-
ality associated with the development of the Kuparak area which is
an oil producing area. You're talking about a sophisticated indus-
try with the technology and the engineers to address the realities
associated with the economics of whether they are going to go
ahead and fight this process for 5 years based on their anticipated
return of the resource vis a vis the mom and pop that suddenly
have had a couple of lots in the industrial area in Fairbanks where
Fairbanks grew up and why did it grow up in wetlands, because it
was along the river and that's where the initial development oc-
curred and where the town is because it's level. That's where the
railroad is because it is level. You can't get permits. The time, the
cost of obtaining those permits, many people just go away in frus-
tration.
Senator Baucus. I totally agree and the main thrust of this bill
is to address that issue. The Corps of Engineers submits to this
committee data which says that in Alaska from January 1, 1991 to
June 30, 1993, only two percent of permits required mitigation. Is
that accurate or is that inaccurate, in your view?
1156
Senator Murkowski. The point is under the interpretation of the
law, there is a mitigation requirement. There is some flexibility in
the Corps' interpretation but less and less all the time because
there is fear of a suit being filed and many suits are filed challeng-
ing the Corps interpretation. So the Corps is becoming more and
more skittish. They are doing a better job on the environmental
impact statements and that's fine for industry that can meet those
requirements but the average person that's got to try and get a
permit to put in a driveway and has to hire an engineer to provide
the plans and specifications just because his or her particular land
addresses water solubility — ^you have the same problem in your
State and I know you do in Florida and other areas and that is
why the one stop shopping I think makes a lot of sense.
I think there is an awful lot of this, Senator, that we can work
out but where we are left high and dry in wetlands is on the appli-
cation of mitigation and I would implore you to try and work with
us to help us put some kind of responsible structure that we can
proceed in our State because if you do it uniformly, we're out of
business.
Senator Baucus. I hear you. I'm just trying to ask questions to
determine how we can put this together because Alaska is differ-
ent, there is no doubt about it.
Thank you very much.
Senator Graham. Senator Faircloth?
Senator Faircloth. Just sitting here doing a little arithmetic,
you only have 5 million acres in all of Alaska in private hands?
Senator Murkowski. That's correct.
Senator Faircloth. Assuming some sort of governmental agency
controls or owns all the rest?
Senator Murkowski. That's correct.
Senator Faircloth. They cannot develop it as they see fit, I
assume that's right. They don't have to let public lands be devel-
oped if they don't want to?
Senator Murkowski. That's correct but recognize that not only is
it not likely to be developed, a lot of it cannot be developed because
it is wilderness.
Senator Faircloth. But even if they allowed any development on
it, it would be an infinitesimally smaJl percentage. If every inch of
the privately owned land was wetlands, it would only be 1.4 per-
cent.
Senator Murkowski. I believe the Senator is correct, yes.
Senator Faircloth. If every inch of it was wet. I think it is ludi-
crous for us to pass a law or rule or regulation to constrict the
growth of a 34-year-old State and apply the same rules that apply
to those that have been developed over many years and other wet-
lands. I have a totally different feeling on the entire wetlands
issue. I think it is a weapon, a tool that we have placed in the
hands of an entrenched bureaucracy that penetrates three or four
different agencies that all sing to exactly the same tune, to gain
further control over private property and the abuse of private prop-
erty rights.
I think if the wetland issue wasn't there, they would pick up the
dry land issue or there would be an issue because there is a con-
certed attempt on the part of the bureaucracy to get control of pri-
1157
vate property, one way or another. I think the wetlands is the cur-
rent issue.
I know you might not even know but was there not an attempt
to stop and to stop a homeless shelter in Juneau because it was on
wetlands? Are you familiar with such a story?
Senator Murkowski. Yes, that's St. Vincent de Paul Shelter. It
was delayed over 2 years even though the land immediately around
it had modest development on it. We've had several of those. We
had another one in Sweitser Creek in Juneau, a middle school de-
layed for 2 years because of an EPA concern, even though it was
on the side of a mountain. That was the interpretation of wetlands
I spoke of where a drainage area came down the hill near the
school, just a little creek, no fish at any time, dried up in the
summer but flowed, but it flowed eventually into an anadromous
stream within 3 miles from the location which flowed into salt-
water and that qualified this mountain site for the school as wet-
lands.
So what we've got here is clearly something that I'm sure wasn't
legislative intent in the definition but when you pull all the spa-
ghetti out, you find you can't build there because of this series of
coincidences, all well-meaning, but in my particular case, impracti-
cal because we have in southeastern, as you know, mountains that
go right down to the sea. It wasn't designed for that, it was de-
signed for more the application of a flatter topography.
I just want to make one other comment. I think it's interestmg
to note that in none of our discussion — ^you touched on it, I men-
tioned it — but there is a concern in the committee I think for the
realization of these classifications on private land which amount to
a taking and what kind of an obligation this committee has as well
as this Congress to address that reality as you look at your wetland
and Clean Water legislation pending.
Senator Faircloth. It is absolutely cause for concern with me.
We must have hundreds of thousands of people out here agitating
and working and in the bureaucracy to protect wetlands. If we
have one solitary soul with an interest in protecting private prop-
erty rights, he hasn't spoken within the Federal Government. That
was part of the Constitution.
Senator Murkowski. I haven't heard him either.
Senator Faircloth. If he's here, he sure hasn't said much.
Senator Baucus keeps sa3dng you can get the permit. I am confi-
dent that Exxon knows how, has the time, the people, the engi-
neers, the environmentalists, the hydrologists, to get a permit. Poor
Farmer Brown can hardly find his way to the courthouse to file a
deed and he is far from being able to file for a permit with the
Corps of Engineers and the EPA. If he doesn't get the proper per-
mits, he is subject to a $25,000 a day fine which would probably
consume the value of his farm before breakfast.
All these people are saying the same things from whatever
agency they represent. They read a common statement this morn-
ing, a common statement from five government agencies. A Dr.
Larson from Amherst, Massachusetts sat exactly where you are
and told me that there was no difference in the value of wetlands,
it all had the same value, whether it was 50,000 acres of brackish
1158
marsh or a quarter of an acre pothole isolated in a field. Of course
he was from Massachusetts, so I understood.
[Laughter.]
Senator Faircloth. I hope, before this wetland issue is settled
and goes to the White House to be signed, that somewhere some
common sense for the protection of property rights and the people
of this country will be written into the bill as well £is the protection
of wetlands.
Senator Graham. Senator, we appreciate your very thoughtful
presentation and I can assure that your comments will be given
full consideration as we proceed with this legislation.
Senator Murkowski. Might I ask the Chairman the general time
frame under which you anticipate further hearings and a mark-up?
Senator Graham. This is our final hearing. This is the eighth
hearing that we've had on this legislation. Our schedule is to have
a bill ready for subcommittee mark-up in October and depending
on when this session of Congress recesses, possibly to have it before
the full committee prior to that recess.
Senator Murkowski. I don't want to suppose something that's
not there, but if the members and more specifically the subcommit-
tees are receptive to considering some kind of — I hate to use the
word exception — redress for our particular set of circumstances,
might we have the opportunity to be afforded the courtesy of that
knowledge and perhaps the opportunity to try and work with the
subcommittee in addressing some responsible relief?
Senator Graham. Yes. We look forward to working with you and
your colleagues and whatever representatives of the State and citi-
zens of Alaska are interested in pursuing what might be some rea-
sonable recognition of your special circumstance.
Senator Murkowski. May we do that by contacting your Chief of
Staff?
Senator Graham. Yes.
Senator Murkowski. I very much appreciate that, Senator
Graham, Senator Faircloth, Senator Baucus and the professional
staff associated with this. I assure we in Alaska are not at all in-
clined to abuse the realities associated with responsible wetland
reclamation. We just have this unique reality where our State is
already wet and it is pretty hard to be any more wetter than wet.
That's why the mitigation in the administration's proposal and
Senator Baucus' proposal leaves us with such a dilemma.
Thank you very much for the opportunity to address the commit-
tee.
Senator Graham. Thank you very much. Senator,
Panel four, I would ask if the members of this panel would
please come forward and you will be called upon in the order in
which you are listed on the agenda starting with Mr. Scott Haus-
mann, Chairman, Association of State Wetlands Managers, and
Chief of Water Regulations for the Wisconsin Department of Natu-
ral Resources; Mr. Langdon Marsh, Executive Deputy Commission-
er, New York State Department of Environmental Conservation,
also representing the National Governors Association; Mr. Mark
Latch, Division Director, Florida Department of Environmental
Protection; and Mr. Ken Bierly, Wetlands Program Manager,
Oregon Division of State Lands.
1159
Gentlemen, I appreciate your participation today and I appreci-
ate your patience. First, Mr. Hausmann.
STATEMENT OF SCOTT HAUSMANN, CHAIRMAN, ASSOCIATION OF
STATE WETLAND MANAGERS, AND CHIEF, WATER REGULA-
TION, WISCONSIN DEPARTMENT OF NATURAL RESOURCES
Mr. Hausmann. Thank you for the opportunity to present the
following comments on behalf of the Association of State Wetland
Managers and the Wisconsin Department of Natural Resources.
The Association of State Wetlands is an organization comprised
of professionals from local, State and Federal agencies and private
consultants which has as its primary interest the protection and
wise management of the Nation's wetlands. Our comments and rec-
ommendations are based on over 16 studies, workshops and sympo-
sia conducted by the Association since 1989 which collectively in-
volve several thousand State and local wetland managers, wetland
scientists, Federal agency staff, developers and other participants.
Wisconsin has a well-founded reputation and tradition of envi-
ronmental protection. Wisconsin has strongly supported the Clean
Water Act and the section 404 Program believing the program
complements our State and local regulations and provides compre-
hensive protection to Wisconsin and the Nation's valuable water
resources.
We believe that Senate bill 1304 is the first serious bill to build
upon and address deficiencies in the section 404 Program. The bill
will do much to implement the recommendations of the National
Governors Association and the concepts put forth by the Associa-
tion. It is also consistent with the ideas and recommendations of
the scientific and technical communities which we represent.
Both the Association and Wisconsin strongly support wetland
protection and restoration. However, we have also recognized that
wetland protection and restoration require the understanding and
the support of public and private landowners and the protection of
the quality and quantity of water supplies of wetlands through wa-
tershed approaches.
We recognize that the bill raises issues with the environmental
community with regard to general permits, enhanced State and
local roles, advanced planning, prior converted wetlands, mitiga-
tion banks, and perhaps other matters. We believe that these topics
must be approached with great care but we also believe that after
21 years with the section 404 Program which really does not pro-
tect many wetlands, it is time to try some new partnership ap-
proaches and to better address landowner needs. These are keys to
actual protection and restoration of wetland ecosystems.
Today, in addition to providing general support for 1304, I'd like
to briefly address seven areas of this legislation and close with
some thoughts on wetlands, this bill and flood damage reduction.
First, the specific authorization for State and local programmatic
general permits clarifies uncertainties about general permits under
current regulations. The Association strongly supports the use of
programmatic permits where the State or local program meets or
exceeds Federal regulatory standards. My State, Wisconsin, is now
1160
entering into its eleventh year with the State program general
permit. , .
Second, State conservation plans as proposed is a very positive,
proactive approach that can initiate useful changes to managing
wetland resources, especially when combined with wetlands and
watershed management plans.
Third, for reasons discussed in a brief paper attached to this tes-
timony, advanced planning in the watershed context of the sort en-
couraged by this bill is needed to help resolve many of the severe
problems and conflicts in the protection and management of fresh-
water and estuary wetlands now facing the Federal agencies,
States and local governments. Such planning is needed to meet pri-
vate and public landowner and developer needs for more certainty,
predictability, flexibility and lower costs in wetland regulation.
Fourth, while the Association supports timely decision making,
the inadequacy of many of the permitting applications presently
submitted raises some concerns on how this provision of the bill
will be implemented. We would strongly recommend that language
be added to make sure that the 90-day time clock does not start
running until adequate information to assess the impact of the pro-
posed actions is in hand.
I would add as the Senator from North Carolina has said, I
would like to have my property looked at in person before a regula-
tory decision is made. You have to realize though that I'm from the
State of Wisconsin and 6 months of the year, all you are going to
see is a blanket of white stuff out there.
Fifth, we support the intent of the Agricultural acti\aties section
of the bill. However, we believe that the existing provisions for
prior converted wetlands should be maintained. Also the ability of
the Soil Conservation Service to carry out this mandate in terms of
resources and expertise is questionable. Training of SCS at the
county level is absolutely critical to make this provision work.
Sixth, the Association supports the requirements for the estab-
lishment, use, maintenance and oversight of mitigation banks rely-
ing on practical and scientifically sound methods. However, the bill
does not, but should include the explicit sequencing language as
now found in the 404(b)(1) guidelines and as recommended by the
National Governors Association and this Association. This is criti-
cal for the appropriate use of mitigation banks. Also, we question
the creation of wetlands as an effective mitigation technique.
Seventh, the funding mechanism provided in the bill includes
section 104, 106, 205, 319 and 604. These funds have become in-
creasingly competitive as they are used to support multiple Clean
Water Act programs. Congress must be willing to financially sup-
port the excellent intentions of this bill.
The Association and the Association of State Floodplain Manag-
ers recently conducted the first of two meetings in St. Louis on post
flood recovery and restoration of Mississippi River flood plains and
wetlands. The second meeting will be September 27th to the 29th
and I invite you and your staff to attend.
Many provisions of this bill — State wetland plans, watershed
management plans, programmatic general permits, and mitigation
banking will be important tools to accelerate the restoration and
protection of open wetland, bottom land, backwater, prior convert-
1161
ed and flood plain areas important to water retention and release
of floodwaters.
As an illustration, a 5 percent increase in riverine wetlands in
Wisconsin and Minnesota would reduce the floodwaters to the
south by 1.5 billion gallons a day or a 20 percent decrease in flown.
In summary, we believe this bill will help create an effective na-
tional wetland regulatory program that is integrated with other
Clean Water Act goals and programs. It will achieve this by creat-
ing new Federal, State, and local partnerships to evaluate, plan
and regulate wetlands on a watershed basis as part of broader
water resources systems.
Thank you.
Senator Graham. Thank you very much, Mr. Hausmann.
Mr. Marsh?
STATEMENT OF LANGDON MARSH, EXECUTIVE DEPUTY COMMIS-
SIONER, NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL
CONSERVATION
Mr. Marsh. Thank you, Mr. Chairman.
I've had the privilege of working with the National Governors'
Association and was chair of the NGA staff working group that de-
veloped the wetlands policy endorsed by the governors in February
1992. I'm testifying today on behalf of the NGA and the State of
New York.
I'd like to start by saying how pleased we are by the provisions of
Senate 1304 and commend Senators Baucus and Chafee for draft-
ing and introducing the bill. We are proud at NGA and in New
York to have helped develop the recommendations that are reflect-
ed in this bill. We are also pleased that the policy recently released
by the White House is consistent with the direction of this bill.
With the administration and the Senate so closely aligned, we are
optimistic that progress in wetlands protection can be made.
The governors have recommended that any wetland strategy in-
corporate five general principles. First, protection efforts should be
coordinated to make the best use of scarce resources and minimize
inconsistencies among Federal, State and local programs. Second,
wetlands management should be integrated with other resource
management programs such as flood control and nonpoint source
pollution. Third, wetlands delineation criteria and policies should
recognize significant regional variance in the resource.
Fourth, land use regulation is traditionally a State and local
function and a wetlands regulatory program should be designed to
facilitate State assumption.
Finally, the governors believe there should be recognition of the
unique situation encountered by the State of Alaska as Senator
Murkowski so eloquently testified.
As States, we are reassured that Congress recognizes that State
and local governments can be partners and viable players in wet-
lands protection. States are better positioned than the Federal Gov-
ernment to provide program services. In addition, they can often
respond to the regulated community in a more timely and predict-
able manner. Of course the abilities and interests of the 50 States
and the thousands of localities vary considerably but States and
1162
local governments should be encouraged to participate to the
extent that they can.
We're aware that some parties to the debate are wary of stronger
State and local involvement, fearing that a loss of wetlands protec-
tion will result. This will not be the case. We welcome a strong
Federal framework and close cooperation to ensure a strong pro-
gi-am, but it is likely that States and localities that choose to
become involved will do so to strengthen protection or to improve
the delivery of the program. Consistent Federal oversight will
ensure that wetlands do not fall victim to local politics in the
future.
We also welcome provisions of Senate 1304 that endorse pro-
grammatic general permits, support and fund State comprehensive
wetlands conservation plans and regional watershed-based plans
and ensure State representation on the Interagency Coordinating
Team. I note, however, that the bill is silent on program assump-
tion. While most of the problems with assumption are regulatory
and not statutory, we strongly recommend authorizing full or par-
tial program assumption. States should be permitted to assume dis-
crete and clearly identifiable portions of the section 404 Program
as they develop the capability to do so rather than requiring the
entire program to be delegated at one time.
We're pleased to note that many provisions of Senate 1304 will
decrease the conflict that has historically occurred between wet-
lands protection and agriculture. Provisions to increase coordina-
tion with the Secretary of Agriculture, for example, should prevent
problems from occurring by considering the impact of new policies
on agriculture early on. We support exempting from the definition
of wetlands prior converted croplands and certain artificial wet-
lands created incidental to agriculture. We also support continuing
the exemption for ongoing agricultural practices.
In addition, we're pleased that Congress has chosen to expand
the wetlands reserve program supported by us and the White
House policy to create a national cooperative wetlands restorative
strategy. We recommend, however, that the restoration strategy
complement and not replace the Wetlands Reserve Program.
Perhaps the types of provisions that will be most welcomed by
the majority of the affected public will be those that provide for
regulatory reform. NGA and we in New York have supported ef-
forts to make the regulatory process fair, reasonable, and predict-
able, believing that the vast majority of the people prefer to comply
with wetlands protection efforts if they can understand what is re-
quired and expected of them. We have recommended some of these
changes in the past and are pleased that they appear in the bill.
They include reasonable time lines for permit review, establishing
an administrative appeals process, and supporting mitigation bank-
ing.
Senate 1304 also strengthens wetlands protection and endorses
the no net loss goal, clarifies the definition of wetlands, expands
the list of activities subject to jurisdiction under 404, and more
clearly defines what is fill. We do believe that watershed-based
planning for wetlands also will greatly enhance wetlands protec-
tion in the long term. My colleague from Oregon, Ken Bierly, will
be speaking in more detail about watershed and local wetlands
1163
planning but I want to express my strong support for these provi-
sions in the bill.
I understand that local and regional wetlands planning has been
characterized by some as an effort to weaken rather than strength-
en wetlands protection. I cannot disagree more. Absent a context
for wetlands decision making, we will continue to see cumulative
losses and will not have the proper perspective for functional as-
sessments and mitigation.
In spite of our enthusiasm for Senate 1304, we are disappointed
that the bill does not contain explicit language governing sequenc-
ing of mitigation requirements. We believe it is critically impor-
tant, first, always to avoid impacts to wetlands, then to minimize
any impacts that cannot be avoided, and finally, to offset any re-
maining impacts through compensatory mitigation such as restora-
tion or creation of wetlands.
Without an explicit declaration in the statute of these sequenc-
ing requirements, we fear that too often the process will jump to
compensatory mitigation when in fact the impact may have been
avoidable altogether.
We do believe some flexibility must be available which is best de-
fined through watershed or regional plans but we strongly urge
that sequencing be followed whenever possible.
In closing, I'd like to reiterate that we are encouraged by the si-
milarities between Senate 1304 and the White House wetlands
policy. I urge Congress and the administration to continue this co-
operative approach and to aggressively seek to move wetlands pro-
tection forward out of the morass of conflict that has consumed it
for the past several years.
On behalf of New York and the other States, we welcome the
new spirit of cooperation and partnership with the States and look
forward to helping deliver a stronger wetlands program.
Thank you.
Senator Graham. Thank you very much, Mr. Marsh.
Mr. Latch?
STATEMENT OF MARK LATCH, DIVISION DIRECTOR, FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
Mr. Latch. Good afternoon. My name is Mark Latch and I'm the
Director of the Division of Water Management in Florida's newly
created Department of Environmental Protection.
The Department is the lead State agency for permitting activities
impacting waters and wetlands in the State. At the present time
we are seriously considering State sissumption of the Clean Water
Act section 404 Permit Program. For these reasons, we are specifi-
cally and very specially interested in reauthorization of the Clean
Water Act, especially the activities relating to section 404.
Florida has an extremely active wetlands permit program at the
present time based on regulation of wetland impacts in the dredge
and fill program and regulation of the management and storage of
surface water. The authority of these two programs is split between
my department and five regional water management districts.
Recently, we have entered into interagency agreements and
there has been legislation that has resulted in the first steps
1164
toward streamlining these regulatory programs into a single, deci-
sion making process and, in addition, developing a Statewide,
single wetlands delineation methodology. The intent is when the
streamlining process is completed, an applicant will deal with a
single agency for all wetland permits required under State law.
To further the streamlining initiative, the State has requested
and received funding from EPA to investigate the feasibility of as-
suming the section 404 Program. In the process, we are working on
that grant to see whether or not we want to develop an assumption
package.
However, based on the work that we have done to date under
that grant, we have found that a State programmatic general
permit may be a much more attractive alternative for the State
than the assumption process. Given the current statutory restric-
tions that we have found in the Clean Water Act, it is just not pos-
sible for us to develop an assumption package for a comprehensive,
statewide program such as Florida's.
An attempt to address some of these concerns and possibly to
remove some of these impediments, we have proposed language to
the Florida delegation to amend the Clean Water Act. The detailed
language is contained in my written statement but I'll outline some
of those things here.
One, there is currently a provision that specifies that certain
waters are not assumable. In Florida's case, that's approximately
50 percent of the wetlands and waters. We would recommend that
language be modified so that all waters in the State could be £is-
sumable.
There is another provision that restricts permits under an as-
sumed program to a 5-year period. Currently, our program in the
State allows for 25-year permits with 5-year reviews. The Corps of
Engineers issues very similar permits. We would like to see an
amendment that would allow this practice also to be done.
There is another provision in the Clean Water Act that requires
all permits that are pending at the time an assumption is done to
go immediately to the State taking the program. This means both
complete applications and incomplete applications. We feel that
would be an undue burden on the State at that point in time and
cause much confusion both with the State and with the applicant.
We think it should be changed so that the State could get those
applications that are received after the date of assumption and the
Corps would finish off the processing of those that they currently
have in-house. In addition, we would recommend language clarify-
ing that the Corps of Engineers would retain authority to adminis-
ter and enforce the permits that they have issued.
Also, there is no provision under the existing statutory language
for financial incentives for the State to assume the existing Federal
program. Shifting costs of this program from the Federal budget to
the State budget will undoubtedly result in a substantial reduction
of Federal costs and an increase in State costs with no offsetting
revenue. Therefore, we would recommend language that would
allow grants to the State for at least the initial part of the start-up
until this problem can be addressed.
These amendments would go a long way toward making assump-
tion of the section 404 Program more attractive to Florida and
1165
other States. Given the experience of Florida and other States that
have considered assumption, we would suggest consideration be
given to this language for clarifying the relationship between the
Federal and Endangered Species protection statutes and the State-
assumed section 404 Program.
Protection of the endangered species has a major emphasis under
the existing Florida program. However, should we assume the sec-
tion 404 Program, we are concerned that current Federal statutes
and policies may result in excessive Federal agency coordination
burden on the State with no increase in endangered species protec-
tion.
^ I thank you very much for the opportunity to comment on this.
I'd be glad to take any questions. I have a more comprehensive ver-
sion of my remarks that will be attached and you can get the spe-
cific language we are suggesting there.
Senator Graham. Thank you very much, Mr. Latch.
For the benefit of the members of this panel as well as others
who have or will testify today, full statements will be accepted for
the record and if you would like to supplement your statement
within the next 15 days, the record will remain open to do so.
Mr. Bierly?
STATEMENT OF KEN BIERLY, WETLANDS PROGRAM MANAGER,
OREGON DIVISION OF STATE LANDS
Mr. Bierly. For the record, my name is Ken Bierly. I am Wet-
lands Program Manager for the State of Oregon, Division of State
Lands.
It is a pleasure to be here before you with the opportunity to
speak about regulation of wetlands under the Clean Water Act. I
would like to bring a State perspective to this issue and my com-
ments are based on more than 20 years of direct experience with
the State program.
Oregon has had a State legislatively mandated permit program
prior to the passage of the Clean Water Act in 1972. Our direct ex-
perience with a command and control approach to wetlands regula-
tion might provide some insights as you deliberate on changing the
structure of the Clean Water Act.
The first realization that came to us after some years is that a
permit program does not protect wetlands. We need to be very
clear about that. A permit program can protect some wetlands
from some discharges, but it does not protect wetlands in the land-
scape. It cannot and does not look at which wetlands should be pro-
tected. It is entirely a reactive program.
Additionally, that inherent structure means that the Federal
Government, under the Clean Water Act, reacts to someone's
desire to place fill in a wetland somewhere in the universe. 'The
program is structured around a reaction to someone else's desire to
destroy a wetland. So the permit program is inherently defensive
and it creates a defensive reaction because people typically don't
indiscriminantly place fill for no reason, primarily because it is ex-
pensive to move dirt.
People have legitimate reasons for placing fill and it is for this
reason that we feel that the planning approach, watershed man-
1166
agement planning, or other forms of planning that provide a con-
text for regulatory permitting is extremely important.
In preparing for these remarks, I reviewed the General Account-
ing Office's recent review of the 404 Program. They reported that
Congress has increased funding for the Corps from $55 million to
$86 million in the 4 years between 1988 and 1992. Even with that
level of increase in Federal funding, the problems identified in 1988
which had to do with cumulative impacts, lack of tracking, et
cetera have not been resolved. This is an issue where additional
Federal funding is not necessarily the solution. I am convinced that
there is a more fundamental problem. The problem that we faced
in Oregon and that I see with the Federal program is that no
matter how well you administer a permit program, it will not
achieve broad-scaled wetland protection objectives unless the
permit program is changed into an implementation mechanism for
a broader wetland resource planning program.
You must additionally establish goals for the program and 1304
does clearly establish goals for the program. Senate 1304 takes im-
portant steps in recognizing these shortcomings of the permitting
program. Section 3 provides explicit goals for the program that
have been long needed and broadly discussed. Many people have
agreed upon the explicit goals stated for the program.
Section 12 allows wetland and watershed management plans to
be developed to provide a context for the 404 permitting. I believe
that the wetlands and watershed management planning aspect of
this bill is a necessary element of the program. It provides the op-
portunity for local communities to be empowered to define solu-
tions within Federal guidelines to solve problems locally. I think it
is important that we understand that bottom-up approaches will be
inherently longer lasting, more durable and quite likely be more
creative than top-down approaches.
S. 1304 starts to address the need for partnerships. In sections 3,
4, 7 and 12, partnerships with State, local government, private
property owners, and other individuals are addressed. This is a
breath of fresh air. The partnership approach, I am personally con-
vinced, has much power within a defined framework.
S. 1304 also explicitly addresses the need to integrate the Clean
Water Act Program with agricultural programs, particularly sec-
tions 7 and 8. The lack of Clean Water Act recognition of SCS/
USFWS minimal effects determination has been a plague that is
being addressed in S. 1304. The integration and explicit recognition
of the need to integrate the Department of Agriculture programs
under the "Swampbuster" provisions of the Food Security Act with
Clean Water Act programs is a very clear need.
EPA's recent brochure on how 404 affects farmlands is a useful
piece of public information that should be emulated. In Oregon, $3
billion annually is generated by our agricultural economy, so in the
agricultural sector of the community, it is extremely important to
maintain their productivity as well as maintain protection of wet-
lands.
I would also like to talk to you about another approach that is
important to us in Oregon and throughout the west. I think it's im-
portant that nearly 100 years ago. Captain John Wesley Powell
was before this body and indicated that watersheds were where it's
1167
at, all water ends up, comes from a watershed and goes through
the watershed. We must look at water and water resources within
their natural context.
Unfortunately, we failed to listen to John Wesley Powell when
he was director of the U.S. Geologic Survey and recommended that
county boundaries be structured around watersheds. We have local
government boundaries and State boundaries that run across wa-
tersheds and are trying to treat water as if it were pork bellies or
other things that could be traded on the open market. We're start-
ing to realize that we can no longer do that. If we look at how the
wetlands fit within the watershed, we may be able to develop prior-
ities for those wetlsinds that make sense to local people and the
Federal Government.
I've provided detailed comments in my written testimony and
would be glad to answer any questions.
Thank you.
Senator Graham. Thank you very much, sir.
Mr. Hausmann, you talked about the fact that one of the positive
features in this legislation was the concept of State conservation
plans. That sounded very much like some of the comments that
were made later about the desire to shift this program from being
a reactive permit program to something that was more futuristic
and positive in its orientation. Could you elaborate on your feelings
of that? In light of some comments made by an earlier panel where
there was stated resistance to the concept of classifying wetlands,
would that not be an inherent part of a State conservation plan?
Mr. Hausmann. Let me approach the classification portion of
that question first. Classification is something that we're doing
every day. I run a permit program, Mark Latch runs a permit pro-
gram. Every day in effect, we are making a value judgment. We
are classifying a wetland; we are saying yes, this is something that
we believe we can issue a permit to allow a wetland to be altered
in some form or manner. So is there classification, are there value
judgments going on? Yes, there are.
However, if you asked me could I implement some type of classi-
fication scheme and mapping for the State of Wisconsin, I would
tell you there is not enough time or money in this world to do it.
To do it on a national basis would be even more of a nightmare.
Having said that I have very negative feelings, obviously, about
classification and tr3dng to do it on a State basis or a national
basis, I do believe that we do need to do it in certain problem areas
within every State. That's what I look at wetlands conservation
plans or watershed plans to be able to do, to look at areas that we
can handle with existing staff and expertise that we have and I'm
particularly thinking of those trouble areas, those areas that either
have some unique natural feature that makes them hard to inter-
pret or hard to deal with. In Wisconsin, we have what we call red
clay areas. The soil is red clay, nothing percolates through it so ev-
erything on top of it by hydrology and plant species is wetland. We
also happen to have a major port city of the United States, Duluth-
Superior, sitting in this landscape.
Issuing permits on an individual basis there is a very difficult
and contentious task. We are now in the process of doing a water-
shed plan which is identifying and classifying wetland areas that
1168
are up for development, in the next 10 years, and making the
permit decisions ahead of time, and determining what is going to
be required in that area. So that's one area where classification
can be done.
The other place I think that it can be done is where you are
having development pressures, areas that are rapidly developing.
Those areas can be done in the watershed plan or a watershed con-
text. They can combine Federal, State and local interests and pri-
vate and public interests into a plan.
The process of trying to classify wetlands on a State or a nation-
al basis, I'd look at as an impossible task but in a watershed plan
or a local plan context I think it's very, very capable of being done
and it is something that we have to do. It is a much needed direc-
tion.
Senator Graham. The question that has concerned me is wheth-
er it is wise policy to have the Federal jurisdiction over wetlands
be defined as the totality of wetlands or the full reach of the Feder-
al Government's constitutional capacity. It has been suggested else-
where that there should be a clear demarkation between the Feder-
al jurisdiction and then with States having the responsibility to
decide how to regulate those wetlands which were beyond the Fed-
eral jurisdiction.
I'd like any comments that any of you might have on whether
there should be a single Federal jurisdiction that is all inclusive or
some dividing of the wetlands?
Mr. Marsh. I'd like to take a crack at that. I believe that it is
important to have a strong Federal framework for the wetlands
management in this country. Because we did not do as John
Wesley Powell suggested and organize ourselves along watersheds
as opposed to artificial boundaries, we do have a problem of inter-
jurisdictional management of resources that are common resources.
I think having a strong and comprehensive Federal framework for
resource protection, in this case wetlands, makes a great deal of
sense.
However, I believe and we have testified I think fairly uniformly
here that we would like to see as much as possible that the me-
chanics and implementation of that Federal authority be delegated
to, assumed by the States to the extent that we have the capacity
and resources to do so, and that will allow us to have the flexibility
through these regional and regional watershed planning mecha-
nisms as well as the comprehensiveness that resource requires.
Senator Graham. Any other comments to my question? This will
be my l£ist question for this round.
Mr. Hausmann. If I may interject briefly, it's my understanding
that Congress debated that very issue in 1977 when there was ques-
tions about the extent of what constituted navigable waters and
there was a bill from I believe a gentleman from Texas who indi-
cated that the regulation at the Federal interest was limited to tra-
ditionally navigable waters. The balance there was States would
assume those other waters at that point in time.
Senator Graham. I am prepared to accept the argument that the
Federal Government has a constitutional reach that is broad
enough to encompass virtually all wetlands in the United States.
I'm really asking a different question which is the wisdom of utili-
1169
zation of that reach. Mr. Marsh I think made some persuasive ar-
guments as to why it is wise to have the maximum Federal juris-
diction. Would anyone else like to comment on that as a matter of
wisdom rather than law?
If not, Senator Faircloth?
Senator Faircloth. I would totally agree with what you're
saying, turn the inspection over to the States and allow them to
have some authority to do it. I see a problem with that. I don't re-
member in my lifetime a Federal agency ever reducing itself or
giving up jurisdiction. I missed it if one ever did. So if you put the
States in charge, you're still going to have the Feds sitting there, so
you're adding another layer of bureaucracy to take your permitting
process through. That is what I'm afraid would happen.
I notice that Mr. Latch said that the Feds should fund it. Did I
understand what you said?
Mr. Latch. No, sir, not in totality. I don't ever see that happen-
ing. What I'm saying is that right now, for most States to even con-
sider it, they are going to need something to give them a jump
start, at least in the initial phases as they go into the transition.
Senator Faircloth. Do you think they are going to reduce their
program to jump start yours?
Mr. Latch. I agree with you, sir, I've never seen anyone reduce,
so it's probably not realistic.
Senator Faircloth. You think we need more spending?
Mr. Latch. I'm just saying there needs to be some incentive for
the States to take it. At the present time, there isn't much of one.
Senator Faircloth. Where would you suggest we get the money?
Mr. Latch. I don't know that I have any real good ideas for that,
sir.
Senator Faircloth. Mr. Bierly, you said that the permit is a re-
action, not a good system. In a word, what would you replace the
permit system with?
Mr. Bierly. It would be difficult to replace it in a word.
Senator Faircloth. Just a very few words.
Mr. Bierly. The system that I anticipate is that the permit is an
implementation instrument. It implements someone's idea of how
you get from A to B. What we see as an appropriate governmental
structure would be a planning mechanism done by local communi-
ties that integrates wetlands within the infrastructure of the com-
munity and then the permit becomes the implementation mecha-
nism once the plan identifies what areas would be filled, what
areas would be restored, so there would be predictability in the
system and you would have a very good idea of what the outcome
of a permit system would be before you even enter it.
Senator Faircloth. In a word, would that not be total assump-
tion of private property rights?
Mr. Bierly. No.
Senator Faircloth. What would it be?
Mr. Bierly. In fact, our experience in Oregon is that what it
would do is allow the voices of private property individuals more
control over the establishment of community goals and assignment
of direction for their future. My experience has been that the
people who own property have a very strong role in making sure
that those goals are achievable and realistic.
1170
Senator Faircloth. The interpretation I usually get of things
when we start dealing in individual personal property rights and
community goals, that closely becomes the taking of personal prop-
erty.
I thank you.
Mr. Hausmann. Senator, can I add a comment? You eisked for an
assumed program where you might get money?
Senator Faircloth. Yes.
Mr. Hausmann. This is just an idea and I've never seen an
agency give up things either, including my own, but it certainly
makes sense to me that if my State were to assume the permitting
program from the Corps of Engineers, that some portion, some per-
centage of the money that they use to run that program in a State
could be given to that State to run that program at least on a seed
basis until the State legislature acts to fund the program.
For example, the Corps of Engineers spends close to $2 million a
year to run the program in the State of Wisconsin. I can guarantee
you that if there was an offer of 50 percent of it, $1 million, my
legislature would probably be giving me directions to assume the
program from the Federal Government.
We did a study of the feasibility of assuring the S. 404 program
in Wisconsin, completed in 1990, and the one major reason that we
did not go ahead and assume the section 404 Permit Program was
lack of funding. Every other Clean Water Act Program that the
State of Wisconsin has taken on has come with funding, including
the Discharge Permit Program, Nonpoint, et cetera. The only as-
sumable program that does not have any funding, other than study
grants, is the section 404 Clean Water program.
Senator Faircloth. I can give you the Corps of Engineers'
answer now. We are underfunded as it is. Our programs have been
cut, our budget has been cut. We hardly can survive. We would be
glad to give some authority to the State of Wisconsin but no
money.
Mr. Hausmann. I've heard that answer already from the Corps.
Senator Graham. Mr. Latch, you talked about the similarities or
differences between an assumption program and the programmatic
general permit program. Could you elaborate on what are the prac-
tical differences or similarities between those two and why you feel
the general permit might be a preferable way for a State to move
into this area?
Mr. Latch. The biggest problem right now is that you can only
assume, as I said in my prepared remarks, about 50 percent of the
program. In Florida, we would only be able to assume isolated wet-
lands, headwater wetlands. We would not be able to assume any
permitting authority in rivers, major lakes or the coastal areas.
Senator Graham, is that because the 404 regulations restrict as-
sumption?
Mr. Latch. That is correct. It says that you cannot assume navi-
gable waters, any waters that are susceptible to navigation or can
be made to be navigable with improvements. There's some real
funny language on it. In Florida, as you know, that's most of our
State in large part; that's probably 50 percent or more of our per-
mitting load. So then you have a fragmented program right there.
1171
Under the State programmatic general permit, you negotiate
with the Corps of Engineers for taking over whatever portion you
want. It's a lot more open-ended. We've opened discussions with
the Jacksonville office of the Corps and we're proceeding under
that guise.
Senator Graham. Senator Faircloth?
Senator Faircloth. What is navigable water?
Mr. Latch. That's one of the questions and the Corps makes that
decision. They have to tell us what it is and that's another problem
that you get into with defining where the navigability stops in the
river. So you have to undergo these real extensive studies to find
where the St. Johns River is no longer navigable. It becomes a
morass that I just frankly cannot recommend
Senator Faircloth. I'm not talking about the St. Johns River,
I'm talking about the St. Lucy Canal and everything else. That's
navigable water.
Mr. Latch. We would presume so but the Corps would have to
tell us that.
Senator Faircloth. In other words, it is all navigable water?
Mr. Latch. Up to where you probably can't take canoes and
things like that. It just depends upon how they define it and how
they want to get out and do their studies. So, like I said, it becomes
a nightmare trying to make that distinction.
Senator Faircloth. You're in charge of the water division in the
Department of Environmental Protection?
Mr. Latch. Right.
Senator Faircloth. And you don't know of a stream, you can't
even identify a ditch that isn't navigable water in the State of Flor-
ida?
Mr. Latch. Sir, you asked me what I thought was navigable and
I don't have a good defiinition for that.
Senator Faircloth. All right.
Senator Graham. Several of you have identified the principal re-
straints on greater State assumption of responsibility whether it be
through a delegation or through general permits, et cetera. How
well do you feel the legislation that has been introduced would deal
with the mitigation of those restraints on State assumption? If the
legislation that Senators Baucus and Chafee have written were to
be the law today, how would that affect your recommendation to
your State as to whether it should assume the program?
Mr. Marsh. As I testified. Senator, I think the one area of im-
provement that I would see would be the spelling out that a partial
assumption could take place of either geographic area or a part of
the program in terms of certain types of wetlands or some other
partial assumption that would be commensurate with the ability of
the State and its resources to do the job well.
I think there also needs to be some attention paid to some of the
issues that Mr. Latch has raised in order to make sure that as-
sumption could be as broad as possible. What we're pushing for is
to make it as easy and as effective to transfer that first line au-
thority from the Federal Government to the States as possible,
commensurate with a firm Federal oversight to make sure that all
the States are doing it equally well.
1172
Senator Graham. Let me ask one follow-up question relative to
that oversight. One of the criticisms that I think has come from the
State of Michigan which I believe is the only State that has as-
sumed is that oversight is on a case-by-case basis, so you are in the
situation that you're always subject to Monday morning quarter-
back on each individual permit. Is that an accurate description of
that? If that is accurate as to what the current oversight is, how
would you suggest the oversight ought to be?
Mr. Marsh. This is an ongoing concern of States with Federal
oversight in a variety of programs and generally what States prefer
and we would prefer in this case as well, is that the oversight be of
the effectiveness of the program to undertake and accomplish the
objectives of the program and have a review or post-audit or some-
thing of that nature to make sure that the permits that have been
issued are consistent with the terms of the assumption or the State
program general permit or whatever the mechanism is, and that be
reviewed on a periodic basis and a decision then made whether to
continue the delegation or assumption, withdraw it in part or take
some other action which might include, for a period of time, permit
by permit review until the State could again demonstrate that it
was doing the job correctly.
As the baseline type of review, we'd prefer a much more stand-
offish one that looked at the general accomplishment and effective-
ness of the program.
Senator Graham. Senator Faircloth?
Senator Faircloth. I have just a brief and somewhat theoretical
question. Particularly Mr. Latch and the State of Florida, I'm not
as familiar with some of the others, all of you have people sitting
on land that are paying heavy ad valorem taxes on it with the as-
sumption that it has some intrinsic value and that they have prop-
erty rights to it. Is this not right, they are paying pretty heavy ad
valorem taxes on it? At what point, when they ask for a determina-
tion of whether it's wetlands or not, or if they ask for this determi-
nation in view of an inheritance or in view of a advantageous sale
to a child or whatever, they ask for this review and you declare it
wetlands, they might encourage you to declare it wetlands, then
it's value drops from what it is on the tax books at from $4,000,
$5,000 to $10,000 an acre, whatever it might be whether it's in
Sumter, Hardee, or Palm Beach, to $50 an acre because it's worth-
less. If you declare it wetlands, what good is it? What can they do
with it? Maybe it's growing trees but that's probably likely Austra-
lian pine or whatever. So it's worthless. How does the county cope
with that loss of ad valorem tax when that is, in the case of 99 per-
cent of the counties in the country, the principal source of income?
Mr. Latch. Senator, you've identified one of the major problems
that we've been wrangling with in large portions of the State, espe-
cially in some of the counties that you were talking about — Palm
Beach, Dade, Broward County — where a lot of the land that hasn't
been developed is in fact wetlands.
We've been working with the Corps of Engineers, EPA and some
other areas to do the advanced identifications and to try to identify
areas that can be developed, to identify wetlands that can be im-
pacted and we are in the process right now of trying to establish
mitigation banks even within these areas to work with these areas
1173
to identify areas that can be developed, those that if they are devel-
oped, we'll work to figure out some way to mitigate under the Fed-
eral and the State policy. So it's a very difficult situation as you
said and there isn't an easy solution that we have found. We are
trying to work with the counties, with the cities and with the land-
owners to try to figure a way around this.
Senator Faircloth. If I owned land in Palm Beach or Broward
County today, I'd call you tomorrow and tell you to come identify it
as wetlands. I'd sell it on an advantageous sale to my child at $50
an acre and hoped the law changed and some common sense came
back into the policy a few years down the road.
Mr. Marsh. Senator, I think you're getting indirectly at the
question of taking. I just wanted to clarify that the governors have
wrestled with this in their statement.
Senator Faircloth. They wrestled with it. Who won?
Mr. Marsh. I think everybody wins because we have a long tradi-
tion in our country of being able to take these kinds of questions
where there is a potential diminution of value to the point of no
value at all, to the courts and to get a judgment as to whether or
not a taking has taken place. That has been the consistent result
in our State. We have not had those kinds of problems, although
we've had a wetlands statute on the books now for nearly 20 years,
with a direction that says that the local assessor must take the
burden of the wetlands' regulation into account in making an as-
sessment. We have not had those kinds of problems that you men-
tioned. In fact, there have been a few cases where the landowner
has been able to demonstrate that the burden of the wetlands regu-
lation is such that it constituted a taking. So there is a mechanism
in place, we believe, and the governors agreed with that to handle
these kinds of extreme situations.
Senator Faircloth. You're talking extreme situations, I'm talk-
ing about ordinary situations. Have you hired any lawyers lately?
Mr. Marsh. Yes.
Senator Faircloth. It took your salary to pay them, didn't it if
you had anj^hing more than a speeding ticket. How many ordi-
nary, small landowners, citizens, farmers, do you think have the re-
sources to hire a legal firm, an engineer, MIA appraisers, hydrolo-
gists, to prepare a case to present against the plethora of Federal
agencies, plus the U.S. attorneys with unlimited governmental
funds, to fight that or take a case to court? How many people do
you know? BP can, but the average property owner is devastated.
He doesn't have a prayer or a chance to bring it and not only that,
if he wins, the amount of the reward he might receive, although
the government loses and he wins, is consumed by the preparation
of the case in his attorneys' fees. Certainly in the case of him win-
ning and the government losing, they should have paid the cost of
his suit. Would you recommend that as a Federal policy, that if in
the case of a suit the Federal Government loses, they pay the attor-
ney fees?
Mr. Marsh. I think it is the case in some circumstances. I'm not
sure I would recommend it in all.
Senator Faircloth. Tell me which ones you'd recommend it.
Mr. Marsh. I think in cases where there is clear government op-
pression.
1174
Senator Faircloth. How do you know it's a clear government op-
pression? A lot of people think the whole wetlands issue is govern-
ment oppression.
Mr. Marsh. It's up to the courts to decide that too.
Senator Faircloth. Thank you.
Senator Graham. Gentlemen, thank you very much. This has
been a very instructive discussion and I appreciate your bringing
the State perspective to bear on this issue.
Thank you very much.
Panel six consists of Mr. Bob Szabo, Executive Director, National
Wetlands Coalition; Mr. Dean R. Kleckner, President, American
Farm Bureau Federation; Dr. Doug Inkley, Director, Biodiversity
Conservation Division, National Wildlife Federation; Mr. Ted R.
Brown, Vice President and General Counsel, Arvida Company; Mr.
Kevin Martin, President, Soil and Environmental Services, Inc.;
and Mr. Dan James, Federal Affairs Representative, Pacific North-
west Waterways Association.
Gentlemen, we appreciate your participation in our hearing
today. As I indicated to the previous panel, any statement that you
would like to supplement for the record will be received and the
record will stay open for 15 days after today's hearings.
Mr. Szabo?
STATEMENT OF ROBERT SZABO, COUNSEL, THE NATIONAL
WETLANDS COALITION
Mr. Szabo. Mr. Chairman, thank you for letting us appear today.
I am in fact the counsel to the Coalition and not the executive di-
rector.
The Coalition is a cross-section of the regulated community that
is affected by this program. I won't go through the litany of the
importance of wetlands. That has been pointed out to you and we
agree that wetlands are very important. However, we also agree
that this is a difficult program for several reasons.
First, I think the program evolved more than it was designed by
Congress. Second, more often than not, in fact the Fish and Wild-
life Service says 75 percent of the time, the program regulates pri-
vately owned property. Because of that fact, there is an incredible
dilemma that Senator Faircloth and you have gotten into with pre-
vious panels.
I was pleased to hear Senator Faircloth point out that not only
does this affect the rights of the landowner but it also affects the
very way we fund our local governments, our schools, and so forth.
In my home State of Louisiana, when your land is designated as a
wetland, the value drops to about 20 percent of its predesignation
value. So the program has a significant impact on local tax bases.
I'm particularly pleased that you have agreed to address this
issue in the Clean Water Act, that you are asking the kind of ques-
tions that you just asked, that Senators Baucus and Chafee have
put in a bill that we think is a step in the right direction. We think
the President's plan is a further step in the right direction, but we
think some more needs to be done and should be done as you ask
the kinds of questions you are asking about what Federal policy
should be with respect to wetland.
1175
We support the Hayes bill in the House as the best approach and
continue to believe that it has many things in it that are very im-
portant to this program.
Let me cut to an issue that hasn't been discussed very much. We
think the crux of the problem today is the concept called sequenc-
ing, that the rigidity of the sequencing program on primarily pri-
vate property in this country has created the reaction that has
brought this issue to your attention and forced Congress to look at
this issue.
We think the concepts of sequencing, categorization of wetlands,
and restoration, if applied properly, provide the way out of this di-
lemma and can provide a way to both conserve the wetland re-
sources of the Nation and also to relieve some of the pressure and
the conflict between private landowners and the regulatory system.
Sequencing evolved. It was adopted first by regulation by the
EPA and then by memorandum of agreement between the EPA
and the Corps. Sequencing requires that to get a permit I must
first prove that I cannot avoid the wetland in question, I have no
other place to go with my activity. Second, if I can get past that
step, then I must minimize my impacts. Finally, I must mitigate
those impacts that aren't avoidable. Sequencing has turned the
wetland equality program into a program that attempts to avoid
economic activity on private property and that's why the reaction
has been the way it has been toward Congress about this program.
We believe that classification of wetlands, albeit a difficult task
and a big task, is a way to try to prioritize the attention of the Gov-
ernment on the most important wetlands and maybe add a little
flexibility on the less important wetlands to try to relieve some of
the pressure on the program.
We think that classification by functions in the State watershed
plans is a good first step, if the States will do it, but we still think
classification is necessary on the full Federal plan. The President
said it's not achievable and feasible, but we note two things. The
Government is talking about becoming more customer friendly.
Nothing could be more customer friendly telling American citizens
how their property is going to be treated. This is a very customer
friendly idea in line with the reinventing government initiative.
Second, we note that the Congress, without having authorized it,
has appropriated $160 million-plus for the National Biological
Survey, which is set to begin next month. This program is not
going to map just the wetlands of the country but all the land of
the country by its biological diversity. That seems to us to be an
even bigger undertaking than mapping the private lands that are
already regulated at the Federal level. In fact, we also understand
that the first task of the National Biological Survey is to complete
the wetlands inventory that has been begun by the Fish and Wild-
life Service.
So if these things are true, it seems that the Government does
have the money perhaps to try to help the private sector by map-
ping the wetlands so that there is some notice; classifying wet-
lands; and then adjusting the rigidity of Federal regulation based
on the importance of the wetland value involved.
69-677 0-94-38
1176
Again, we like the watershed management approach, we Hke the
programmatic permitting approach, but there is no assurance that
this will happen at the State level.
Restoration is a key issue. The private sector can be part of a res-
toration program. A lot of the wetlands in this Nation have been
converted from wetland and can be converted back to wetlands.
Mitigation banking is an important tool in that effort. We would
suggest, however, that you not limit mitigation banking to just res-
toration of wetlands. Certainly creation of wetland is possible in
certain circumstances. There are many instances of mining recla-
mation that has turned uplands into wetlands, where environmen-
tal awards were given for that achievement. We think that the
Congress should take cognizance of this achievement as the Presi-
dent's program has.
We also believe that if Congress wants these mitigation banks to
be private sector banks that are funded by the private sector, Con-
gress might want to go a little easy on the notion that they have to
be created in advance of their use. Perhaps they can be created
contemporaneously with their use when there is normally an in-
centive to create the bank. Clearly, they need to be examined, to be
monitored, to be enforced when they are not working properly, but
we think they are an important tool.
Mr. Chairman, you raise a very good question about the extent of
waters of the United States. We believe that for now the 1987
guidelines for identifying wetlands are probably the best wetlands
identification tool that can be done at this point. We would encour-
age the Congress to provide that, when more information is avail-
able, if Congress thinks the definition is not correct, then Congress
should legislate that definition rather than change the definition
through a rulemaking. This is a fundamental jurisdictional deci-
sion by the Congress of whether the Federal Government should be
regulating in this area and we think Congress should make that
decision as elected officials.
We agree with the extra activities that should be regulated —
drainage, excavation, channelization. If you're going to have a wet-
lands program, then Congress need to regulate the activities.
There are some things about the program implementation that
I'd like to talk about very briefly. Senators Baucus and Chafee
make strides on the 404(c) veto provision of the EPA. It's very clear
to us now that the EPA and the Corps are in concert in this pro-
gram, that they are working together, that the EPA's voice is being
heard. Then we would invite Congress to consider doing away with
that veto. The veto is a very unique mechanism in government. It
is a back-end mechanism and perhaps the time has come to get rid
of that mechanism. So we would invite Congress to take one more
step than has been taken in the Baucus-Chafee bill.
The administrative appeal is a good provision. We prefer the
President's approach which limits the administrative appeal to the
landowner who has been denied a permit or who has other difficul-
ties. The environmental groups and others can participate in a ju-
dicial appeal. There are many agencies involved to represent the
public; the question is, does the landowner have an appeal. So we
prefer the President's approach to the Baucus-Chafee bill approach.
1177
Deadlines for action are good but we ask you to include a
"hammer" on the deadline. If the permit hasn't been issued, then
it should be deemed to have been issued. There is no hammer
today in the law. Ninety days for action is what is required often
today and if something doesn't happen automatically, Congress per-
haps will not have made the strides Congress would like to make.
General permits are good things and we are pleased that the
President's plan nor the Baucus/Chafee bill has changed general
permits.
One comment about the role of government and the one com-
ment about private property rights. We like what the bill and the
President have done with regret to the role of the State and local
governments. If Congress you wants it to work properly when these
other programs have been set up, then you must get the Federal
Government out of the program. There is no reason to have the
Federal Government look over the shoulder of the State and second
guess their permit judgments. If the State proves not to be acting
properly, then the Federal Government can move back into the
program, but while there is a State and local program, remove the
Federal government or else we will end up with two programs, not
one program, and Congress will have made no great stride forward.
Finally, the issue of private property rights. We all recognize
these rights and we know they are important. This program direct-
ly affects these rights. It is not enough, we think, to say if you have
a problem, go to court. For a person to go to court against the Gov-
ernment is probably a $200,000 or $300,000 legal fee kind of
burden; it's a 5- or 10-year period of time. The Federal Government
will pay if they lose — that's what the law says — ^but who can carry
the case while it's ongoing?
We would recommend that you create some mechanism for at
least some classes of people to get compensation when they have
had takings occur. Secretary Babbitt has suggested in a hearing on
the House side that the Land and Water Conservation Fund might
be used for this purpose. We think that's an interesting idea that
bears some examination. But to say Americans are protected be-
cause they have the right to go to court is often to say that only
rich Americans and corporations are protected.
Thank you for your efforts in this issue, Mr. Chairman. We look
forward to working with you toward a resolution of this issue.
Senator Graham. Thank you very much, Mr. Szabo.
Mr. Kleckner?
STATEMENT OF DEAN R. KLECKNER, PRESIDENT, AMERICAN
FARM BUREAU FEDERATION
Mr. Kleckner. Thank you. Chairman.
I'm Dean Kleckner. I'm a hog, soybean, corn farmer from Iowa
and I'm President of the American Farm Bureau. I want to thank
you for holding these hearings that you've been holding and this
one, and the one coming up next week in Montana.
The Farm Bureau has made the Clean Water Act, especially the
wetlands part of it, our number one priority issue. Our board of di-
rectors did that. Senator Graham, Mr. Loop in your State, and Mr.
Jenkins in your State, Senator Faircloth, are on our board of direc-
1178
tors and helped to make that decision. It's a number one priority
for us.
My comments today are focused on the issue of wetlands policy.
I've submitted a statement and I'm going to make a few comments
based on my statement that you have.
To America's farmers and ranches, wetlands policy became an
all too familiar issue in recent years, more than we want to know
about it we've been hearing. It was in large part triggered by the
1989 Wetlands Delineation Manual and while the expansive part of
that manual in 1989 was a key concern, it quickly became apparent
that there were other fundamental concerns that we had to deal
with if we were going to have a fair wetland policy in this country.
To help put it into some perspective, farmers and ranchers are
generally long-term Isindowners whose primary asset and source of
capital is the land itself as opposed to the concerns of short-term
landowners whose primary interest is just kind of navigating the
404 Permit Program, winding their way through that. We're long-
term and we have to live with this forever.
We're especially concerned with the negative effect of wetland
regulation on property values and property rights and believe
strongly you need to address this as a committee. Already, in the
short time I've been here, I've heard comments on that in your
questions.
Regarding the two proposals at hand, we are pleased that several
of the key issues of concern to agriculture have been raised, but
are troubled that they don't go far enough to solve the problem.
For instance, the Farm Bureau agrees with both the Baucus-Chafee
bill and the President's proposal that prior converted cropland
should be excluded, but both proposals limit the exclusion to the
production of annual crops, thereby we think unintentionally ex-
cluding perennial crops like hay and fruit trees, for example. They
are not included. I think unintentionally, I hope unintentionally
and is one that you could rectify easily.
We recommend the exclusion for prior converted cropland simi-
larly apply to all land regardless of the type of crop produced. On a
related matter, we recommend that farmed wetlands that are so
dry that you crop them virtually every year also be given prior
converted status.
We're supportive of the concept first raised in S. 824 by Senators
Bond and McConnell and that were continued in the President's
proposal that would consolidate all wetlands delineation authority
for agricultural land within the USDA. That is the concept of one-
stop shopping and I know that's been mentioned also earlier today.
We support it.
We also agree with the need for an informal appeals process for
permit denials as well as wetland delineations. We would recom-
mend also that this be subject to judicial review as well. Combined
with the proposals for certification and training of wetlands delin-
eators, we believe that it will have the effect of forcing integrity
and better decision making on down through the system.
We are in favor of strengthening the normal farming and ranch-
ing exemptions in section 404(f) and we're generally pleased with
the direction of both proposals but we think the committee may
wish to explore additional changes there to ensure that the exemp-
1179
tion works as intended. An example might be the recent Tolloch
decision regarding the regulation of mechanized landclearing. A lot
of farmers in my State of Iowa and other States that tear out a
fence now and then and take in their bush hog and tear up the
fence, the shrubbery that's been growing in the fence might have
been there 40 years, so is that going to be allowed? It ought to be
but the Tolloch decision, I wonder about it.
Classification of wetlands is another reform that we believe
should be included in this legislation. We strongly believe that wet-
lands functions and values vary considerably and that a successful
and fair wetland policy must take that into consideration. Wetland
categorization is not only possible, it is an essential ingredient in a
reform effort.
I agree with what Mr. Szabo said, we're going to spend apparent-
ly $160 million or something on the National Biological Survey, so
I don't really soak up many of the crocodile tears that cried about
we can't afford to do wetland categorization.
Finally, we come to the issue of private property rights. Essential
to the debate — Senator Faircloth, you raised it here a moment ago
in your questions also — it's a primary reason that wetland policy is
so contentious. Landowners around the country believe that "the
current regulatory program is restricting the use of their property
and adversely affecting property values.
We were pleased that the President's proposal speaks to this
issue, including recognition of the need for compensation but re-
grettably the proposal is silent on how to resolve the problem. The
current option available to a landowner of bringing action against
the Federal Government in claims court is simply too expensive
and too time-consuming for the average citizen to justify. They just
can't afford it and can't afford the 6 or 8 years it is going to take to
run it through the court.
If this remains the only vehicle for seeking redress, then most
Americans will find themselves precluded from protection under
one of the most basic constitutional rights. New ways simply must
be found to enable the average landowner to obtain compensation
for the lost use and value of property.
In conclusion, many of the reforms we have suggested previously,
such as regulatory categorization, would provide some relief to the
property rights concern of landowners. However, fundamentally,
the Corps and the EPA must be directed to take into account the
property rights concerns of landowners and be directed to minimize
the adverse effect of their actions on the use and value of private
property.
We thank you again for what you've been doing and appreciate
your efforts. We look forward to working with you and I'll be
happy to answer questions at the proper time.
Senator Graham. Thank you very much, Mr. Kleckner.
Dr. Inkley?
STATEMENT OF DOUGLAS B. INKLEY, DIRECTOR, BIODIVERSITY
CONSERVATION DIVISION, NATIONAL WILDLIFE FEDERATION
Mr. Inkley. Thank you. Senator Graham. I appreciate this op-
portunity to testify on behalf of the National Wildlife Federation.
1180
You are not aware of it at this time, I know, but you were very
much responsible for the career tract that I am currently on and
end up sitting here today. I want to commend you for your efforts
as Governor of the State of Florida to establish the State's Non-
game Program. That w£is my first real job, working for the State of
Florida's Nongame Program following my graduation and I ended
up here today, so thank you.
Senator Graham. I'm glad to know that we created at legist one
job.
[Laughter.]
Mr. Inkley. You've created many more jobs than that, I can
assure you of that, through that program.
I know that you and I would also much rather be in Florida
today fishing as Florida is so famous for. I would point out that ac-
cording to the National Fish and Wildlife Service statistics, there
are hundreds of thousands of anglers in the State of Florida and
over 100,000 angler days of fishing are occurring just today in Flor-
ida. So there's 100,000 people in Florida fishing, showing the impor-
tance of fishing and the wetlands resource.
While I'm testifying on behalf of the National Wildlife Federa-
tion today, I would be remiss not to mention that there is a clean
water network which has been established and is comprised of over
400 organizations across the country. These groups are united in
their effort to strengthen the Clean Water Act and especially wet-
lands protection as the Clean Water Act is reauthorized.
I feel somewhat like the Lone Ranger today being on this panel,
however, I would point out there are dozens of other organizations
that too wish they could testify today in behalf of wetlands protec-
tion.
The reason that I'm here and the National Wildlife Federation is
interested in this issue is because we are deeply concerned about
the fate of our Nation's wetlands. We recognize that they have
many functions. One of those functions is flood control. Unfortu-
nately, we have witnessed during the summer months extensive
flooding that occurred in the central part of the country. Those
floods were certainly unprecedented. Unfortunately, the flooding
that occurred in the central part of the country was exacerbated by
the loss of wetlands.
The result of that is we've had loss of human life, loss of private
property values in those flooded areas, we've had businesses that
have had to close, we've had peoples' homes flooded. So, indeed,
wetlands loss has had an impact on the American public.
Another benefit of wetlands is storm surge abatement. One ex-
ample is that Hurricane Andrew which blew ashore and reeked
havoc in your own State unfortunately caused over $20 billion in
damage. When that hurricane blew into Louisiana with approxi-
mately the SEime strength, there was about $2 billion in damage.
There are many factors that contributed to the tenfold difference
in damage in those two States. One of those factors is the fact
there are extensive wetlands along the coast of Louisiana that
helped to provide a buffer of protection.
Fish and wildlife habitat is an extremely important benefit of
wetlands protection. Forty-three percent of the Nation's threatened
1181
and endangered species are dependent upon wetlands at some stage
of their life cycle.
Clean water, by providing clean water, we have much lower costs
needed for water treatment plants to provide the drinking water
for all of us. Groundwater recharge, 50 percent of our Nation is de-
pendent upon groundwater. Wetlands are extremely important for
recharging the groundwater and providing clean drinking water.
Finally, last but not least, is the economy and jobs. There is a
$55 billion annual commercial landing of fisheries in this country
that helps employ over 1 million workers. In the 10 States repre-
sented by this subcommittee, there are provided over 235,000 jobs
for people in the recreational fishing industry alone. There are
over 36,000 commercial fishermen in these 10 States alone making
a living that way, and over 14,000 jobs provided in fish processing
plants.
That's the reason for the National Wildlife Federation being
here today and being so interested in wetlands protection, because
of all their functions, because of the values that they provide to
every American citizen.
Let me briefly address the legislation and also the Clinton Ad-
ministration's position which has recently been released. That is a
lot to talk about. Senator Boxer's bill and Congressman Don Ed-
wards' bill, both bills we strongly support. In the interest of time
and brevity, I will not go into the details of those.
We perceive those bills to be balanced, fair approaches to helping
address this problem of wetlands protection. I probably shouldn't
let you in on this secret, but if you'll promise not to tell anyone, I
will, and that is that when H.R. 350 and Senator Boxer's bill were
written there was some consideration given to what the approach
should be. Should the approach be to try to set the lefthand side of
the debate and then work for a compromise or should the approach
be to try to come out with something that is reasonable, fair and
balanced? The secret is that we decided to do the latter and come
out with something that is fair and balanced. So that is where we
are coming from.
Another bill that I should mention is the Hayes bill introduced
in the Senate last year by Senator Breaux, H.R. 1330. The National
Wildlife Federation does not support this bill in any way. We be-
lieve it will tremendously increase the cost to the Federal Govern-
ment of implementing the wetlands protection program and lead to
accelerated wetlands loss.
We commend Senators Baucus and Chafee for their introduction
of a wetlands bill. We appreciate their efforts to try to bring every-
body to the table. We look forward to working with them. We are
very pleased with certain aspects of their bill, but would like to
work to strengthen their bill as well.
With respect to the administration, we are pleased with several
portions of the administration's position. One is the withdrawal of
the Alaska exemptions. Let me address the Alaska exemptions. I
think Senator Murkowski's photos were very appropriate to show
today because they did show through the oil and gas development
which was in those photos can development can go ahead and move
forward in Alaska. The fact of the matter is that 75 percent of the
permits that were applied for in the last 20 years in Alaska were
1182
granted. The fact of the matter is only 15 permits total in the last
20 years required mitigation requirements.
The Fish and Wildlife Federation is working for strengthening
the wetlands protection at this time because of the current status
of wetlands. Having lost more than 50 percent of this Nation's wet-
lands, we continue under the Clean Water Act as it is implemented
today according to the latest Fish and Wildlife statistics, to lose
290,000 acres of wetlands a year.
If this Subcommittee on Clean Water, Fisheries and Wildlife is to
fulfill its mission, as indicated by the name, then we must
strengthen wetlands protection.
We look forward to working with the committee. Thank you for
the opportunity to be here today.
Senator Graham. Thank you. Dr. Inkley.
Mr. Brown?
STATEMENT OF TED BROWN, VICE PRESIDENT AND GENERAL
COUNSEL, ARVIDA COMPANY
Mr. Brown. Let me first make it clear that my appearance is not
on behalf of my company but on behalf of a foundation which is
comprised of approximately nine companies, while small in
number, but nonetheless representing landholdings in 44 States of
the United States.
We applaud initially the efforts evidenced by Senate bill 1304
and by the President's initiative, but I think we believe there is
more that can be done to make the program more workable and
more rationale.
First and foremost, I think it is important to point out something
that I have not yet heard today in my sitting here and that is a
clarification of the concept of no net loss. I believe everyone accepts
the idea that no net loss is a goal to which we ought to aspire, but I
note with interest and hope it was an oversight that there is no
mention of no net loss of function and value which has been the
touchstone of this process, at least up until this time and one
which I believe is imperative, be it part of the process going for-
ward, if we have any hope of achieving a net gain in the future.
Second, I'd like to talk briefly about administrative and judicial
review. Senate 1304 as submitted provides for administrative
review of a permit denial and suggests that you must go through
that course of action prior to being able to proceed forward with
judicial review. I would urge as you review this particular piece of
legislation to give serious consideration to allowing a permit appli-
cant who has had a permit denial to select either of those alterna-
tives.
It occurs to me that after one has spent usually hundreds of
thousands, and in some cases, maybe millions of dollars to get to
the place where a permit denial has taken place, the applicant
ought to have the ability to determine which of those two courses
is more likely to generate a result he can live with. It may well be
that the administrative review process affords an opportunity for
compromise that would be more expeditious. So I think incorporat-
ing that into the bill is an important step.
1183
On the other hand, the appUcant may well perceive that the
level of conflict that exists on his application has no prospect for
compromise and in that instance, he ought not be forced as a condi-
tion to proceed to go to court to have to spend another 6 months, 9
months or a year in administrative review at that stage of the pro-
ceeding. So we would urge that on that particular aspect of the bill,
either option ought to be available to the landowner or permit ap-
plicant.
The President has suggested an administrative review for juris-
dictional delineation determinations and we applaud that initiative
and ask that it be incorporated in any legislation v/hich you might
adopt. It is long overdue and it certainly will give rise to greater
accountability within the system itself if those who are called upon
to make delineations understand that they are subject to adminis-
trative review by independent personnel within the agencies.
Another subject which is frequently talked about and about
which there seems to be some hesitancy to deal with is the notion
of one agency controlling this process. In the President's remarks,
he notes that he wishes to eliminate duplication, eliminate the con-
tentiousness of the process and I would report to you that there is
nothing more contentious and more duplicative than having to
engage in the shuttle diplomacy that one engages in as you move
back and forth between the offices of the EPA and the Corps of En-
gineers in an effort to achieve a permit.
The President interestingly enough, not in his direct remarks
which he released, but in the questions and answers which accom-
panied those remarks, notes "The Administration is prepared to
take steps to emphasize a single decision maker, to streamline the
various Federal wetland programs and reduce duplication, overlap
and delay." That ought to be the linchpin upon which this commit-
tee should go forward and give serious thought to consolidating the
administration of this program in either the EPA or the Corps of
Engineers.
If that is absolutely politically unworkable, let me suggest a com-
promise that I think would at least inure to the benefit of permit
applicants in any event. It goes something like this. If an applica-
tion is filed with the Corps of Engineers, the EPA would, and I'll
arbitrarily pick a period of 60 days, make a determination that the
application affects waters or wetlands of national significance and
it would have the right to preempt the Corps at that point and
take over the permitting responsibility.
If it makes that election, then the Corps of Engineers would
simply become a commenting agency and the absolute prerogative
for administering the permit would then be vested in the Environ-
mental Protection Agency. On the other hand, if the EPA is not
prepared to make that certification within the 60-day time frame,
then the application would remain with the Corps of Engineers and
the EPA would simply become a commenting agency with no right
of a veto.
The effect of this is at least the permit applicant has at a par-
ticular point in time now knows it's dealing with one resource
agency, one Federal permit decision maker. We think that is a way
that would materially improve the effectiveness of the program
/ 1184
without disengaging either of those agencies if it is politically im-
possible to do so.
Last, I want to talk quickly about classification because a lot has
been said about it but I think some points that need to be made
have not been made.
Your bill 1304 does nothing with this idea. The President says
that prior categorization ranking would not provide for consider-
ation of individual impacts associated with specific projects and it
would cost too much. The President also agrees and very impor-
tantly to two fundamental predicates that go right to the heart of
classification. He acknowledges that not all wetlands are equal and
he acknowledges that the process rigor should coincide with the
value of the wetland that is being impacted.
We believe that is classification and that classification can be
done but not across the whole country — I differ with Mr. Szabo a
little bit on this. My view is that criteria ought to be developed on
a watershed basis £is we do the watershed analysis that we have
been talking about and that at the time an applicant comes in to
have a jurisdictional delineation of his property, he would simulta-
neously get a classification. Then the rigors of the permitting proc-
ess that apply to that classification after that classification is in
place would be adjusted to reflect whether it's a high, low or
medium value wetland.
I notice my time is up. There are a few more observations I'd
like to make about that but I want to be responsible to your rule.
Thank you very much, sir.
Senator Graham. Thank you very much, Mr. Brown.
Mr. Martin?
STATEMENT OF KEVIN C. MARTIN, PRESIDENT, SOIL AND
ENVIRONMENTAL SERVICES, INC.
Mr. Martin. I appreciate the opportunity to be here today. I'm
going to keep my initial statement short because I'd like to allow
plenty of time for questions. I think that's normally more produc-
tive. I found it was in the White House Interagency testimony.
I'm an environmental consultant from North Carolina and about
40 percent of my work is involved in wetlands. I have a Bachelors
Degree in conservation, a Masters in soil science and hydrology. In
essence, by accident, I fell right into the three parameters that are
required for looking at wetlands. I can assure you I didn't intend
to.
In 1985, about 10 percent of my business was related to wetlands.
Currently, it's gone up to 40 percent over the last few years. I am
the Chairman of the Technical Committee of the National Society
of Consulting Soil Scientists and I'm on the Wetlands Restoration
Committee for ASTM. Also I've help test the 1991 manuals and on
a daily basis, I'm out in the field delineating wetlands. So most of
my comments are going to be based on experience dealing with the
404 Program.
Unlike a lot of other testimony I've heard, I'm going to try to
stick to just the aspects of the program that I have firsthand expe-
rience in and not broad generalizations about things I don't know
anything about.
1185
In general, the White House poHcy and Senate bill 1304 make
steps in the right direction to clarify the muddy wetlands issue
that we currently have. In fact, I'm pleased to see that some of the
specifics that many of us presented during the White House Inter-
agency Task Force meetings have been incorporated into the White
House policy.
I do have several concerns related to these matters, however, and
associated wetland issues. An appeals procedure for both delinea-
tion and permitting is a necessity as you've heard before. Permit-
ting alone would not be adequate; there must be an appeals proce-
dure for delineation. This should be by persons who are not in-
volved in the original action and possibly from an adjacent district.
It would be ludicrous to ask the initial person who made the first
opinion to come back and reaffirm his own opinion.
A value-rating system is a must. It is briefly mentioned in the
White House policy. The hydrogeomorphic classification system
that was developed in North Carolina is mentioned. Unfortunately,
that system won't work for the purpose that we are after. It only
identifies the types and kinds of wetlands that are present but not
the way their functions and values can "be ranked" into high,
medium and low.
Other systems like those developed by the NC Division of Envi-
ronmental Management have been utilized and have been shown to
work effectively. Such systems allow a person like myself or
anyone else who looks at these systems to go to a site and deter-
mine, am I dealing with a high, low or medium value wetland.
Once you know that, you can immediately ascertain and advise
someone as to what their potential is for successful completion of a
project. In other words, a high value would have low potential, a
low value would have high potential, and a medium value would
probably be a negotiated mitigation type project.
Currently, the Corps districts are too free to develop policy that
can in many cases significantly change their authority. Luckily, in
North Carolina our district uses this power responsibly and in my
opinion, has been very responsible and reasonable in their actions.
Other districts I have dealt with purposely ignore guidance from
the Corps of Engineers office in Washington, D.C. and therefore,
this results in property owners in one State being treated totally
different than property owners in another State by the same set of
laws.
For example, with the nationwide permit, it clearly states under
26, the permit could be authorized for between 1 to 10 acres. How-
ever, if in the district's opinion it is a significant impact, the whole
process can be stopped, yet there is no way or no procedure for de-
termining what is a significant impact. It's the independent opin-
ion of an individual.
The development of regional indicators of hydric soils by the
USDA is a dangerous process and it should be renamed or the
project should be dropped. It was initially called regional indicators
of soil saturation which was appropriate. There is no such thing as
a list of indicators of hydric soils. You cannot reduce an entire field
of science to a two-page punchlist which is exactly what is being
attempted.
1186
Several government officials in SCS have noted that the imposi-
tion of such a criteria could reek havoc if in the wrong hands. If
you want to water down soil science, you will have to be prepared
to accept huge errors in wetland delineation one way or the other,
either vast areas will be claimed that shouldn't be, or vast areas
that should be claimed will not be.
Continued funding of the national wetland inventory maps does
not make sense. These funds could better be used elsewhere. I'm
not in favor of raising taxes, as Senator Faircloth mentioned, to
come up with new programs and new issues. I would rather see a
redirection of funds that exist. In our experience, the NWI maps do
not do as good a job as existing soil survey maps in predicting the
presence of wetlands. In fact, if you read the disclaimer on every
national wetland inventory map, it notes that the same procedures
utilized by the Corps for delineation of wetlands are not those uti-
lized in the preparation of NWI maps. Therefore, it's not consistent
with the 404 Program.
For example, funding exists for States to set up wetlands pro-
grams but once set up, no money is available to help run the pro-
gram. It makes no sense. This money could better be directed from
NWI to the States to help and assist in their wetland programs.
Proposed funding to map all wetlands in the U.S. is not sane.
You should consider the cost and need for this. Who will do it, how
will it be done, where will qualified persons be found, and how long
will it take and at what cost? I think when those questions are an-
swered, you'll be shocked at the cost that will be there. There is no
need to map wetlands on a property unless there is a proposed
change of use in that property.
The EPA has already funded projects in various States for map-
ping that will not be accurate for Corps use. In fact, some of the
mapping that is being done if we come up with a new manual, will
be no longer valid.
The delineator certification is a good idea for the private sector
and government personnel. I would like to point out that agricul-
tural land is not exempt, contrary to popular belief. In fact, it is
subject to two sets of regulations, Swampbuster and 404, unlike pri-
vate development that is subject only to 404. Thank you very
much.
Senator Graham. Thank you, Mr. Martin.
Mr. James?
STATEMENT OF DAN JAMES, FEDERAL AFFAIRS REPRESENTA-
TIVE, PACIFIC NORTHWEST WATERWAYS ASSOCIATION
Mr. James. Thank you for giving me this opportunity to speak to
you today.
PNWA, the Pacific Northwest Waterways Association, includes
149 organizations in the States of Idaho, Oregon and Washington.
Our membership includes public port authorities, utilities, irriga-
tion districts, grain growers, major manufacturers, several forest
products industry concerns, transportation providers and others in-
terested in the economy of the Pacific Northwest.
Today, I am here representing the work of our Wetlands Com-
mittee which includes wetlands biologists, water rights attorneys,
1187
and representatives of several parts, public utilities, and agricul-
ture concerns from throughout the Pacific Northwest.
We have endorsed the administration's wetlands policy and sup-
port much of S. 1304. We have on major concern in the bill which
we would like to see addressed and that is the benefit of bringing
State and local land use planning together with wetlands regula-
tion. You heard a bit about that earlier from Ken Bierly from the
State of Oregon.
Most northwest cities and counties develop land use plans to
guide both development and preservation. Land is zoned for natu-
ral preservation, residential, commercial, industrial and other pur-
poses. The problem arises after the planning process is completed
when a public or private landowner seeks to develop its property.
For example, public port authorities own a substantial portion of
their community's industrial or marine industrial-zoned land. It's
not until a client has been identified and the port seeks to develop
its industrially zoned property after all other land use decisions
have been made that the Federal wetlands process begins. Often it
results in a portion of the port's industrial property being delineat-
ed as a wetland, which reduces the community's inventory of in-
dustrial property and reduces the ability of the local community to
meet its economic needs.
As Senator Kempthorne knows, many of our communities in the
Pacific Northwest include timber-dependent communities trying to
diversify their economies. They are competing to attract new indus-
try with other countries in the Pacific Rim. Their success in win-
ning a new facility can be directly tied to predictable permit deci-
sions to prepare property for industrial sites.
The following are a few of our recommendations to incorporate
wetlands regulation into land use planning. Section 12 of S. 1304
sets criteria for wetlands and watershed management plans, "to in-
tegrate wetlands planning and management with broader resource
and land use planning and management." We agree with this ap-
proach. However, we propose to take this concept one step further
by allowing local jurisdictions to elect to initiate the Federal regu-
latory process, including sequencing and alternatives analysis for
land use classes as a part of their local land use planning process.
The result of this cooperative process would be the issuance of a
programmatic general permit for development, protection and miti-
gation activities consistent with the plan. We believe this will in-
crease the quality of local land use plans, increase the certainty of
implementing the land use plans adopted by local jurisdictions, in-
crease the certainty of protection for valuable wetlands, and in-
crease the certainty that local communities will be able to meet
their economic needs. We have included concept language that will
meet this objective in our written testimony that we have provided.
In comments on other provisions of S. 1304, PNWA endorses the
establishment of deadlines for issuing permits and we support the
establishment of mitigation banking as a form of advanced compen-
sation for development. Our written testimony also includes sug-
gestions for modifications. They include the definition of fill mate-
rial; in section 6, we propose the bill be amended to use the admin-
istration's policy regarding appeals which would limit appeals to
determination of regulatory jurisdiction, permit denials and admin-
1188
istrative penalties. In section 8, we propose adding confined dredge
material disposal areas constructed in uplands to the list of what
shall not be considered navigable waters. In section 9, we would
add an expressed preference for using mitigation banks over on-site
mitigation because of their numerous advantages. In section 12, we
propose to broaden the authority to issue programmatic general
permits to include activities consistent with approved State or local
land use plans.
Finally, there is one issue that is not included in S. 1304 which
we propose adding. There needs to be more flexibility in the per-
mitting process to adjust the regulatory requirements based upon
differences in wetlands function and values. We believe this is a
necessary improvement and we were pleased to see that it was in-
cluded in the administration's wetlands policy.
PNWA greatly appreciates this opportunity to present our views
on wetlands reform to the subcommittee. Thank you for giving us
this opportunity to advise you on the wetlands portion of the Clean
Water Act reauthorization and we do look forward to working with
the subcommittee throughout that process.
Senator Graham. Thank you very much, Mr. James. You may be
our last witness for the day and I'm certain you're the witness that
came the farthest to be here, so we appreciate that.
One issue that I've been concerned with in this program and
have raised several times today has been the relationship between
the Federal Government and the States. Is it your general proposi-
tion that the States should be encouraged, discouraged from assum-
ing a greater role in the administration of this program. If it
should be the States should be encouraged, do you believe that the
provisions that are in the legislation as introduced or the adminis-
tration's proposal would be sufficient to attract the States' inter-
est?
Mr. SzABO. We think that state assumption is a good idea. We
think the proposals probably need to address maybe two or three
other things that aren't addressed. First, we think the greatest in-
centive for states is to let the states have some flexibility in pro-
gram implementation. We don't think they are going to be very in-
terested in assuring the program if they are forced to implement a
mini-Federal 404 Program, so you're going to have to give them
some flexibility. Second, we think the Federal Government is going
to have to let go of the program when states have assumed it,
whether through a watershed management plan or a partial State
assumption or a full State assumption. We understand that Michi-
gan, for instance, is not happy that the Government looks over its
shoulder on all section 404 permit judgments.
Finally, somehow or another. Congress is going to have to figure
out how to help the States pay for these program. We don't think
the regulated community wants to spend more money than it is al-
ready spending today on these programs. Somehow or another, how
state programs get paid for has to be addressed.
Senator Graham. As to the general proposition of encouraging
States to assume more of the administrative responsibility, you
would think that's a good idea?
Mr. SzABO. Yes, sir. We approve of that.
Senator Graham. Other comments on that?
1189
Mr. Inkley. I'd like to address that from the perspective of the
National Wildlife Federation.
We do have some concerns about making the program easier for
State and local governments to assume what is now a Federal re-
sponsibility. I would point out, however, that as the Clean Water
Act is currently written, there are already mechanisms for the
State to assume the program. We do not feel that it is appropriate
to relax those standards. One of the great concerns that we have is
that there will not be adequate enforcement and oversight of the
program should it be delegated to State and local authorities.
I would add that we very much agree with Senator Faircloth's
statement that in the condition where a State is granted authority
to assume the program, that should not include funding.
Senator Graham. You say it should not?
Mr. Inkley. It should not include funding.
Senator Graham. Has not the experience of States been that one
of the reasons that only Michigan has accepted the current delega-
tion is because of the uncompensated financial burden that is being
assumed?
Mr. Inkley. I think that the point Senator Faircloth may have
been making is that it is a very expensive program to administer
and by handing it over to the States, the Federal Government will
lose additional control of the program and in doing so, perhaps at
greater expense for implementing the program. So yes, the State of
Michigan has been the only one that has implemented it to date,
but we do not have a problem with that. There are other opportu-
nities for States to assume the program.
Mr. Martin. I'd just like to say that I'm pretty pleased with
North Carolina. The State already, as many States do, handles the
401 Program. Without a 401, your Corps permits are not valid. In
essence, they are already dealing with it. I would agree I would not
like to see any additional funding appropriated, but as I pointed
out just a minute ago, I came up with $15 million that is not being
used correctly that could easily be reappropriated to such issues.
Mr. Brown. I just might add I think as a general proposition we
would want to encourage you to find more creative ways to pass
this program downstream. In a perfect world, when I say that I
mean that I don't have any hope that the Federal Government will
totally disengage from this mechanism, but you could devise a
system which recognized that where there are wetland resources
that clearly meet the test of being a national resource from a wa-
tershed point of view, the Federal Government would stay and play
with those and then give consideration to taking the States totally
out of play. Then there is a basket of resources after that the Fed-
eral Government has clearly not put in play that would then be
properly put into the States' basket of manageable resources.
Then if the State wishes to go beyond that and move that down
to a county to regulate on some basis, they can do it but at least
under that type of a system, a landowner or an applicant for a
permit can discern is this a federally regulated resource and go
there and not have to concern himself with State or local regula-
tion, or is it a State-regulated resource in which case he doesn't
have to concern himself with county or Federal.
1190
As it stands now, if I apply for a permit in the State of Florida
and other States in which our companies do business, I not only
deal with the Corps of Engineers, EPA, and U.S. Fish and Wildlife
Service at the Federal level, but I deal with the State of Florida,
the county, and a water management district all regulating the
same resource, all with slightly different definitions of what consti-
tutes a wetland and what does not, and all with differing mitiga-
tion requirements, and I'm supposed to somehow, through some
measure of shuttle diplomacy, finally end up with a permit that all
of those people buy off on.
I would like to see that we come to a place where there is a set of
Federal resources that are important as national resources and the
rest is left to the States and the Federal Government gets out of it
and if the States, want to in their own programmatic agenda dele-
gate that down to counties and other water management districts,
let them do it.
Senator Graham. My time is almost up. Senator Faircloth?
Senator Faircloth. I'll start with Dr. Inkley. I am opposed to the
Federal Government giving money to the States unless they take it
out of existing Federal programs. I would very much be in favor of
passing the authority to issue permits and regulate the system
down to the States and even the counties, but let's reduce the Fed-
eral bureaucracy as a means of doing it. That was what I was
saying a while ago, I don't think you're going to see any Federal
agency want to give up anjrthing.
What I would like to see is the counties and certainly the State
given the authority to issue or deny permits and the Federal EPA
with no oversight unless they go to the Federal courts to question
the decision.
What you're saying is you like Ms. Boxer's bill. Ms. Boxer's bill
denies the right of appeal of the government's determination, is
that right?
Mr. Inkley. No, that's not correct. The Boxer bill does not con-
tain a provision regarding the appeals process such as the Baucus-
Chafee bill does and we do support that segment of their bill which
does provide for an appeals process. It is simply unaddressed in the
Boxer bill.
Senator Faircloth. In the Boxer bill, you have to go to court to
appeal it, isn't that right?
Mr. Inkley. That is correct and we do support the establishment
of an appeals process as indicated in the Baucus-Chafee bill.
Senator Faircloth. You're saying that is the part of the Boxer
bill you don't like, you should have an appeals process?
Mr. Inkley. There is nothing about the Boxer bill that I do not
like. It is simply an omission in the Boxer bill that is a provision of
the Baucus-Chafee bill which we support.
Senator Faircloth. Don't tell me we've made an omission.
Mr. Martin, as a practitioner in wetlands, have you seen land de-
lineated as wetlands thereby subject to rules and regulations when
it was not?
Mr. Martin. I've seen it on many occasions.
Senator Faircloth. Why was the mistake made? What happens
in such a case?
1191
Mr. Martin. There are several reasons. People are human and
that is who is putting the line on the ground out there and humans
make mistakes. Fortunately in North Carolina, anytime I've run
across such a situation, the Corps has been ready and willing to
come to review even though there is no appeal procedure currently,
based only on a telephone call or request. However, in some other
districts, the northeast, for example, we've made requests in some
cases for a year-and-a-half and were denied at the district and the
Washington level an appeal to relook at the delineation under any
circumstances.
Senator Faircloth. If a farmer was told by the Corps that his
land is wet and you find it is not, what recourse does he have?
Mr. Martin. It would be the same. In North Carolina, we'd have
a very good recourse. The Corps would be glad to meet me, discuss
the issues. In other States, some of the farmers would just be out of
luck unless they went to court which like you pointed out, they
wouldn't be able to afford to do.
Senator Faircloth. You've worked in a number of States as a
wetlands consultant. Do Federal agencies vary in the application of
the law from State to State?
Mr. Martin. Yes, they do. As I pointed out in the White House
testimony, lots of time it's through policy decisions. For example,
I'll give you one that North Carolina did that I would agree with.
They were told by Washington, D.C. not to implement the regional
indicators of soil saturation, yet North Carolina and South Caroli-
na both utilize those in wetland delineation even though they were
specifically told not to until it was finalized.
I've seen other cases where I didn't agree with what was happen-
ing but there was nothing we could do about it because the policy
at the district level was, "we decided not to do it because we don't
want to".
Senator Faircloth. I understand that agriculture is exempt, is
that right? If it is, why do I get so many calls from people in agri-
culture and in farming that are having problems? What brings
that about?
Mr. Martin. I can't answer all of that. I was riding around in
blueberry fields and cow pastures last week with the Corps of Engi-
neers and if agriculture is exempt from the wetlands regs, I think
myself and the Corps personnel I was riding with would like to
know why we were out there doing it. If it's exempt, I don't think
we should have been doing that. The Corps personnel was just as
frustrated by the case as I was.
Senator Faircloth. We see that agriculture is exempt but we
continue to have problems with it, time and time again.
I have read the Chafee-Baucus bill that $4 to $5 million would be
appropriated to assist small landowners to comply with 404 pro-
grams. What effect do you think this would have and where would
you see the funds being utilized?
Mr. Martin. I am not for sure how it would be apportioned. That
would be a question I would want to know, how you get it and $4 to
$5 million wouldn't go anywhere in handling the process that you
would have to go through in wetland permitting, mitigation, et
cetera, so I think it would be a big nightmare trying to decide who
gets what and how it would be utilized.
1192
Senator Faircloth. Mr. Kleckner, you were talking about farm-
ing and I thought I knew a Uttle bit about it but the administra-
tion does not consider haying, I assume mowing, cutting, planting,
and grazing a normal ranching activity. Being familiar with farm-
ing, would you tell me what is a normal ranching activity if cutting
hay and grazing cattle is not?
Mr. Kleckner. Senator, that's just as normal as the sun rising in
the morning and setting in the evening. Somehow in the infinite
wisdom of the Government, they have exempted that. I think it
goes back to your question to Kevin Martin just earlier on agricul-
ture is supposed to be exempt from wetlands regulations or at least
normal farming practices, but they are not. It is frustrating as
Kevin Martin says and you're hearing from your constituents. I
guess raising corn, tobacco or soybeans is normal, but haying, graz-
ing, cutting for hay and baling is not normal farming practice, I
don't understand how that can be because it is a normal farming
practice. If you are a cattle farmer, you make hay, you bale hay for
the cattle. That ought to be a normal farming practice.
Exempting, I think what I said in my testimony, I think it's
simply a mistake on the part of the Congress to say that annual
farming but not perennial farming is exempted in certain areas,
but trees, hay and pasture are normal.
Senator Graham. Senator, your time has expired.
Senator Faircloth. I have one quick comment. I can answer the
question exactly: The people writing the rules have never played
the game.
Senator Graham. Senator Kempthorne.
Senator Kempthorne. Mr. Kleckner, in the State of Idaho,
among the farmers and ranchers this whole issue of the definition
of wetlands has been a real dilemma, not only what is a wetland
but what is not a wetland. Is that your experience in the rest of the
country, is it the same dilemma and how do the average farmers
become aware that their property contains wetlands that are sub-
ject to regulations?
Mr. Kleckner. I think when they want to do something that's
out of the ordinary, someone tells them or they think I'd better
find out if I can do this or not. We've gotten to the point in this
country now where a lot of normal things are forbidden and can I
clean a ditch, for example, can I tile, there's a few trees in this
area that have grown up and to make my rows straight, I think I'll
take those trees out and that will help my farming practice. If
you're in North Dakota, it could be a little bit of what is now called
a prairie pothole, as little as a few feet, they can't farm through
that. There is now a prairie pothole program in the Dakota, maybe
in Minnesota, maybe even in northwest Iowa where farmers say I
would like to keep this as a pothole, for example, but I think I
should be paid for it for the environment because it's going to be
land that I won't farm or I can't farm and I'm concerned about
ducks also and we're advocating and people that want to pay a
farmer, that's my pothole. A Mississippi lawyer I'm familiar with
got a prairie pothole on a farm in North Dakota but two people are
willing to do it and he's actually paying.
I would suggest that these environmental groups running around
the country sending me letters on occasion asking me for money,
1193
and I cry when I read the letters because they are ducks and cat-
tails, and their budget in 1991 was over half a billion dollars. In-
stead of spending the money going into court and fouling up the
system, and sending out more letters for me to send in money, why
don't they actually buy some of these farms and pay taxes on it to
support the local school district. That would make sense to me for
that half a billion that they are raising, just the 12 biggest ones.
Beyond that, I'm not sure.
Senator Kempthorne. In relative terms, how high a priority is
resolution of this wetlands issue to the American Farm Bureau?
Mr. Kleckner. Number one priority. Of the four or five priority
issues we have, this is the number one priority issue in 1993. There
is nothing anymore frustrating for farmers and ranchers around
the country than trying to sort through the maize of wetland regu-
lations that to them don't make any sense and they can't get
straight answers from twice in a row.
Senator Kempthorne. As I understand it, you support the con-
cept of the Soil Conservation Service as the lead agency for wet-
lands determination in agricultural lands. If the Soil Conservation
Service is so designated as the lead agency in dealing with wet-
lands, what kind of oversight or consultation if any would you con-
sider acceptable from the EPA, the Corps of Engineers or Fish and
Wildlife?
Mr. Kleckner. I'm very leery of that oversight responsibility. To
me there needs to be oversight in some manner but we supported
the administration when they announced that SCS would be the
delineator for agricultural land but going on to say that they would
do it in consultation with or an oversight again with Fish and
Wildlife, et cetera, I said oh, brother, here we go again. So I think
it is the degree that would be involved.
I think in the end, the answer is there always needs to be an ap-
peals process. I think we need to have a single delineator for farm-
ers who can go one place and get an answer but I'm sure there will
be disagreement with the delineations both ways.
Senator Kempthorne. Why does the Farm Bureau not endorse
the no net loss of wetlands goal?
Mr. Kleckner. I think one of the big reasons would be that we
don't think, at least up to now, that wetlands have been defined
properly and how can you define a no net loss of wetlands when
there is no agreement on what wetlands are.
To interpret our opposition to no net loss of wetlands to saying
you're in favor of draining the Okefenokee Swamp and the Florida
Everglades and the Great Dismal Swamp, et cetera is wrong. I
don't know anybody that wants to do that.
The lack of a clear definition of wetlands is what concerns us
and to say then for us to agree to a no let loss when we don't know
what's even being talked about with wetlands is our problem. I
would certainly disagree with what I heard earlier here on this
panel that there's been a 290,000 acre annual net loss of wetlands
in the country. Since 1985, since Swampbuster, I'm not so sure
there's been any loss of wetlands in the country if they are defined
property and count everything. Certainly to come up with a figure
like that, you're exempting a lot of things from being counted and
you're counting things that shouldn't be counted.
1194
I can't bring wetlands on my farm in Iowa back into production
if it's there under Swampbuster, nobody else can. I don't think
we've had a net loss of wetlands in this country to any degree at
all since 1985.
Senator Kempthorne. Mr. Kleckner, thank you very much.
Mr. Chairman, I would just reiterate how much I look forward to
working with you to resolve this wetlands issue.
Senator Graham. Thank you very much, Senator. I share that
feeling.
I'd like to pursue that line of questions as it relates to SCS. If we
have a program that is going to make it more likely that States
will accept the responsibility for administering the program, how
would you see dealing with the issue of agriculture and specifically
the role of SCS, should the agricultural side as well as the Corps of
Engineers and EPA components be all subject to assumption and/
or delegation by States or should the SCS portion be treated sepa-
rately? If so, how should that separate treatment be?
Mr. Kleckner. I'm not sure I can answer your question and I
think I understand it. I don't know that I have an answer. The Soil
Conservation Service is really connected at all levels, local and
State and Federal in USDA. I'm not sure I think that's really the
way Fish and Wildlife and the Corps of Engineers are, although
they have offices out there. I think of them as more completely
Federal.
This isn't answering your question very well and perhaps Mr.
Martin or Mr. Szabo could answer your question much better than
I. SCS it seems to me is thought of in the country as local, we know
the people. I think of them as really experts in the area, that's
their job to work with farmers, to look at soils. They know it and
are trained that way as Kevin Martin. So I respect their judgment.
To be honest, I've got a lot more questions about respecting the
judgments of the other agencies. I've seen them more to be adver-
sarial. I apologize, I'm not answering your question exactly as you
asked it.
Mr. Szabo. Let me try to take a crack at question. We think if
the Congress is trying to treat agriculture with surety and certain-
ty, the one distinctive feature of their current treatment is that
there is a Soil Conservation Service person in every county and
every parish of the country. That's not true for the Corps and the
EPA. Therefore, there is a better chance of getting a consistent
message the same page than you have the other agencies.
Whatever you do with agriculture, it seems to us that you have
to take into consideration that reality and what will happen to
those resources they are now delineating in the counties and par-
ishes for the agricultural community.
Senator Graham. That completes my questions.
Senator Faircloth?
Senator Faircloth. Talking about this loss of wetlands, we've
heard it and heard it. I don't know from what period they started
counting but this country gained millions of acres of wetlands be-
tween 1870 and 1950, millions of acres. The land that was cleared
in this country from the beginning of agriculture about 1950 was
that land bordering rivers, land that had a lot of nutrients in it de-
posited there over the years. This is the only land that really had
1195
natural fertility in the southeast that you could farm. At that time,
the Federal Government and the county and State governments
worked the rivers, they were drained, there was natural drainage.
These lowlands were ditched, drained and farmed.
Once the rivers ceased to be used for navigation and some very
small rivers were used at one time, they ceased to be maintained.
Chemical fertilizer, South American guana became available, Chil-
ean nitrogen, so there was no longer a need for the natural ni-
trates. Vast areas of the southeast, particularly and especially all
up into Virginia, were abandoned as farmlands.
The loss of wetlands began in 1950, and was started by the Corps
of Engineers and the ASCS paying for canals, drainage, tile-laying:
an aggressive program followed into the early 1970's. SCS supplied
technical knowledge and the ASCS supplied the money to pay for
it. Vast areas of the country were now drained. Of course the Corps
was involved in channelization of rivers and the destruction of a lot
of wetlands.
I appeared before Herman Talmadge and the Agricultural Com-
mittee in the late 1950's to say that the Federal Government was
making a mistake draining farmland. We were supporting prices
and bringing too much land into production. I w£is almost laughed
out of the hearing room because we were getting ready to have
worldwide starvation. As a farmer, we've heard that every year
that crops are really going up, we're going to have worldwide star-
vation and what I said about not paying for anymore drainage was
laughed out and I went home and forget it and kept on draining.
Now the same wisdom coming out of the same people has decided
that to drain anything is a mortal sin. I don't know how they could
have been so stupid 20 years ago and acquired this infinite wisdom
in such a brief period of time but they obviously have.
If there is an5rthing that has been overstated, it's the loss of wet-
lands. Certainly in Florida, the Everglades, and Senator Graham as
Governor provided great leadership and a great program to begin
restoration and a lot needed to be restored. It's a unique situation.
The Corps of Engineers channelized the Kissimmee River and
changed its name to Channel 38 and now they are restoring that.
I have one question and I'm going to quit for the day. Mr.
Martin, you heard the question this morning I asked Mr. Larson
about the growing seasons. Give me an answer to what you think
of what he said if you understood what he said?
Mr. Martin. I think it was a good example of a lot of what I've
seen. Unfortunately, persons in academia as well as in some of the
agencies are office-bound and don't get hands-on experience dealing
with the day-to-day regulations. He was expounding about certain
plants have this growing season and that growing season when I
assume your question was related to what is the growing season
that the Corps of Engineers utilizes in implementation of the 404
Program, which is clearly stated, unclearly in the criteria. There is
more than one way to determine it according to the current rules.
There is no way to determine which way is the right way, accord-
ing to the rules. By the right way, I mean which one will be deter-
mined by the Corps to be right. It seems to be a preponderance of
this kind of occurrence that is happening with the growing season.
1196
In reality, the growing season in North Carolina is based on a
frost-free period, anyone that goes outside that has trees knows the
leaves fall off of the trees in the fall and they grow back in the
spring, so the growing season ends when the leaves fall off the
trees, and most wetland plants also die then or go dormant.
The problem that I think you were getting at was from a realis-
tic frost-free period in North Carolina, say in the Piedmont, rough-
ly April through October is the growing season, but by the defini-
tion currently utilized by the Corps manual, it extends it into
March through November in North Carolina which would encom-
pass times of the year when plants are not actively growing.
Senator Faircloth. Mr. Larson extended it year-round. He said
certain water-bearing plants or plants that grow in wetlands grow
year-round. Mr. Larson was totally confused.
Mr. Martin. I agree. If the Congress did something like that,
which is currently not the criteria, if they did, you would find in-
stead of 80 percent, east of 195, probably 90 percent of that part of
the State of North Carolina would meet the criteria in the winter
when the plants are not transpiring and the water table as high.
Mr. Inkley. If I could comment on that briefly. I would point out
that there are three criteria which are frequently used to deter-
mine whether or not a particular area is a wetland. Those criteria
include the presence of hydric soils, the presence of hydrophilic
vegetation, and hydrology.
The fact of the matter is that area could be flooded for extensive
periods of time and may not be the growing season at all. Would
that then lead to that area not being called a wetland and would
you believe that area should not be called a wetland? The fact of
the matter is the area could be flooded for 3 or 4 months during
the winter period when there is no growing season. Does that mean
it is not valuable as a wetland? It could have extremely important
functions and values as flood control, important over wintering
value for waterfowl such as the bottomland hardwoods in the
southern part of the country.
Senator Faircloth. Maybe you should give me your description
of a growing season in eastern North Carolina, quickly?
Mr. Inkley. Now I regret jumping into it. Actually, the defini-
tion of the growing season with respect to the way wetlands are de-
lineated is applied to the determination of whether an areas is a
wetland has to do with crops, it does not have to do with hydrophil-
ic vegetation.
Senator Faircloth. That's exactly what I was talking to Mr.
Martin about and that is exactly what Mr. Larson was dancing
around this morning. He went all over the woods.
Mr. Inkley. It also makes the point that the area could be flood-
ed for extensive periods during the nongrowing season and it really
is, technically in my perspective, a wetland.
Senator Graham. Senator Kempthorne?
Senator Kempthorne. Mr. James, several of the witnesses today,
like you, I believe, have recommended that wetlands delineation
and planning and mitigation be considered at earlier stages in de-
velopment. S. 1304 seeks to accomplish this by connecting wetlands
permitting with watershed planning. You recommend that local
1197
land use planning provide the vehicle for earlier consideration of
wetlands issues.
Which do you believe is the superior approach and why or are
they complementary?
Mr. James. I believe that they are complementary. We believe
that State and local jurisdiction should be given the opportunity
invite the Federal regulators in as they are developing their land
use plans. We would not like to see that be imposed on State and
local jurisdictions. We think that each State and local situation is
different and that those jurisdictions should be allowed to invite
the Federal regulators into their planning process to provide guid-
ance and oversite and facilitate the issuance of a Programmahc
General Permit upon federal acceptance of the State or local plan.
Senator Kempthorne. Mr. Martin, the Farm Bureau cites a
recent Duke University study that concludes the National Wet-
lands Inventory maps and even the soil survey maps have no more
than a 35 percent accuracy rate. Are you familiar with this study?
Mr. Martin. Yes, I am familiar with it. It was out of Duke Uni-
versity. I don't know the exact numbers you're quoting but there
was a significant amount of error that would be not adequate for
our purposes for wetland delineation under a Corps program unless
as a property owner you are willing to have that kind of error.
That's the reason I mentioned the cost of delineating the Nation. If
you look at the cost of a soil survey per county and there is that
much error, what's it going to cost to get it right? We can't afford
it, there is no way.
Senator Kempthorne. So you don't dispute the Duke University
study that it is a very low number?
Mr. Martin. I have seen errors on NWI maps of 100 percent in
both directions, errors that were obvious wetlands that were not
caught and errors that were obvious nonwetlands that were called
wet. The soil survey, however, in my opinion is much more accu-
rate in undisturbed areas. Obviously, in a crop farm field that is
ditched and drained, it doesn't matter what the soil type is. The
soil survey could serve the purpose of the National Wetlands In-
ventory equally or increase the accuracy so why not take that
money and put it to something more useful.
Senator Kempthorne. Let me ask you this, what tools if any can
science provide in classifying and ranking wetlands according to
high and low values?
Mr. Martin. I'd be glad to send you a copy of the third draft of
what North Carolina uses, the Division of Environmental Manage-
ment which looks at all the functions and values of a certain site,
various ones and rank it accordingly. For example, in what was
proposed by the White House, it would call an area of bottomland
hardwood. If you had an acre of bottomland hardwood wedged in
between two K-Marts, it's value would not be the equivalent of a
bottomland hardwood flood plain that was a continuous corridor of
hundreds or thousands of acres, whereas under that methodology
they would both rank equally.
Senator Kempthorne. I think I read in history that much of
Washington, D.C. had to be drained in order to build this facility.
Isn't that ironic.
1198
Mr. Szabo, I'd like to ask you to discuss your perspective of how
many acres of wetlands are lost each year?
Mr. Szabo. I have some of the same concerns that Mr. Kleckner
mentioned about the numbers. Three hundred thousand acres of
less a year, I think, translates to about 10 square miles a State that
is being lost (if you divide 640 acres per square mile into 300,000
acres). We're losing in coastal Louisiana 25 square miles annually
of our coastal wetlands. This morning, the NOAA witness said we
were losing nationally about 32 square miles of coastal wetlands
annually. So I'm confused about where all those other acres are
being lost because we haven't had an expanding economy with a
lot of construction and my perception of agriculture, is that the
tiling of agricultural land has been declining, so were not sure
where all those additional area of wetland conversions are coming
from.
Senator Kempthorne. Mr. Inkley, I understand the administra-
tion proposal and S. 1304 both provide exclusions from wetlands
regulations for prior converted croplands. How do you suggest we
treat other kinds of land that may have been developed at some
point and then fallen into disuse, for example, a waterfront area
along a river or lake. We have a specific example I'm aware of
where a new owner has purchased it and for approximately 100
years it had been a dump site — railroad ties, old cars, mill machin-
ery. They removed all the junk, it left crevices and they filled
those. They've now been cited for filling a wetland area. How do we
deal with this?
Mr. Inkley. The issue you bring up is the issue of prior convert-
ed wetlands. The prior converted wetlands issue is one we have had
a lot of concern about. Basically, it says if you have a wetland that
was converted to agricultural land prior to 1985, then that would
be exempted from regulation under section 404 of the Clean Water
Act. That affects 53 million acres of wetlands. Many of these areas
continue to have the potential to be very important, especially if
they were restored.
I can recall having worked with Mr. Martin before in testifying
before the White House Interagency Task Force and he identified
that these 53 million acres of wetlands were prime areas that could
be used for restoration of wetlands. Indeed, we do need to look at
these for restoration but they continue to have many important
functions and values as wetlands even today. So we're very con-
cerned and oppose the blanketing exemption of prior converted
wetlands.
With respect to your question about lands that have been aban-
doned, we believe lands that have been abandoned from agricultur-
al production should, if they have reverted to their natural charac-
teristics as wetlands, they should be protected as wetlands, they
should fall under the purview of section 404 of the Clean Water
Act.
Please understand that we also recognize — I know there has been
dispute today on this panel about it — but the normal, ongoing
ranching, farming silvicultural practices are allowed to continue
under the Clean Water Act as it exists today. The fact of the
matter is if you have a drainage ditch that needs maintenance and
clearing, you can go ahead and do that. If you want to expand the
1199
capacity of that drainage ditch to drain additional wetland, yes
that would be regulated by the Clean Water Act and it should.
Senator Kempthorne. Is there room in all this regulation for
common sense?
Mr. Inkley. Absolutely. One of the problems we are facing here
is that we have already lost half of the Nation's wetlands, 100 mil-
lion acres. It makes a lot of common sense to a town that last week
voted to move itself to higher land because of the flooding that we
should provide additional protection to wetlands.
Mr. Martin. The statement that Dr. Inkley made in general is in
some cases about PC land, true. One exception that I can think of
immediately, and these are the problems, are the exceptions. The
blueberry farm I was on last week with the Corps, blueberries
themselves are wetland plants, the weeds that grow in between
them are wetland plants. Blueberry plants have a definitive life. At
a point, they die. When they die, they must be replanted. Obvious-
ly, the farmer can't do it instantaneously, it takes a while a big sig-
nificant outlay of funds but by literal interpretation of the law, if
he went out, yanked the blueberry plants out today and went back
to plant them tomorrow, he would have to get a permit because it's
now a wetland. It meets the vegetation, the soils and the hydrolo-
gy. So these kind of problems I think are the horror stories that
you've heard from the Farm Bureau. They do exist and they are
out there. That is a big challenge for you to figure out how to
handle those because the site I was at has been in blueberries since
1945. All they want to do is put them back.
Senator Kempthorne. I know my time has expired but I've asked
all a question except Mr. Brown, may I offer him the potluck
where he can have any final statement he'd like in this?
Mr. Brown. You asked the question and I'll try to answer, can
you bring some common sense to this program. One of the things
I'd like to suggest you give some thought to, and I know it is anti-
thetical to the environmental agenda, one of the goals of this pro-
gram it seems to me is to find a way to appropriate private capital
for the restoration of this 53 million acres of farmland that may
some day be developable land in some way, shape or form. It occurs
to me if you're going to do that, you have to create a system in
which private capital finds an incentive to invest in this endeavor.
I would go back to my fundamental statement I made earlier
that classification is the linchpin that will do that. Imagine a
system in which at the time I ask for a jurisdiction delineation on
a 10,000 acre site that I plan as a master plan community that
takes 25 years or so to develop, that I could simultaneously have a
determination made that some of the wetlands that exist on this
site are of high value, some are low, some are medium; assume
within the low value wetlands I could immediately proceed to a
mitigation component and the law required me as a condition of
doing that I would bring back to the system something in excess on
a function and value basis that I took out — 120 percent, 150 per-
cent, I don't know what the percentage should be but I would be
putting back in the system a higher value function and value wet-
land than I took out. The tradeoff for that is I got to go there
quickly without practicable alternatives and without sequencing so
1200
I immediately have eliminated one of the major bones of conten-
tion for those of us who have to work the permit process.
If I want to look at a medium value wetland, the ante goes up
and in that situation, my recommendation is you would have to go
through the iterative process of showing your avoidance, your mini-
mization and your compensatory mitigation but it would be looked
at holistically, it would not be looked at in the rigid sequence be-
cause sometimes that tradeoff is well shown and is well worth the
price of admission. The ratio might go up because I am now ap-
proaching a higher value resource.
For the high value wetland, maybe here the rigid sequencing, the
rigid practicable alternatives would be in play and the ratio would
be even higher.
What does that say to the private sector, you immediately have
imposed market-driven forces that will work for the avoidance
right off the box because no one in my business is going to go out
and look for the opportunity to fill high value wetlands under that
type of system. We will avoid automatically. We know that if we
attack medium value wetlands, what the price of admission is
going to be and what difficulties are encountered but our capital
will definitely be attracted to low value wetlands and we will be
saying we're prepared to sacrifice some of those in exchange for
getting more back into the system through restoration and reha-
bilitation by using the private capital we would bring to play to do
that.
That essentially ultimately happens at the end of the permit
process but it takes 2 and 3 years to get there. If you had the cour-
age to look at something really creative and take the blinders off
the system we have in play now, and trust the market system to
channel capital where it needs to go, there really is an opportunity
to do that.
My real objection to premature classification is my experience
has been is that develops a series of rigid parameters that are of-
tentimes wrong but it locks them in cement. These resources are
fluid. Sometimes they are a wetland, sometimes they are good,
sometimes they are bad, so I agree with the President when he
says the prior categorization would not give consideration to indi-
vidual impacts associated with the specific projects. The reverse is
also true, I don't want a system that goes out and does what aided
studies do now and preclude me from bringing in a project-specific
solution.
So I say to you when you do your watershed studies, develop the
criteria for classification so that I can hire my consultant to go out
and look at that resource and get a preliminary determination, do I
want to buy the land and what problems are £issociated with it, and
when I bring out the Corps to look at it, they look at that land and
we get not only my delineation but I get my classification. Now,
I'm in a position to determine exactly what economic consequences
are going to inure to my benefit and how much capital can be
brought to bear on the system.
Senator Kempthorne. Thank all of you for your excellent impor-
tant input.
Mr. Chairman, I commend you for conducting such a worthwhile
session today.
1201
Senator Faircloth. I would like to do the same thing and I want
to ask one quick question of Mr. Brown to answer yes or no. If
Arthur Davis had to sit through this hearing today, would he have
ever bought Boca Raton?
Mr. Brown. No, sir.
Mr. SzABO. Mr. Chairman, may I raise one more issue. The Oil
Pollution Act of 1990 uses that broad "waters of the United States"
definition that you referred to earlier. The Minerals Management
Service of the Department of the Interior is right now trying to do
its $150 million financial responsibility regulations under the Oil
Pollution Act and they are realizing that the Act could cover tanks
on farms that might be located on wetlands. That's not really what
Congress was looking at. So they don't see any flexibility. They are
concerned about the burden of the proof of financial responsibility
requirement. The Committee might want to look at this issue as it
reauthorizes the Clean Water Act this year.
Senator Graham. Thank you very much. I appreciate your bring-
ing that to our attention.
I want to thank each of you for the excellent presentation you've
made and the contribution to our understanding the reality of this
program as it affects the folks that each of your represent. We ap-
preciate your assistance.
The hearing is adjourned.
[Whereupon, at 6.00 p.m., the subcommittee was adjourned, to re-
convene at the call of the Chair.]
[Statements submitted for the record, and the bill S. 1304, fol-
lows:]
TESTIMONY OF JIM LYONS, ASSISTANT SECRETARY, NATURAL
RESOURCES AND ENVIRONMENT, U.S. DEPARTMENT OF AGRICULTURE
Good morning Mr. Chairman and distinguished members of the Subcommittee.
We are pleased to appear before you today to outline the Clinton Administration's
wetlands policy. This statement is being presented on behalf of the Environmental
Protection Agency, the Army Corps of Engineers, the Department of Agriculture,
the Department of the Interiorl and the National Oceanic and Atmospheric Admin-
istration. This joint statement demonstrates the tremendous cooperation and coordi-
nation among the Federal agencies that participated in the Interagency Working
Group on Federal Wetlands Policy that produced the Administration's wetlands
policy.
Three weeks ago the Administration released a comprehensive package of im-
provements to Federal wetlands policy. This package reflects a broad-based consen-
sus within the Executive Branch. It is a departure from the gridlock of the past and
contains a balanced, common sense, workable set of initiatives that will make Fed-
eral wetlands policy fairer, better coordinated with State and local efforts, and more
effective in protecting wetlands. We have attached the Administration's full policy
statement to this testimony.
We would like to begin by briefly describing why wetlands protection is impor-
tant, and then provide some background on the process used to arrive at this con-
sensus package. We will then.highlight some of the main provisions of the Adminis-
tration's wetlands policy, noting in particvdar where Congressional action is recom-
mended and whether these provisions are similar to S. 1304, the Baucus-Chafee wet-
lands bill.
Why Wetlands Are Important
Wetlands are among our Nation's most critical and productive natural resources.
Wetlands are the vital link between land and water. They provide a multitude of
services to society, are the basis of thousands of jote, and contribute billions of dol-
lars to the economy. Wetlands fulfill vital functions within the ecosystem, such as
wildlife and aquatic life habitat and food chain support, water quality improvement
and flood storage, and shoreline erosion control. In some areas, up to two-thirds of
1202
our commercial and recreational fisheries are dependent on wetlands in their life
cycles. This means that wetlands protection may contribute over $15 billion annual-
ly to our economy for fisheries alone. A high percentage of cur endangered species
rely directly or indirectly on wetlands for their survival. Protecting wetlands is es-
sential if we are to achieve the Clean Water Act's objective to restore and maintain
the chemical, physical, and biological integrity of the Nation's waters.
Given the fact that wetlands are so important, it is a tragedy that we have lost
over 50 percent of the wetlands that were present in the coterminous United States
at the time of European settlement. Information available from the U.S. Fish and
Wildlife Service shows a loss rate of 290,000 acres a year from the mid-1970's to the
mid-1980's. From the mid-1980's to the present, agricultural wetland losses have de-
clined significantly due to the enactment of the Swampbuster provision in the 1985
Farm Bill. While these represent an improvement from the 450,000 acres we lost
annually from the 1950's to 1970's, it is still far more than the Nation can afford.
The Consensus-Building Process
The Interagency Working Group was formed in response to a request to President
Clinton from seven Senators. The purpose of the group was to provide a forum to
allow the appropriate Federal agencies to work together, with input from members
of the Congress and the public, to develop a consensus on wetlands policy issues.
The group was convened by the White House Office on Environmental Policy in
June and included nine agencies: the Environmental Protection Agency (EPA), the
Army Corps of Engineer (Corps), the Office of Maneigement and Budget (OMB), and
the Departments of Agriculture (USDA), Commerce, Energy, Interior, Justice, and
Transportation. In addition to interagency discussion, the Working Group solicited
the views of a broad range of stakeholders representing all perspectives in the wet-
lands debate, including members of Congress, representatives of State and local gov-
ernment, environmental interests, the development community, agricultural inter-
ests, and scientists. With this information in mind, the group met intensively over
many hours to develop a package of more than forty specific initiatives. The result
is a significantly revised Federal wetlands policy that provides fairness, flexibility,
and predictability to landowners, farmers and others, while also ensuring more ef-
fective protection of our Nation's wetlands.
President Clinton's Plan
The Clinton Plan includes both regulatory improvements and innovative, nonreg-
ulatory approaches to protect and restore wetlands. It includes administrative ac-
tions, some of which took effect immediately and others that will begin during the
coming months. It also includes legislative recommendations for Congress to consid-
er during reauthorization of the Clean Water Act. Several of the themes of this
package are consistent with S. 1304 and S. 1114.
At this time, we would like to highlight some specific elements of the policy. A
guiding principle in formulating the policy was to exercise strong Federal leadership
while empowering State and local action. The Administration believes that the Fed-
eral government should lead by example £is well as by directive. To this end, the
existing Executive Order on wetlands will be revised to establish an interim goal of
no overall net loss of wetlands and a long term goal of increasing the quemtity and
quality of wetlands. We are pleased to note that S. 1304 establishes the same short
and long term goals as the Administration. The revised Executive Order will also
direct Federal agencies to take a watershed or ecosystem approach to wetlands pro-
tection and restoration in working toward these goals.
The Administration policy also identifies voluntary, non-regulatory wetlands res-
toration as an essential vehicle to achieve these goals. The Wetlands Reserve Pro-
gram (WRP) is a crucial part of the Administration's wetlands restoration plans.
The 1990 Farm Bill requires a minimum of one million acres to be enrolled in the
WRP by the end of fiscal year 1995. The Reconciliation Act of 1993 amended the
WRP acreage provisions to require not less than 330,000 acres be enrolled by the
end of 1995, reduced the minimum acreage target to 975,000 acres, and extended the
enrollment period from 1995 to 2000. In 1992, a 50,000-acre pilot of the WRP was
very well received, with proposals from 2,300 farmers to restore 250,000 acres. The
fiscal year 1994 Agriculture appropriations provides for 75,000 new acres to be en-
rolled, which would more than double the number of States eligible for participation
in the program. Under the policy, the Administration will use this program in the
Midwest in conjunction with emergency assistance programs to restore wetlands
and assist farmers affected by the recent flooding. The Administration will pursue
full funding of the President's budget request for the Wetlands Reserve Program in
FY 1995 and will seek to have this program expanded in the FY 1995 Farm Bill.
1203
In addition, the Administration will examine opportunities to expand existing
Federal programs that seek to restore wetlands throiigh cooperative, voluntary
agreements with private and other non-Federal landowners. The Administration is
pleased to note that S. 1304 also promotes wetlands restoration.
To increase State and local roles in the wetlands protection and to reduce duplica-
tion between wetland protection programs on different levels of government, the
Administration encourages Congress to adopt several measures. The first is to au-
thorize the development of State/Tribal watershed protection programs which
should provide for local and regional involvement and Federal approval of State
programs, including minimum requirements for wetlands protection and restoration
planning. In addition, the Administration recommends that Congress provide EPA
with the authority to use its Wetlands Grant pn^ram to fund both the development
and implementation of State/Tribal Wetlands Conservation Plans. Congress should
also authorize partial assumption of the section 404 program by States and Tribes as
an interim step toward full assumption. Finally, the Administration recommends
that Congress amend Section 404(e) of the Clean Water Act to provide explicitly for
the issuance of programmatic general permits with appropriate environmental safe-
guards for approved State, Tribal, r^onal, and local r^ulatory programs. Most of
these measures, with the exception of those related to assumption of section 404 pro-
grams, are in S. 1304.
The Administration policy will streamline £ind clarify wetlands programs affect-
ing the agricultural community. At the heart of this effort is a commitment on the
part of all Federal agencies to minimize duplication and reduce inconsistencies be-
tween the Swampbuster and section 404 pn^rams. To that end, the Soil Conserva-
tion Service (SCS) will be the lead Federal agency for wetlands determinations on
agricultural lands for both programs, in consultation with the Fish and Wildlife
Service and under the programmatic oversight of EPA and the Corps. The SCS will
use agreed-upon methods that are consistent with those used by EPA and the Corps,
and will participate fully in an interagency training program to ensure that field
personnel are properly trained.
In addition, the Administration has issued a final rule that affirms the exclusion
of an estimated 53 million acres of prior converted croplands from Clean Water Act
jurisdiction. These are areas that, prior to December 1985, have been cropped and
hydrologically manipulated to the extent that they no longer perform the functions
they did in their natural condition. Consistent with S. 1304, the Administration rec-
ommends corresponding Congressional action to define the term "waters of the
United States" in the Clean Water Act to exclude prior converted croplands.
The Administration policy also addresses landowner concerns r^arding the sec-
tion 404 program. The Corps will develop, through rulemaking, an administrative
appeals process under the r^ulatory program so that landowners, farmers, and
others can seek review of jurisdictional determinations and permit denials without
going to court. The Corps will also modify its r^ulations to impose deadlines to
ensure that permitting decisions are made in a timely fashion. The policy also en-
dorses the use of mitigation banks for compensatory mitigation under the section
404 program within environmentally sound limits.
The Clinton policy takes several steps to increase the predictability and public ac-
ceptance of efforts to identify areas as wetlands subject to jurisdiction under the
Clean Water Act. Use of the 1987 wetlands delineation manual has provided a work-
able and broadly accepted delineation procedure over the past two years. The Ad-
ministration supports continued use by all agencies of the 1987 manual pending
completion and review of the National Academy of Sciences study, expected in Sep-
tember 1994. To increase public confidence in the section 404 program, the Adminis-
tration also is recommending Congressional endorsement of continued use of the
1987 manual, which is provided for in S. 1304.
To put to rest the notion that Congress did not intend to protect wetleuids under
the Clean Water Act, the Administration recommends that explicit definitions of
the terms "wetlands" and "waters of the United States" be included in the statute,
consistent with longstanding regulatory definitions. S. 1304 does include the defini-
tion of "wetlands."
Finally, the Administration's policy revised the definitions of discharge of dredged
or fill material to close regulatory loopholes that allowed wetlands to be drained,
ditched, or cleared without a section 404 permit. The Plan recommends that Con-
gress affirm these definitional changes in l^islation, as does S. 1304 for the "dis-
charge of dredged or fill material."
1204
Conclusion
In conclusion, we believe the Administration's reform package represents a tre-
mendous opportunity to move beyond the polarization that has characterized the
wetlands policy debate in recent years. As indicated in this testimony, there are
many similarities between the Administration's policy and S. 1304. We look forward
to working closely with the Committee to enact bipartisan legislation that will im-
prove wetlands protection in the United States, "rhank you. We will be happy to
take any questions you may have at this time.
1205
DEPARTMENT OF THE ARMY
OFRCE OF THE ASSISTAMT SECRETARY
CIVIL WORKS
108 ARMY PENTAGON
WASHINGTON DC 203104n08
2 8 OCT 1993
Honorable Bob Graham
Chairman
Subcommittee on Clean Water,
Fisheries and Wildlife
Committee on Environment and
Public Works
United States Senate
Washington, D. C. 20510-6175
Dear Mr. Chairman:
The purpose of this letter is to furnish information
for the record for a (juestion by Senator Kempthome at
the September 15, 1993, hearing on wetlands held by the
Clean Water, Fisheries and Wildlife Subcommittee of the
Senate Committee on Environment and Public Works.
Senator Kempthome 's question was:
"Does a system of strict liaUaility make sense in a
context where it is not always clear to a person that the
land in question is or is not a wetland, particularly
where criminal penalties, fines and jail terms are
imposed in some cases where the Corps dispute has been
over whether the land in question is a wetland?"
The following expanded answer is furnished for the
record :
If what is meant by "strict lieibility" is that one
can be found liable without fault, then the answer would
be no. The Army Corps of Engineers and the Environmental
Protection Agency (EPA) do not proceed with criminal
penalties, fines and jail sentences where the facts
indicate that the responsible party did not knowingly
violate the law.
Because not everyone is able to recognize a wetland,
the Corps and EPA have worked very hard to publicize the
need for permits for work in these aquatic areas. Also,
the Corps enforcement program has as a central tenet, a
1206
-2-
policy of seeking voluntary compliance through resto-
ration or measures determined necessary through the
evaluation of an after-the-fact permit application.
VThen a violation occurs in a wetland subject to
Federal jurisdiction, one of the first considerations is
whether or not the violator had prior knowledge of
regulatory requirements. This would be indicated by any
past involvement of the violator in permitting actions or
violations, or by the violator having received a cease
and desist order from the Corps prior to taking
additional actions that would require a permit. Another
consideration is the willingness of the violator to
correct or minimize any environmental damages that may
have occurred as a result of the action in question.
Only approximately 1 percent of the 6,000 or so annual
enforcement actions handled by the Corps result in
litigation. Of those few cases that do result in
judicial action, a very small subset (less than 1
percent) result in criminal action.
Thank you for your interest in the Corps enforcement
program. Should you have additional questions, do not
hesitate to contact me or Mr. Michael Davis, Assistant
for Regulatory Affairs at (703) 695-1376,
Sincerely,
G. Edward Dickey
Acting Assistant Secretary of the Army
(Civil Works)
1207
Honorable Bob Graham
Chairman
Subcommittee on clean Water,
FisheriBB and Wildlife
committee on Environment
and Public Works
House of Representatives
Washington, D. C. 20510-6175
Dear Mr. Chairman:
This IS in reply to your letter of October 12, 1993,
requesting information concerning Senator Lautenberg's
guestione related to cranberry production, following the
September 15, 1993, hearing. A copy of the questions
and answers as provided by the Army Corps of Engineers
are enolosed.
We apologise for the delay in providing the responae
and thank you for your interest in this matter.
Sincerely,
O. Edward Dickey
Acting Assistant Secretary of the Army
(Civil Works)
Sncloaure
CQ—CT; r\
1208
DRAFT
QUBsnmr It
Why did BPX and th« Corps d«t«rmin« that cranberry
graving is a watar dapandant activity?
ANSWER It
EPA's Saotion 404(b)(1) Guidalines provide that an
aativity Is oonsidered vatar dependent if it requires
aooess, or proximity to, or sitting within, a "special
aquatic site" (e>9«> wetlands) to fulfill its basic
project purpose. Given that cranberries are a wetland
plant and must be grown in wetlands or in areas altered
to create a wetlands environnent, EPA eind the corps
believe it is reaeonable to consider the construction of
cranberry beds, including associated dikes and water
control structures associated with dikes, to be a water
dependent activity.
QUESTION 2:
Why did the Corps issue a nationwide permit for some
cranberry growing in wetlands?
ANSWER 2t
Given the considerable interest from the cremberry
growing industry in developing a nationwide permit for
certain diecharges of dredged or fill material assooiated
with cranberry production activities, the Corps sought
comments, in April 1991, on the feasibility of designing
an appropriate nationwide permit for these disoharges
into waters or the united states. After receiving
numerous oonmente, the Cocps issued, in November 1991, a
nationwide permit for certain cranberry production
activities at existing cranberry operations. !rhe
nationwide permit Is designed to ensure that only minimal
impacts would occur as a result of activities authorized
under the permit.
1209
DRAH
QUESTION 3 1
What are the poeitive wetland funotions of oranberry
wetlands and the habitat values and other environmental
values of reservoirs, uncultivated wetlands, transition
areas and uplands which accompany cranberry wetlands?
ANSWER 3:
Some positive values can be attributed to overall
cranberry production operationa, including the
maintenance of open epace, hydrological support and
enhanced wildlife habitat. However, a determination of
the environmental values associated with cranberry
operations depends on the particular facts of each
operation. The expansion of commercial cranberry beds,
including development of associated structures such as
reservoirs and irrigation ditches, generally involves
eliminating the native wetland plant community and
replacing it with a monoculture plant community. In
additioni the area is usually dltchedi filled/ and diked
to control the hydrology of the cranberry bed.
Conversion of natural wetlands for cranberry cultivation,
therefore, often reduces the diversity of habitat. In
addition / there are concerns regarding the impact of
cranberry operations on water quality, especially with
regard to levels of phosphorus and pesticides in waters
discharged from the cranberry fields.
QUESTIONS 4:
Have the water dependency determination and nationwide
permit resulted in any expansion of cranberry growing in
wetlands and, if so, how much?
ANSWER 4:
Although recorde regarding Section 404 permit
applications are maintained by corps dietriots we do not
have specific numbers concerning cranberry applications.
It is our understanding that only a limited number of
cranberry growers have requested authorization to expand
their existing operations since issuance of the
nationwide permit.
1210
DRAFT.
QUESTION 5.
How can thft reg\ilatory prooesB be changed to make
daclslons on the modest expansion of existing cranberry
wetlands and mitigation efforts on a nore timely basis?
ANSWER 5:
We believe our current effozrts to promote mitigation
banking and other programmatic streamlining will benefit
cranberry growers. Cranberry growers may also work with
Individual Corps districts to develop regional permits
that provide for minor actions that are larger than what
has been provided for by the nationwide permit program.
1211
ANSWERS TO QUESTIONS FROM SENATOR LAUTENBERQ
FOLLOWING THE SEPTEMBER 15, 1993 HEARING
QUESTION 1:
Why did EPA and the Corps determine that cranberry growing is a water dependent
activity?
ANSWER 1:
EPA's Soction 404<b)n) Guidelinas provide that an activity is considered water
dependent if it requires access, or proximity to, or siting within a "special aquatic site"
(e.g.. wetlands) to futtill its basic project purpose. Because cranberries are a wetland
plant and must be grown in wetlands or in areas altered to create a wetlands
environment, EPA and the Corps believe it is reasonable to consider the construction
of cranberry beds, including associated dikes and water control structures associated
with dikes, to be a water-dependent activity.
QUESTION 2:
Why did the Corps of Engineers issue a nationwide pennit for some cranberry growing
in wetlands?
ANSWER 2:
Given the considerable interest from the cranberry growing industry in developing a
nationwide permit for certain discharges of dredged or fill material associated with
cranberry production ectivities, the Corps of Engineers sought comments, in April
1991, on the feasibility of designing an appropiiate r^dtionwlde permit for these
discharges in waters of the United States. After receiving numerous comments, the
Corps issued, in November 1 991 , a nationwide permit for certain cranberry production
activities. The nationwide permit Is designed to ensure that only minimal impacts
would occur as a result of activities authorized under the permit.
QUESTION 3:
What are the positive wedands functions of cranberry wetiands and the habitat values
and otiier environmemal values of reservoirs, uncultivated wetiands. transition areas
and uplands which accompany cranberry wetlands?
ANSWER 3:
^ZTl-^^!^''^ ''?'"®^ "■" "* attributed to overan cranberry production operations
.nciuding tije mafnienance of open space, hydrological support and enhanced wildlif^
habitet However, a determination of the environmental values associated with
o^.^'^«il![^*'°'^'^^T*^^°"*'^P^'*^"'^'^^'^^ Of eachoperation. Theexpansion
ll ^':"^^«'«' ^l-^""?^^ beds, including development of associated structures such
as reservorra and imgation ditches, generally involves eliminating the native wetland
p^ant cornmunity and replacing It with a monoculture plant community. In addition,
ttie area is usually ditched, filled, and diked to control the hydrology of the cranberry
bed. Conversion of natural wetiands for cranberry cultivation, therefore, often
If ^S^b^L «![f i^l, "****'''*• '"^ ^'*'''^<'"' *®'« «« «"««"^ r^9^r6ing the impact
of cranberry operations on water quality, especially with regard to levels of
phosphorous and pesticides in waters flowing from the cranberry fields.
1212
autsnoN4:
Have the water dependency determination end nationwide permit reaulted in any
expansion of cranberry growing Jn wetland* and. If so, how muMf
ANSWER 4:
Although records regarding Section 404 permit applications are maintained bv the
Corps of Engineers, it i« our understanding that only a HmHed number of cranberry
growers have requested authorization to expand their operations since issuance of the
nationwide permit.
QUESTION 5:
How can the regulatory process be changed to mdke decisions on the modest
expansion of existing cranberry wetlands and mitigation efforts on a more timely
basis?
ANSWER 5: -^ -
The Corps of Engineers has issued a nationwide permit for discharges assodated the
expansion of cranberry production operations that requires tittle, if any, delay or
paperwork. We believe this nationwide permit provides an appropriate mechanism to
facilitate limited expansions of existing cranberry operations, in addition, EPA and the
Corps are working with States to address common concerns, as well as developir^
appropriate regional general permits.
1213
TESTIMONY OF JOSEPH S. LARSON, PROFESSOR OF BIOLOGY, THE ENVI-
RONMENTAL INSTITUTE, UNIVERSITY OF MASSACHUSETTS AT AM-
HERST
FUNCTIONS AND VALUES OF WETLANDS OF THE EASTERN UNITED
STATES
Mr. Chairman:
Thank you for the opportunity to provide scientific background on the functions
and values of wetlands of the eastern United States. While wetlands make up only
5% of the land surface area of the conterminous United States, their importance to
the health welfare and safety of our citizens is highly important. I am confident
that your decision to involve wetland scientists early in your deliberations will
strengthen the public policy recommendations of this committee.
Functions that Gave Rise to Wetland Regulation
As your hearings address the federal wetland program, it is useful to recall that
wetland regulation and the permit process originated in Massachusetts some 14
years before the federal program was initiated. The initiative for wetland regulation
did not come from government bureaucrats but from local towns that wanted to pro-
tect the functions of coastal marshes as nursery grounds for commercially valuable
fish and shellfish that are important to their local economies. Inland towns soon pe-
titioned the legislature to protect freshwater wetlands because they understood
their values for reducing flood damage and in maintaining water supplies, both of
which are critical to local economies. Today many eastern states have their own
inland wetland regulatory programs and all have some form of coastal wetland reg-
ulation. Because the effect of wetland functions extend across state lines and some
extend across international boundaries, the federal wetland program serves as an
important complement to state and local programs.
General Character of Eastern Wetlands
The eastern United States is characterized by abundant rainfall evenly distribut-
ed over the year. As a result, eastern wetlands change less from year to year than
wetlands in the semiarid and arid portions of the continent. The Atlantic and Gulf
Coasts are geologically older than the Pacific coast and have well developed and
large coastal wetlands, often behind barrier beaches and island chains. Large river
systems and their sediments have formed major estuarine and coastal wetland sys-
tems. In the glaciated northern portion of the region freshwater wetlands range in
size from less than one acre to many hundreds of acres. They are abundant and
scattered over all the landscape, along rivers and the shores of large lakes. In the
unglaciated portion of the Central Atlantic and Southeastern states, wetlands are
primarily associated with small to large river systems and artificial reservoirs.
Major Functions and Values of Eastern Coastal Wetlands
Marine Fisheries
Tidal wetlands are essential to the commercial fishing industry of the Atlantic
and Gulf coasts. Over two-thirds of the commercial fish and shellfish harvested in
the entire United States are dependent on coastal wetlands as nursery areas and as
a food source. The importance of this function is high on both a local and regional
scale. For example, in 1980 the economic value of Chesapeake Bay seafood, sport-
fishing and related activities was valued at about $756 million. The same region an-
nually produces about 90 percent of the striped bass harvest along the entire Atlan-
tic coast. Louisiana's multi-million dollar commercial inshore shrimp fishery is di-
rectly proportional to the area of intertidal wetland. Losses of these wetlands are
having a major effect on the fishing industry. The National Marine Fisheries Serv-
ice has estimated annual fishery losses at $208 million due to estuarine marsh losses
from 1954 to 1978.
Storm Damage
When coastal storms move on-shore at low tide, coastal wetlands can provide a
measure of storm buffering. But more importantly, and fully demonstrated in recent
east coast hurricanes, coastal wetlands are areas of high risk for human habitation
and development. Maintaining these wetlands in their natural state by prohibiting
development avoids major individual and public financial losses.
1214
Major Functions and Values of Eastern Freshwater Wetlands
Flood Control
Wetlands on the streeims of the eastern and southeastern United States provide
natural flood storage that reduces the height of flood crests at substantial savings to
downstream landowners, cities and towns. Especially important in this function are
the large wetlands positioned on the main stem of major watersheds. Loss of these
wetlands by filling or draining increases flood damage below these sites. For exam-
ple, in the Charles River near Boston 8,000 acres of preserved wetlands provide
flood protection that prevents $17 million in annual average flood damage. In Wis-
consin, floods may be lowered by as much as 80% in watersheds that have many
wetlands compared with those that have few wetlands. The bottomland hardwood
forests of the Mississippi River stored floodwater equivalent to about 60 days' river
discharge prior to human settlement and development. This storage capacity has
been reduced to only about 12 days as a result of leveling the river and draining the
floodplain. This is one of the reasons that flood damage along the lower Mississippi
River is increasing.
Water Quality Maintenance
Inland wetlands act to capture sediment and to remove nutrients that can de-
grade downstream water quality. Recent research indicates that the many forested
wetlands that line small headwater streeims serve as the first line of defense in
maintaining stream water quality, especially in terms of controlling the effects of
nitrogen. From a water quality perspective, alterations of these wetlands merit
much more careful consideration than they currently receive. Forested wetlands on
the Delmarva Peninsula (Delaware, Maryland, Virginia) play an important role in
reducing concentrations of nitrate in ground water and surface water. Recent stud-
ies of forested wetlands of the mid-Atlantic coastal plain suggest they have potential
value for improving water quality with regard to phosphorous entering coastal
steams.
The economic significance of the water quality maintenance role of wetlands can
be estimated in terms of waste water treatment costs. For example, if the wetlands
on streams leading into Chesapeake Bay were filled or drained it would cost over
$926 million to upgrade the sewage treatment plants in Maryland and Virginia to
offset the effects of just the added nitrogen to the Bay. Swedish studies indicate that
a wetland area 3/4 sq. mile in size reduces the amount of nitrogen leaking into adja-
cent waters by about 1,900 tons a year. If this were expressed in terms of equivalent
waste water treatment costs each forested wetland acre would be providing an serv-
ice worth over $80,000 per year.
Groundwater Relations
Freshwater wetlands are frequently linked to groundwater aquifers. In the north-
east and north central U.S. many wetlands are points where groundwater dis-
charges to the surface, contributing to the flow of streams and rivers. In some cases
wetlands may be points where surface water enters and recharges groundwater
aquifers. In some wetlands both the discharge and recharge function may occur as
groundwater levels rise and fall during different seasons of the year. In Massachu-
setts 750,000 people in 60 communities depend on municipal water supply wells that
are drilled in or near large wetlands. Changes to wetlemds that reduce the flow to
groundwater or pollute the water can adversely effect affect the quantity and qual-
ity of both surface and underground water supplies.
Forestry and Fish
The bottomland hardwood forested wetlands of the Southeastern U.S. are highly
productive forest sites. While the most valuable forest species were cut decades ago,
many retain the potential for modern productive forest management, if they are
maintained as forested wetlands. These same forested wetlands, in the spring floods,
are critical fish feeding and breeding areas for bass, warmouth, hickory shad, blue-
back herring and edible crayfish. River swamps in Georgia produce over 1,300
pounds of fish per acre. Not only do these wetlands themselves provide seasonal fish
habitat, they are the food source that supports the commercial fish and shellfish in-
dustry at locations like Apalachicola Bay, and the shrimp fishery off the wetland
mangrove forests of south Florida.
General Significance of Wetland Wildlife Habitat
About 5,000 species of plants, 190 species of amphibians and a third of all bird
species in the United States occur in wetlands. WeUanaL, t-rovide a significant part
1215
of the habitat of endangered or threatened plant and animal species. About 28% of
the plant species and 50% of the animal species which are federally listed and en-
dangered or threatened are wetland dependent.
International Treaties
The U.S. has an obligation to protect and maneige wetlands under several interna-
tional treaties. The several migratory bird treaties with Canada, Mexico, Russia and
Japan require the signatory nations to maintain adequate breeding, migration and
nesting habitat for migratory birds. These include not only ducks, geese and swans,
but wading birds, shore birds and the hundreds of species of song birds that nest in
forested wetlands. Under the Convention on Wetlands of International Importance
(Ramsar), the U.S. has designated over a dozen sites as wetlands of international
importance. The Ramsar Convention also obligates signatory nations to adopt poli-
cies that will promote wise use of all of it's wetland resources.
In Conclusion:
In conclusion, Mr. Chairman, while wetlands have long been recognized as valua-
ble habitat for wildlife, it is only in recent years that their importance to health,
welfare and safety, and to local and regional economies, has been well documented.
These functions have impacts and consequences that cross state and national bound-
aries. The federal government has an important role in maintaining and strength-
ening its wetland program under the Clean Water Act.
UNIVERSITY OF MASSACHUSETTS AT AMHERST
September 23, 1993
Senator Robert Graham, Chairman
Subcommittee on Clean Water, Fisheries, ad Wildlife
United States Senate
SD-456 Dirksen Senate Office Building
Washington, D.C. 20510-6175
Dear Senator Graham:
I would like to add the following remarks to my testimony of September 15, 1993
regarding the Subcommittee's hearing on wetlands.
Federal Role in Wetland Regulation
The appropriate federal role in wetland regulation should be spelled out in the
Clean Water Act. In drafting that section, I would recommend that our internation-
al multilateral obligations be recognized by reference first to the "wise use" obliga-
tion, accepted by the United States, of the Convention on Wetlands of International
Importance (Ramsar). This clearly spells out the obligation of signatory nations to
develop policies that promote wise use of all wetlands within their national territo-
ries. This obligation refers to essentially all wetland functions and is clearly a feder-
al responsibility. Secondly, I would recommend reference to our obligation to main-
tain migratory bird habitat under the several Migratory Bird Treaties ad the special
wetlands covered by the World Heritage Convention.
With respect to federsd responsibilities on the bilateral international level, the
federal government has the lead responsibility with respect to wetlands that are
part of international river systems, underground aquifers, and wetlands that sup-
port anadromous fish that use international waters. "There may be treaties with
Canada ad Mexico covering specific rivers, but even in the absence of these, I would
suggest that the need for a federal lead is undisputed. The federal government also
has a lead interstate responsibility on wetlands that involve interstate rivers,
aquifers, migratory wildlife, and fish that cross state lines.
The above composes a large portion of our national territory. It is a strong argu-
ment for federal assurance of standards and consistency much as have been estab-
lished for surface water quality for the entire nation Few states have the base for
supporting a comprehensive research program, and there is need for federal spon-
sorship in this regard as well.
Role for the U.S. Soil Conservation Service
I support providing a role for the SCS in the section 404 program, but the Admin-
istration's proposal that SCS be responsible for delineation on all "agricultural
lands" is premature. First, it is not clear what the term "agricultural lands" is
meant to embrace: cropped lands, all grazing lands, all forest lands?
1216
Secondly, and perhaps more importantly, the SCS (unlike the EPA, Corps of Engi-
neers, U.S. Fish and Wildlife Service, and National Marine Fisheries Service) brings
to the program only a tiny scientific staff trained in wetland ecology or manage-
ment. Nor does SCS have a research component. I am very much afraid that if the
SCS is given the delineation responsibility we will be inviting a period of litigation
in federal courts much as was experienced when the Corps of Engineers first took
responsibility for the 404 program. The SCS administration has long had a role of
assistance that has made friends for the agency in the farming community, much as
the Corps had developed friends in the construction, flood control, and navigation
community. The 404 program is a regulatory program, and the delineation aspect,
in particular, wins no friends. It took the U.S. Supreme Court to force the Corps
administration to accept the Congressional direction of the 404 program. I am very
much afraid that the SCS administration will be just as human and is much less
equipped as an organization to handle a major role at the outset.
I would recommend that SCS be first brought into the 404 program in the same
kind of advisory and consultative role in which the U.S. Fish and Wildlife Service
and the National Marine Fisheries Service now perform. The purpose would be to
bring in SCS in a step-by-step fashion to give time to develop an appropriate role
and to determine how much in the way of added staff and funding are needed in
order to take on more responsibility.
Sincerely,
Professor and Director
TESTIMONY OF DAVID J. COOPER, SENIOR RESEARCH SCIENTIST, DEPART-
MENT OF FISHERY AND WILDLIFE BIOLOGY, COLORADO STATE UNIVER-
SITY
Functions and Values of Wetlands in the Western United States
Mr. Chairman:
The western United States is often overlooked in discussions of wetlands, yet the
West contains large and important wetland complexes. Western wetlands are criti-
cal habitat for waterfowl, shorebirds and other migratory birds that is of interna-
tional importance, they perform water quality and flood water retention functions
that are of interstate importance, and vital economic value to every state and
region. Because much of the West is arid or semi-arid it is critical to consider these
distinctive wetlands in formulating wetland regulation programs and policies for
the United States. In most western states wetlemds comprise less than 1-3% of the
total land area, and in Nevada only 0.3% of the land is wetland. I appreciate the
opportunity to participate in this hearing and provide you with scientific informa-
tion and perspectives on the functions of wetlands in the western United States.
General Character of Western Wetlands
The western lower 48 United States is a vast region of high mountains, inter-
mountain basins, grasslands, deserts, agricultural lands and the Pacific Ocean coast.
Within this region precipitation is unevenly distributed geographicedly, annually,
and seasonally. The west coast. Great Basin and most of the Rocky Mountains re-
ceive largely winter precipitation, the Great Plains receive largely spring and early
summer rain, and rain comes in the southwest during mid to late summer Because
precipitation is seasonal many streams and basins are wet seasonally eind may be
dry at other times of the year. In addition, year to year variability in the total
emiount of precipitation received is tremendous with drought as well as wet cycles
being characteristic. Where water has been abundant wetlands have occurred, yet
many times nonwetland uses for this water have taken priority and the water has
been diverted elsewhere, or seasonally there has been too much water making other
land uses, such as farming, impossible, and wetlands were drained.
A number of different wetland types occur in the West, each a result of hydrologi-
cal patterns and processes interacting with distinct lerndscape types. Riparian wet-
lands occur along floodplains formed by seasonal runoff patterns. Riparian wetland
functions change from high to low elevation as the size of stream and power of the
water increases and as vegetation changes from herbaceous species to willows, to
alder or conifer forests, to cottonwood or mesquite forests. Wetlands in landscape
depressions or basins are fundamentally different from those occurring along
streams because they lack the power of moving water. Basin complexes have a
number of different names reflecting their geographic location and origin. Included
are prairie potholes (northern prairies), playas (southern prairies and intermountain
1217
basins) and vernal pools (Cgdifornia and the desert southwest). These basins support
fresh or saline marshes. In mountainous regions snowmelt feeds groundwater sys-
tems creating innumerable springs that range in size up to hundreds of acres. At
the most constant springs decomposition of plant roots and leaves is slow and organ-
ic matter accumulates to form peatland ecosystems similar to those of the far north.
In areas where the groundwater table is close to the soil surface but the ground is
not wet all summer wet meadows dominated largely by rushes and sedges are
common and may cover tens of thousands of acres. In certain areas wet meadows
have been' created by irrigation water diverted from streams or pumped from un-
derground aquifers.
It is imf>ortant to stress that many of the most valuable wetland types in the
West are not wet at all seasons. You might ask how can wetlands that are dry for
parts of the year be so valuable? The answer is that seasonal drying increases their
value for many functions such as food chain support and flood water retention. It is
not possible to say that wetlands in one region of the United States are more valua-
ble than wetlands in another region. Small seasonally wet wetlands in £m arid
region may be Just as valuable to that area as larger wetlands in a humid region
which are wet all year. All wetlands provide important functions for their region.
Local and regional planning efforts can determine which wetlands are most impor-
tant to that region.
Functions and Values of Western Inland Wetlands
Water Quality Maintenance and Improvement
Wetlands can improve and maintain water quality in several different ways. Sedi-
ment is one of the most important pollutants in the west because so much sediment
is generated from agricultural and other sparsely or seasonally vegetated lands and
this sediment may carry excessive nutrients, metals, pesticides and other pollutants.
Many wetlands trap and retain sediment thus, removing pollutants from the water
column. Once sediment is trapped, it must be retained in the wetland for the func-
tion to be realized. This requires maintaining the basins integrity (no draining) and
vegetation which stabilizes the soils along floodplains. In Wisconsin, sediment yield
from watersheds is directly correlated with the area of wetlands in that water-
shed— the more wetlands the less sediment.
In the mountainous west heavy metal pollution of surface waters from mine adits
and tailings piles is a serious problem. Wetlands, particularly peat lands, provide an
oxygen poor and organic rich soil environment supporting 'microbes that can
remove many metals from solution and sequester them. My studies indicate that
wetland soils in Colorado can be as high as 10% to 30% metal by weight! Heavy
metals removed include not just Zn and Cu but also moderate or high concentra-
tions of uranium which the wetland removes from groundwater. The regional eco-
nomic value of metal removal is not known but it is known that wetlands function
only when their hydrologic regime and vegetation are intact.
Surface water bodies in the West, such as Lake Tahoe, California + Nevada may
be extremely clear and clean due to the purity of waters. Lake Tahoe's water source
is snowmelt which contains high nitrate concentrations received with precipitation.
Nitrates flushed into the lake would degrade water quality, however up to 99% of
the nitrate received from precipitation is removed by wetlands surrounding Lake
Tahoe maintaining its water quality. Wetlands naturally are so efficient at the re-
moval of many nitrogen compounds that municipalities from Minot, North Dakota
to Areata, California have built artificial wetlands to treat municipal waste water.
Flood Water Retention
Many basin wetlands can hold large volumes of water for short periods of time
and are provide the greatest detention function when they are largely isolated. This
function is diminished or lost completely when a basin is drained. The function
comes not Just from total water holding capacity, but also from dessoichronization
of flood waters so that water is held for differing lengths of time in different basins.
Basin wetlands in the upper Mississippi River valley have sustained 80% to 100%
wetland loss, largely by drainage, and the flood flow alteration function has been
destroyed.
Researchers in Wisconsin have found that flood flows may be as much as 80%
lower in watersheds containing 40% of their area as lakes and wetlands than water-
sheds with little or no wetland area. Nearly 50% of the flood peak reduction results
from the first 5% of lakes and wetlands in the watershed.
Lawn Lake Dam, located in Rocky Mountain National Park, was built as a water
storage reservoir for the town of Loveland, Colorado. In 1982 the dam failed sending
a wall of water down Roaring River toward the town of Estes Park. Luckily a large
1218
wetland basin, Horseshoe Park, occurs Just upstream from Estes Park, where the
water velocity slowed from 9.1 to 2.1 miles per hour due to retention in the basin
and the town was spared the brunt of the floods destructive force.
Water Storage
In spring, the melting mountain snowpack increases stream flows raising water
tables in seasonally dry floodplains. This groundwater is temporarily stored and
later released when stream flows are at their minimum. This groundwater dis-
charge maintains stream base flows for fish and municipal and agricultural use
downstream. In the Gunnison River basin in central Colorado more than 1/2 of an
acre foot of water per acre of floodplain can be stored in soils for release in the dry
months of late summer. This adds up to thousands of acre feet of water storage and
jdeld seasonally, the value of which is very high. This function is destroyed by
drainage projects, stream channelization and flow regulation.
Riparian restoration projects in the West have reduced livestock grazing pressure
and repaired downcut stream channels facilitating vegetation recovery on many
floodplains. This rejuvenated vegetation accumulates sediment and increases flood-
plain water storage which in several instances has changed streams from intermit-
tent to perennially flowing! The importance of vegetation interacting with the
stream to stabilize sediment and store water cannot be overempheisized.
Fisheries Support
The Rocky Mountains support famous cold water trout fisheries. Trout inhabit
undercut banks in small streams, pools in larger rivers and feed on aquatic insects
produced in the streeim. These aquatic insects feed largely on leaves, twigs and
other organic matter that falls from riparian vegetation into the stream. Riparian
wetland vegetation feeds the stream insects that trout depend upon. In addition, the
woody roots of willows, alders and other shrubs and trees stabilize the streambank
that is habitat for fish. The riparian trees and shrubs are important while they are
alive for their leaf input, and they are Just as important when they die. Trees fall
into streams creating pools that create habitat. Thus, the quality of a trout streams
fishery can many times be measured by its adjacent riparian wetlands. Trout fisher-
men in every Rocky Mountain state spend several hundred million dollars each
year boosting the economy of the West.
Pacific salmon, particularly Coho, over winter in off channel or tidal freshwater
wetlands and Juvenile fishes feed in riparian wetlands.
The Colorado River sjrstem is home to many endemic fishes, including razorback
suckers and Colorado River squawfish. Historically spring floods would flush larval
fishes from the stream channel into adjacent riparian wetlands where they would
feed and be protected from the strong current and predators. The fish move back to
the stream later that year, or the next year following the flood surge. Today, almost
all tributaries of the Colorado River are controlled, floods rarely occur and wetlands
have been dried up. Several of these fish species are nearly extinct because of this
decoupling of streams and floodplains.
Bank Stabilization
Western riparian ecosystems are generally linear with narrow floodplains. The
streambanks in these ecosystems provide essential functions for protecting the phys-
ical, chemical and biological character of adjacent waters. Woody plants, such as
Cottonwood, alder and willow provide essential bank stability which reduces erosion.
Stable banks maintain water quality (by retaining sediment), and instream habitat
by providing wood, litter emd shade as well as bank structure. Riparian vegetation
can change many brsdded stream channels which are moving large sediment loads
into meandering stream channels which will retain sediment on their floodplains.
Vegetation removal or degradation, stream channel downcutting, drainage ditches,
or even diking which eliminates floods can reduce bank stability and lead to surface
water degradation.
Migratory Bird Habitat
The Central and Mississippi Flvways, extending from the Gulf of Mexico through
the Great Plains of the United States and into Canada support one of the worlds
most important populations of migratory waterfowl, shorebirds and cranes. Approxi-
mately 60% of all North American waterfowl (ducks and geese) and 75% of our
most abundant duck, the mallard, winter in the lower Mississippi River valley, the
Gulf coast and southern prairie states and in spring move north to find feeding and
nesting sites on the prairies, although a few species go north to the arctic. It is im-
p>ortant to recognize that these birds utilize landscapes at a continental scale
1219
moving from wetlands on the Gulf Coast to the Texas playas, the Rainwater Basin
of Nebraska, prairie potholes on the northern prairies and back. These wetlands are
linked into one giant system. Prairie marshes provide the most important habitat
for waterfowl and today's very low waterfowl populations may be explained by the
fact that many prairie states, such as Iowa, have sustained tremendous wet land
loss.
Waterfowl and other water birds provide an important economic stimulus for this
region. Nearly 40% of all hunting occurs in wetlands and hunters spend hundred of
million of dollars each year. Of Americans who enjoyed nonconsumptive wildlife as-
sociated recreation activities in 1991 nearly 40% did so in wetlands, a total of 11.7
million people. More than 80,000 people visit the Platte River in Nebraska each
year to watch Sand Hill Cranes, bringing over $15 million to the local economy.
Neotropical migrant birds use riparian vegetation in the West as these are the pri-
mary deciduous forest and shrubland types.
Forage and Farming
Wetlands provide one of the most important sources of forage for livestock and
wildlife in the western U.S. Most of the West is semi-arid and hay is grown primari-
ly in high water table areas, most of which are wetlands. Almost every wetland that
can be hayed or grazed is utilized and wetland hay is valued at $30 to $60 per ton
with yields of 2-5 tons per acre, making this valuable agricultural land. In some
areas wetlands have been created by the irrigation of formerly dry lands. These wet-
lands have many of the same functions as natural wetlands (eg. habitat and water
quality improvement) and it is important to recognize that many irrigation activi-
ties were accomplished by diverting water from streams which has resulted in the
loss of riparian wetlands.
The administration has proposed that 53 million acres of prior converted crop-
lands' be no longer subject to section 404 regulation. I suggest that a watershed ap-
proach be used in agricultural areas with large wetland losses to identify critical
wetland complexes for restoration to increase the landscapes function for retaining
flood water, water quality improvement and habitat.
Hydrologic Functions
We know very little about which western wetlands function in ground water re-
charge. Prairie potholes are known to recharge local groundwater tables raise local
water tables and may help recharge agricultural soil water. Many ephemeral
streams in Arizona and Utah are known to recharge deep ground water aquifers.
Many western wetlands, particularly peatlands and wet meadows, tend to occur at
ground water discharge sites. These wetlands provide important water quality treat-
ment prior to this water entering surface water bodies.
Functions and Values of Western Coastal Wetlands
The Pacific Coast of the United States is a d5Tiamic, steep and rocky coast. Most
wetlands occur at the mouths of small streams, or in the relatively few large bays
along the coast. The largest estuary on the west coast is San Francisco Bay, where
92% of the wetlands have been destroyed. The remaining wetlands provide impor-
tant habitat and water quality functions. Coastal wetlands contain a great diversity
of ecosystems including tidal marshes, tidal mudflats, eel grass beds and kelp for-
ests, ranging from salt to brackish to nearly fresh water.
Migratory bird habitat and marine fisheries support are two of the most impor-
tant functions of these wetlands. Pacific coastal salt marshes provide critical habitat
for migratory waterfowl, as well as for adult and Juvenile fishes of many species
including herring and anchovy. Coho salmon are known to use tidal freshwater wet-
lands in winter. Shorebirds, clams, crabs, turbot and many other species use tidal
mudflats.
TESTIMONY OF HON. DON EDWARDS, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF CALIFORNIA
Mr. Chairman, thank you for giving us the opportunity to testify today. We appre-
ciate the work that this committee has done toward resolving the complex issue of
how best to protect the nation's wetlands.
We would like to encourage the members of this committee to continue in their
quest to strengthen federal wetlands protection efforts and provide greater certain-
ty, consistency and flexibility to the regulatory program.
1220
We believe that the fundamental building blocks to achieve these goals exist
within the framework of the current program. A radical overhaul of the system is
not needed. Rather, we support strategic improvements to key portions of the law.
The legislation that we have introduced, the Wetlands Reform Act, takes a bal-
anced and realistic approach to this issue. We worked very hard to offer legislation
that would rectify the serious shortcomings of the current system while also improv-
ing protections for wetlands. Our bill recognizes the special needs of farmers and
small landowners, and seeks to move away from a strict regulatory approach to pro-
tecting wetlands.
To slow the loss of wetlands, our bill would:
• Amend the Clean Water Act to explicitly include a provision covering the pro-
tection of wetlands
• Expand the number of activities covered under the Act to include all that are
harmful to wetlands
• Require better tracking and reporting on the overall impact of the permit pro-
gram
• Direct more personnel and resources to the Army Corps of Engineers and the
Environmental Protection Agency to allow these agencies to effectively carry
out their responsibilities
• Improve the training and certification of field staff doing wetlands delineations
• Improve education and outreach programs on wetlands
The committee deserves praise for demonstrating its commitment to protecting
wetlands by including many of these provisions in S. 1304. We would like to empha-
size the merits of strengthening the role of the Fish and Wildlife Service and the
National Marine Fisheries Service in the permit process. These agencies will help
insure that resource matters are given consideration in permitting decisions when
necessary.
Much of the frustration and problems experienced by those seeking to comply
with wetlands regulations arises from the lack of consistency in the system, delays
in decisions concerning delineations and permit applications, and too much empha-
sis on a regulatory approach to protecting wetlands. Our bill is designed to address
these serious problems.
The definition of what is a wetland and the criteria used in delineating wetland
uses must be scientifically valid and workable. The National Academy of Sciences
study now underway is intended to address this issue, and when changes are made
to the wetlands delineation manual, the study findings should be taken into consid-
eration. We believe all the resource agencies should use equivalent definitions of
wetlands for regulatory purposes to maintain consistency and eliminate confusion.
All field staff must also be given ample and appropriate training for applying field
delineation techniques.
Permit processing must be streamlined and improved to provide landowners with
greater certainty and predictability. Because small landowners cannot endure long
delays without economic difficulty, H.R. 350 would establish a "Fast Track Team" to
process permits which would affect wetlands of one acre or less within a 60 day
period.
Farmers should continue to enjoy special exemptions for agricultural uses of wet-
lands. H.R. 350 reinforces exemptions for normed, ongoing farming practices. In ad-
dition, it clarifies that artificied wetlands and abandoned cropland should be free
from regulation.
We need to take greater advantage of the benefits that can be realized from in-
centive based conservation programs for wetlands. For example, the Wetlands Re-
serve Program, which offers direct payments and cost-sharing assistance to farmers
who put their wetlands into protected easements and conduct restorations on those
lands, has shown much promise as a successful incentive program. To further
expand on this concept, H.R. 350 includes a section of tax incentives that will make
it financially more attractive for land to be donated to qualified conservation orga-
nizations, or for activities on wetlands to be limited to compatible uses.
We are pleased that both this committee and the Administration have chosen to
focus attention on resolAdng the complex issue of wetlands. We would like to raise
certain points with regard to the approach on wetlands so far taken by the commit-
tee and the Administration.
First of all, we are particularly concerned with the amount of emphasis that has
been placed on the role of mitigation banking. While we agree that mitigation can
be a useful tool to inject greater flexibility into the regulatory process, we feel
strongly that it must be viewed with caution.
We must not forget that when wetlemds are destroyed, they, together with their
unique functions and values, are lost forever. Rarely do replacement wetlands per-
1221
form as many or even the same functions as the natural wetlands they replace. Our
past record on mitigation attempts has been less than impressive, and there are
doubts as to whether the science of wetlands creation and restoration is sophisticat-
ed enough to make this a safe approach.
In further exploring the potential value of mitigation, we should proceed with
great care. Our legislation contains a wetlands restoration pilot program to allow
the best methods and techniques for restoration to be developed and examined. It
would also develop a means of evaluating the success of such projects. We encourage
the members of this committee to support such a pilot program to help improve our
ability to be successful in such endeavors.
We support the Baucus/Chafee approach of limiting mitigation to the restoration,
and not the creation, of wetlands. We also support keeping restoration projects in
the same watershed as the impacted wetlands. Another key provision that must be
required is the long-term monitoring of mitigation projects to insure that they are
carried out successfully. Along these lines, we feel that mitigation should be re-
quired before a permit is issued.
A second issue of concern are proposals to establish an administrative appeals
process on permit decisions. We agree that landowners should not have to resort to
the judicial system as their only means of appealing decisions. However, we are
very concerned that, unlike the Baucus/Chafee bill, the Administration has pro-
posed a system that would allow for appeals to be made on permit denials only, but
not for permit issuances. The appeal must be open to all interested parties, such as
neighboring and downstream landowners, who are affected by the permit decision.
We support the Baucus/Chafee appeals system that would limit appeals to those in-
dividuals who participated in the public comment process for the permit application.
Finally, we would like to flag a provision included under the watershed manage-
ment approach proposed by this committee and the Administration. As you know,
we believe permit processing must be streamlined to eliminate unnecessary and
costly delays. Certainly for small landowners, a lengthy permit review can make the
system prohibitively expensive. That is why our legislation creates a "Fast Tra^k"
for minor permits. However, the proposals to expedite all permit decisions should
not be applied too rigidly. In cases where the potentieil impact on wetlands is high,
greater flexibility must be put in place to allow scientific analysis and review by
resource agencies and the public to continue beyond 90 days if necessary.
Please keep in mind that in the drive to inject greater flexibility into the permit
process, wetlands losses must not be accelerated. The policy goal of no net loss of
wetlands has been widely embraced, but it is meaningless if our policy decisions do
nothing to slow and eventually reverse the erosion of our wetlands base.
We commend the members of this committee for working to arrive at a consensus
on this important environmental matter. Because it seeks to install flexibility into
the system while also strengthening safeguards to protect wetlands, we hope you
will consider the approach proposed by the Wetlands Reform Act very seriously as
you finalize your legislation on wetlands.
TESTIMONY OF HON. FRANK H. MURKOWSKI, U.S. SENATOR FROM THE
STATE OF ALASKA
The Baucus/Chafee Wetlands Bill, S. 1304:
• Thank you for this opportunity to testify on S. 1304.
• I appreciate the work of the Chairman and ranking member of this committee
to attempt to conserve wetlands in the United States and to Improve wetlands
regulation.
• However, I am concerned that some of the provisions of S. 1304 will not solve
our wetlands problems in Alaska, and may in fact, make them worse.
• S. 1304 would continue "no-net-loss" plus set a long-term goal of "increasing
quality and quantity of wetlands".
• No-net-less is an unnecessarily restrictive goal in Alaska. And increasing wet-
lands in a state that has 180 million acres of pristine wetlands doesn't make
much sense.
• S. 1304 expands the definition of fill and creates additional activities in that
would be regulated in wetlands such as dredging, drgdning, and building on pil-
ings.
• The bill does not solve the problem of definition of wetlands or account for wide
variations in abundance, function, and value. It does not account for permafrost
wetlands.
1222
• Without modification, S. 1304 will mean more of the same for Alaska — more on-
erous federal conditions, more compensatory mitigation, more delays. It will
also mean less community expansion, less community facilities constructed, and
less resource development in Alaska.
President's proposed wetlands policy:
• The President's new wetlands policy is similar to S. 1304, but it contains four
significant errors which I would like to identify.
1. The policy assumes that the wetlands regulatory program is working fine in
Alaska. It is not. The President's task force on wetlands received considerable
testimony from the Alaska Congressional delegation, residents of Alaska, the
Native community, industry, and the Governor that all pointed out serious
problems with the wetlands program.
2. The policy rejects the "Alaska 1% rule" on the grounds that the rule would
de-regulate wetlands development and 1.5 million acres of wetlands would be
destroyed. In fact, the 1% rule would only remove the requirement for compen-
satory mitigation. Other mitigation measures such as avoidance and minimiza-
tion would remain in place. Alaska's wetlands would remain regulated by the
Clean Water Act and all other existing Federal, State, and local law.
3. The policy claims that potentially all of Alaska's coastal wetlands would be
destroyed if the 1% rule were adopted. This is not true. Alaska has a very effec-
tive coastal zone management program developed in accordance with the feder-
al Coastal Zone Management Act. The CZM program was developed specifically
to protect the valuable resources of the coastal zone and sets more rigorous
standards for approval than the 404 program alone.
4. And finally, the President's policy claims that if the 1% rule were adopted, it
would hinder management efforts of threatened and endangered species. Again,
this is not true. Nothing about exempting up to 1% of Alaska wetlands from
compensatory wetlands would interfere with any management activities re-
quired by the very powerful Endangered Sp>ecies Act.
• Finding a reasonable policy to allow development of a small percent of Al£iska's
wetlands does not equate to total wetlands destruction.
Alaska has vast wetlands and requires a different regulatory approach:
• Alaska contains 170 million acres of wetlands. Equal to the size of Texas.
Alaska has 65 million acres more wetlands than-all the wetlands in the lower
48 combined.
• In Alaska, if you can find land to build on, its a wetland. Wetlands cover 45%
of the surface area of the state. 74% of the non-mountainous areas of the state
are wetland. On the North Slope 99% of the surface is wetland.
• Alaska is completely saturated with wetlands!!
• Many of Alaska's wetlands are permafrost wetlands of lesser value. In areas
with an abundance of wetlands, uplands are often the higher value habitat.
Alaska has had very little wetlands loss.
• Alaska doesn't have a wetlands loss problem. Our wetlands are not in danger.
• Alaska wetlands have been virtually untouched by development. Total wetlands
lost in Alaska is about 80,000 acres, or less than 1%, over the last 126 years.
• No other state in the nation has over 99% of its original wetlands. In fact, no
other state even comes close.
• New Jersey, the next closest state has lost 9% of its wetlands. That's 90 times
greater percentage loss than Alaska!! California has lost 91% of its wetlands.
That's nearly 1,000 times greater percentage loss than Alaska. The national av-
erage is 53% that's 500 times greater loss than Alaska.
• At the current rate of development it would take 250 years for Alaska to devel-
op even 1% of its wetlands.
• Compare this with the lower 48 where over 50% of the original wetlands have
been lost. The Lower 48 looses over 275,000 acres per year. That's three time
more acres lost in one year, than Alaska has ever lost!
• Alaska already contributes greatly to the nation's wetland resource and should
not bear the burden of unnecessary wetland regulations. We do our fair share.
68 million acres of wetlands are already protected — within federal and state
conservation units. These will never be developed.
The wetlands problem in Alaska:
• The current wetlands program as regulated by section 404 of the Clean Water
Act simply heisn't worked in Alaska.
1223
• Property owners in Alaska regularly experience ridiculous bureaucratic night-
mares and senseless project delays. Communities cannot grow, houses cannot be
built, community facilities basic for health, educauon, safety, and sanitation
cannot be built.
• The Corps of Engineers claim they rarely deny wetlands permits. Technically
that may be true. But what the Corps does, is require unreasonable permit con-
ditioning and endlessly request additional information. Very few applicants are
in the position to persevere through this onerous process. The effect is the
same. Delay is the most insidious form of denial.
The current wetlands program violates the spirit of ANCSA:
• The Alaska Native Claim Settlement Act of 1971 (ANCSA) gave Native Alas-
kans the right to select certain lands in Alaska in exchange for extinguishing
their aboriginal rights to the land. The settlement was to provide for the "real
economic needs of the Alaska Natives".
• Unfortunately, the current wetlands program prevents the Natives from devel-
oping their own selected lands.
The current wetlands program violates the spirit of ANILA:
• Land not placed in conservation units was intended to be available for develop-
ment.
• Development of Alaska's abundant natural resources is the economic promise of
statehood. Both the state and the nation are being deprived of the benefits of
development.
• It is not right to solve the Lower 48 wetland loss problem in Alaska. Alaska
should not be held hostage by the problems of the lower 48.
Wetlands legislation should recognize:
1. Wetlands vary in abundance, function, and value. Alaska has 170 million acres
of wetlands, much of which is abundant, low value, permafrost wetland.
2. Regulation should be based on the extent and proportional loss of wetlands.
Alaska has nearly all its original wetlands intact.
3. Credit should be given for wetlands already protected. Alaska has 68 million
acres of wetlands (40%) protected in federal and state conservation units.
4. Permitting should be simplified and streamlined.
5. General permits and local government wetlands planning should be encour-
aged.
6. Regulations should recognize and protect the property rights of private proper-
ty owners.
7. Regulations should not conflict with the economic goals of ANCSA and the mul-
tiple use promise of ANILCA.
8. States should be able to assume the federal wetlands program and manage it in
a way that makes sense in that state.
Alaska needs a wetland policy that allows the continued responsible development
of our abundant natural resources. Alaska has demonstrated the ability to balance
environmental protection with resource development.
Solve the wetlands loss problem where there is a problem.
1224
TESTIMONY
SUBMITTED TO
UNITED STATES SENATE
COMMITTEE ON THE ENVIRONMENT AND PUBLIC WORKS
SUBCOMMITTEE ON CLEAN WATER, FISHERIES AND WILDLIFE
ON BEHALF OF
THE ASSOCIATION OF STATE WETLAND MANAGERS, INC.
AND
THE WISCONSIN DEPARTMENT OF NATURAL RESOURCES
BY
PAUL SCOTT HAUSMANN
CHAIR, ASSOCIATION OF STATE WETLAND MANAGERS
CHIEF OF WATER REGULATION, WI DEPARTMENT OF NATURAL RESOURCES
Tlie Association of State
Wetland Managers, Inc.
Box 2463
Berne, N.Y. 12023-9746
(518) 872-1804
WI Department of Natural
Resources
P.O. Box 7921
Madison, WI 53707-5971
(608) 266-7360
1225
State of \<tfisconsin \ DEPARTMENT OF NATURAL RESOURCES
101 South W«b«ur StrMt
Box 7921
Madiion. Witconain 63707
TELEPHONE 608-266-2621
Ooorgo E. Moyor TELEFAX 608-267-3579
Socraurv '">» 608-267-6897
Thank you for the opportvmlty to present the following comments on S. 1304
on behalf of the Association of State Wetland Managers and the Wisconsin
Department of Natural Resources.
The Association of State Wetland Managers is an organization composed of
professionals from local, state and federal agencies and private consultants
which has as its primary interest the protection and wise management of the
nation's wetlands. Our comments and recommendations are based on over 16
studies, workshops and symposia conducted by the Association since 1989 which
collectively involved several thousand state and local wetland managers,
wetland scientists, federal agency staff, developers and other participants
(list attached) .
Wisconsin has a well founded reputation and tradition of environmental
protection. Wisconsin has strongly supported the Clean Water Act and the s.
404 program believing that the program complements our state and local
regulations and provides comprehensive protection of Wisconsin's and the
nation's valuable water resources.
We believe that s. 1304 is the first serious bill to build upon and address
deficiencies in the Section 404 program. The bill will do much to implement
the recommendations of the National Governor's Association and the concepts
put forth by the Association. It is also consistent with the ideas and
recommendations of the scientific and technical communities which we
represent. Both the Association and Wisconsin strongly support wetland
protection and restoration. However we have also recognized that wetland
protection and restoration require the understanding and support of public and
private landowners and the protection of the quality and quantity of water
supplies to wetlands through watershed approaches.
We recognize that the bill raises Issues within the environmental community
with regard to general permits, enhanced state and local roles, advanced
planning, prior converted croplands, mitigation banks and perhaps other
matters. We believe that these topics must be approached with great care, but
we also believe that after 21 years with a Section 404 program which really
does not protect many wetlands it is time to try some new partnership
approaches and to better address landowner needs . These are keys to actual
protection and restoration of wetland ecosystems.
Today, in addition to providing general support for S. 1304, I would like to
briefly address seven areas of this legislation and close with some thoughts
on wetlands, this bill and flood damage reduction:
1226
1. Programmatic General Permits - The specific authorization In S. 1304 for
state and local programmatic permits clarifies ambiguities about general
permits under current regulations. The Association strongly supports the use
of programmatic permits where the state or local program meets or exceeds
federal regulatory standards. My state, Wisconsin, Is now entering Its
eleventh year with a state program general permit that has reduced regulatory
duplication while helping to provide greater certainty, predictability,
fairness, and flexibility for our citizens.
2. State Conservation Plans - This is a very positive proactive approach that
can Initiate useful changes to managing wetland resources, especially when
combined with -Wetlands and -Watershed Management Plans.
3 . Wetlands and Watershed Management Plans - For reasons discussed In a brief
paper attached to the testimony, advance planning In a watershed context of
the sort encouraged by this bill is needed to help resolve many of the severe
problems and conflicts in the protection and management of freshwater and
estuarine wetlands now facing the federal agencies, states and local
governments. Such advance planning is needed to meet private and public
landowner and developer needs for more certainty, predictability, flexibility
and lower costs in wetland regulation.
4. 90 Day Decision Deadlines - While the Association supports timely decision
making, the Inadequacy of many of the permit applications presently submitted
raises some concerns on how this provision of S. 1304 will be implemented.
The Corps is limited by regulation on what they can request from an applicant
prior to issuing a public notice. We wovild strongly recommend that language be
added to make certain that the 90 day time clock does not start running until
adequate Information to assess the impacts of the proposed action is in hand.
5. Agricultural Activities - We support the intent of this section of the
bill. However, we believe that the existing abandonment provisions for prior
converted wetlands should be maintained. Also the ability of the Soil
Conservation Service to carry out this mandate in terms of resources and
expertise is questionable. Training of SCS personnel at the county level is
absolutely critical.
6. Mitigation Banking - The Association supports the requirements for the
establishment, use, maintenance and oversight of banks relying on practicable
and scientifically sound methods. However the bill does not, but should,
include the explicit sequencing (avoidance, minimization, and then mitigation)
language, as now found in the 404(b)(1) guidelines as recommended by the
National Governor's Association and the Association.. This is critical for the
appropriate use of mitigation banks. Also, we question the creation of
wetlands as an effective mitigation technique.
7. Funding - The funding mechanisms provided in the bill include section 104,
106(h), 205(j), 319(e) and 604(b). These funds have become increasingly
competitive as they are used to support multiple Clean Water Act programs.
Congress must be willing to financially support the excellent intentions of
this bill.
1227
The Association and the Association of State Floodplaln Managers recently
conducted the first of two meetings In St Louis on Post Flood Recovery and
Restoration of Mississippi River Floodplalns and Wetlands. The second meeting
will be September 27-29 and I Invite you and your staff to attend. Many of the
provisions of this bill- state wetland plans, watershed management plans,
programmatic general permits and mitigation banking - will be Important tools
to accelerate the restoration and protection of open, wetland, bottomland,
backwater and floodplalns area Important to water retention and slow release
of floodwater.
In summary, we believe this bill will help create an effective national
wetland -regulatory program that is Integrated with other Clean Water Act goals
and programs. It will -achieve this by creating new federal, state and local
partnerships to evaluate, plan and regulate wetlands on a watershed basis as
part of broader water resources systeias.
1228
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1229
PART 1: WHY WETLANDS AND WATERSHED
(WATER RESOURCES) MANAGEMENT IS NEEDED
For reasons which will be discussed shortly, advanced planning of wetlands in a watershed context is needed
to help resolve many of the severe problems and conflicts in the protection and management of freshwater and
estuarine wetlands now facing the federal agencies, states, and local governments.
Such advanced planning is needed to meet private and public landowner and developer needs for more
certainty, predicubility, flexibility, and lower costs in wetland regulation. (See Table 1.) Such advance planning
on a hydiologic unit basis is also needed to improve the rationality and coordination of wetlands and other
water maiugement programs, reduce cumulative impacts and degradation, lower the cosu, and help balance
environmental and economic needs including the rights of private landowners. Such advanced planning is
needed'to meet the need&of-environmentalorganizationsrland tnistSrand-other.gioups uuecested in no net loss
of wetlands, net gain of wetlands, and achievement of broader enviroiunental goals (e.g., restoration of water
quality, protection of endangered species) by reducing cumulative losses, improving the e£Bciency of wetland
management programs, and providing the basis for successful wetland restoration efforts.
Background: Expansion of Wetland Programs In the Last Decade
Over the last decade, wetland protection, regulation, and management efforts across the nation (the federal
Seaion 404 program, state and local programs) have been expanded from a focus primarily upon coasul and
estuarine wetlands and freshwater wetlands adjacent to major lakes and rivers to broader programs that address
to isolated wetlands throughout the landscape, and many wetlands along creeks, streams, and smaller lakes and
ponds.
There are hundreds of thousands (and perhaps millions) of such isolated wetlands and wetlands adjacent to
smaller water bodies throughout the United Sutes, particularly in Alaska, the northern glaciated states (Maine
to Washington), sutes with slow-moving and low gradient rivers with large floodplains (e.g., Mississippi and
Louisiana), and sutes with moderate to high rainfall and large areas of relatively flat topography (e.g.,
Maryland, South Carolina, and western New York). These wetlands include vernal pools and playas in the
West, permafrost wetlands in Alaska, "slope" wetlands in the mounuin sutes, "prairie pothole" and "kettle
hole" wetlands in the midwest and throughout the northern sutes, "sink hole" wetlands in areas of karst
topography such as Kentucky, pocasins in the Carolinas, and the narrow ribbons of wetland and riparian
habiuts along the millions of miles of smaller rivers and streams throughout the United Sutes.
These wetlands include much of the estimated SO million plus acres of partially drained agricultural
wetlands. They include many stormwater detention facilities (which have inadvertently become wetlands) and
wetlands created by artificial blockage of natural drainage by roads, railroads, bridges, dikes and levees, and
other fill and grading operations.
The toul number of these wetlands is enormous and the collective acreage of these wetlands is great but
their impaa upon land use decision-making is even greater. Because they occur in depressions and poor
drainage areas throughout the landscape and along the network of minor rivers and streams in which
transecting parcels are used or intended for use for subdivision, road building, agriculture, and other purposes.
Why a Watershed Approach is Particularly Needed for Isolated Wetlands and
Wetlands Along Smaller Creeks, Streams, Ponds, and Lakes
Water is, of course, the key to aU wetland characteristics including wetland funaions and values. "Wetlands"
are wetlands only if they are, in fact, "wet" and renuin periodically wet over time.
As in shallow water or high groundwater systems, all wetlands are susceptible to changes and fluauations in
water supply and water quality. Wetlands differ frx>m other water bodies such as lakes, streams, and reservoirs in
that they are shallow water systems and are quite often dry at least a portion of the time. Because they are
shallow water systems, even relatively small fluctuations in ground and surface water levels (less than a foot)
greatly affect wetland vegeution and animal species, wetland functions, and even, in some insunces, the very
existence of the wetland. In contrast, water levels in a lake or stream may fluctuate several feet with little change
in the appearance of the lake or stream.
1230
Coasul wetlands, estiiarine wetiands (to a lesser extent), and wetlands adjacent to major rivers and lakes are
less sensitive changes in the immediate watershed including local allocations of water because the water in the
wetland is often derived primarily from the adjacent water body. In the case of tidal wetlands and (to a lesser
extent) estuarine wetlands, the source of the water-the tides-and water levels are quite regular although storm
surges and long-term changes in sea level do occur. In the case of major rivers and lakes, water supply and water
levels are also relatively constant and predicuble although they also fluctuate seasonally and are also dependent
upon what happens in larger watersheds.
Case-by-case regulatory approaches not utilizing a watershed concept and applied in the Section 404
program and sute and local wetland regulatory programs have worked moderately well for coastal wetlands and
wetlands along major rivers and streams with relatively constant and ascertainable water supply but they work
much less well for isolated wetlands and wetlands along smaller creeks, streams, lakes, and ponds for the
following reasons:
1. The water levels ia isolated wetlands aadwetlaads aloag smaller-creeks aad streaou oftea
nnctnate widely oa a seasonal basis and even more dramatically over a period of years in response
to long-term precipiution cycles. Wetland vegeution and, in some instances, wetland soils change in
response to such fluctuations. Because of these changes in water levels and vegetation the appearance of these
wetlands and their use by various wildlife also changes. Short-term functions and values also change. During dry
periods, landowners often fell to perceive these areas as wetlands.
2. Isolated wetlands and Creshwater wetlands along smaller rivers and lakes are particnlarly
dependent npon what happens in their immediate watersheds. The water in isolated freshwater
wetlands, wetlands along rivers and creeks and to a lesser extent, estuarine wetlands, comes from precipiution.
This precipiution reaches wetlands through a combination of direct precipiution surfece runoff from
immediate watershed and groundwater infiltration. There is often little opportunity for offsetting watershed
influences as with larger rivers, streams, and lakes.
3. Activities thronghont watersheds aCfect the amount of flow into a wetland, the velocity of
the flow, the timing of the flow, and other features determine the short- and long-term
characteristics of freshwater wetlands. What happens in a watershed not only determines existing features
of an isolated wetland or a wetland along a smaller aeek or stream but future characteristics including
functions and values. For this reason, wetlands are highly vulnerable to dikes, dams, or levees, water diversions
for agriculture or domestic water supply, or groundwater pumping. Wetlands are vulnerable to land-clearing
and urbanization, which increases the toul amount of runoff and peak runoff. Wetland protection and
management becomes integrally interrelated with other watershed-based land and water management pro-
grams including water supply, stormwater management, floodplain management, and point and nonpoint
pollution control efforts.
Problems With Lack of a Watershed Approach
Wetlands arc now typically regulated in federal, sute, and local regulatory efforts as separate, distinct
entities without regard to their role as part of broader water systents. Obvious and well-esublished hydrologic
features of wetlands are often ignored in efforts to delineate, classify, evaluate, protect, restore, create, or
otherwise manage wetlands.
The failure to interrelate and the management of wetlands along smaller lakes, streams, and lakes with
watershed management has resulted in a variety of problems:
1. Wetlands are aot being protected despite expenditnres of large snms of private sector and
public sector money. The goals of permitting, restoration, etc are simply not being achieved in many
insunces. The reason is that you cannot protect isolated wetlands along smaller rivers and streams by regulating
only the wetlands and not the activities affecting water quantity and quality. This is particularly tnie for
regulatory efforts such as the Section 404 program, which regulates only fills.
Fills are the major threats to many coasul and estuarine wetlands and wetlands adjacent to other water
bodies. Such wetlands are not easily drained because the source of water is adjacent to a water body. Even if you
dig a ditch in the wetland, the water level will continue to be approximately that of the adjacent water body. In
contrast, isolated wetlands can be drained. Drainage is not regulated. Beyond this, diversions and groundwater
pumping are not regulated.
1231
2. CumnUtive impacts are not being addressed. Freshwater wetlands are gradually (and sometimes
not so gradually) destroyed by groundwater draw-down, diversions, drainage ditches, and other activities that
disturb natural water levels.
3. Landowners are subjected to a ▼aricty of confused and uncoordinated regulatory require-
nenu—floodplain, stormwater, water supply, point and nonpoint source, grading, etc Overlap in
programs and efforts is commoiL
4. Outright conHicu occur in water-related prograas in soae insunoes— storawater, water
quality, wetland protection. See discussion below. There are do conflict resolution mechanisms in place.
This results in complaints and opposition to all programs.
5. Evaluation of functions and values is inaccurate and may have already been taken beyond
- rational cztreaes without-considerationof jratrrahcd factors. •JUt^wiyulifficultla.detetmiiie the
functions of altered, artificial, and managed wetland systems without knowing the short-term and long-term
water regime since all functions and values depend upon this regime. Increasingly sophisticated evaluation
methodologies are a waste of money if they fail to uke into account what has happened and what will happen to
the most basic attribute of wetlands-the water.
6. Money is not being spent eCfectively. Instead of focusing on short-term and long-term hydrology,
many regulatory permitting efforts and restoration efforts focus on existing vegeution~a poor long-term
indicator of functions or values.
7. The relationship between wetlands and otber waters is not properly considered despite the
dependence of most wetland functions and values upon these interrelationships. In addition, the
relationship between wetlands and uplands is not considered.
8. Mechanisms are not available to resolve on-site/off-site disputes for mitigation, in-kind and
out-of-kind. Areas with the highest restoration potential are not being identified.
9. Restoration projecu are simply not working despite expenditures of large amounts of
money. Historical water regime is not adequate for wetland restoration unless the water regime is restored.
Restoration is dependent upon continued water supply, adequate water quality, low velocities, low sediment,
and continued pulsing or active management
Where a Wetlands/Watershed Management Approach is Particularly Critical
A wetland/wateished approach is particularly critical when water regimes have already been changed or are
changing due to urbanization, clearing, groundwater pumping, water diversions and water supply, and other
activities including:
^ (a) Urban areas and other areas of intensive land development;
4 (b) Agricultural areas;
^ (c) Areas where restoration is proposed including cooperative projects and mitigation banks; and
♦ (d) Areas where water is scarce (e.g., much of the West) and much of the existing water is
appropriated for various activities.
1232
TABLE 1
Goals of Wetland/Water Resources Management Plans
♦ Improve water/wetland resource protection and restoration, and
♦ Provide greater certainty, predictability, flexibility and lower costs for landowners.
TABLE 2
Landowner Benefits of Wetlands and Watershed Management Plans
Overall benefit: more predictable, more certain, more rational. less duplicative, more integrated, and
more flexible wetland/water resources regulations.
More specific benefits include:
♦ 1. Helping landowners simultaneously address floodplain, stormwater, water supply, point and
nonpoint pollution control, sediment control, wetland protection, and other planning and
regulatory requirements.
♦ 2. Helping landowners predict natural hazards and off-site impacts and determine whether wetland
alteration all cause nuisances and potential lawsuits.
♦ 3. Helping landowners and their consultants delineate wetland boundaries, particularly with regard
to altered systems.
♦ 4. Helping landowners determine appropriate wetland/water management needs.
♦ 5. Facilitate use of regional mitigation banks and cooperative ventures.
TABLES
Resource Conservation Benefits of Wetland Management Plans
Overall benefit: Better protection and restoration of wetlands/waters by predicting and protecting
wetland water supply and water quality and integrating wetland protection/restoration into broader water
management efforts.
More specific benefits include:
♦ 1. Better addressing cumulative impacts.
♦ 2. Providing a more rational basis for delineating, evaluating, and managing wetlands consistent
with wetland characteristics.
♦ 3. Providing a more integrated and cost effective approach to wetlands, stormwater, floodplain
management, water supply, etc
♦ 4. Bringing key actors into the wetland management process.
♦ 5. Identifying prime restoration needs and areas; help resolve disputes over on-site/off-site and
in-kind/out-of-kind mitigation.
♦ 6. Improving the success of restoration efforts.
♦ 7. Identifying opportunities for regional restoration efforts including mitigation banks and coop-
erative mitigation ventures.
1233
TESTIMONY OF LANGDON MARSH, EXECUTIVE DEPUTY COMMISSIONER
NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION*
Good morning and thank you for the opportunity to share my views on wetlands
conservation. I am Langdon Marsh, Executive Deputy Commissioner of the New
York State Department, of Environmental Conservation, the agency with primary
responsibility for wetlands management in New York. I also had the privilege of
working with the National Governors' Association and was Chairman of the NGA
staff working group that developed the wetlands policy endorsed by the governors in
February 1992. I am testifying today on behalf of NGA and the State of New York.
I would like to start by saying how pleased we are by S. 1304. I commend Senators
Baucus and Chafee for drafting and introducing this bill. It is viewed by many as an
honest, fresh attempt to address the real issues facing wetlands conservation and
regulation. This bill confronts and addresses the problems related to protecting our
wetlands heritage. We are proud at NGA and in New York State to have helped
develop recommendations that are reflected in this bill.
We are also pleased that the policy recently released by the White House is con-
sistent with the direction of this bill. With the administration and congress so close-
ly aligned, we are optimistic that progress on wetlands protection can he made.
As you know, the governors have recommended that any wetlands strategy incor-
porate five general principles: first, protection efforts should be coordinated to make
the best use of scarce resources and minimize inconsistencies among Federal, State,
and local programs. Second, Wetlands Management should be integrated with other
resource management programs such as Flood Control and Nonpoint Source Pollu-
tion Control. Third, wetlands delineation criteria and policies should recognize the
significant regional variance in the resource. Fourth, land use regulation is tradi-
tionally a state and local function and a wetlands regulatory program should be de-
signed to facilitate state assumption. And finally, the governors believe there should
be recognition of the unique situation encountered by the state of Alaska Wetlands
Constitute as much as 75 percent of the landscape. Gfovernment agencies and stake-
holder groups should work cooperatively to develop regional wetlands strategies
that for that state. Accommodate susteiinable wetlands protection and economic
growth.
As States, we are reassured that congress recognizes that State and local govern-
ments can be partners and viable players in wetlands protection. Because they often
have regional offices that are close to the wetlands resources. States are better posi-
tioned than the Federal Government to provide program services. In addition, they
can often respond to the regulated community in a more timely and predictable
manner.
Of couree, the abilities and interests of the 50 states and thousands of localities
vary considerably, but states and local governments should be encouraged to peirtici-
pate to the degree they can.
We are aware that some parties in the debate are wary of stronger state and local
involvement, fearing that a loss of wetlands protection will result. This will not be
the case. We welcome a strong Federgd framework and close cooperation to ensure a
strong program, but it is likely that the states and localities that choose to become
involved will do so to strengthen protection or to improve delivery of the program.
Consistent federal oversight will ensure that wetlands do not fall victim to local pol-
itics in the future.
We also welcome provisions of S. 1304 that endorse programmatic general per-
mits; support and fund state comprehensive wetlands conservation plans and region-
al watershed-based plans; and ensure state representation on the interagency co-
ordinating team. I note that the bill is silent on program assumption, however.
Whereas most of the problems with assumption are regulatory and not statutory,
we strongly recommend authorizing full or partial program assumption. States
should be permitted to assume discrete and clearly identifiable portions of the sec-
tion 404 program as they develop the capability to do so rather than requiring the
entire program to be delegated at one time. There may be situations where wetlands
program jurisdiction is shared within a state, as in New York where' authority is
shared between my Department of Environmental Conservation and the Adirondack
Park Agency. Other states may choose to focus on a particularly sensitive or impor-
tant subset of its statewide resource. These efforts should be fostered, not con-
strained.
Although many people do not think of New York as an agricultural area, farming
is still the number one industry in our predominantly rural state. We are pleased to
note the many provisions of S. 1304 that will decrease the conflict that has histori-
cally occurred between wetlemds protection and agriculture. Provisions to increase
1234
coordination with the Secretary of Agriculture, for example, should prevent prob-
lems from occurring by considering the impact of new policies on agriculture early
on. We support exempting from the definition of wetlands prior converted croplandis
and certain artificial wetlands created incidental to agriculture. We also support
continuing the exemption for ongoing agriculture practices.
Because it is important to view farmers as partners in wetlands protection, these
provisions are particularly important. In addition, we are pleased that congress has
chosen to expand the Wetlands Reserve Program, supported by us and the White
House policy, to create a National cooperative wetlands restoration strategy. We
recommend, however, that the restoration strategy complement and not replace the
wetlands reserve program.
Perhaps the tj^ies of provisions that will be most welcome by the majority of the
affected public will be those that provide for regulatory reform. NGA, and we in
New York, have supported efforts to make the regulatory process fair, reasonable,
and predictable, believing that the vast majority of the people prefer to comply with
wetlands protection efforts if they can understand what is required and expected of
them. We have recommended some of these changes in the past and are pleased
they appear in the bill. They include creating reasonable timelines for permit
review; establishing an administrative appeals process; and supporting mitigation
banks. Other changes proposed in the bill that we believe are creative and welcome
additions include providing training and assistance to small landowners on delinea-
tion; creating an available index of all regulatory documents; and requiring the
agencies to assess their needs so that an efficient program can be designed.
Beyond efforts to improve delivery of a strong regulatory program, S. 1304 also
strengthens wetlands protection. It endorses the no net loss goal; clarifies the defini-
tion of wetlands; expands the list of activities subject to jurisdiction under section
404; and more clearly defines what is "fill." We do believe that watershed-based
planning for wetlands also will greatly enhance wetlands protection in the long
term. My fellow colleeigue from Oregon will be spearing in more detail about water-
shed and local wetlands planning, but I want to express my strong support for these
provisions in the bill. I understand that local and regional wetlands planning has
been characterized by some as an effort to weaken rather than strengthen wetlands
protection. I cannot disagree more. Absent a context for wetlands decision making,
we will continue to see cumulative losses and will not have the proper perspective
for functional assessments and mitigation.
In spite of our enthusiasm for S. 1304, we are disappointed that the bill does not
contain explicit language governing sequencing of mitigation requirements. We be-
lieve it is critically important first to always avoid impacts to wetlands, then to min-
imize any impacts that cannot be avoided, and finally to offset any remaining im-
pacts through compensatory mitigation such as restoration or creation of wetlands.
Without an explicit declaration in the statute of these sequencing requirements, we
fear that too often the process will jump to compensatory mitigation when, in fact,
the impact may have been avoidable altogether. We do believe some flexibility must
be available — which is best defined through watershed or regional plans — ^but we
strongly urge that sequencing be followed whenever possible.
In closing, I would like to reiterate that we are encouraged by the similarities be-
tween S. 1304 and the White House Wetlands policy. Some provisions are explicitly
similar, such as using the current EPA definition of wetlands; endorsing state wet-
lands conservation planning; and exempting prior converted croplands. Others are
conceptually similar: providing timelines for permit reviews; increased outreach to
educate the affected public; and continued use of the 1987 manual. I urge congress
and the administration to continue this cooperative approach and to aggressively
seek to move wetlands protection forward and out of the morass of conflict that has
consumed it for the past several years. On behalf of New York and other states, we
welcome the new spirit of cooperation and partnership with the states, and look for-
ward to helping deliver a stronger wetlands program.
Thank you. I welcome any questions you may have.
1235
Testimony provided by Mark Latch, Director, Division of Water
Management, Florida Department of Environmental Protection to the
Senate Committee on Environment and Public Works, Subcommittee on
Clean Water, Fisheries and Wildlife — 9/15/93
Good morning/afternoon, my neune is Mark Latch and I am the Director
of the Division of Water Management in Florida's Department of
Environmental Protection. The Department is the lead state agency
for permitting of activities impacting waters and wetlands. We are
also seriously considering state assumption of the Clean Water Act
Section 404 permit program. For these two reasons, we have a vital
interest in reauthorization of the Clean Water Act, specifically as
it relates to Section 404.
Florida has an extremely active wetlands permit program based on
regulation of wetlands impacts through the dredge and fill program
and regulation of the management and storage of surface water.
Authority for these two programs is split between the Department
and five regional Water Management Districts. Recent interagency
agreements and legislation have resulted in the first steps toward
streamlining these regulatory programs into a single decision
making process and developing a statewide wetlands delineation
methodology. The intent is that when the streamlining process is
completed an applicant will deal with a single agency for all
wetland permits required under state law. To further this
streamlining initiative, the state requested and received funding
from EPA to investigate the feasibility of assuming the Section 404
permit program and, potentially, develop an assumption package.
However, based on the work conducted to date, we find that a State
Programmatic General Permit may be a more attractive alternative
for the Florida progrzun. Given the current statutory restrictions
on assumption, that are contained in the Clean Water Act, it is not
possible to develop an assumption package for a comprehensive
statewide program such as Florida's. We have proposed the
following language to the Florida delegation to amend the Clean
Water Act. We think this language will remove some of the
impediments to assumption.
1. This amendment removes the prohibition on states assuming
the federal dredge and fill program for navigable waters.
Without this eunendment, the state would not be able to
assvime the federal program in large portions of the state.
In addition, because the boundaries between navigable and
non-navigable waters are not clearly defined in many
waters, assumption would add a step to determine which
agency had jurisdiction. Both of these factors would
severely impede the goal of establishing a procedurally
simplified program. Permits recpiired by Section 10 of the
Rivers and Harbors Act will still be required for
construction in navigable waters, but could be
reviewed under a State Program General Permit or
nationwide Permit that is based on proper review of
navigational issues in the 404 permit.
Section 404(g)(1) is cimended by striking language as
1236
follows:
(g) (1) The Governor of any state desiring to
administer its own individual and general permit
orogram for the discharge of dredged or fill material
into the navigable waters •fether-thaB-fehese-wafeers
whiek-are-preaeB^ly-usedr-er-eFe-suseeptible-fce-uae-iB
%heiF-Bat\Ufal-eeBdit*eB-er-by-veaaeBeble-ifflpreveBeB4:
as-a-HeaB8-^e-teraBspert-±Bteerstefce-er-£ereigB-eemBeree
aheBewasd-te-fcheir-erdiBary-high-wafeer-markr-iBoitidiBg
aii-wafcer8-whieh-are-s«bjeefc-te-the-ebb-aBd-«iew-eC
febe-fe4de-Bherewaed-t©-their-aeaB-high-water-marltT-©r
BeaB-higher-high-water-mark-OB-the-west-eeastx
iBeividiBg-wetlaBds-ad^aeeBt-teheretee)-, within its
jurisdiction may submit to the Administrator a full
and complete description of the prograjn it proposes to
establish and administer under State law or under an
interstate compact. In addition, such State shall
submit a statement from the attorney general (or the
attorney for those State agencies which have
independent legal counsel) , or from the chief legal
officer in the case of an interstate agency, that the
laws of such State or the interstate compact, as the
case may be, provide adequate authority to carry out
the described progr<un. .
This section amends the Act to remove the current five
year limitation on state-issued 404 permits. There is no
similar limitation on the issuance of 404 permits by the
Corps of Engineers. Florida law allows issuance of 25
year permits with a five year review. This amendment
allows issuance of permits in the same manner as current
Florida law. There does not appear to be any need to
limit the term of permits to five years as long as
periodic review, with the addition of applicable new
requirements, is required.
Clause (ii) of Section 404(h)(1)(A) is amended to read as
follows:
"(ii) shall be -
"(I) issued for fixed terms not exceeding 25
years ; and
"(II) if issued for a term that exceeds 5 years,
reviewed by the State not later than 5 years after
the date of issuance and every 5 years thereafter
for the duration of the term to ensure that the
conditions of the permit are being met by the
permittee and to consider, and include as permit
conditions where appropriate, all applicable rule
requirements adopted during the prior 5 year
period.
The current Act requires that as soon as a state program
is approved, all pending applications are transferred to
the state. This has been termed the "clean break"
provision. However, a clean break will have adverse
impacts on the state, the Corps of Engineers and
applicants. The immediate transfer of large numbers of
1237
permits that have been processed in part by the Corps of
Engineers to new processors could potentially overwhelm
the state system. State processors would be taking on a
large number of permit applications at various stages of
preparation. This will likely result in delays for
applicants while the state processors become familiar with
applications on which the Corps of Engineers personnel
have already spent considerable amount of time. In
addition, the sudden transfer of the permits would not
allow the Corps of Engineers adequate time to adjust
personnel to other tasks and allow for phase out of
positions, should that be necessary. This proposed
provision will allow the Corps of Engineers to complete
the processing on applications that are already before
them and the state would be responsible for the new
applications that were submitted. This is especially
important in states such as Florida in which there are
large numbers of applications for permits pending at any
one time. However, the same rationale would apply to
other states as well.
The other amendment to this section provides for the Corps
of Engineers to continue monitoring, enforcing and issuing
any modifications of previously issued Corps of Engineers
permits. The justifications for this provision are
similar to those expressed above for processing permit
applications. The Act does not specifically assign the
responsibility for continued administration of previously
issued permits. Allowing the Corps of Engineers to retain
responsibility for such activities would relieve the
potentially excessive burden on the state in enforcing
unfamiliar permits, provide for a smoother transition for
the Corps of Engineers, and afford applicants better
continuity, by allowing them the ability to deal with the
original pemnitting agency.
Paragraph (4) of Section 404(h) is cunended by striking and
adding language as follows:
(4) After the Secretary receives notification from
the Administrator under paragraph (2) or (3) of this
subsection that a State permit progreun has been
approved, the Secretary shall transfer any
applications for permits siibiect befese-the-Beeretasy
Ser-aetiYifeies-wifch-srespeot-te-whieh-a-peraife-aay-be
iasued-pttssuaBfe to such State program and received
after such notification to such State for appropriate
action. The Secretary shall retain the authority to
administer and enforce the permits issued by the
Secretary, including the authority to issue and
enforce modifications thereto.
We also propose changes to the language regarding general
permits allows the Corps of Engineers to enforce and
administer previously issued permits. The language is
similar to that proposed for individual permits. The same
rationale as was given for individual permits supports
this provision.
1238
Paragraph (5) of Section 404(h) is amended by striking and
adding language as follows:
(5) Upon notification from a State with a permit
program approved under this subsection that such State
intends to administer and enforce the terms and
conditions of a general permit issued by the Secretary
under subsection (e) of this section with respect to
activities in such State to which such general permit
applies, the Secretary shall suspend the issuance
edBiB±stere^ieB-aBd-eB£ereeBeBfc of -such general permit
with respect to such activities but shall retain the
authority to administer and enforce the general
permits previously issued by the Secretary with
respect to such activities.
This amendment allows the Administrator the ability to
overlook minor differences in the proposed state program
so long as the effectiveness of the protection of waters
of the United States is not impaired. If the program does
not differ from the requirements, the Administrator is not
required to make an explicit determination as the
requirements are designed to ensure parity of programs.
Paragraph (6) is added to section 404(h) to read:
"The Administrator may approve a program svibmitted
under subsection (g) (1) that varies in minor respects
from the requirements of this section if the
Administrator determines, after review of the proposed
state program, that the proposed state program will
afford the seune or greater degree of protection to
waters of the United States as the federal program
affords."
This amendment provides funds to allow for the start up of
the program by a state. The expenses incurred by an
assuming state program for training personnel, adopting
procedures and providing facilities and equipment to
handle the new program will be significant. The states
will need assistance to carry out all of the activities
required for the transfer of the program and setting up
the needed coordination with federal agencies.
Paragraph (6) of Section 404(h) is continued to read:
(A) IN GENERAL. - The Administrator of the
Environmental Protection Agency is authorized to make
a grant to any State that has received approval for an
individual or general permit program for the discharge
of dredged or fill material into navigable waters
pursuant to section 404 of the Federal Water Pollution
Control Act (33 U.S.C. 1344).
(B) USE OF GRANTS. - Amounts of a grant made to a
State under subsection (A) may be used by the State
only for covering administrative and other expenses
associated with commencing the implementation of a
permit program described in subsection (A) .
<C) AUTHORIZATION OF APPROPRIATIONS. - to carry out
1239
this section, there are authorized to be appropriated
to the environmental protection agency $1,000,000 for
fiscal year 1994 to remain available until expended.
These amendments would go a long way toward making assumption of
the Section 404 program more attractive to Florida and other
states. Given the experience of Florida and other states that have
considered assumption, we would also suggest that consideration be
given to clarifying the relationship between federal endangered
species protection statutes and state assumed Section 404 permit
programs. Protection of endangered species is a major emphasis
under the existing Florida program. However, should we assxime the
Section 404 progreun, we are concerned that current federal statutes
and policies may result in an excessive federal agency coordination
burden on the state with no increase in endangered species
protection.
Thank you for the opportunity to comment on Florida's concerns with
respect to the Clean Water Act reauthorization.
We understand that there are currently two bills filed that deal
with Section 4 04 of the Clean Water Act. Department staff has
reviewed S. 1304 and we offer the following comments for the
record. We received a copy of S. 1195 late last week and were not
able to complete our review in time for this hearing. We will
submit S. 1195 comments as soon as possible.
The amendments to the Clean Water Act proposed by Senators Baucus
and Chafee in S. 1304 codifies many of the components included in
President Clinton's recently announced wetlands initiative. In
general, the bill includes good measures for the effective and
efficient protection and regulation of wetlands and is strongly
endorsed by the state of Florida. The specific comments that
follow relate to areas of the bill that will have an effect on the
state's protection of wetlands, our efforts to reduce the
duplication between the state and federal wetland regulatory
programs, and other comments based on our experience with wetlands
regulatory programs.
SEC. 3 DECLARATION OF POLICIES AND GOALS
The proposed language, (3) (8) , does not emphasize the
enhancement of degraded wetlands or the need to increase
the extent of and prevent the overall net loss of
functional wetlands. We suggest the language be revised
as follows:
"It is the national policy to achieve, through
regulatory and non-regulatory strategies involving all
levels of government —
(A) the restoration and enhancement of degraded
wetlands to increase the quality and quantity of the
functional wetland resources-base of the United
States; and . .
(B) no overall net loss of the remaining functional
wetlands resetisee-base of the United States."
SEC. 4 DEFINITION AND DELINEATION OF WETLANDS
1240
We concvir with the position of the bill that the 1987
Federal Manual should be used in the interim period while
the National Academy of Sciences studies the issue of
wetland delineation. The 1987 manual provides sufficient
flexibility so that it can be used to achieve accurate
wetland delineations in Florida. However, the 1987
hydrology criteria is much too long (12.5% of the growing
season or about 45 days in Florida) . We feel that the
appropriate hydrology criteria is that which results in
the development of hydric soils. Therefore, a more
appropriate number for the hydrology criteria would be 7
continuous days of inundation or 14 or more continuous
days of saturation. We also strongly concur with the
portions of this section that require that the new
guidelines issued be developed in consultation with the
States, and tadce into account regional or state variations
in hydrology, soils and vegetation. This is critical to
developing a wetland delineation methodology that is
accurate nationwide. The previous methodologies did not
allow for regional variation. ...
Additional exeunples of wetland types should be added to
reflect the type of wetlands that occur in Florida. It is
specifically suggested that the following wetland types be
added: hydric seepage slopes, bayheads, cypress domes and
strands, sloughs, wet prairies, riverine swamps and
marshes, tidal marshes, and mangrove swamps.
The proposed annual $5,000,000 taxpayer subsidy to private
landowners who "lack the financial capacity to identify or
delineate wetlands in order to apply for permits... or to
avoid impacts to wetlands" has the potential of serious
abuse and diverts scarce federal resources from existing
wetlands delineation programs. This approach is
particularly troubling since the Corps currently does not
charge a fee for wetland delineations. Further, the 90
day time clock of wetland delineations, may be an
unreachable goal depending on staff resources and
workload. We suggest that, at minimum, the time clock
only apply to complete requests.
SEC. 5 REGULATION OF ACTIVITIES
This section meikes changes to the activities that are
regulated, and appears to close some existing loopholes in
the federal program. The new definition of "fill
material" appears to include pilings (although this is not
explicitly stated) , which were not previously covered.
Previously, projects designed to circumvent the
regulations, such as development built on pilings rather
than fill, could not be regulated. This change makes the
federal program more consistent with Florida's program.
The new definition of "discharge of dredged or fill
material" now appears to include excavation in wetlands
(although in a somewhat convoluted manner) and closes
1241
another loophole in the existing federal program. This
change makes the federal program more consistent with
Florida's program.
SEC. 6 PERMIT PROCESSING IMPROVEMENTS
This section requires that the Corps of Engineers must
take action on an application within 90 days of the date
of publication, with exceptions for some listed
circumstances. Florida's program has a similar
requirement, but the 90 day time clock begins at the time
the application is complete. It has been our experience
with the Corps of Engineers program that publication of
the application is done long before adequate information
has been received to maike a decision on the application.
Therefore, unless the Corps of Engineers is allowed to
obtain this information prior to publication, this
provision may not be workable, and may result in the Corps
of Engineers having to deny applications to meet the 90
day time clock when adequate information has not been
submitted. The existing provisions regarding publishing
need to be examined to determine if there is enough
flexibility to allow the Corps of Engineers to request
this needed information prior to publishing. If not,
changes should be made that provide for requesting and
receiving the needed information prior to publishing. To
overcome the fear that the agency may make unreasonable
information demands, a provision, such as exists in
Florida's program, could be incorporated that allows the
applicant to request that publishing, and hence the 90 day
clock, begin with the information already submitted.
This section also provides that the 90 day time clock can
be waived if the Secretary and the permit applicant
determine that additional time is needed to evaluate the
application. This is a useful provision that provides
needed flexibility to resolve problems. However, this
provision should not be viewed as a solution to the
problem discussed in the previous paragraph, as it will
inevitably lead to charges that the agency is routinely
having to request additional time from the applicant, and
that they are not meeting their charge to act within 90
days .
SEC. 7 GENERAL PERMIT IMPROVEMENTS
This section includes specific provisions for general
permits to be issued to existing State, Tribal, regional
or local regulatory programs to avoid duplication if the
programs meet certain conditions. This section appears to
address the legal concerns over the validity of State
Programmatic General Permits (SPGP) that have occurred
under existing law and if so, should greatly enhance the
usefulness of this approach to reducing regulatory overlap
in Florida. The conditions and requirements included in
this section to be placed on a state under a State general
1242
permit appear to be reasonable and appropriate. The State
of Florida strongly supports this section of the bill.
The bill contains language that restricts general permits
to regional and local entities after December 31, 1996, to
areas with an approved wetlands and watershed management
plan. We would like to stress that this requirement
should not apply to state progreonmatic general permits,
which is our understanding of the bill. Developing a
statewide wetlands and watershed management plan pursuant
to Section 322 would not be possible on a statewide basis.
On page 11, line 5, the following change would seem to
more accurately reflect the intent of this paragraph:
"...Atmospheric Administration) to review permit
[decisions] applications "
SEC. 8 COORDINATION AND CLARIFICATION OF PROGRAM CONCERNING
AGRICULTURAL ACTIVITIES
In general, the changes in this section appear to make the
federal program more consistent with Florida's program.
There are several areas in this section that discuss
exempt activities that need clarification. Specifically,
it is not clear that some of the activities mentioned are
related to agricultvire, and therefore exactly which
activities- are exempt is not clear. It may be preferable
to separate out those exempt waters or activities that are
not intended to be related to agriculture. Specifically
these include:
Page 14, 20-22, which relates to artificial reflecting
or swimming pools or bodies of water created for
aesthetic purposes in uplands, .
Page 15, lines 1-5, which relates to mining pits in
uplands.
Page 15, lines 6-8, which relates to treatment areas
that are not modifications of navigable waters.
Page 15, lines 17-21, which relates to maintenance of
groins, riprap, breeJcwaters , causeways, bridge
abutments or approaches, and "transportation
structures" , and
In addition, we have concerns that some of the activities
proposed to be exempt have the potential to cause
significant adverse environmental impacts, and should not
be included as exemptions. These include:
Page 15, lines 13-16, minor drainage should be deleted
from the list.
Page 15, line 22, the construction of farm stock ponds
should be exempt only when these ponds are constructed
1243
in uplands. The construction of such ponds by
impounding streams and wetlands should specifically
not be an exempt activity.
Page 16, line 7, which relates to temporary roads to
move mining equipment.
It has been our experience in Florida that these crossings
for large draglines associated with phosphate mining, can
represent more than a minor impact to wetland resources.
In addition, these "temporary" crossings may need to
remain in place for several years. In our opinion these
activities are better regulated under an individual or
general permit that provides conditions for construction,
conditions and a timetable for removal of the road, and
conditions for restoration of the wetland.
The exemptions provided in this section are not identical
to those within Florida's program, however, they should
not create an obstacle to assumption or an SPGP as
Florida's program may be more protective in these areas.
SEC. 9 MITIGATION BAKKS
This section requires that rules be established for the
establishment, use, maintenance and oversight of
mitigation banks, and provides other direction for the use
of mitigation banking in the regulatory process. This
approach is very consistent with the directives of
mitigation banking passed by the Florida Legislature as
part of the Florida Environmental Reorganization Act of
1993 (HB 1751) . Rules for the use of mitigation banks in
the state regulatory process are being drafted and should
be adopted by Jan. 1, 1994. This section of the bill
should make the federal and state programs more
consistent.
SEC. 12 WETLMTO CONSERVATION, MANAGEMENT AND RESTORATION
This section provides funding opportunities for states
wishing to develop State Wetland Conservation Plans. In
the past, Florida has not been interested in pursuing the
development of a State Wetland Conservation Plan, as it
did not seem to provide many benefits to a state with an
advanced regulatory program and established acquisition
programs for environmentally sensitive lands. However,
the State Wetland Conservation Plan, as outlined in the
bill, may be useful to Florida to enable it to acquire
funding for worthwhile activities that it has not
previously been able to fund. These include an inventory
of wetland resources in the State, identification of sites
with wetland restoration potential, and measures to assist
in the development of wetland and watershed management
plans. . .
This section provides further opportunities for states to
obtain funding to develop wetland and watershed plans.
1244
The plan may be developed or implemented by the state, a
regional district, local government or any other public or
nonprofit entity which has adequate powers to carry out
the outlined responsibilities. Most of the agencies
dealing with environmental protection in Florida have come
to the realization that advanced watershed planning is
"the way to go" to provide meaningful protection to the
state's wetlands, recognizing that the wetlands are
dependent upon, and an integral part of the surrounding
ecosystem. The regulatory system alone cannot achieve a
proper watershed approach. The problem in implementing
this approach has been adequate funding to develop these
watershed plans. There has been an debate over whether or
not mitigation credit should be given for the development
of these plans. Although most people recognize that a
plan by itself does not offset actual impacts, there
seemed to be no other way to get these much needed plans
developed. Federal funding for development of some of
these plans is an excellent solution to this problem and
should be strongly supported.
1245
Testimony before
The U. S. Senorte
Subcommittee on Cleon Water, Fisiieries and Wildlife
Committee on Environment and Public Worlcs
Conceming S 1304
by
Kennett) F. Bierty
Wetlands Program Manager
Oregon Division of State Lands
Seplemfc>er 15, 1993
1246
I am Ken Bierly, Manager of the Wetlands Program for the Oregon Division of
State Lands. I am here today to represent one western state's view of the
proposed legislation (S 1304) concerning wetlands in the considerations to
re-authorize the Clean Water Act. First, I will describe Oregon's situation, and
then I will make some observations applicable to the federal program.
imnoDUCTioNnnE setting
Oregon is the tenth largest state in the union, a fact I didn't fully appreciate
until it became my responsibility to compile an inventory of the state's
wetlands. Oregon has a tremendous diversity of climatic and ecological
conditions; the northwest coast receives precipitation in excess of 10 feet per
year while the interior basins of the southeast get less than 5 inches per year.
While temperatures are generally mild, the alpine regions of the Cascade
Range and Blue Mountains may freeze any month of the year; snow
accumulations in the Cascade Range frequently exceed 20 feet.
Major river systems dominate the landscape of the Pacific Northwest. The
mighty Columbia forms our northem border. Rowing north into the Columbia,
the Deschutes and John Day Rivers drain the high lava plains of Central
Oregon and the Blue Mountains respectively. The Willamette River and many
other smaller streams flow through a broad fertile valley draining the flanks of
the Cascades and Coast Range. Similarly, numerous streams drain the
westem flanks of the Coast Range, flowing into the ocean through estuarine
marshes. The Rogue and the Umpqua rivers have cut through the Coast
Range, to drain the Southern Cascades and the Klamath Mountains. These
streams support salmon, steelhead, and native trout runs matched in few
areas for quality, quantity and diversity of fishing. On the Cascade, Blue,
Coast, and Klamath Mountains are forests that have supported a major timber
industry for the last 150 years.
Although more diversified industry is coming to Oregon, the state has
traditionally had a resource-based economy. Agriculture is Oregon's leading
economic sector. The state produces a broad variety of crops and other
agricultural products. True to the pioneering spirit, Oregon's agricultural
economy is based primarily on the family farm. Ranking second to agriculture
in economic importance to the state is the timber industry. I need not explain
the difficulties the state is going through with conflicts between this economic
sector and the protection of the spotted owl and ancient forests.
More than half the surface of the state is managed by the federal
govemment-namely the Bureau of Land Management and the Forest
Service. Consequently, Oregonians are very sensitive to federal land
management issues. Developing a partnership relationship is critical to
effectively managing the state's natural resources.
Since 1980, Oregon's population has grown over 13% from 2.6 million to 3.0
million, far outpacing the increase in the United States over the last decade.
The population of Portland alone has increased by 25% over the same period.
These trends are expected to continue as more people find the Pacific
Northwest a desirable place to live. As Oregon's population continues to grow,
so also does the demand for resource use.
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According to the most recent estimates, there are some 1.4 million acres of
wetlands in Oregon. There has been a loss of nearly 38% of the area of wetlands
since the settlement of the state. It is important to recognize that much of this
historical loss was a direct result of public policy. The Swamp Lands Act of 1860
allowed settlers to obtain property by draining and converting land to other uses.
More than 310,000 acres have been transferred to private ownership under this
program. During 1905, companion federal and state legislation formulated a
program to drain and convert wetlands in the Klamath Basin to agricultural use.
Nearly 300,000 acres of wetlands were drained and thus lost in this basin alone.
Federally funded flood control projects have resulted in dikes that alter regular tidal
inundation of the upper reaches of many of Oregon's estuarine wetlands. Flood
control and drainage projects throughout the Willamette Valley and along the
Columbia River have significantly affected seasonal flooding patterns. The
expanse of wet prairie in the Willamette Valley has been so reduced that a number
of state and federally listed threatened and endangered plant species are
associated with those few remaining habitats.
Despite our unique and diverse heritage, Oregon is like most other states. We
have a history of wetland losses due to past state and federal policy. There are
competing land uses for our remaining wetland resources. Wetland losses have
not been equally distributed through out the state, but concentrated in the urban
and agricultural areas of the Willamette Valley, and in other agricultural centers.
OREGON'S WETLAND PROGRAM
The state legislature recognized the importance of aquatic resources to the people
of Oregon relatively eariy. In 1967, out of concern for protection of spawning areas
for our native fishery resources, Oregon initiated state laws to regulate the removal
of material from state waters. In 1971 , out of concern over the filling of estuarine
wetlands in Oregon, the legislature (under the leadership of Governor Tom McCall)
adopted laws regulating the placement of fill into Oregon's waters. Oregon's
legislation preceded the Clean Water Act requirements established in 1 972 and
Oregon's program has "grown up" with the 404 program.
This parallel history has given Oregon 20 years of experience in working with the
federal wetlands program. Oregon's Legislature has changed the state regulatory
program neariy every biennial session. In 1989, the Legislative Assembly created
a wetlands program that provides a significantly broader context for wetland
permitting.
Oregon's existing program:
1 . requires the state to develop a statewide wetland inventory;
2. requires the state to provide the completed wetland inventory to each local
govemment (city and county);
3. requires each local government to notify the state of any proposed land use
action affecting inventoried wetlands;
4. allows local governments to develop wetland conservation plans under state
guidelines and standards;
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5. requires the Division of State Lands to issue permits according to the criteria of
those state-approved, locally-adopted wetland conservation plans; and,
6. requires the state to develop a public information program about wetlands.
It has been our experience that moving from a regulatory program alone to a more
comprehensive wetland management program with a regulatory element is
beginning to significantly enhance public understanding and acceptance of wetland
regulation.
THE FEDERAL WETLAND PROGRAM
Currently, the federal government's wetland program is predominantly found in
Section 404 of the Clean Water Act. The Food Security Act of 1 985 (as amended
in the 1990 Farm Bill) now also provides wetland regulation on agricultural lands.
These two regulatory programs have led to a variety of complaints by
environmental interests, development interests and the regulated public. The
complaints range from concerns that the program is too expansive and intrusive on
private property rights to the claim that the program does not effectively address
those activities that lead to significant wetland losses.
I would like to discuss several aspects of the 404 program, as they are addressed
in S 1 304. The discussion is based on the experience in Oregon where the state
has taken a parallel course to the federal 404 program. There are three topics that
I believe are of great significance to the people affected by this legislation:
1 . THE PROGRAM NEEDS GOALS AND A CONTEXT FOR THE PERMIT
PROGRAM
2. THE PROGRAM MUST BE AS CLEAR AS POSSIBLE TO AFFECTED
LANDOWNERS
3. THE PROGRAM IS TOO IMPORTANT TO BE ONLY A FEDERAL
PROGRAM
PROGRAM GOALS AND CONTEXT
The 404 program is the only Clean Water Act permitting program that does not
have a cleariy defined goal. President Bush's Domestic Policy Council deliberated
for more than four years on the "no net loss" goal. It is time to quit debating and
adopt a policy. Without a policy goal, the permitting process resembles "let's make
a deal."
S 1304 provides two specific changes to the 404 program that clarifies the program
goals and allows a context for permitting to be developed by local Wetland and
Watershed Plans. The explicit policy statement "it is the national policy to achieve,
through regulatory and non regulatory strategies involving all levels of
government-" "(A) the restoration of wetlands to increase the quality and quantity of
the wetlands resource base of the United States; and (B) no overall net loss of the
remaining wetlands resource base of the United States" provides clear and explicit
guidance for policy implementation. This policy statement is bolstered by placing a
definition of wetlands in the Clean Water Act. The policy statement and goal have
broad support and are cleariy needed to eliminate the confusion over the
applicability of the Clean Water Act to wetland resources.
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1249
Oregon's experience in aquatic resource regulation was established to protect
anadromous fish and estuarine marshes. A review of these two resources is
instructive as it relates to the Clean Water Act program. Oregon's initial approach
was a regulatory permitting program that responded to proposed alterations. In
1973 Oregon adopted a statewide land use planning program. One of the primary
elements of that program was the development of estuary management plans
adopted by local governments. The plans have identified 99.4% of Oregon's tidal
marsh wetlands as Natural (91.8%) or Conservation (7.6%) management units.
These locally adopted plans confine state permitting to be compatible with the local
land use designations. The result of the planning efforts along the Oregon coast
has been a decline (to nearly nothing) of pemnit applications for tidal marshland
filling. The power of the program has been the local process with strong state
guidance. The outcome has shaped local expectations and helped identify and
truly protect these wetland resources.
Protection of streams for anadromous fish was approached as a regulatory effort
without a planned outcome. With current listings of Columbia River salmon stocks
as threatened or endangered and petitions to list as many as 1 00 additional stocks,
it has become clear that the reactive permitting program alone is not working
effectively. This last state legislative session Governor Barbara Roberts introduced
a "Watershed Health Benchmark Proposal" to look at disfunctional watersheds,
evaluate their ills, plan for their improvement, and protect and restore their health.
This proposal was funded during a time of budget shortfalls and was seen as the
most effective way to approach complex and intertwined natural resource problems.
The Wetlands and Watershed Management Plans (Section 322) are a powerful tool
that will allow local communities to devise programs that will work in their
circumstances. This portion of the proposed Act is of central importance for two
reasons; first it empowers local communities to identify solutions to their unique
problems, second it provides specific guidelines for the necessary information and
goals for the planning. The adoption of these plans will provide a context for
permitting that is currently absent. This structure reestablishes the rational
relationship of a permit being an implementation device for a planning effort. The
Wetlands and Watershed Management Plans provision of S 1 304 is new and
necessan/ for the program to make sense both for the resource and for the affected
people.
CLARIFICATION OF THE PROGRAM TO AGRICULTURE
Oregon is an agricultural state. The state's agricultural and fishery production
approaches $3 billion annually. Fanm income has been an increasing portion of the
state's economy over the last 10 years. Many Oregon commodities rank very high
in the national scope, with 26 commodities ranking fifth or better nationally in
production or value of production. Maintenance of a healthy agricultural economy
is of great significance to the west and especially to Oregon. No other sector of the
country understands the importance of water for their economic livelihood than
agriculture. We in the west have a clear and pressing need for clean water.
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The agricultural community has been encouraged in the past by public policy to
drain wetlands for the public good. Many are confused about the reversal of public
policy and concerned about the effect of policies and njmors of policies that could
affect their operations. In Oregon this becomes very personal, because of the wide
variety of crops produced, there are an exceptional percentage of family fanms that
depend on agricultural income for their livelihood. Additionally, only a small
percentage of Oregon farmers are participants in U. S. Department of Agriculture
programs.
There is an interesting discrepancy between image and reality in the wetlands
program. Public information materials about wetlands focus on standing water and
watertowl. Most public debate surrounds more subtle environments with seasonal
flooding or saturation and values other than waterfowl. I have had a poster that the
state developed jointly with the Corps and EPA thrust in my face with the challenge,
"Why don't you use photographs of my backyard or pasture?" This conflict in
perceptions harkens to the discussions associated with the delineation manual but
raises the larger question of providing clear information about the recognition of the
functions and values of seasonally flooded or saturated systems. Public
information and outreach are crucial functions of government that are addressed in
S 1304.
The requirement of S 1304 to recognize "Minimal Effects" determinations made by
the Soil Conservation Service in consultation with the U. S. Rsh and Wildlife
Service (Section 7) is a step in regulatory clarification that can only be applauded.
The mandate of Section 8 to "develop consistent criteria and procedures" between
the Clean Water Act and the Food Security Act is an overdue effort. You have
cleariy recognized the agricultural communities' concem about the effect of wetland
regulatory program on their operations. These steps along with the specific
mandate to coordinate activities with the Secretary of Agriculture (Section 8) and
the requirement to assist small landowners and provide public information (Section
4) will help to relieve some of the concems raised by uncertainty.
The approach taken by S 1 304 is to clarify the interaction between two complex
programs rather than eliminate one or the other. It is an approach that recognizes
the problems and addresses them directly. The clarifications provide continued
wetland protection and address recognized problems with the program. While
some in the agricultural community wish the Clean Water Act would disappear,
many of the producers I speak with cleariy see the need for the program "if they
could just understand it". The recent brochure developed by the Environmental
Protection Agency is a big step in the right direction that can be a part of the
information required by Section 4 of S 1304.
SHARING THE RESPONSIBILITY
Different levels of government often have differing capabilities and authorities.
Clear recognition must be made of the opportunity to achieve the Clean Water Act
objectives of protecting the biological and physical integrity of the nation's waters
using the authority and creativity of the states and local communities. It is well
understood that many of the nation's water quality "problems" result from land use
practices. Land use regulation is a police power reserved to the states. Given a
federally defined goal, technical assistance, and modest financing, states and local
governments can implement equally efficient and more effective programs. State
and local programs can direct land use and regulate water use, powers not vested
in the federal government.
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The Clean Water Act currently recognizes only two mechanisms for states to
interact with the federal wetland program; (1) through water quality certification of
federal permits, or, (2) by assuming federal permitting. Michigan is the only state to
assume the program since 1977. This is an interesting contrast to the other EPA
administered programs (402, RCRA, etc.), where most states have assumed
authority. In the nine years since Michigan assumed the program, only two
projects have raised significant conflict. In both cases the conflicts have been
resolved short of legal resolution. Recently EPA conducted an analysis of ban-iers
to state assumption of 404 permitting.
Oregon created a program to encourage local governments to develop detailed
wetland conservation plans that require prevention of net loss of wetlands. The
level of interest in local wetland planning surprised many people. We have been
working with the Portland District Corps of Engineers to identify opportunities to
recognize the results of these planning efforts in the federal permitting program.
The legal staicture of Section 404 of the Clean Water Act focuses on federal
permitting. This focus has limited options available to the federal government, and
this has dampened the enthusiasm of local communities to commit to the effort
necessary to develop wetland plans. The most clearly expressed concern from
local communities is "What good is our investment in time and effort if the Corps is
not going to recognize the results?"
The provisions of S 1304 ensure that the 404 program explicitly recognizes
Oregon's wetland planning efforts and authorizes regional permitting for acceptable
plans that meet the no net goal. Our experience indicates that wetland planning,
among other benefits, allows for creation of corridors and connections between
fragmented resources rather than encouraging increased fragmentation as the
current permit system does.
We also know through experience that involving local communities and state
agencies expands the effective labor pool available to protect wetland resources.
Since there is little likelihood that significant additional funding will be added to
federal programs, effective use of state and local governments to assist in program
implementation as structured in S 1 304 is crucial to ensure the nation's wetlands
are protected. S 1304 specifically creates opportunities for local communities to
integrate wetlands into stormwater management, water quality protection, flood
protection and other infrastructure needs.
President Clinton has explicitly adopted as a principle for federal wetlands policy
that "the Federal government should expand partnerships with State, Tribal, and
local governments, the private sector and individual citizens and approach
wetlands protection and restoration in an ecosystem/watershed context." This
approach has been adopted by Oregon and is supported by Sections 7 and 322 of
S 1304. This recognition of the need for partnerships is meek and should be
bolstered. Our experience in Oregon is not promising that the federal govemment
is prepared to shift from a "command and control" permitting approach to a
"partnership" program that uses planning approaches to define desired outcomes
without clear direction from Congress.
1252
The proposed language of S 1 304 goes a long way towards creating a national
wetlands management program that respects agricultural practices, creates
opportunities for local communities to become involved positively and clearly
addresses many of the issues of the current program. I encourage your support.
I would ask only one change that I believe would eliminate a confusion in the
printed bill. Section 7 (e) (3) (B) which provides a sunset for state program general
permits raises significant questions for states (and local governments) that have
regulatory programs that duplicate 404. States lil<e Maryland, Florida, Wisconsin,
North Carolina, and New Hampshire, etc. have effectively used state program
general permits to minimize regulatory duplication and have ocassionally increased
wetland protection. To make this regulatory clarification become a forcing function
on the state to create a wetlands and watershed management plan statewide or
regionally after 1996 becomes rather draconian. I would suggest you delete
Section 7 (e) (3) (B). The tie between state program general permits and wetland
and watershed management plans confuses two issues, eliminating permitting
duplication (State Program General Permit) and creating a context for pennitting
(Wetlands and Watershed Management Plans).
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TESTIMONY OF ROBERT G. SZABO, THE NATIONAL WETLANDS COALITION
Mr. Chairman, and Members of the Subcommittee, thank you for the opportunity
to appear before you today. My name is Robert G. Szabo. I am a member of the
Washington, D.C. law firm Van Ness, Feldman and Curtis and appear before you
today in my capacity as Counsel to The National Wetlands Coalition. The Chairman
of the Coalition, Mr. H. Leighton Steward, who is the Chairman, Chief Executive
Officer and President of The Louisiana and Exploration Company, bad previous
commitments that did not permit his appearance before you today.
The members of our Coalition thank you for focusing the attention of the Subcom-
mittee on this important, but difficult and divisive, issue as part of the Subcommit-
tee's work on the Clean Water Act Reauthorization legislation. We also thank the
Chairman and Ranking Minority Member of the full Committee for their leadership
in introducing legislation on this important subject.
Our Coalition has endorsed and continues to support the enactment of H.R. 1304,
the Comprehensive Wetlands Conservation and Management Act of 1993, which has
not been introduced in the Senate. Our testimony before you today will focus on S.
1304, the Wetlands Conservation and Regulatory Improvements Act, which was in-
troduced on July 28th by Senators Baucus and Chafee, and the President's wetlands
program recommendations issued on August 24th, entitled "Protecting America's
Wetlands: A Fair, Flexible, and Effective Approach."
THE NATIONAL WETLANDS COALITION:
The National Wetlands Coalition wels incorporated on September 1, 1989 for the
sole purpose of participating constructively in the Federal wetlands regulatory
policy debate initiated by the commitment of President Bush to a national goal of
"no overall net loss of wetlands" and his establishment of a Task Force of the Do-
mestic Policy Council to develop the necessary policy recommendations to achieve
that goal. Our members are a cross-section of the "regulated community" affected
by the Federal wetlands regulatory program. A complete list of our members is at-
tached.
The Coalition recognizes the importance and unique contributions of our nation's
wetlands resources and agrees that these resources must be both conserved and en-
hsmced. At the same time, we believe that the nation's policy on wetlands protection
must reflect other important national goals with respoct to the economic heedth of
the nation, infrastructure services and the rights of private landowners.
The Goal of "No Overall Net Loss of Wetlands":
The Coalition supports the immediate national goal of "no overall net loss of wet-
lands" and the long-term national goal of increasing the quality and quantity of our
nation's wetlands resources. We believe that these goals are achievable so long as
they are expressed in terms of the functions and values of wetlands and not acre-
age. We believe that these goals can be achieved through a comprehensive program
that includes a Federal regulatory program that is balanced and realistic and earns
the support and cooperation of the private sector. A copy of the Statement of Princi-
ples that has guided the advocacy of the Coalition since July, 1990 is attached.
THE CURRENT FEDERAL WETLANDS REGULATORY PROGRAM:
The current Federal wetlands regulatory program is founded on section 404 of the
Federal Water Pollution Control Act, which was enacted in 1972 (P.L. 92-500). The
current program suffers from several fundamental problems.
First, section 404 was never designed to be a comprehensive Federal wetlands reg-
ulatory program as is evidenced by at least two facts, section 404 only requires that
permits be obtained from the Secretary of the Army for the "discharge of dredged
and full material" rather than for the broader set of activities that can adversely
affect the nation's wetlands, such as excavation smd drainage. Section 404, more-
over, does not contain a definition of the term "wetlands" nor does it, in its major
operative provisions, even mention "wetlands." Rather than having been authorized
specifically by Congress, with attendant policy guidance, the current Federal wet-
lands regulatory program has been developed primarily through judicial decisions
and agency initiatives.
Second, the current Federal wetlands regulatory program is perhaps one of the
most extensive Federal regulatory programs that applies primarily to privately
owned land. According to estimates of the United States Fish and Wildlife Service,
approximately 75% of the nation's remzuning one hundred million acres of wetlands
in the lower forty-eight states exist on privately owned property. At the recent
White House briefing on the President's wetland policy recommendations, one of
1254
the briefers representing the Department of Agriculture made the statement that 83
million of the remaining 100 to 115 million acres of wetlands in our nation are lo-
cated on farms. This is in addition to the 53 million acres that are excluded from
the program as "prior converted cropland."
Third, too many Federal agencies have roles in the current Federal wetlands reg-
ulatory program, including a shared leadership of the program by the United States
Army Corps of Engineers and the Environmental Protection Agency. More often
than not, these agencies have been at odds with each other over jurisdiction and the
application of the program. Congress created this problem and only a act of Con-
gress can completely resolve the problem and avoid future disagreements.
Finally, probably because the details of the current Federal regulatory program
have been developed primarily through judicial rulings and agency initiatives in re-
sponse to those rulings, rather than pursuant to policy guidance from Congress, we
believe that the current program is far too cumbersome and inflexible.
Based on these views of the problems with the current regulatory system, we have
advocated that Congress debate this issue fully and "re-legislate" a Federal wet-
lands regulatory program that works for the environment as well as for local com-
munities, the national and local economies emd private landowners. While we con-
tinue to believe that H.R. 1330 is the best legislative approach to placing the Feder-
al wetlands regulatory program on firm footing, we believe that S. 1304, the
Baucus/Chafee bill, moves in the right direction and that the President's proposals
move the program even further in the right direction. We encourage the Congress,
however, to codify the principles and directions for the Federal wetlands regulatory
program, even if Congress agrees with some of the regulatory initiatives of the
President's propwsed plan.
COMMENTS ON S. 1304 AND THE PRESIDENT'S PROGRAM:
The Coalition would like to comment on several of the key elements of the Feder-
al wetlands regulatory program, including the manner in which these elements are
treated by both S. 1304 and the President's plan. Attached are two side-by-side com-
parisons developed by the Coalition: one comparing key elements of all major pro-
posed wetlands plans; and one comparing key elements of the President's plan and
S. 1304. The CoEilition suggests that, as Congress decides the direction and guidance
for this program, the Congress must weigh and balance the importance of this envi-
ronmental goal with other important national goals, such a sustained economic
growth, that are also essential to a healthy and vibrant nation.
JURISDICTION OF THE PROGRAM:
DEFINITION OF A WETLAND:
The first element that establishes the jurisdiction of the Federal regulatory pro-
gram is the definition of a wetland. Of course, the current law does not contain a
definition of "Wetland" nor does it provide guidance to the eigencies regarding what
lands should be covered by the term "Wetland."
In the last six years, three documents have attempted to describe the jurisdiction-
al limits of the program geographically. In 1987, the Corps of Engineers issued
guidelines on this matter, which have not been adopted pursuant to a formal rule-
making. In 1989, four agencies issued a manual for delineating wetlands, which also
was not adopted pursuant to a rulemaking and which was rejected as being too
broad. In 1991, the Bush Administration attempted to revise this delineation
memual, but the 1991 manual was rejected as being too narrow. Congress thereafter
directed that the Corps of Engineers use the 1987 guidelines until a manual could
be adopted pursuant to a rulemaking and it later commissioned the National Acade-
my of Sciences (NAS) to prepare a report on wetlands delineation. Currently, both
the EPA and the Corps of Engineers use the 1987 manual. The President s plan
would continue the use of the 1987 manual, as currently interpreted, unless the Fed-
eral agencies decide that the results of the NAS study justify a rulemaking to
modify the guidelines. The Baucus/Chafee bill would continue the use of the 1987
manual as well, but directs that a new manual will be issued after the NAS study is
completed.
The Coalition agrees with the general proposition that the judgments made with
respect to the wetlands program must be based on the best available science. How-
ever, the judgment regarding the extent of the jurisdiction of the program (includ-
ing the definition of a wetland) is a question of both science and policy. The Con-
gress may very well determine, for overriding policy reasons, that a certain type of
wetland that may quality scientifically as a wetland should not be subject to the
Federal wetlands regulatory program.
1255
TheCoalition commends that the 1987 guidelines, as currently interpreted, contin-
ue to be used to "define" wetlands except that the definition of wetlands adopted by
*u"fSI^ ^" ^^® ^^^^ ^^"° ^^^ should govern where there are differences between
the 1987 manual and that definition Because the definition of wetlands, as described
in the manual adopted for that purpose, is so fundamental to the program and so
important to private Landowners, we believe that any changes that might be justi-
fied based on the National Academy of Sciences report should be legislated by Con-
gress. What areas are to be regulated is a question that has plagued the program
now for many years, and we don't believe that it should be left to agency discretion
to decide the breadth of its own jurisdiction. The Coalition agrees with the provi-
sions of the Baucus/Chafee bill that expand section 404 to reference wetlands and to
include a definition of wetlands.
The Coalition agrees with both the Baucus/Chafee bill and the President's plan
that "prior converted croplands" should be excluded from regulation under the pro-
gram. The Coalition also agrees with the exclusion of certain man-made wetlands
and areas that are created as wetlands incidental to construction, mining and other
activities. The Committee may wish to be open to other specific exclusions in this
area. In addition, the Coalition recommands that the reported legislation clarify
that "isolated wetlands" are only subject to the jurisdiction of the program if these
wetlands are shown actually to affect interstate commerce, such as through their
use as habitat by migratory birds. It would appear that the current EPA interpreta-
tion of its jurisdiction extends to any waters that "could affect" in interstate com-
merce, including use as a habitat for migratory birds.
ACTIVITIES REGULATED:
The second element that establishes the jurisdiction of the program is the defini-
tion of regulated activities. The Coalition agrees with the provisions of both S. 1304
and the President's plan that expand the activities to be regulated to include
"drainage, excavation, ditching, channelization and mechanized landclearing." The
Coalition believes that the appropriate mechanism for achieving this expansion of
the program 15 legislative rather than regulatory. The Coalition also agrees that
certain ditching and drainage activities should be excluded from regulation under
the program, as is reflected in both S. 1304 and the President's program.
SEQUENCING, CATEGORIZA-nON AND RESTORATION:
In the view of the Coalition, the application of these three concepts holds the key
to transforming the current Federal wetlands regulatory program from a program
that antagonizes and alienates the owners of wetlands to a program that will earn
their cooperation in a common effort with government to conserve, restore and en-
hance our nation's wetlands resources. While S. 1304 and the President's plan make
strides in this area, we believe that both fall short of making the modifications nec-
essary to resolve fully the current difficulties with the program.
SEQUENCING:
Sequencing is the methodology by which the Corps and the EPA determine
whether a section 404 permit should be issued for a proposed activity. This method-
ology has its roots in the Section 404(bXl) guidelines that were issued by the EPA on
December 24, 1980, but became the methodology used by both agencies with the
signing of the February 6, 1990 "Memorandum of Agreement Between the Environ-
mental Protection Agency and the Department of the Army Concerning the Deter-
mination of Mitigation under the Clean Water Act Section 404(bXl) Guidelines."
This agreement was neither directed by Congress nor the subject of notice and op-
portimity for public comment. Prior to this agreement, the Corps judged applica-
tions under the traditional "public interest" balancing test contained in its section
404 regulations.
^ The sequencing methodology requires that the applicant show that there is no
"practicable alternative" to the proposed activity that would have less adverse envi-
ronmental impact. This is known as the avoidance step. Only if the applicant can
make this showing can the applicant then proceed to the second step — the minimi-
zation step — ^where the application is reviewed to determine how environmental im-
pacts can be minimized. Finally, in the mitigation step, the applicant must agree to
provide compensatory mitigation for any remaining unavoidable environmental im-
pacts of the activity. But mitigation opportunities cannot be considered until the
first and second stei>s — avoidance and minimization — have been cleared. Under the
Corps "public interest test," a comprehensive, integrated review of the permit appli-
cation was made, including the potential for mitigation.
1256
In practice, the avoidance step has become dominant, with applicants often being
made to prove a long list of negatives in order to satisfy this first step. Such show-
ings include: no alternative site is available; there are no edternatives to the activity
that is being proposed; and so forth. In recent years, field officers of the Corps and
the EPA have often been quite rigid in their application of this test and permit ap-
plications have often gone into a long holding pattern at this first stage. Obviously,
a regulatory program that attempts to avoid economic activity on private property
inevitably clashes with the rights of private landowners and creates the specter of
"takings" by governmental action. This clash between private property rights and
the Federal wetlands regulatory system will not cease until some flexibility is intro-
duced into the sequencing methodology. ^
The Baucus/Chafee bill does not address this issue directly. The President s plan
includes "guidance" that was recently issued to the field personnel of the Corps and
the EPA instructing them that the sequencing test includes flexibility to adjust the
rigidity of the test based on the impacts of the proposed activity and the functions
and values of the wetland in question. The Coalition appreciates that the Presi-
dent's plan addresses this fundamental issue. However, the Coalition believes that
the issue is too important to be resolved through a guidance document that can be
withdrawn as easily as it is issued. The Coalition recommends that the Congress ad-
dress this issue, provide policy guidance regarding flexibility in its permit approval
methodology and direct that the sequencing methodology may only be used in high
value wetlands.
CATEGORIZATION:
The Coalition believes very strongly that all wetlands do not provide: equal quan-
tity or quality of wetlands functions and values. Yet, the current Federal regulatory
program essentially treats all wetlands equally. Both the Baucus/Chafee bill and
the President's plan endorse the concept of categorizing wetlands, but in a manner
that we fear will be insufficient to resolve the current difficulties with the Federal
program.
We have advocated a national categorization system in which wetlands are placed
in at least three categories based on their relative functions and values. The highest
valued wetlands would be regulated on a very rigid basis, perhaps through the se-
quencing methodology, while the lower categories of wetlands would be regulated
more flexibly. The Baucus/Chafee bill provides for categorization and flexibility in
regulatory treatment as part of the proposed state watershed and wetlands manage-
ment plans. The President's plan makes a similar recommendation, but also specifi-
cally rejects the national categorization system as administratively infeasible and
too expensive. , , , ^
The members of the Coalition believe that the concept of state watershed and wet-
lands management plans provide significant promise and may be very effective tools
for making wetlands regulatory programs responsive to regional differences. Howev-
er, there is no certainty that states will be able to undertake such programs, despite
the incentives in both S. 1304 and the President's plan. Also, there is no certainty
that the Federal government will approve the plans that are developed by the
states. Meanwhile, at least in those areas without such state plans, the section 404
program will not adjust the rigidity of its regulatory program to the levels of func-
tions and values of the wetlands— an idea the merits of which both S. 1304 and the
President's plan seem to acknowledge.
The members of our Coalition have trouble accepting the notion that the govern-
ment cannot map and categorize the nation's one hundred million acres of wet-
lands— particularly at a time when the government is attempting to "reinvent"
itself as a more user-friendly institution — an when the government appears to be
ready to undertake a mapping exercise of the biological diversity of the entire
nation through the National Biological Survey. In fact, we understand that the Na-
tional Biological Survey is scheduled to commence October 1, 1993, without authori-
zation of Congress and that the House has appropriated $163.6 million for the
Survey and the Senate has appropriated $159 million. Perhaps the same resources
that are undertaking the mapping of biological diversity could, at the same time,
categorize and map the nation's wetlands. A report in the September 13th edition of
Inside Energy/with Federal Lands suggests that an immediate focus of the Survey
will be the completion of the national wetlands inventory that is ongoing by the
Fish and Wildlife Service.
RESTORATION:
Finally, the Coalition is pleased that both S. 1304 and the President's plan recog-
nize the importance of restoration of our nation's wetlands resources as a goal of the
1257
Federal regulatory program. In both coastal and inland wetlands, restoration is a
primary need. Restoration holds the key to attaining the long-term goal of enhanc-
ing our nation's wetlands resource base an, if appli^ judiciously, may hold the key
to achieving the needed flexibility in the current regulatory program.
The Coalition recommends that Congress take the next step from both S. 1304 and
the President's plan and adopt a nationwide categorization system for wetlands. The
rigid sequencing methodology might be appropriate for the highest valued wetlands,
but a less rigid permitting methodology should be adopted for moderate and lower-
valued wetlands. In these wetlands a permitting methodology should be established
that retains the right to deny a permit, coupled with greater reliance on modifying
proposed projects to minimize wetlands impacts and greater use of compensatory
mitigation. "This formula should achieve the twin goals of conserving and enhancing
our nation's wetlands resource base while reducing the tension between private
property rights and our nation's environmental goals.
MITIGATION BANKING:
The members of the Coalition are pleased that both S. 1304 and the President's
plan recognize the contribution that mitigation banking can make to the Federal
wetlands regulatory program. This concept, coupled with categorization and a more
flexible p)ermitting methodology in appropriate wetlands areas, provides an impor-
tant instrument for restoring and enhancing wetlands functions and values on a wa-
tershed and ecosystem basis.
The Baucus/Chafee l^islation, S. 1304, limits mitigation banking to restoration
projects. The President's plan allows mitigation banMng for restoration, enhance-
ment, creation and, in limited circumstances, preservation of wetlands. The Coali-
tion supports the broader application of the President's plan, although our members
fully expect the vast majority of mitigation banking projects to be restoration and
enhancement projects. 'The mining industry, in particular, can create wetlands at
reclaimed mine sites. Mining companies have received environmental awards for
such activities. These and other creation activities should be recognized and should
be able to quality as mitigation banks.
The members of our Coalition believe that both S. 1304 and the President's plan
should be expanded to allow mitigation banks to be established contemporaneously
with the activity for which they will provide compensatory mitigation rather than
only in advance of such activities. We recognize that some have concerns that com-
pensatory mitigation has not alwa}^ been provided, even when promised or ordered
by the Corps of Engineers. However, a better answer to this problem, we believe, is
through Inspection and enforcement, rather than rigidly requiring that all mitiga-
tion banks be developed in advance of the activities for which they will provide com-
pensatory mitigation.
Unless the government intends to finance all banks, which we would hope is not
the case, the incentive for a private sector bank to be established may not edways
exist "in advance." However, when a project is contemplated and undertaken, the
incentive will be present and a bank can be developed with appropriate terms and
conditions to ensure that the bank provides the required compensatory mitigation.
ADMINISTRA-nON OF THE PROGRAM:
The members of the Coalition are pleased that both S. 1304 and the President's
plan address a number of problems with the administration of the current program.
AGENCY COORDINA-nON:
The members of the Coalition agree with the increased coordination of the activi-
ties of the various agencies contained in both S. 1304 and the President's plan. The
Coalition appreciates the provision of S. 1304 that places a time limit on the exer-
cise of the Section 404(c) veto power by the Environmental Protection Agency. How-
ever, the Coalition recommends that the Congress take one further step and repeal
the Section 404(c) veto power of the Environmental Protection Agency.
The Environmental Protection Agency has a strong voice in the program through
the Section 404(bXl) guidelines. Provisions of the President's program and S. 1304
clarity the power of the Environmental Protection Agency with respect to various
aspects of the program. The Section 404(q) elevation provisions, which allow the
EPA, the Fish and Wildlife Service and the National Marine Fisheries Service to
elevate policy decisions and permit decisions to their headquarters offices, exert sig-
nificant "veto" type pressure on the Corps in its implementation of the section 404
program. The entire emphasis of the President's program and S. 1304 is to provide
more guidance to applicants on the "front end" of the regulatory process in order to
expedite the process and avoid the regulatory morass in which so many have found
1258
themselves. In light of these developments and the evolution of the section 404 pro-
gram over the last twenty years, the Coalition suggests that the Section 404(c) veto
power is no longer necessary to ensure the voice of the EPA in the section 404 regu-
latory process. In line with the effort to "reinvent" and streamline government, the
Coalition suggests that this unique mechanism be removed from the statute.
ADMINISTRATIVE APPEAL PROCESS:
The members of the Coalition appreciate the fact that both S. 1304 and the Presi-
dent's plan provide for an administrative appeal process for the section 404 pro-
gram.
The Coalition prefers the President's plan for two reasons. First, the President s
plan provides more grounds for appeal, including the accuracy of the determination
that the area in question is a jurisdictional wetland and the imposition of adminis-
trative penalties. Second, the President's plan restricts the right of appeal to the
permit applicant, but allows third parties to participate in the appeal when the
permit applicant appeals the denial of a permit.
The Coalition believes that the President's approach of denying the right of third
parties to initiate appeals in most instances is appropriate because a variety of Fed-
eral agencies participate in the permitting process to advocate the interests of the
public. , T^ ., > ,
The Coalition commends that the right of appeal m the President s plan be ex-
panded further to include the appeal of permit conditions. While relatively few per-
mits are completely denied, often permit applicants obtain permits that contain
terms and conditions that render the permits useless. The Coalition believes that
the permit applicant should have access to the administrative appeal process for
terms and conditions, but would further recommend that third parties be allowed to
participate in such appeals as they may participate in appeals of permit denials.
DEADLINES FOR ACTION ON PERMIT APPLICATION:
The members of the Coalition appreciate that both S. 1304 and the President's
plan address the issue of deadlines for action on permit applications. Unfortunately,
neither the bill nor the plan provide a mechanism that will enforce the time dead-
lines. The Coalition recommends that the Congress provide that any permit applica-
tion that is not acted upon within the time deadlines shall be construed to have
been issued with the terms and conditions contained in the application. The Corps
could be given the authority to certify that one of the grounds contained in S. 1304
for failing to act has occurred, but the Corps should be required in that instance to
establish a new and reasonable deadline for action.
GENERAL PERMITS:
The Coalition appreciates that both S. 1304 and the President's plan recognized
the importance of general permits to the implementation of the section 404 program
and have, if anything, expanded their use. The Coalition is somewhat concerned,
however, with that provision of S. 1304 which may be read to add to all current
general permits requirements to mitigate adverse impacts. General permits, by defi-
nition, have only minimal" impacts, both individually and cumulatively, and the
Coalition is concerned that mandating new mitigation conditions is unnecessary and
may reduce the usefulness of general permits.
MAPPING AND NOTICE:
One of the difficulties of the current program is that no maps exist indicating
which lands are subject to Federal regulation and that no notice is provided at
county and parish courthouses where prospective land purchasers or lenders can be
notified of the Federal status of certain lands. While the section 404 program resem-
bles a Federal zoning program, it does not contain the mapping and notice protec-
tion of a typical zoning program. Neither S. 1304 nor the President's plan address
this program deficiency. The Coalition recommends that Congress direct the map-
ping of Federal wetlands and the posting of such maps in county and parish court-
houses to notify the public of the potential Federal status of county and parish
lands.
ROLE OF THE STATES AND LOCAL GOVERNMENTS:
The members of the Coalition are pleased that both S. 1304 and the President's
plan attempt to harmonize and coordinate local, state and Federal actions on wet-
lands through the traditional state assumption approach, the use of programmatic
general permits and the innovative state wetlands and watershed management
plans. These approaches appear to offer great promise for better and more efficient
1259
environmental regulation i/" states and localities will determine to take advantage of
these opportunities and if the Federal government is flexible in its plan approval
process.
The Coalition recommends that Congress provide, with respect to each of these ap-
proaches, that the Corps and the EPA do not retain the ability to review individual
permit decisions within the limits of any such approved plans. Compliance with an
approved state program to which the section 404 program has been delegated, com-
pliance with an approved state watershed and wetlands management plan, and com-
pliance with a programmatic general permit should be deemed to be compliance
with the section 404 permitting program. The members of the Coalition believe that
the proper role of the Federal agencies is to approve such plans, then to monitor the
progress of such plans and to revoke the plans, after notice and hearing opportuni-
ties, if they are not working properly.
The Coalition also recommends that the rules concerning the establishment and
approval of state watershed and wetlands management plans, in particular, be care-
fully constructed to avoid undue burdens for interstate projects. A proliferation of
watershed management plans may pose significant difficulties for interstate pipe-
line and electricity transmission projects, particularly where the "host" area does
not benefit directly from the project, although the project may be very important to
either the nation or a region. Will the general permits of the section 404 program
apply in such approved plans? Will such plans be approved if they contain provi-
sions aimed at denying permits to certain t3T)es of interstate activities?
Finally, while the Coalition recognizes the interest in encouraging states to imple-
ment state watershed and wetljinds management plans, the provision in S. 1304 that
withdraws programmatic general permits if state watershed and wetlands manage-
ment plans are not in place on December 31, 1996, may be counter productive. In a
progressive and effective local wetlands management plan has received a program-
matic general permit, but the watershed area in which the local plan is located has
not developed an approved watershed management plan in a timely fashion, repeal-
ing the programmatic general permit may advance neither environmental interests
nor local governmental and economic interests. Moreover, those involved in develop-
ing the local plan may be completely powerless to effect the development of an ap-
proved watershed management plan covering the larger £irea.
PRIVATE PROPERTY RIGHTS:
One of the major reasons that the Congress is now preparing to address the sec-
tion 404 program is that thousands of landowners around the nation have com-
plained to their elected representatives that the Federal wetlands regulatory pro-
gram is denying them the use and value of their property. Local tax bases have suf-
fered as landowners have sought and obtained lower tax assessments on their "wet-
land" properties.
Many of the provisions of S. 1304 and the President's plan, if implemented proper-
ly, should reduce the conflict between private landowners and the Federal program.
The second principle of the President's plan states that the section 404 program
must be:
"administered in a manner that avoids unnecessary impacts upon private prop-
erty and the regulated public, and minimizes those effects that cannot be avoid-
ed. . . ."
A later provision of the President's plan states that:
"The Administration strongly supports private property rights. . . . However, in
rare instances the public interest in conserving wetlands may substantially
interfere with the rights of landowners. In such instances. Federal action will
be based on the proposition that restrictions on the actions of the property
owners in question are called for in order to protect the property rights, safety,
environmental or economic interests of other individuals or the community at
large. In those situations where the necessary restrictions on use eunoimt to a
taking of the property, the owner will, of course, be entitled to compensation."
Unfortunately, the Administration plan is silent on exactly how such a citizen
will obtain compensation, other thein bringing an action against the Federal govern-
ment in the Court of Federal Claims for compensation pursuant to the Fifth Amend-
ment to the United States Constitution.
The members of the Coalition believe that the harsh reality is that "takings" in
commonly understood terms may not be so rare, while "takings" in the judicial
sense may be rare indeed. If the only mechanism for obtaining compensation from
the government for the lost use of private property under the section 404 program is
to sue the government, few Americans will be able to obtain relief Suits against the
1260
Federal government alleging a "taking" generally require the investment of years
and hundreds of thousands of dollars, which can be repaid by the government if the
plaintiff is successful. Only the wealthiest individual Americans and successful cor-
porations can afford such suits.
The Coalition recommends that Congress direct legislatively that the section 404
program be implemented in such a fashion as to the adverse impact on the use and
value of private property. The Corps and the EPA should be required to monitor the
adverse impacts on private property and local tax bases and to report to Congress
every two years on this subject. The Coalition recommends further that the Con-
gress should develop a non-judicial mechanism by which at least certain classes of
wetlands owners can obtain compensation in appropriate cases without resort to
court. Earlier this year, Secretary of the Interior Babbitt suggested to the House
Merchsmt Marine and Fisheries Committee in oral testimony that the Land and
Water Conservation Fund might be used for this purpose.
INTERGOVERNMENTAL WETLANDS COORDINATING COMMITTEE:
S. 1304 calls for the establishment of an "intergovernmental wetlands coordinat-
ing committee" to coordinate Federal, state and local government wetlands policies.
The Coalition notices that the bill makes no provision for membership on the coordi-
nating committee by representatives of wetlands owners. The Coalition believes that
since a vast majority of wetlands are in private ownership, and such ownership is a
complicating factor in creating a workable Federal wetlands policy, any coordinat-
ing committee should include the regulated community, including representatives of
private landowners.
AGRICULTURE:
The Coalition is pleased with the progress that both S. 1304 and the President's
plan make with respect to the equitable and efficient treatment of agriculture, par-
ticularly where farming and agricultural activities are involved. While several agri-
cultural interests are represented in the Coalition, we understand that members of
the agriculture community will be testifying before the Subcommittee. Therefore,
we will not presume to speak for agriculture on these matters.
ALASKA:
The Coalition is disappointed that neither S. 1304 nor the President's plan address
specifically the very special problem that Alaska is experiencing under the section
404 program. We are pleased that the Administration has promised to address this
issue and encourage the Members of the Subcommittee to include in the Clean
Water Act Reauthorization legislation specific provisions that address the very le-
gitimate concerns of Alaska. We understand that Senator Stevens will be testifying
before the Subcommittee on these matters. We support the Alaska delegation and
our Alaska members in their efforts to obtain a workable and effective program for
their unique circumstances.
CONCLUSION:
Mr. Chairman, thank you again for giving the Coalition an opportunity to testify
today and for addressing the Federal wetlands regulatory program. We look forward
to plajdng a constructive role in the effort to achieve a balanced and effective Feder-
al wetlands regulatory program that works for the environment, the nation's econo-
my and private landowners.
Thank you.
STATEMENT OF PRINCIPLES
The National Wetlands Coalition is a geographically and economically diverse
group of public and private sector entities that have joined together to participate in
the efforts of the Congress and the Administration to establish a comprehensive
policy for effective conservation and management of the Nation's wetlands. The Na-
tional Wetlands Coalition will support the adoption of the specific programs and
policies that advance the objectives of wetlands conservation, consistent with the fol-
lowing principles:
1. The Congress of the United States and the President should establish a compre-
hensive Federal Program for managing the Nation's Wetlands Resource Base in
a manner that effectively and sensibly accommodates the competing, legitimate
demands for conservation and use of wetlands resources.
1261
2. Given the number and diversity of people affected, and the economic and envi-
ronmental importance of the Wetlands Resource Base, a comprehensive Federal
Wetlands Policy should be the product of a National consensus-building process.
3. 11 No overall net loss of wetlands values" is an appropriate goal for achieving
the effective conservation of significant wetlands vedues and functions. This
goal should be pursued by implementation of a variety of the regulatory and
nonregulatory programs designed to: conserve the highest value wetlands;
ensure that development activities in wetlands conserve wetlands values and
functions to the maximum extent practicable; eliminate or streamline proce-
dures for use of wetlands of marginal resource value; and, provide incentives for
private wetlands conservation efforts.
4. Protection of the Nation's high-value wetlands, and restoration of wetlands gen-
erally, will require aggressive nonregulatory programs including public acquisi-
tion and incentives for set-asides and for restoration activities. Federal funding
required for such programs should be from the broadest sources possible with
no single industry required to bear a disproportionate share of the cost.
5. Substantial reform of the section 404 permitting process is necessary to consoli-
date agency responsibility, to expedite routine permitting, to increase flexibility
in the program, eind to provide greater predictability in all cases. Critical to the
establishment of a sensible permitting process is the recognition that all wet-
lands are not of equal value and that the level of regulation and mitigation im-
posed should vary depending upon functions and values of affected wetlands,
degree and duration of impact, and the surrounding land use.
The National Wetlands Coalition is a geographically and economically diverse
group of public gmd private sector entities that have joined together to participate in
the efforts of the Congress and the Bush Administration to establish a comprehen-
sive policy for effective conservation and management of the Nation's wetlands. The
National Wetlands Coalition will support the adoption of specific programs and poli-
cies that advance the objectives of wetlands conservation, consistent with the follow-
ing principles:
1. THE CONGRESS OF THE UNITED STATES AND THE PRESIDENT
SHOULD ESTABLISH A COMPREHENSIVE FEDERAL PROGRAM FOR
MANAGING THE NA-nON'S WETLANDS RESOURCE BASE IN A MANNER
THAT EFFECTIVELY AND SENSIBLY ACCOMMODATES THE COMPET-
ING, LEGITIMATE DEMANDS FOR CONSERVA-nON AND USE OF WET-
LANDS RESOURCES.
• The National Wetlands Coalition recognizes that the Nation's wetlands are a
dwindling and valuable natural resource that has been and should continue
to be, host to a wide variety of environmental values and economic activity.
• At the national, state and local levels, attempts have been made to devise regu-
latory and nonregulatory progrgims aimed at addressing specific wetlands re-
source management issues. iTie result is an inconsistent, often duplicative
array of federal and state programs that do not effectively serve the purposes
of better conservation and management. To ensure uniformity and minimize
redundancy, the federal government should take the lead in defining a na-
tional policy for accommodating the competing needs for wetlands conserva-
tion and use, and for providing economic incentives for private wetlands con-
servation efforts.
• In devising federal policies, programs and standards for wetlands conservation,
policymakers should not view wetlands as an isolated resource. While a com-
prehensive wetlands policy by definition will give special focus to wetlands,
conservation issues, federal pwlicies governing the use of wetlands resources
should also account for values and functions of neighboring upland and open
water resources and the socied benefits of man-made systems necessary to
support and protect the human population.
2. GIVEN THE NUMBER AND DIVERSITY OF PEOPLE AFFECTED, AND
■niE ECONOMIC AND ENVIRONMENTAL IMPORTANCE OF THE WET-
LANDS RESOURCE BASE, A COMPREHENSIVE FEDERAL WETLANDS
POLICY SHOULD BE THE PRODUCT OF A NATIONAL CONSENSUS-
BUILDING PROCESS.
• Most of the Nation's population lives and works in coastal areas or along river-
ways and other streams. As a consequence, policies dictating the management
of this resource directly affect a substantial portion of the Nation.
• Over seventy percent (7O0A) of the Nation's wetlands are privately owned. Con-
sequently, it is unreasonable to expect a nationed wetlands policy to be effec-
tive unless it is the product of a national consensus.
1262
• In order to accomplish this very broad goals of wetlands conservation, substan-
tial resources (both public and private) will be required. In the absence of a
nationwide consensus on a national wetlands policy, these programs will not
receive the high national priority required to accomplish the national goal.
• A number of administrative authorities are currently in place that enable the
Army Corps of Engineers, the Environmental Protection Agency (EPA), and
the Fish and Wildlife Service, to regulate activities in wetlands. However, the
actions under these authorities have not in the past been well-coordinated
and the public has not had an adequate opportunity to evaluate specific poli-
cies and procedures that may be used to accomplish the national wetlands
conservation and management goals. To ensure adequate public participation
in the development of federal policies and programs, it is essential that all
administrative actions establishing new wetlands policy be subject to the Ad-
ministrative Procedure Act notice and comment process.
• The results of the interagency Task Force regional hearings should be the start-
ing point for the development of a comprehensive wetlands conservation and
management policy. In addition, the Congress should undertake a comprehen-
sive review of the section 404 permitting process to evaluate the effectiveness
of that program in meeting the goals of effective wetlands conservation man-
agement and use. Thereafter, if appropriate, the Congress should enact legis-
lation establishing the statutory parameters of a national wetlands policy
that takes into consideration the recommendations of the Task Force and the
findings of the Congressional review of the permitting process.
3 "NO OVERALL NET LOSS OF WETLANDS VALUES" IS AN APPROPRL^TE
■ GOAL FOR ACHIEVING THE EFFECTIVE CONSERVATION OF SIGNIFI-
CANT WETLANDS VALUES AND FUNCTIONS. THIS GOAL SHOULD BE
PURSUED BY IMPLEMENTATION OF A VARIETY OF REGULATORY AND
NONREGULATORY PROGRAMS DESIGNED TO: CONSERVE THE HIGH-
EST VALUE WETLANDS; ENSURE THAT DEVELOPMENT ACTIVITIES IN
WETLANDS CONSERVE WETLANDS VALUES AND FUNCTIONS TO THE
MAXIMUM EXTENT PRACTICABLE; ELIMINATE OR STREAMLINE PRO-
CEDURES FOR USE OF WETLANDS OF MARGINAL RESOURCE VALUE;
AND, PROVIDE INCENTIVES FOR PRIVATE WETLANDS CONSERVATION
EFFORTS.
• National wetlands policy should be forged around the following critical assump-
tions, which derive from the recognition that the functional values associated
with different kinds of wetlands may vary substantially:
i There are some areas of wetlands that possess unique, fragile and scarce envi-
ronmental values that are so exceptional and significant that preservation of
these lands in their natural condition will be desired by federal, state and
local governments and by the public. In those cases, the land should be pur-
chased or set aside rather than preserved solely through regulation. Those
wetlands should be identified in an open public process. Once so identified
these lands should be promptly acquired and set aside, with fair compensa-
tion to the landowner. If acquisition or set aside is not tenable within a rea-
sonable period of time, these lands should be made available for other uses,
consistent with appropriate environmental safeguards.
ii. Much of the Nation's wetlands resource can sustain multiple use, subject to ap-
propriate environmental regulation. Such areas may include certain publicly
owned wetlands not managed under protected status. Even where significant
environmental values are present, multiple use may be appropriate where
such uses provide social and economic benefit and where environmentally
sound management techniques are available that minimize or adequately
compensate for values lost. , ,. .
iii The stringency of environmental regulation should vary dependmg upon such
factors as the functional values affected, the character of the intrusion (tem-
porary or permanent), and the reliability of conservation technologies. Em-
phasis should be placed upon protection of values or compensation for func-
tions lost. Requirements for compensation should vary in relation to the dura-
tion of impact on environmental values, the extent of loss of functional
values, the relative abundance of remaining wetland values in the affected
area, and the cost-effectiveness of compensatory mitigation.
iv Areas that fall within the technical scientific definition of wetlands, but which
offer not appreciable functional resource values, should be exempt from feder-
al permitting regulation. Requirements for compensatory mitigation may not
always be appropriate in areas where wetlands are in abundance and losses
1263
are minimal. Where wetlands values are limited or marginal, streamlined
procedures should apply.
V. Some areas of degraded wetlands may be made available for set aside voluntari-
ly by landowners or developers as mitigation for other activities, if such areas
have potential as sites for restoration or enhancement.
vi. In addition to wetlands-related environmental considerations, other critical
factors to be considered in effectively managing wetlands resources are: social
benefits to be derived from multiple use; impact of wetlands planning decision
on other environmental values; the feasibility of mitigation techniques that
minimize intrusion resulting from specific uses; the availability and feeisibili-
ty of compensatory mitigation; and the relative benefits and costs of eliminat-
ing economic activities in privately owned wetlands.
• The phrase "no net loss" of wetlands has become a watchword for the current
wetlands policy debate. However, the phrase as yet has no workable definition.
If the concept is to have a constructive place in the national policy debate, it
must be defined as an overall goal, the purpose of which is to conserve existing
wetlands values, to restore and enhance degraded wetlands areas, and to devel-
op reliable techniques for creating wetlands values.
• The "no net loss" of wetlands goal should not be implemented as an arithmetic
standard to be applied through regulatory-programs and measured by compar-
ing acreage losses and gains on a permit-by-permit basis. Success in accomplish-
ing the "no net loss" goal should be measured by evaluating the vedues and
functions preserved and gained through regulatory and nonregulatory programs
that minimize or compensate for the adverse effects of development activities.
Also critical to success is the development of programs that add to the wetlands
resource base through acquisition and improved wetlands restoration, enhance-
ment and creation techniques. The National Wetlginds Coalition supports the
pursuit of this goal.
4. PROTECTION OF THE NATION'S HIGH- VALUE WETLANDS, AND RESTa
RATION OF WETLANDS GENERALLY, WILL REQUIRE AGGRESSIVE
NONREGULATORY PROGRAMS INCLUDING PUBLIC ACQUISITION AND
INCENTIVES FOR SET-ASIDES AND FOR RESTORATION ACTIVITIES.
FEDERAL FUNDING REQUIRED FOR SUCH PROGRAMS SHOULD BE
FROM THE BROADEST SOURCES POSSIBLE WITH NO SINGLE INDUSTRY
REQUIRED TO BEAR A DISPROPORTIONATE SHARE OF THE COST.
• In areas where no development is to be permitted, land must be acquired and
owners fairly compensated. A trust fund may be necessary to make this acquisi-
tion a national priority. Legislative action may also be necessary to facilitate
land or resource exchanges as a method of compensation.
• As a supplement to programs for acquiring highest value wetlands, tax incen-
tives for easements, donations or other set-aside programs should be increased.
• The management of govemmentally owned resources should be evaluated. In
some instances, increased levels of protection of governmentally owned lands
and additional investment in resource enhancement may be appropriate. In the
case of govemmentally owned lands that can sustain multiple use, appropriate
regulatory programs should be established that take into account environmen-
tal values and functions as well as social factors including energy security needs
and economically effective resource management.
• Subsidy programs that encourage destruction of wetlands should be reconsid-
ered or eliminated, as appropriate.
• Research and development efforts should be aggressively undertaken and funds,
both public and private, should be made available for planning, restoration
projects, and related wetlands conservation activities.
• In recognition of the fact that all Americans benefit from the developmental
activities taking place in the Nation's wetlands, federal funding required for
programs implemented as a result of a national wetlands policy or new legisla-
tion should come from the broadest sources p>ossible. No distinct group of i^er-
icans or single industry should bear a disproportionate share of the cost.
5. SUBSTANTIAL REFORM OF THE SECTION 404 PERMITTING PROCESS IS
NECESSARY TO CONSOLIDATE AGENCY RESPONSIBILITY, TO EXPE-
DITE ROUTINE PERMTTTING, TO INCREASE FLEXIBILITY IN THE PRO-
GRAM, AND TO PROVIDE GREATER PREDICTABILITY IN ALL CASES.
CRITICAL TO THE ESTABLISHMENT OF A SENSIBLE PERMnTING PROC-
ESS IS THE RECOGNITION THAT ALL WETLANDS ARE NOT OF EQUAL
VALUE AND THAT THE LEVEL OF REGULATION AND MITIGATION IM-
POSED SHOULD VARY DEPENDING UPON FUNCTIONS AND VALUES OF
1264
AFFECTED WETLANDS, DEGREE AND DURATION OF IMPACT, AND THE
SURROUNDING LAND USE.
• In the short term, specific regulatory reforms should be implemented to ensure
a more effective, equitable and predictable regulatory system. These reforms
should be developed in accordance with the following guidelines:
i. In any case in which compensatory mitigation is appropriate, compensatory
mitigation requirements should be considered early in the section 404 permit-
ting process. This is particularly important where compensatory mitigation is
required by consulting agencies or nonfederal agencies.
ii. Mitigation that is demonstrated to be effective should be relevant to all phases
of alternatives comparisons.
iii. The leadership role of the United States Army Corps of Engineers in the sec-
tion 404 permitting process should be clarified and the role of other federal
agencies in the process should be consolidated. In particular, the EPA's role
in specific permit decisions should be limited. To the extent that the EPA
should continue to play a role in specific permitting decisions, the EPA
should be required to participate in the early stages of any standard permit
process as a precondition to the exercise of the section 404(c) veto. If the
EPA's veto power is retained, the basis for exercising the veto should be spe-
cifically identified.
iv. The permit process should give reasonable deference to the applicant in defin-
ing a project's purpose. This is particularly important for public works
projects undertaken by state and local governments. In the event such a pro-
posed project does not meet section 404 requirements, the federal permitting
agency should be required to work with the applicant to identify a permissi-
ble project alternative that substantially accomplishes the applicant's project
purpose and which can receive permit approval as part of the pending permit
process.
V. Where regulatory mitigation is required, such requirements should be flexible
enough to encourage private sector investment and innovation in wetlands
enhancement, restoration and creation.
vi. The "public interest" standard should be statutorily integrated into the section
404 permitting process.
vii. It may be appropriate for certain activities that are currently nonjurisdic-
tional to be integrated into a new federal wetlands regulatory program.
viii. Nationwide, permits should be maintained; certain regulatory nationwide
permits should be statutorily affirmed.
ix. Federal mitigation policy must be committed to the conservation, enhance-
ment, restoration and creation of wetlands on an ecosystem basis. A federally
supported mitigation banking program should be established for states or,
where appropriate, localities, for the purpose of coordinating mitigation ac-
tivities in wetlands ecosystems.
• Over the longer term, a regulatory program should be developed that assigns
different levels of regulatory requirements commensurate with the character of
the wetlands values affected by proposed activity. As a result, the cornerstone
of regulatory revisions to the section 404 process should be a nationwide effort
that will evaluate and categorize wetlands according to their functions and
values.
• The characterization of wetlands for regulatory purposes should take into con-
sideration economic, social, and environmental considerations, as well as the es-
tablished surrounding land use.
• To avoid transfer of an essentially local land use function to the federal govern-
ment, states should play a major role in defining this scheme for designated
wetlands values, functions and uses.
• In general, wetlands that are incidentally created by development activity are
unlikely to possess high ecological values and should be treated with maximum
regulatory flexibility.
• The consequence of this characterization for purposes of managing uses should
be as follows:
i. Some areas will be determined by legislative action to be appropriate for acqui-
sition. These areas may include for example, those that contain very high
vedues that would be destroyed if permanent development activity were per-
mitted to occur therein. Funding should be available so that landowners will
be fairly and timely compensated for the taking of such wetlands.
ii. Other wetlands areas will be identified as environmentally sensitive, although
capable of sustaining certain kinds of development activities. These should be
1265
subject to more rigorous environmental requirements, including the develop-
ment of higher standards of industry practices where appropriate.
Some areas will be identified as having only marginal resource values. Regula-
tion of activities in such areas should be streamlined and, if possible, elimi-
nated. Areas with minimsd wetlands characteristics, but that provide margin-
al environmental values, should be exempt from regulation.
1266
THE NATIOflAL WETLANDS COALITION
MEMBEflSHtP
SaptMT^Mr 14, iad3
ADAM'S RIB RECREATIONAL AREA
Eagle, Cokmdo
AKT DEVELOPMENT, INC.
Sscramento, Callfomim
ALASKA BUSSELL ELECTRIC INC.
Anchorage, Alaska
ALLEGHENY POWER SYSTEM, INC.
New York, New York
AMAXINC.
New York, New York
AMERICAN MININQ CONGRESS
Washington, D.C.
AMERICAN FARM BUREAU FEDERATION
Washington, DC
ARCO ALASKA
Anchorage, Alaska
ARCTIC SLOPE REGIONAL CORPORATION
Barrow, Alaska
AUDUBON INSTITUTE
New Orleans, Louisiana
BADGER MINING CORPORATION
Felrwr.ter, Wisconsin
BBtRY BROS. GENERAL CONTRACTORS, INC.
Berwick, Louisiana
BP EXPLORATION (ALASKA) INC.
Anchorage, Alaska
CALMAT CO.
Los Angeles, California
CHEVRON U.S.A. INC.
San Francisco, Calif omia
CHINA CLAY PRODUCERS ASSOCIATION
Atlanta, Georgia
CONSOUDATED NATURAL GAS CO.
Pittsburgh, Pennsylvania
DOMINGUE, SZABO & ASSOCIATES
Lafayette, Louisiana
ENTERGY CORPORATION
New Orleens, Louisiana
EXXON COMPANY. U.SA.
Houston, Texas
FINA OIL & CHEMICAL COMPANY
Delias, Texas
FIRST COMMERCE CORPORATION
New Orleens, Louisiana
FREEPORT-MCMORAN INC.
New Orlearts, Louisiana
R. L. FIELD GREENHOUSES
Georgetown, Delaware
HAMPTON BUSINESS PARK
Capitol Heights, Maryland
HOUMA-TERREBONNE CHAMBER OF COMMERCE
Houma, Louisiana
HUNT OIL COMPANY
Dallas, Texas
INTERNATIONAL COUNCIL OF SHOPPING CENTBIS
Alexandria, Virginia
INTBtSTATE NATURAL GAS ASSOCIATION
Washington, D.C.
KERR-MCGEE CORPORATION
Oklahoma City, Oklahoma
LAS CONCHAS PARTNERSHIPS
SMeH, Louisiana
THE LOUISIANA LAND & EXPLORATION COMPANY
New Orleens, Louisiana
LOUISIANA LANDOWNERS ASSOCIATION, INC.
Franklin, Louisiana
LOUISIANA NATURE AND SCIENCE CENTBI
New Orleans, Louisiana
MISSISSIPPI GULF COAST WETLANDS COAUTION
Pascagoula, Mississippi
MOBIL EXPLORATION & PRODUCING. U.S. INC.
Houston, Texas
THE MORGAN CITY HARBOR & TERMINAL DISTRICT
Morgan City, Louisiana
MURPHY EXPLORATION COMPANY
B Dorado, TX
MUMCIPAUTY OF ANCHORAGE
Anchorage. Alaska
NANA REGIONAL CORPORATION
Kotiebue, Alaska
NAT'L ASSN. OF HOMEBUILDERS
Washington, D.C.
NAT'L ASSN. OF STATE D^ARTMSITS OF AGRICULTURE
Washington. D.C.
NATIONAL FUEL GAS COMPANY
New York, New York
NATIONAL STONE ASSOCIATION
Washington, D.C.
NATIONAL UTIUTY CONTRACTORS ASSOCIATION
Arlington, VA
NATURAL GAS SUPPLY ASSOCIATION
Washington, D.C.
NORTH SLOPE BOROUGH
Barrow, Alaska
OCCIDENTAL OIL & GAS CORPORATION
Tuba, Oklahoma
ORYX B«ERGY COMPANY
Dattas. TX
PANHANDLE EASTERN CORPORATION
Houston. TX
PARKER DRILUNG COMPANY
Tulsa, OK
PENNSYLVANIA LANDOWNBtS ASSOCIATION
Harrisburg, PA
PORT OF NEW ORLEANS
New Orleans, Louisiana
SHELL OIL COMPANY
Houston, Texas
SUN COMPANY. INC.
Wilmington, DE
T. BAKER SMITH & SON. INC.
Houma, Louisiana
TENNECO GAS
Houston, Texas
TERREBONNE PARISH CONSOUDATED GOV'T
Houma, Louisiana
TEXACO U.S.A.
Houston. Texas
UNOCAL CORPORATION
Los Angeles. California
U. S. SIUCA COMPANY
Berkley Springs, West Virginia
VIRGINIA PENINSULA CHAMBBI OF COMMERCE
Hampton, Vliglnie
WALDEMAR S. NELSON & CO., INC.
New Orleans, Louisiana
WALK, HAYDEL AND ASSOCIATES, INC.
New Orleans, Louisiana
THE WILLIAMS COMPANIES, INC.
Tulsa, Oklahoma
THE ZAMIAS GROUP
Pittsburgh, Pennsyh/ania
MICHAEL ZUNICH & ASSOCIATES
North nUgevUe. Ohio
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DEVELOPMENT COMMISSION
REPOBT M.y. 1890
IQov Bill ainton of Ark^ncaB,
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Recommenda expension of stste role II
through establishment of en area- II
wtde system of mrtigation banking.
Calls for Congress and coaatal states
to plan and construct approximately
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ealabliah wetlands and watershed
management plana. Plana are to
include: mapping wetlands and
potential restoration biiob; aasossing
the functions and relative valuea of
wetlands; and programs, policies and
measures to achieve increased
protection and raeloretion of
Allows generel pemnita to be issued
for an SMieting state, tnbel. regional
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1277
STATEMENT OF DEAN R. KLECKNER, PRESIDENT, AMERICAN FARM
BUREAU FEDERATION
Thank you Mr. Chairman. My name is Dean Kleckner, President of the American
Farm Bureau Federation, We appreciate the opportunity to speak to you about the
reauthorization of the Clean Water Act and proposed wetland provisions. From the
perspective of farmers and ranchers, wetlands is one broad aspect of the Clean
Water Act that needs your attention,
Farm Bureau supports the identification, protection and enhancement of quality
wetlands if private property rights are protected and economic growth is enhanced.
Rice growers are a prime example of what people will do for wetlands when incen-
tives of owning private property and understanding the opportunity for economic
growth exist. Three million acres of rice are planted each year in the United States,
Rice farmers are making a specific effort to enhance wildlife habitat by winter
flooding 1 million acres of rice fields. However, there are several obstacles that Con-
gress must deal with in order to accomplish the goal of protecting and enhancing
quality wetlands:
• First, there is the need for a clear definition of wetlands.
• Second, Congress, using sound science, must develop a comprehensive policy
that clearly spells out which wetlands are important enough to be federally reg-
ulated.
• And third, adequate resources must be committed to make it work.
The Problem
From Farm Bureau's perspective, there are five major problems with the current
wetlands regulations. First, the Clean Water Act was not designed to preserve wet-
lands— it was designed to prevent discharge of toxic materials into waters of the
United States. Second, current wetland regulations fail to respect private property
rights. Third, bureaucratic expansion of federal control over farmed land did not
allow for public review and comment. Fourth, it is bad public policy if only profes-
sional government regulators can identify a wetland. And fifth, many farmers' at-
tempts at good-faith compliance have been frustrated and proven prohibitively
costly to resolve, thus placing the viability of the farming or ranching operation in
jeopardy.
Private Property Rights
Central to the wetlands issue is the question of private property rights. More than
75 percent of wetlands are on private property. The 5th Amendment to our Consti-
tution provides that private property may not be taken for public use without just
compensation. Historically, the landowner has borne the burden of protecting this
resource, both in the form of direct cost, and restricted use of property. We strongly
believe there is a public obligation to shoulder these costs, since the public at large
is the beneficiary.
Farm Bureau recommends that Congress reaffirm that wetlands are located on
private property, and if a section 404 permit is denied or if unrealistic conditions
are placed on obtaining a permit, the public owes the individual private landowner
compensation for the protection of a public resource.
Detailed Comments and Recommendations on S. 1304
Section 3. Declaration of policies and goals, Section 101(a) (33 U.S.C. 1251(a)):
Farm Bureau is very concerned about the vague nature, as stated, of a national
policy to achieve, through regulatory and non-regulatory strategies, the restoration
and no overall net loss of wetlands. We have the following questions about the pro-
posed goal of both S. 1304 and the administration's new policy to achieve no net loss
of remaining wetlands and increase the quantity and quality of wetlands in the
United States.
• Does S. 1304 require a net gain in wetlands?
• How many acres of wetlands does S. 1304 require to be restored?
• Does S. 1304 reaffirm the policy of sequencing in which wetlands are avoided at
all costs?
• What incentives does this committee recommend to encourage wetland restora-
tion?
• Who will be responsible for a consistent wetland inventory in order to monitor
restoration and efforts?
• Will the public compensate landowners for the protection of wetlands, or are
individual landowners responsible for the cost of protecting the national wet-
land resource base?
1278
• Should wetland regulations require a cos/benefit approach that balances pri-
vate property rights, environmental quality, economic growth, and public
health and safety with the benefits of the wetland protection/alteration?
Farm Bureau Recommends: The goal of this act should be directly related to water
quality standards in the Clean Water Act and based on the scientific contribution
wetlands have in managing water quality for human health and safety. S. 1304
should recognize and differentiate functions and values of existing wetlands £md
protect existing wetlands through a strategy of permits, compensation and mitiga-
tion.
Furthermore, the goal of increasing the quantity and quality of wetlands should
be achieved through a voluntary non-regulatory strategy such as a wetlands reserve
program. The goal should be to restore degraded wetlands, as well as previously
drained wetlands, to the level necessary to achieve the water quality standards
within a watershed without endangering other aspects of human health and safety.
Tying the desire for an increase in quantity of wetlands to water quality standards
puts a scientifically supportable and potentially definable cap on the amount of in-
crease, rather than leaving the amount of increase totally open-ended.
We prop>ose the following language:
"(8) it is the national policy to-
"(A) achieve, through a regulatory strategy of permits, compensation and miti-
gation, protection of existing wetlands and recognize that wetlands have differ-
ent functions and values;
(B) achieve through voluntary non-regulatory strategies and the wetlands re-
serve program, the restoration of degraded and previously drained wetlands to
increase the quantity and quality of the wetland resource base of the United
States to the level necessary to achieve the water quality standards of the Clean
Water Act; and
(C) provide for human health and safety while balancing the cost'benefits of
regulations, economic growth and environmental quality."
Section 4. Definition and Delineation of Wetlands
The temporary return to the 1987 wetland manual is an improvement over the
1989 memual, but it too contains some of the uncertainties that led to the original
controversy. The conflict over wetland delineation stems from the lack of a clear
public policy to apply good science. In that context we look forward to the product
of the National Academy of Sciences, but we do not view the NAS study as a pana-
cea. As members of the Senate, you, not the NAS, must be the arbiter of that con-
flict, the source of the compromise for what constitutes a federally regulated wet-
land. Eighteen more months of study will not resolve it.
The definition of navigable waters in S. 1304 is expanded to include potholes,
playa lakes, verngil pools, and similar areas. This section also provides for changes
in the delineation of wetlands only after the conclusion of the National Academy of
Sciences study of wetlands.
Ultimately, private landowners should not be required to bear the cost of protect-
ing "wetlands' that are recognized by the Clean Water Act and S. 1304 as being a
"public benefit," or in "the national interest." Farm Bureau opposes the protection
of "wetlands" that look convincingly like dryljmd or farm fields, nor should govern-
ment policy protect areas as wetlands that only professional or government "scien-
tists" can identify"'. Congress should and must determine the overriding policy jus-
tifications, that certain types of wetlands may qualify scientifically as a wetland but
should not be subject to Federal wetlands regulations.
Concern: Farm Bureau is very concerned that this definition and explicit expan-
sion could mean that any of these geographic locations is a jurisdictional wetland,
regardless of the absence of emy required wetland criteria. It also fails to differenti-
ate between a wetland by definition and a jurisdictional wetland.
Farm Bureau recommends:
• "Normal circumstances" — defined in this legislation to mean current physical
conditions.
• Wetlands should be defined as naturally occurring areas of predominantly
hydric soils, as determined by soil taxonomy, that support hydrophytic vegeta-
tion because of existing wetland hydrology. A hydric soil is a soil that in its
natural state is saturated, flooded or ponded long enough during the active
growing season to have predominant anaerobic conditions at the surface; and
hydrophytic vegetation means a predominance of obligate wetland plants and
facultative wetland plants.
• The avoidance of regional delineation meinuals.
1279
• Specific qualifications must be required for the individual making the delinea-
tion. Agencies administering delineation must recognize and be required to use
the best available science in each of the individual scientific disciplines of soil
science, plant science, and hydrology.
• Congress must require the National Academy of Sciences report to be scientifi-
cally field tested and the results subject to both congressional and public scruti-
ny before it is released or integrated into legislation.
• Congress should designate the Secretary of the Army acting through the Corps
of Engineers as the sole authority for section 404 permits. In order to stream-
line the regulatory process, section 404 (c), the veto power of EPA should be re-
moved. A streamlined process would give EPA, DOT and USDA general over-
sight, but not on a permit-by-permit basis.
Section 4.(bX4); Delineation Training, Certification and Outreach.
The Administration has accurately characterized the situation by stating that
"for too long, contradictory policies from feuding Federal agencies have blocked
progress, creating uncertainty and confusion." Farm Bureau Ls concerned this situa-
tion will continue unless Congress requires development of a strong delineator certi-
fication program. The goal should be to have anyone who delineates wetlands certi-
fied and reviewed for consistency.
Farm Bureau supports S. 1304's efforts to have all federal agencies and private
sector delineators trained and certified to improve accuracy and consistency in de-
lineating jurisdictional wetlands. However, it fails to require an independent review
board with explicit oversight and individual delineator performance evaluation.
Farm Bureau Recommends: The goal of this section should be to develop a nation-
al certification program that strives for consistency among all certified delineators.
Legislation should include a national certification program that requires:
a) proficiency standards,
b) 5-year certification duration,
c) specific performance review and evaluation that would Include:
1) random field performance reviews;
2) random data sheet performance reviews;
3) emergency performance review b£ised upon complaints; and
d) continuing education.
Section 4.(bX5); Assisting Small Landowners with Wetlands Delineation.
This section initiates the concept of federal assistance for small landowners and
authorizes $5 million to facilitate compliance with wetland regulations.
Concern: Farm Bureau is very concerned about the vague nature and limited re-
sources committed to this proposal. We believe that individual assistance should be
provided for the numerous legislative and regulatory mandates, but question this
provision based on size, and limited resources.
Farm Bureau recommends Congress strengthen this section to include funding and
federal assistance to anyone subject to the rules and regulations mandated by this
legislation.
Section 6. Permit Processing Improvements-
This area is in need of reform to provide timely review and decisions on permit
applications. We agree with S. 1304 in' its attempt to provide decisions within a 90
day period.
Concerns: The timeliness of the review process may still drag on considerably.
Also, Farm Bureau strongly believes Congress should include an appeeds process for
wetland delineations, permit denials and administration penalties.
Farm Bureau recommends that no more than one additional 90 day extension can
be requested by any one agency or combination of agencies if additional data is re-
quired for an individual section 404 permit. If a decision is not made by the end of
these time frames the permit should be considered granted. (See attached amend-
ment)
Farm Bureau recommends the following regarding Costs and Fees of Parties: In
court cases where a party other than the United States prevails, the prevailing
party should be awarded fees and other expenses in connection with the proceeding
regardless of whether the proceeding is brought by the United States for violations
of the Act or by the prevailing party for issuance or denial of a section 404 permit.
If the party is dissatisfied with the determination of fee and other expenses award-
ed, there should be an additional appeals process available.
1280
Farm Bureau recommends Congress address an additional problem with the 404
program — an equitable, efficient and inexpensive means for landowners to appeal 1)
delineations, 2) permit applications, and 3) penalties and fines without going to
court.
Section 7. General Permit Improvements
Farm Bureau supports this section that generally continues the concept of general
permits. We believe Congress should that allow state, regional or nationwide per-
mits that will allow activities that cause only minimal adverse environmental ef-
fects.
Concern: Farm Bureau questions proposals that will make individual and general
permits contingent on the development of watershed "wetland management plans.
We are also very concerned about what appears to be a new requirement to add
mitigation requirements to general permits.
Farm Bureau recommends that this proposal should requiring the Corps to issue
general permits for activities with minimal adverse environmental effects. We sup-
port general permits for activities impacting low value wetlands and oppose require-
ments contingent on mitigation.
Section 8. Coordination and Clarification of Program Concerning Agricultural Ac-
tivities-
(b) Prior-Converted Cropland
The Environmental Protection Agency and Corps of Engineers have promulgated
rules to exclude prior-converted cropland from the scope of Section 404. This was an
important change but it did not go far enough to prevent confusion. Specifically, if
the production of annual crops is required to maintain this exemption, problems
will arise when farmers plant hay, orchards and other perennial crops on this land.
This has a huge potential for providing conflict between the farm community and
government regulators.
We are however, pleased to see the exemption for prior-converted cropland in S.
1304 and that the current administration has registered its support for this provi-
sion being placed into law but Congress must address the annual/p)erennial crop di-
lemma.
Farm Bureau recommends that Congress specifically exclude prior-converted crop-
land from section 404 regulation in this legislation.
Farmed wetlands
The Administration and S. 1304 recognize that prior-converted croplands are no
longer wetlands. They should also recognize that some farmed wetlands no longer
exhibit wetland characteristics and should not be regulated. Prior- Converted Crop-
lands were once wetlands that were too wet to farm without drainage. Farmed Wet-
lands, on the other hand, are areas that are wet so infrequently that they can be
farmed without drainage. Farm Bureau believes these areas should not be jurisdic-
tional wetlands.
Farm Bureau recommends that Congress exclude tilled cropland and improved
pasture from section 404 jurisdiction.
Section 8(d) Exempted Activities— Section 404(fKl) (33 USC 1344(f))
Concern: Normal Farming Practices — Section 404(f) of the Clean Water Act in-
tended for farms, ranches and forestry operations to continue "normal" farming and
ranching activities including, but not limited to plowing, seeding, cultivating, minor
drainage, harvesting, ditch maintenances, tile maintenemces, brush clearing, etc.,
without having to obtain individual permits. Despite that intent, many of the con-
flicts between farmers and regulators are due to attempts by field office regulators
with no familiarity with agriculture to define what constitutes a normal farming
practice.
Farm Bureau recommends that Congress clarify that all farming activities are to
be exempt from permit requirements. Because of the diversity of agriculture among
commodities and regions of the country, Congress should restate and further clarify
its intent to include all land used in production agriculture for food, fiber, timber
and biomass.
Farm Bureau recommends that the word "normal" be dropped from the law in
section 404(fXl) because it has specific relation to the date the law was passed and
thus inhibits the adoption of new or different farming practices at some future date.
Farm Bureau recommends the specific recognition that ranch roads should be al-
lowed to be constructed and maintained the same as farm £md forest roads.
1281
Section 8. Soil Conservation Service
The USDA Soil Conservation Service should be the coordinating agency delineat-
ing wetlands on agricultural land.
We strongly agree with the administration's recommendation to make SCS wet-
lands delineations the final government position on the extent of Swampbuster and
Clean Water Act jurisdiction on agricultural lands. However, we believe this con-
cept needs to be incorporated in S. 1304 and enacted into law. It would provide
much needed consistency and greatly reduce potential conflict.
Concern: We believe there are several reasons why SCS is the appropriate agency
to delineate all wetlands on agricultural lands. SCS has offices in nearly every
county, making it much more cost-effective and timely for them to do delineations
than it would be for any of the other agencies. SCS is a technical assistance agency
and is better able to recognize relict wetland situations where hydric soil is still
present but hydrology has been removed. In addition, SCS is currently administer-
ing the Swampbuster program.
Farm Bureau strongly recommends that authority for delineation of all wetlands
on agricultural land hs the sole responsibility of the Soil Conservation Service (SCS).
Section 8. Exclusion of Man-Made Wetlands
Many wetlands are created, intentionally or unintentionally, as a result of human
activities. Wetland vegetation that results from crop irrigation, saturation from
broken drain tiles, flowing as a result of neglected stream maintenance, standing
water from poorly designed public works projects, and the construction of farm and
stock ponds are a few examples.
Farm Bureau recommends that artificially created wetlands should not fall under
404 jurisdiction because they are man-made and often unintentional. We support
the amendments in S. 1304 regarding artificially created wetlands.
Farm Bureau recommends Congress recognize under certain circumstances, that
some types of agricultural production are entirely compatible with conserving wet-
land functions and values. Forestry, cranberry and blueberry production, haying/
grazing and some types of aquaculture are prime examples. Where such commod-
ities can be produced in manner consistent with overall wetland functions, they
should be encouraged and allowed to expand. Compatible activities such as cranber-
ry production and aquaculture should be specifically mentioned along with stock
watering, irrigation and rice production. Language exclusively limiting these artifi-
cial lakes and ponds to stock watering, irrigation and rice production should not
limit the stocking of fish or seasonal efforts to provide waterfowl habitat.
Section 9. Mitigation Banking
Farm Bureau supports proposals to provide for mitigation banking.
Concern: Farm Bureau is concerned that this proposal provides no guidance on
mitigation requirements (acreage), lacks specific guidelines in the replacement of
functions and values and requires mitigation "in advance".
Farm Bureau recommends mitigation requirements based on the replacement of
wetland functions, but in no case should acreage replacements exceed one acre for
one acre. We also recommend changing the "mitigation bank" definition to remove
the requirement for advance mitigation when simultaneous efforts will be practica-
ble.
Section 9. Classification of Wetlands
Concern: Changes to section 404 should include a system of classifying wetlands,
recognizing that not all wetlands share the same ecological value or perform the
same functions. Those that are truly unique may be deserving of greater protection,
whereas those that are marginal or only technically meet wetlands criteria should
be subject to less stringent oversight.
Farm Bureau strongly recommends that the federal government adopt a standard
method for inventorying wetlands which includes soil taxonomy as the basis for de-
termining wetland soils, classifies wetlands on the basis of function and value, and
requires that all government agencies adhere to this single inventory methodology.
We suggest that the Corps of Engineers be mandated to conduct and maintain the
inventory of wetland functions and values in consultation with the Soil Conserva-
tion Service. Regulatory efforts should only offer a protection to the nation's most
valuable and unique wetland areas.
1282
Section 11. Reports and Aneilysis-
Section 11 calls for collection of data and reporting to Congress and the public
every two years regarding effects on navigable water of activities conducted under
permit.
Concern: Currently all four federal agencies have wetland inventories that are
conflicting and inconsistent. Farm Bureau strongly supports an accurate, consistent
and current inventory of functions and values. We believe there should he a consist-
ent definition for accounting and inventorying values and functions of wetlands in
order for this reporting system to have policy implications.
Farm Bureau recommends that Congress consolidate all activities for wetland in-
ventories into a national inventory maintained by the Secretary of the Army in con-
sultation with the Soil Conservation Service.
Farm Bureau also recommends that the Fish and Wildlife Service's National Wet-
lands Inventory should end. In previous testimony to the House of Representatives
we called for a national inventory of wetlands. However, a recent Duke University
study * has caused us to believe that continuation of the National Wetlands Invento-
ry in its present form would be redundant and no more useful than existing soil
maps. The study found that National Wetland Inventory maps are accurate no more
than 35 percent of the time. This is the same level of accuracy obtained by the Soil
Survey maps already produced by the U.S. Soil Conservation Service. We do not
need another inventory for wetlands if it is going to be no more accurate than maps
we already have in most counties. Existing soil maps developed on the basis of soil
taxonomy can be used to help make the first cut in wetland determinations, but no
final determination should be edlowed until an on-site delineation is performed.
As lands are taken out of production due to their classification as "wetlands",
landowners have sought and obtained lower tax assessments based on the loss of
value of wetland property. This erodes local tax bases, which are already strained to
the limit.
Farm Bureau recommends that the EPA and the Corps of Engineers monitor the
effects of the wetlemd regulation progreun on private property rights and on local
tax bases, and report to Congress every two years on the subject.
Section 12. Wetlands Conservation, Management and Restoration
Section 12 requires the development of a watershed "wetlands management plan.
As written, it provides no mechanism for compensation for the loss of private prop-
erty rights and "or restoration of wetlands or riparian areas. Also, it appears to add
requirements for individual section 404 permits for all activity within a watershed
unit (land-use planning). If so, this requirement extends section 404 permitting ac-
tivity beyond jurisdictional wetlands.
Concern: Memy farmers currently maintain as many as a dozen separate resource
management plans. These management plans involve soil conservation, ground and
surface water quality, animal waste, wetlands, and activities within coastal zones.
These efforts, required by legislation, are very time consuming, confusing and re-
dundant. We strongly believe proposals mandating management plans for clean
water, wetlands, coastal zone, conservation, etc., should be consolidated. However,
Farm Bureau is very concerned that such efforts will be interpreted by the adminis-
tration and the courts as a congressional mandate for land-use planning and, there-
fore, result in the regulation of all activity within a watershed. Farm Bureau is
strongly opp>osed to central or national land-use planning.
Farm Bureau Recommends Congress explore the proposal included in Vice Presi-
dent Gore's reinventing government report that calls for a consolidation of various
environmental management plans into one farm plan. We believe one management
plan, established from among affected private landowners within a specific water-
shed or management unit, will streamline and enhance agriculture's conservation
and environmental quality efforts. We believe wetlands management should be part
of the plan.
We recommend deletion of Section 12 of S. 1304 in its entirety and that wetland
management concepts be integrated into one conservation effort.
Summary
We believe that the suggestions contained above will greatly improve the wetland
regulatory progreun and reduce many of the inequities and difficulties faced by land-
owners and small businessmen. Farm Bureau supports the efforts of the National
' Street, William H. May, 1993. Field Reconnaissance of National Wetland Inventory Maps in
the Carolina Slate Belt Region of Durham County, North Carolina. Duke University.
1283
Wetlands Coalition, although the voting delegates of the American Farm Bureau
chooses not to endorse the no-net-loss goal.
We would encourage and assist any constructive and cooperative efforts to resolve
the question of financing the conservation of true and valuable wetlands. We look
forward to working with you in this effort.
TESTIMONY OF DOUGLAS B. INKLEY, DIRECTOR, BIODIVERSITY
CONSERVATION DIVISION, NATIONAL WILDLIFE FEDERATION
Thank you for the opportunity to present to the Clean Water, Fisheries and Wild-
life Subcommittee this statement on wetlands protection in the context of the reau-
thorization of the Clean Water Act. The National Wildlife Federation (NWF) is the
nation's largest conservation education organization. Founded in 1936, the NWF
works to educate and assist individuals and organizations to conserve natural re-
sources, and to protect the Earth's environment. Our members and supporters are
deeply concerned about the continued loss of wetlands and continue to work for the
protection and expansion of 'our nation's veiluable wetland resources.
Our testimony is outlined as follows: the first section explores the many functions
and values of wetlands; the second section examines the status and trends of our
nation's wetland resources; in section three, the NWF wetlands agenda is explained
point by point; and section four addresses the NWF position on pending wetlands
legislation. In addition, because of the importance of the issue, section five addresses
Alaska's wetlands. And finally, section six summarizes and concludes the testimony.
Wetlands Functions and Values
It is well established in the scientific literature that wetlands provide a number of
critical ecological functions from which the American public derives enormous bene-
fits— economic and otherwise. Dozens of texts and hundreds of publications have
analyzed wetlands functions and values, thus this testimony can only hope to pro-
vide a cursory overview of the topic. Because economics remains the axis on which
many wetlands debates turn, it is vital that this Subcommittee understand fully the
value of wetlands. Any reduction of federal protection for wetlands will have many
economic, ecological and social ramifications.
Scientists generally agree that wetlands provide the following values and func-
tions: ^
Flood Conveyance
Storm Surge Abatement
Water Quality — Nonpoint Pollution and Sediment Control
Groundwater Recharge and Discharge
Habitats for Rare and Endangered Species, Waterfowl and Other Wildlife
Habitats for Fish and Shellfish
Recreation
Water Supply
Food Production
Timber Production
Historic and Archaeological Sites
Education and Research
Open Space and Aesthetics
Our testimony below addresses several of these functions.
Flood Conveyance
At times of peak runoff, rivers and streams often overflow their banks into adja-
cent floodplains. Wetlands, which are often referred to as natural sponges, soak up
much of the water and slow its rate of flow. This ability to absorb floodwaters and
release them over time dives these systems extraordinary value as sites for tempo-
rary water storage. In short, when wetlands are present to retain this overflow,
peak flows of flood water are reduced, and floods are made less damaging.
Isolated wetlands and other non-riparian wetlands also hold rain and runoff
water and contribute to flood control. Wetlands are especially valuable as flood
moderators because the water they retain almost never reaches watercourses when
they are at flood stage. For example, a study conducted in Wisconsin showed flood
flows to be reduced by 80% in basins with wetlands as opposed to basins without
1 From, "Protecting America's Wetlands: An Action Agenda. The Final Report of the National
Wetlands Policy Forum. 1988. The Conservation Foundation. Washington, DC. 69 pp.
1284
wetlands. ^ In addition, increasing acreage of hard-surface areas, such as highways,
shopping centers, and housing developments within a watershed adds to the fre-
quency of adjacent river and stream flooding.
Numerous case studies from around the country demonstrate the important flood
conveyance function that wetlands can provide. In one instance, the U.S. Army
Corps of Engineers [hereineifter "Corps"] elected to preserve wetlands through ac-
quisition rather than construct extensive flood control facilities for a portion of the
Charles River near Boston, Massachusetts. The Charles River Natural Valley Stor-
age Project, as it came to be called, was completed in 1984 and — by protecting
rather than destroying wetlands associated with the Charles River — has resulted in
an annual savings of $17 million in flood damage.
When the Mississippi overflowed its banks th's summer, we learned how impor-
tant wetlands can be for flood abatement. The latest damage estimates for the mid-
west flooding range from $10 billion to $15 billion in total damages with 40,000 to
50,000 homes and businesses affected. Some estimates reported by the Federal
Emergency Management Agency have suggested that as many as 80 percent of the
affected buildings may have suffered "substantial damage," meaning they sustained
damage in excess of 50 percent of the buildings' value. Many of these buildings were
inundated for long periods of time, and many were still underwater, weeks after the
floodwaters first arrived. For the buildings that have undergone such flooding, there
exists a substantial public health threat if they are ever reoccupied.
This widespread flooding in Iowa and Missouri provides a graphic illustration of
what happens when wetlands are drained on a meissive scale — in this instance for
agricultural production. According to the U.S. Fish and Wildlife Service [hereinafter
"FWS"], Iowa has lost 89 p>ercent of its wetlands since Colonial times. Missouri and
Illinois have lost 87 percent and 85 percent respectively. In view of the well-estab-
lished linkage between wetlands drainage and flooding, it is no wonder episodes
such as that experienced in Iowa occur so regularly and severely.
In testimony presented to the Domestic Policy Council on Wetlands, the Minneso-
ta Department of Natural Resources [DNR] attempted to quantify the economic ben-
efits derived to the state in reduced flood damages by protecting wetlands. ^ Accord-
ing to the State, it costs nearly $300 for each acre-foot of flood storage that has to be
create. In other words, if development eliminates a one acre wetland that holds 12
inches of water during a storm, the public costs to replace that water storage is
$300. With an estimated 5,000 acres of wetlands being lost annually in Minnesota,
the cost of replacement storage to the State's residents is $1.5 million — which ex-
ceeds the State's annual appropriation for flood control. As the DNR concludes, wet-
lands drainage — based on flood conveyance function alone — is simply bad economics.
Storm Surge Abatement
Coastal wetlands absorb and temper the impact of storm surges. Wetlands associ-
ated with barrier islands, salt marshes, and mangrove swamps act as giant storm
buffers and can weather major storm events without sustaining lasting damage. The
low gradient of many shorelines and the capacity of wetland vegetation to absorb
and dissipate wave energy combine to counteract storm surges and prevent shore-
line erosion. As a result, federal flood insurance is no longer offered to coastal com-
munities to subsidize destruction of msmgrove swamps, an indication that the public
is beginning to recognize the value of these wetlands.
When Hurricane Andrew came ashore in Florida and Louisiana last year, the
nation was reminded of the tremendous difference the presence of a co£istal wetland
buffer can make. The storm hit both states with approximately the same strength,
yet Florida sustained over $20 billion dollars in damage to Louisiana's $2.5 billion.
A large wetland buffer was present in Louisiana, no doubt sparing the state's popu-
lation from similar damages. Nonetheless, Louisiana loses approximately 25 square
miles of coastal land each year to geologic shifts and human development pressures.
Coastal development, which destroys 'or degrades the wetlands in barrier islands
and other critical coastal wetlands, estuarine salt marshes, or lakeshore marshes, is
likely to cause costly storm damage through the loss of critical buffer capacity.
Thus, the assemblage of dunes, marshes, and woody vegetation that comprise our
coastal wetlands, are much more important for their natural values than as expen-
sive tracts of real estate on which to build resorts or summer homes.
2 Status Rej)ort On Our Nation's Wetlands. 1988. National Wildlife Federation, Washington,
D.C. Hereinafter, "NWF Trends Report."
^ Testimony presented to the Domestic Policy Council's Wetlands Task Force. Ron Nargang,
Director, Division of Waters. Bismarck, North Dakota. August 17, 1990. Hereinafter "DNR Testi-
mony."
1285
Water Quality, Sediment Control and Nonpoint Pollution
One of the most important functions of wetlands is their ability to help maintain
and improve the water quality of our Nation's rivers and other waterbodies. It is
precisely for this reason that wetlands and their protection is fundamental to
achievement of the CWA goal to "maintain and restore the chemical, physical, and
biological integrity of the Nation's waters." Wetlands improve water quality and
control nonpoint pollution in a number of ways including removing and retaining
nutrients, processing chemical and organic wastes, and reducing sediment loads to
receiving waters.
One example of a natural wetland which enhances water quality is the Alcovy
River system in Georgia. Researchers there found that — after flowing through a
three-mile stretch of wooded swamp — water polluted with chicken excrement and
human waste was significantly improved in quality. The value of this wetland for
water pollution control alone has been estimated to exceed $1 million annually. In
another case, researchers at the University of Michigan learned that a 1,700-acre
peat bog could treat 100,000 gallons of secondarily treated wastewater per day. The
wetland removed roughly 70 percent of ammonia nitrogen, 99 percent of nitrite and
nitrate nitrogen percent and 95% of total dissolved phosphorus from the
wastewater, much of it in less than 24 hours.
According to the Minnesota DNR, combined federal-state expenditures in the
State on nonpoint pollution control alone over the past decade approaches $20 mil-
lion dollars. Based on its experience, once again the State of Minnesota concluded
that it is economic folly to continue eliminating its natural filters — wetlands — from
the landscape while at the same time having to increase public expenditures to con-
trol non-point source pollution. **
Groundwater Recharge and Discharge
In some instances, wetlands play an important role in replenishing or "recharg-
ing" groundwater supplies. Surface water bodies connected to groundwater systems
can recharge these systems as their waters migrate and percolate into the surround-
ing. Aquifer. Wetland recharge sites serve an important role in maintaining ground-
water levels at the local or regional level. In Massachusetts, a 2,700-acre wetland
recharges a 16-square mile shallow aquifer at a rate of eight million gallons per day.
The aquifer provides much of the water supply for the town of Amherst.
Prairie potholes, glaciated wetlands of the Northeast and Midwest, and southern
cypress swamps are among the types of wetlands that serve as valuable recharge
areas. These wetlands occur where there is an elevated water table, and they often
contribute to adjoining shallow aquifers. Seasonal wetlands in the prairie pothole
region are important to the maintenance of high water tables. High water tables, in
turn, provide water for livestock during droughts and can be vitally important to
the long-term water balance of the prairies by providing significant recharge to soil
moisture. ^ Not only does enhanced soil moisture recharged by prairie wetlands im-
prove crop production, but emergent wetland plants found in these areas can pro-
vide abundant forage for livestock.
With supplies of clean water becoming increasingly precious throughout the
Nation, we cannot afford to overlook the important role wetlands play in the cycle
of water. Although research is needed to understand more fully the djmamics of
water movement into, through, and out of wetlands, we do know that wetlands and
groundwater are inextricably linked. Strong wetlands protection programs, there-
fore, are essential to protecting and providing an abundant and healthy water
supply for all Americans.
Habitats for Rare and Endangered Species, Waterfowl, and Other Wildlife
Wetlands are critical habitats for a variety of plants and animals. Research has
demonstrated that wetlands of less than one acre in size support an abundance of
life forms. The loss of wetlands — both large and small — therefore impacts a broad
array of plants and animals. One of the more obvious groups of animals to be affect-
ed by the destruction of wetlsinds is waterfowl.
Ducks, geese and swans are some of the more prominent wildlife species to make
use of wetlands, and — as discussed below — are important economically. The well-
being of waterfowl populations is tied directly to the status and abundance of wet-
land habitats. Simply said, as the wetlands go, so go our waterfowl. That waterfowl
* DNR Testimony.
^ Hubbard, D.E. 1988. Glaciated prairie wetland functions and values: a synthesis of the litera-
ture. U.S. Fish and Wildlife Service. Washington, DC. 50 pages.
1286
populations have reached record low levels in recent years should come as no sur-
prise to anyone who understands that the Nation's wetlands inventory is at its
lowest level in recorded history.
Besides waterfowl, a large number of federally listed threatened and endangered
species rely on wetlands for their survival. As of June 1993, 408 animals and 384
plants were listed as threatened or endangered in the United States. According to a
recent NWF report, of the 592 species listed in 1992, forty-three percent [256] of
these animals and plants depend directly or indirectly on wetlands to complete their
life cycle successfully. In addition, of the more than 2,500 plants in need of federal
protection, as many as 700 are wetland-dependent or related. ^
Aside from the threatened and endemgered species that depend on wetlands for
their survival, 5,000 species of plants, 190 species of amphibians, and 270 species of
birds are estimated to occur in the Nation's wetlands. As if to confirm what many
ecologists have long suspected, in 1991 The Nature Conservancy [TNC] reported that
North America's aquatic fauna are in serious trouble. ' According to TNC, one out
of three North American fishes and two out of three of the continent's crayfishes
are rare or imperiled. Mussels appear even more threatened: one in every ten North
American freshwater mussel species has become extinct in this century and 73 per-
cent of the remaining species are now rare or imperiled. The primary reason for the
decline of these "aquatic canaries" — not surprisingly — appears to be habitat loss
and degradation.
For years man has relied on fish and wildlife resources as an "early warning
system" and an indicator of environmental quality. For anyone willing to listen, the
bells and sirens have sounded for our Nation's wetlands-— these systems and the
myriad plant and animal communities that depend on them are in serious trouble.
Greater wetlands protection — not less — is the only remedy.
Fish and Shellfish
Wetlands are — literally — the cradle of the nation's seafood industry. Fish and
shellfish depend on estuaries for spawning and nursery grounds, food production,
and migration. A bumper sticker frequently seen in coastal North Carolina succinct-
ly states the importance of wetlands to the fishing industry - "No Wetlands, No Sea-
food." It doesn't get any simpler, or truer, than that.
The National Wildlife Federation and others have long emphasized to Congress
the importance of preserving wetlands to protect the nation's seafood industry. Ac-
cording to a recent report, the annual economic value of estuarine habitats is ap-
proximately $14 billion. In the late 1980's commercial landings of estuarine-depend-
ent species contributed some $5 billion to $6 billion to the economy. Despite these
figures, over half of the nation's fishery-supporting wetlands have been lost, a fact
that the National Marine Fisheries Service (NMFS) clgiims cost the fisheries $208
million each year in the mid-1980's.
Recent data compiled and published by the NMFS dramatically underscore the
wetlands-fisheries nexus. ® For example:
• 75% of U.S. commercial fish and shellfish landings consist of species dependent
on coastal wetlands and estuaries.
• All fish species harvested commercially or recreationally off Atlantic, Pacific,
and Gulf of Mexico Coasts have been reduced to historic low levels of abun-
dance.
• There has been a 42% decline in commercial landings of fish and shellfish
along the southeast Atlantic and Gulf of Mexico Coasts since 1982.
• The Maryland oyster harvest has declined 90% since 1890.
• Migratory fish in the Chesapeake Bay have declined, on average, 82% between
the 1960's and the 1980's.
• 33% of the Nation's remaining shellfish waters are closed on any given day be-
cause of pollution.
Depending on the region of the country, the percentage of wetland-dependent fish
species varies. For example, 98% of all marine species in the Gulf of Mexico spend
part of their lives in wetlands and marshes. In the southeastern U.S. This percent-
age is slightly lower — 94%. The trends are clear. Historic commercial fish and shell-
fish harvests are in steep decline and the primary factor for these declines appears
to be the loss and degradation of wetlands.
8 NWF Trends Report.
^ Aquatic Animals: Endangerment Alert The Nature Conservancy Magazine. March/ April
1991.
^ Cheunbers Report.
1287
Florida has been dramatically affected. According to published accounts, shrimp
harvests in that state have decreased by more than 75% since the early 1980's, and
the fishery off the southwest tip of Florida is on the verge of total collapse. Scien-
tists believe the collapse can be traced to a number of significant changes in the
wetland-tidal ecosystem, including — restricted flows of freshwater from the Ever-
glades, runaway development that has converted thousands of acres of mangrove
swamps and other critical wetlands, loss of seagrass beds from onshore development,
and high levels of pesticides and other contaminants in agricultural runoff.
Clearly, concern for a strong and proactive ^04 program now extends well
beyond the environmental community which — for the past 20 years — has worked to
improve and expand on the program. And, while the environmental community will
continue to press for improvements to 4^04, Congress can no longer ignore the bur-
geoning constituencies, such as commercial fishermen and shell fishermen whose
passions, and — in many instances whose livelihoods — hinge entirely on a strong fed-
eral wetlands protection program:
Recreation
Recreational opportunities is another important contribution that wetlands m£ike
to the citizens of our nation. To illustrate the extent of waterfowl hunting, the U.S.
Fish and Wildlife Service (FWS) estimates that in 1985 some 2.7 million waterfowl
hunters spent almost 24 million hunter-days afield spending approximately $600
million. ^ In 1985, 6.3 million hunters (38 percent) spent almost 87 million days
hunting on wetlands acreage. Clearly, millions of dollars have been spent in states
represented by Members of this Subcommittee alone for recreational hunting on
wetlands.
Recreational fishing is also an important wetland-dependent activity that gener-
ates millions of dollars annually. Nation-wide, according to FWS estimates, some
35.6 million anglers took 454 million trips for 511 million total days, spending
almost $24 billion in the process. As illustrated in Table 1, in the 10 states repre-
sented by this Subcommittee, over 9 million anglers spent more than 120 mUUon
days afield fishing in 1991. This, in turn, generated a total annual expenditure of
$5.2 billion dollars — an average of more than $500 million per year per state.
Finally, the amount of money spent by Americans on other wildlife-related activi-
ties associated with wetlands involves billions of dollars each year. For example, the
FWS estimates that 55 million people spent almost $10 billion in 1980 observing and
photographing waterfowl and other wetland-dependent species of birds. This is an
annual expenditure of almost $200 per person. Clearly, wetlands are important to
the Nation for hunting and fishing, as aesthetic retreats and places of diversity for
nature study, and are central to the enjoyment of millions of Americans.
Economic Benefits of Wetlands
Throughout the preceding, our testimony touched on a variety of ways in which
wetlands provide major economic benefits. The message is simple: wetlands conser-
vation is good economics. When a single three mile stretch of river in Alcovy, Geor-
gia improves water quality at an estimated value of $3 million annually, when wet-
lands refill the aquifers that supply drinking water to thousands of communities
like Amherst, Massachusetts, and when wetland buffers save states like Louisiana
billions of dollars in potential Hurricane damage, the benefits of wetlands protec-
tion become self-evident.
In Maryland, the Department of Elconomic and Employment Development esti-
mates the value of the Chesapeake Bay at $678 billion. Despite the degraded condi-
tion of the Bay — due partially to the loss of wetlands — over 100 million pounds of
seafood are annually harvested by commercial fishermen, oystermen, and crabbers.
As we have seen, seventy-five percent of commercial and recreational fish catches
depend on wetlands for part of their life cycles, and commercial landings of estua-
rine-dependent species contribute $6 billion annually to the U.S. economy.
Americans across the country spend billions, of dollars each year on wildlife-relat-
ed recreation activities. According to the FWS, almost 109 million people took part
in wildlife-related activities in 1991, spending some $59 billion in the process. In
1985, 55 million people spent almost $10 billion dollars photographing waterfowl
and other wetland dependent-species of birds alone. Be it for hunting, fishing or
photographing wildlife, the value of wetlands as a recreational resource cannot be
ignored.
* 1985 National Survey of Fishing, Hunting, and Wildlife Associated Recreation. U.S. Fish and
Wildlife Service, (hereinafter cited as FWS Survey 1985) p. 59
1288
Wetlands have other economic benefits as well. By providing unique opportunities
for research and education, containing historic and archaeological sites, providing
habitat for rare and endangered species, and providing open space and aesthetic im-
provements to communities, wetlands improve surrounding property values and
yield countless other benefits. Medical discoveries from plants, fish and wildlife
have already been worth billions of dollars to industry, the full value of which also
must be measured in terms of human life and health.
Because it is difficult to quantify their values, wetlands often fare poorly when
competing against other uses. Government subsidy programs in the form of tax in-
centives and Eigricultural price supports often confer a competitive advantage ori-
ented toward agriculture and development. As a result, destruction of wetlands con-
tinues at an alarming rate.
Wetlands Provide Jobs
It is important that the Members of this Subcommittee realize that wetlands pro-
vide jobs — jobs that in many cases are irreplaceable. The $55 billion commercial and
recreational fishing industry-employs over 1 million workers across the country. In
the 10 states represented by the Members of this Subcommittee, over 235,000 people
work in recreational fishing-related jobs. Those same 10 states also support 36,000
commercial fishermen and 14,000 plant processing jobs.
The commercial and recreational fishing industry in Florida, for example, em-
ploys 110,444 people. The dockside value of the 1991 commercial catch was $162 mil-
lion; annual sport fishing expenditures in the state topped $2 billion. In Minnesota,
recreational fishermen spent $816 million dollars in 1991, supporting 27,000 people
in fishing-related industries. Without the wetlands, the fish and the jobs that
depend on them will disappear.
Status and Trends of our Nation's Wetlands
Wetlands destruction is changing the face of America. Water that once remained
in low spots and provided habitat for wildlife, now collects in ditches and tile lines
and is rushed to the nearest stream. Millions of acres that once grew cat tails, wil-
drice, and pondweeds now support wheat, corn; houses, factories, giirports and roads
. many millions of acres of good waterfowl habitat have been destroyed and the
loss continues. ^°
This straightforward observation on wetlands destruction, taken from the 1964
U.S. government publication Waterfowl Tomorrow, is more timely today than when
it was first written almost 30 years ago. As discussed below, the loss of wetlands in
America continues at an unacceptably high rate — almost 300,000 acres per year.
Considering the tremendous functions and values these systems provide, the fact
that America has lost 50 percent of its wetlands, and the sobering realization that
wetlands now occupy only 5 percent of the Country's surface area, should be cause
for alarm. For too long this nation has embraced a myopic wetlands philosophy that
can only be described as "squander now, pay later."
Unless this Congress awakens to the fact that the status quo is no longer accepta-
ble, and unless its Members are bold and courageous enough to take aggressive and
positive steps to strengthen and improve on § 404, then we have assured a future for
the nation which holds fewer and fewer wetlands.
Despite disingenuous arguments from groups such as the American Farm Bureau
that the nation's wetlands resources are actually increasing, it is abundantly clear
that the nation continues to lose these critical resources at a staggering rate. A 1990
FWS study found that, in the lower 48 states, more than half of the nation's original
wetland acreage is now gone. ^ ^ This translates to a loss in excess of 60 acres per
hour — one acre per minute — in the 200 years since the 1780's. Some states' wetlands
losses have been extreme. For example, California and Ohio have lost more than 90
percent,of their original wetlands, and Iowa, Indiana and Illinois have lost 89 per-
cent, 87 percent, and 85 percent, respectively. Ten states have lost 70 percent or
more of their original wetland acreage. The serious erosion of our national wetlands
inventory is underscored by the fact that 22 states have now lost more than 50% of
their original wetlands.
Wetlands losses in states.of Members of this Subcommittee are no exception to
this rule. As graphically illustrated on the following pages, four states [Connecticut,
Idaho, Pennsylvania and Nevada] have lost in excess of 50 percent of their original
>° Waterfowl Tomorrow. 1964. Bureau of Sport Fisheries and Wildlife. Washington, DC. 770
pages.
' 1 Dahl, T.E. 1990. Wetland losses in the United States 1780's to 1980's. U.S. Dept of the Inte-
rior, Fish and Wildlife Service, Washington, DC. 13 pp. Hereinafter, "1990 FWS Report."
1289
wetlands and all but one state [Maine] has lost at least 25 percent of their original
wetlands. With these losses go the tremendous wetlands functions and values dis-
cussed above. Whether it is. The valuable fish and shellfish nursery grounds in C!on-
necticut, Florida, Maine, New Jersey, Rhode Island, or Virginia, critical flood con-
trol in Iowa or Minnesota, or important fish and wildlife recreational opportunities
in Idaho, Vermont, or Wyoming, the unabated loss of wetlands in these states is
taking its toll on their economies, their residents, and their residents' quality of life.
As the 1990 FWS report starkly concludes,
. . . These data on the Nation's wetlands loss provide a clear indication that
continued loss will jeopardize a valuable resource. Over a 200-year timespan,
wet land acreage has diminished to the point where environmental and even
socio-economic benefits [i.e., groundwater supply and water quality, shoreline
erosion, floodwater storage and trapping of sediments, and climatic changes] are
now seriously threatened." '^
In addition to the 1990 FWS Report, the FWS released another major wetlands
study in 1991 entitled Status and 'Trends of Wetlands in the Conterminous United
States. This report confirms that the Nation's wetland hemorrhage continues, with
the primary cause of wetlands destruction still conversion to agricultural land uses.
Some of the findings of the report include the following:
• During the nine year study period, the nation had a net loss of 2.6 million wet-
land acres. This translates to an average annual net loss of approximately
290,000 acres, which is about two-thirds of the loss rates meeisured from the
1950's to the 1970's.
• More than 3 million acres of freshwater wetlands were lost during the study
period. These losses represent the vast majority [98%] of wetland losses docu-
mented between the 1970's and 1980's.
• Estuarine wetlands declined by 70,000 acres, primarily in the Gulf Ck)ast States,
due largely to the shifting of emergent wetlands to open salt water.
• Although wetlands losses attributable to agricultural conversions declined from
the previous study period, these losses still represent the majority [54%] of wet-
land losses in the U.S. Importantly, conversions to "other" land uses accounted
for more than 40% of the total losses documented. Depending on how this cate-
gory— which describes wetlands cleared and drained but not yet put to an iden-
tifiable use-is treated, the percentage of wetlands lost to agricultural conversion
could be much greater than reported. ^ '^
Fortunately, a wake up call has sounded and the Nation is beginning to compre-
hend the enormity and gravity of the wetlands crisis. As a result, Congress has
begun taking positive — albeit limited — steps to begin stemming the tide of wetlands
loss. The 101st Congress enacted several wetlands laws that included new wetlands
protection provisions of the Food, Agriculture, Conservation and Trade Act of 1990,
provided for funding of wetlands conservation projects pursuant to the North Amer-
ican Wetlands Conservation Act ["NAWCA"), and established the Coastal Wetlands
Restoration and Protection Act to begin combating runaway coastal wetlands losses
in Louisiana and in other states. These newly-enacted laws provide the Nation with
considerable new spending authorities for wetlands protection and — if fully
funded — will bring important new resources to bear on the wetlands crisis.
WhUe these efforts are both meritorious and ambitious, they alone cannot get the
job done. Fiscal limitations and simple disregard for the. functions and values of
wetlands preclude a nonregulatory program — one reliant on acquisition, easements,
tax breaks and other fiscal subsidies — from ever stemming the tide of wetlands
losses. Thus, programs such as the NAWCA are doomed unless the Nation has a
strong, complementary regulatory program that redirects development out of wet-
lands and restricts the conversion and destruction of yet more wetlands to develop-
ment. Federal non-regulatory programs to purchase and restore wetlands must be
complemented by real restrictions which protect the functions and values of wet-
lands that accrue to the public at large. We simply cannot "maintain emd restore
the chemical, physical, and biological integrity of the Nation's waters" without a
combination of strong regulatory programs and ambitious acquisition and restora-
tion efforts.
Therefore, an effective and vigorous § 404 program is essential for protecting wet-
lands and other waters of the United States. To achieve a strengthened and im-
'2 1990 FWS Report.
' ' For example, there is reason to speculate that runny of the "other' wetland areas were
cleared and drained for agricultural purposes but, because of economic or other factors, have not
yet been planted to crops.
1290
proved § 404 program, we must maintain the key components of the existing pro-
gram, make minor adjustments to the current program to ensure it operates.
Smoothly, and — most importantly — strengthen the program to surmount its serious
deficiencies that continue to allow the destruction of wetlands and other aquatic
systems.
The National Wildlife Federation Wetlands Agenda
Because of the critical ecological function wetlands play in the hydrological cycle,
their protection is critical for meeting the Clean Water Act goal "to protect and
maintain the chemical, physical, and biological integrity of our nation's waters." It
is for precisely this reason that the Subcommittee should adopt policies to strength-
en and expand protection of the nation's wetlands resources.
In the past, implementation of the § 404 program has been plagued with institu-
tional and administrative problems which have frustrated the regulated community
and the environmental community, while allowing our wetlands base to continue to
erode. Although these problems must be remedied, wholesale changes to the pro-
gram is not the answer. Instead we must work within the existing framework and
fine tune the process.
Most of the criticism of § 404 does not involve major programmatic deficiencies
but instead focuses on delayed delineations and gimbiguous-permitting expectations.
Some landowners reportedly have experienced long delays in receiving delineations
from the Corps District offices. Other applicants claim to have received inaccurate
delineations that were conducted by poorly-trained consultants. And, partly as a
result of misinformation generated and circulated by the regulated community and
other opponents of § 404, still others remain confused by the program's content and
scope.
A number of environmental groups, including NWF, have shared many of the
same frustrations in obtaining timely answers and dependable information from
Corps and EPA personnel. Therefore, we urge this Subcommittee to explore our rec-
ommendations to provide timely resolution to these problems. Many of the recom-
mendations are included in S. 1195, the "Wetlands Reform Act," introduced by Sen-
ator Barbara Boxer. The NWF strongly supports S. 1195, and urges its inclusion in
the Clean Water Act reauthorization.
Our specific recommendations are as follows:
• Expand CWA § 404 to cover drainage, dredging, flooding, clearing, channelizing,
placement of piling-supported structures, and other significant physical wet-
lands alterations, regardless of whether any of these activities entail a dis-
charge of dredge or fill material. The NWF, and more recently the National
Wetlands Policy Forum, recognized that the nation cannot seriously address the
problem of wetlands loss without the ability to control all major forms of physi-
cal wetlands alteration — not just discharges of dredged or fill material as pro-
vided under the existing § 404 program. The current rate of wetlands loss is a
stark reminder that many activities that destroy wetlands often go completely
unregulated by § 404 and other state and federal programs, and continue una-
bated. We strongly recommend that the Subcommittee amend §404 to cover
these other forms of alterations.
Expanding the scope of regulated activities would offer greater protection to
wetlands, and it would actually help decrease much of the uncertainty associat-
ed with the program. Partly due to lack of clear direction, the Corps has histori-
cally made overly narrow £ind often inconsistent interpretations of what consti-
tutes a discharge of dredged or fill material requiring a § 404 permit. As a
result, activities such as ditching, stream channelization, and clearing and bull-
dozing of wetlands vegetation have been inconsistently regulated, and a lot of
time and resources have been expended by the regulatory agencies, the regulat-
ed public, and environmentalists debating this problem. Expansion of § 404 to
explicitly cover ail major physical alterations of wetlands is necessary to fully
protect wetlands and to eliminate this source of uncertainty and needless re-
source drain.
• The Corps should continue to administer the §404 program with EPA over-
sight. In the past, the Corps' weak implementation and enforcement of the § 404
has been a liability to achieving the goals of the CWA and the overall effective-
ness of protecting wetlands under § 404. Recently, however, the Corps and EPA
have begun working together to better solve longstanding problems with the
§ 404 program. These initiatives include the establishment of the Wetlands Miti-
gation Memorandum of Agreement and the proposed rule to close the loophole
for "de minimis" discharges. Both of these initiatives demonstrate to us that
1291
the program can run smoothly while maintaining dual agency oversight. But if
the status quo is to be changed by vesting the § 404 program in one agency, ad-
ministration of the program should go to EPA, not the CJorps because EPA is
the author of the § 404 (b) (1) guidelines and EPA is charged wdth administra-
tion of the Clean Water Act.
• Explicitly include wetlands in the Clean Water Act goal statement. Although
an explicit wetlands protection goal does not currently exist in the Clean Water
Act, wetlands are an essential comjKJnent. of the waters of the United States, of
§ 404, and of other CWA provisions. We, therefore, recommend amending the
CWA goal section to include explicit reference to wetlands to ensure that all
relevant provisions of the CWA contribute to wetlands protection.
• Strengthen the general permit program. The Corps' general permit program,
particularly. Nationwide Permit .26, sanctions the unreviewed and unmitigated
loss of thousands of wet land acres annually. Furthermore, inadequate public
involvement in overseeing this program seriously weakens its implementation
and does nothing but expedite wetlands losses. Therefore, we recommend
amending § 404 to (1) require general permits to include adequate measures to
track activities conducted pursuant to general permits; (2) forbid authorizing ac-
tivities under general permits for which states have denied § 401 water quality
certification; emd (3) provide the public and state and federal resource agencies
with predischarge notifications and an opportunity to comment before activities
are undertaken pursuant to general permits. Section 404(e) should be amended
to require that each Corps district prepare reports documenting each activity
and the amount of acreage affected that is authorized by each general permit
and to require that the Corps submit a biennial report to Congress of cumula-
tive impacts to wetlands and other aquatic areas under each general permit.
• Strengthen the role of Fish and Wildlife Service and the National Marine Fish-
eries Service in § 404 permit decisions. Currently, the Clean Water Act and the
Fish and Wildlife Coordination Act require the Corps to consult with the FWS
and National Marine Fisheries Service (NMFS) on all § 404 permits. Although
these resource agencies can recommend that modifications be made to the per-
mits, the Corps can, and frequently does, ignore these comments. Therefore, we
recommend amending § 404 to require the Corps to provide written explanation
of its reasons for rejecting FWS or NMFS comments and to explain how the
Corps' permit determination is consistent with the purposes of the Clean Water
Act and the § 404(bXl) guidelines.
• Earmark § 404 enforcement penalties for § 404 implementation. Historically,
the Corps' and EPA's § 404 implementation programs have been severely under-
funded. To make available additional resources over and above appropriated
monies from general revenues, we recommend amending § 404 to establish an
account into which § 404 enforcement penalties would be deposited for use by
the EPA and Corps for § 404 program implementation.
• Modify § 404 state water quality certification requirements to better protect
aquatic ecosystems. While § 401 certification requirements are generedly re-
quired from states before a § 404 permit is issued by the Corps, questions have
arisen over whether the requirement applies to Federal Energy Regulatory
Commission licensing and whether states can-or must — include narrative stand-
ards to protect wetlgmds and other aquatic habitats from degradation. There-
fore, we recommend amending § 404 to expressly broaden the protections pro-
vided by § 401 and direct states to address physical.and biological alterations of
aquatic areas, as well as chemical pollution of those waters.
• Legislate EPA's definition of "fill material." For years the Corps emd EPA have
been at odds over the regulatory definition of "fill material. ' "The result has
been massive confusion and both agencies shirking the regulation of discharges
of a number of materials that destroy wetlands [e.g., waste tires and mine tail-
ings). For this reason, we recommend amending § 404 to legislate EPA's defini-
tion of fill as any material which has the effect of replacing an aquatic area
with dry land or of changing the bottom elevation of a waterbody.
• Strengthen the CWA citizen suit provision (§ 505) to provide for stronger wet-
lands protection by private citizens. Given the paucity of agency enforcement
resources, vigilant private enforcement of § 404 is critical to protecting the na-
tion's wetlands. One reform which should be made is to clearly provide that
§ 505 applies to § 404 violations. Section 505 should also be amended to encour-
age courts to overcome their reluctance to impose restoration requirements in
cases in which restoration of degraded wetlands is both practical and desirable.
• Make the § 404 program more efficient by adopting a fast track provision for
minor permits. Special priority should be given to minor permit applications
1292
{e.g., permits for activities that would disturb no more than 1 acre of wetlands)
to ensure that they are processed within 60 days. Section 404(q) should be
amended to require the Corps to allocate sufficient personnel to expedite minor
permit applications in this fashion.
We urge the Subcommittee — and Congress — to step back from the controversies
and reaffirm the critical role that the § 404 program plays in attaining the central
goal of the Clean Water Act — to restore and maintain the integrity of the Nation's
waters. We also urge the Subcommittee to assist our efforts in securing and apply-
ing more resources to § 404 wetlands delineations, mapping, outreach and education,
and to the program in general, and thereby make its value and importance more
understand.able to everyone. Finally, we urge Congress to support the nation's bur-
geoning interest in protecting wetlands by expanding the reach of regulated activi-
ties under § 404 and by incorporating the additional strengthening amendments
highlighted above. These are progressive and necessary changes if we are ever to
achieve the goals of the CWA and end the long history of wetlands loss in this
nation.
Pending Legislation
The NWF commends Senators Boxer, Baucus, and Chafee for their efforts,
through the introduction of legislation, to resolve the extremely controversial and
difficult issue of wetlands protection. We look forward to working closely with you,
the Subcommittee, and the full Environment and Public Works Committee to craft
legislation as part of the Clean Water Act reauthorization that will finally bring a
halt to the continued destruction of this nation's wetlands.
S. 1195 and H.R. 350, "The Wetlands Reform Act"
NWF strongly supports S. 1195, the "Wetlands Reform Act," introduced by Sena-
tor Barbara Boxer on July 1, 1993. This bUl, identical in content to H.R. 350 intro-
duced by Representative Don Edwards (D-CA), presents a balemced solution to the
wetlands issue. Importantly, S. 1195 would finally close the existing loopholes in sec-
tion 404 of the Clean Water Act, by specifically regulating most activities that
impact wetlands, not just the deposition of dredge and fill material. S. 1195 is a bal-
anced bill in that it also addresses the concerns of the regulated community. It fi-
nally puts in place through legislation existing exemptions for the agricultural com-
munity. Furthermore, the agricultural and developmental communities' concerns
regarding permitting delays are specifically addressed by a new expedited permit-
ting procedure, requiring the processing of small-scale permits within 60 days. Com-
plementing the regulatory program, S. 1195 provides tax incentives to encourage
voluntary wetlands conservation, as well.
S. 1304, "Wetlands Conservation and Regulatory Improvements Act"
NWF appreciates the efforts of Senators Max Baucus G>MT) and John Chafee (R-
RI) in their attempt to craft a bill intended to bring all parties to the table and
finally resolve this issue. Broader in scope than S. 1195, their bill addresses a
number of additional issues, many of which are controversial.
"There are many components of S. 1304 which the NWF supports. Imjxjrtantly, S.
1304 finsdly confirms that the scope of regulated activities includes many activities,
such as ditching, draining, and channelization, which the Army Corps of Engineers
has failed to regulate. S. 1304 would provide a landowner assistance program to
help small landowners with delineation of wetlemds on their property.lt requires the
Corps to monitor its general permit program. Currently, the Corps is unable to ade-
quately track this program to determine the real impact that general permits have
on wetland habitats. S. 1304 initiates an appeals process for permitting decisions.
"This would allow landowners to appeal permitting decisions without having to
resort to the judicial system as the only means of appealing decisions. Importantly
and unlike the Clinton administration's recent proposal, S. 1304 provides a balanced
process by also allowing any party involved in the permit process to appeed permit
issuances as well as permit denials. Finally, we support the bill's adoption of the
Environmental Protection Agency's definition of fill material. It is critical that
these provisions be retained in the final version of the bill.
NWF strongly recommends strengthening amendments regarding other aspects of
S. 1304. In the absence of these amendments, the NWF cannot support the bill. In
particular, we are concerned about the practicality of the watershed planning proc-
ess, and the use of this process to encourage local and regional general permits.
While we support the concept of watershed management planning if implemented
in a manner that compliments and strengthens the federal wetlands program, we
are concerned that the past failure of this concept, coupled with the delegation of
1293
the wetlands protection program to state and local entities, would fragment federal
conservation authority and enforcement, resulting in less wetlands protection and
accelerated wetlands loss. We oppose delegation to local authorities and all federal
financial incentives for state and local assumption. NWF is also concerned that even
large projects, and those with a high potential impact on the wetlands resource,
would be able to obtain an expedited permit (60 days) if the project is within an area
with an approved watershed management plan. These projects should instead be
subject to a complete scientific analysis, public review, and comment process. We
also oppose language codifying the prior-converted wetlands exemptions. These wet-
lands, comprising 54 million acres, still serve important wetland functions and
should not be exempted from protection under the Clean Water Act.
Senators Baucus and Chafee have long been important leaders in wetlands conser-
vation and their bill, S. 1304, is an important starting point towards improving wet-
lands conservation. We look forward to working with you to strengthen this bill to
maintain and restore America's wetlands.
H.R. 1330, "The Comprehensive Wetlands Conservation and Management Act of
1993"
NWF strongly opposes H.R. 1330 and believes it would be more appropriately
titled "The Comprehensive Wetlands Destruction Act of 1993." H.R. 1330, intro-
duced by Representative Jimmy Hayes (DLA), is designed to weaken and in some
cases eliminate federal protection of wetlands in this country. The bill completely
rewrites section 404 (§ 404) of the Clean Water Act (CWA), and disregards the 20
years of experience the agencies have acquired during its implementation If H.R.
1330 is enacted, § 404 would be rebuilt from scratch to develop a completely new
regulatory program, creating years of confusion for wetlands regulators and the reg-
ulated community.
Almost too numerous to list, the faults of H.R. 1330 are many and we completely
oppose it. H.R. 1330 would eliminate the role of the EPA in § 404 permit review,
despite their importance in overseeing the program and expertise in environmental
protection. It would establish a policy of "wetland triage" by ranking wetlands into
high, medium and low value categories with the later two categories receiving little
or no protection. This completely fails to recognize the natural diversity of functions
which wetlands provide, by essentially setting up an arbitrary system of comparing
apples and oranges £ind then determining that one is more important than the
other. H.R. 1330 would also narrow the current scientific definition of wetlands, re-
place it with an arbitrary and politically-motivated standard, thereby removing half
of the nation's wetlands acres from any protection under the Clean Water Act's wet-
lands protection program. The bill imposes new and significant financial liabilities
which would bankrupt the federal treasury by requiring federal acquisition, at the
discretion of tee landowner, of so-called "high value" wetlands. A conservative esti-
mate by the GAO suggests a $10-$15 billion cost for the land acquisition components
alone, of H.R. 1330. Furthermore, this is completely unnecessary in light of the con-
stitutional protection already provided. In short, H.R. 1330 converts the existing
§ 404 regulatory program to little more than a costly "rubber stamping" progrgim
for issuing wetlands destruction permits. This bill is a disaster for wetlands, and
would be a disaster for America.
The Clinton Administration Wetlands policy — "protecting America's Wetlands, A
Fair and Flexible Approach"
The Clinton Administration's attempt to devise a sound and manageable wet-
lands protection policy falls short of the mark. While it does improve some aspects-
of federal wetlands policy, overall the proposal represents a "net-loss" for wetlands,
and must be strengthened to truly protect and rebuild the nation's wetlands re-
sources. NWF is in the process of thoroughly reviewing and critiquing the Adminis-
tration's policy, and will provide a more detailed analysis for the hearing record
within the next two weeks. However, it is important that we address certain aspects
of its policy at this time.
NWF endorses the Administration's final rule closing the "ditching and draining"
loophole in the U.S. Army Corps of Engineers regulations. Historically, many Corps
of Engineers districts avoided regulating ditching, drainage and excavation in wet-
lands and other waters. The Corps based its failure to regulate these activities on
the de minimis discharge exception.in its permitting regulations. The exception cre-
ated confusion and inconsistent treatment of regulated persons, while allowing the
destruction of thousands of acres of wetlands. In 1990, the NWF filed suit under the
Clean Water Act, challenging the unregulated drainage of hundreds of acres of valu-
able coastal-plain wetlands near Wilmington, N.C. In February, 1992 the Bush Ad-
1294
ministration agreed to settle the lawsuit, primarily by proposing a change in Corps
£md EPA regulations to eliminate the de minimis loophole. The new ditching and
draining rule stems from that agreement.
The NWF supports the Administration's withdrawal of the proposed Alaska One
Percent rule. Due to the importance of this provision, enclosed in this testimony is a
complete section devoted to the issue of Alaska's wetlands.
The NWF is pleased with the Administration's endorsement of a broad-based
effort to restore the nation's historic wetlands base. It is important that the Admin-
istration supports appropriations for expansion of the V/etlands Reserve Program
and also supports other voluntary and cooperative efforts to restore wetlands on pri-
vate lands. Finally, the NWF endorses the Administration's commitment to training
federal wetlands delineators in order to increase the reliability and accessibility of
wetlands delineations.
NWF is opposed to many other aspects of the Administration's plan. The Admin-
istration has adopted a rule that arbitrarily exempts as many as 54 million acres of
agricultural wetlands from regulation. Under Swampbuster, wetlands that were
drained or otherwise manipulated to enable a farmer to plemt commodity crops,
before December 23, 1985, are considered "prior-converted." Farmers can farm these
wetlands aa they did in natural conditions or as they did prior to December 23, 1985,
without penalty. Despite being cropped, many prior-converted wetlands continue to
provide flood control, pollution filtration, groundwater recharge, wildlife habitat,
and other wetlands functions. According to the 1989 Federal Manual for Identifying
and Delineating Jurisdictional Wetlands, these areas frequently meet the definition
of "waters of the United States" and deserve full § 404 protection. Moreover, almost
all prior-converted wetlands would revert to wetlands if farming was discontinued.
Swampbuster specifically recognizes that prior converted wetlands can be "aban-
doned." The Administration's rulemaking allows these cropped wetlands to be con-
verted to commercial, residential and other uses. A relatively benign Swampbuster
classification becomes a blanket § 404 exemption authorizing the permanent de-
struction of all existing and latent wetlands functions and values.
The Administration also proposes to make the Department of Agriculture's Soil
Conservation Service the lead agency for the purposes of wetlands delineations on
agricultural land under Swampbuster and the CWA. Although it makes sense to use
a single delineation for both wetlands programs, SCS is not the federal agency that
should be making these important jurisdictional decisions. SCS has far less experi-
ence than EPA and the Corps in delineating wetlands. In fact, SCS has a dism£d
record of accurately delineating wetlands on farm land. In southwest Kansas, for
instance, SCS found only three wetlands in a seven county area that were subject to
Swampbuster. These counties are part of the playa lakes region, an area known to
have tens of thousands of seasonal and temporary wetlands. SCS has since agreed to
redo the delineations in southwest Kansas and any other part of the state where
similar inventory errors were made.
The Administration supports the development of state watershed management
plans that would incorporate state and local standards for wetlands protection. Al-
though watershed management is a tool that could be used to complement and im-
prove the § 404 program, the Administration's proposal is a way to dismantle the
wetlands regulatory program. Under the guise of state watershed management, the
Administration proposes to loosen wetlands restrictions by allowing local govern-
ments, and even private entities, to identify and rank wetlands, devise expedited
procedures for wetland development, and establish mitigation banks to "compen-
sate" for wetland destruction. 'The Administration also proposes to give "high priori-
ty" to developing programmatic general permits (PGPs) that wUl "defer' to state
and local governments implementing approved watershed plans. These proposals
will continue a Bush era policy of aggressively and illegally transferring 404 author-
ity to state and local governments. However, state and local governments are sub-
ject to intense political pressure, and should not be entrusted with the management
of America's wetlands.
The Administration's proposed administrative appeals process would provide wet-
land developers ready access to challenge Corps and EPA wetlands delineations and
permit denials, but would "shut out" neighboring and downstream landowners and
other concerned citizens when they attempt to challenge wetlands delineation and
permit approvals. This lack of equal access to an administrative appeals process is
unfair and skews wetlands decisions in favor of wetlands destruction.
Like the Bush administration, the Clinton Administration promotes the concept of
wetlands categorization. Wetlands deemed to be of relatively little value would re-
ceive reduced protection under the section 404 program. This proposal would-facUi-
tate the destruction of thousands of acres of wetlands in urban areas of the country.
1295
At the same time, the highly technical and resource intensive process of assessing
wetland functions and values would divert resources desperately needed by the
Corps and EPA for timely and accurate wetlands delineations, permitting and en-
forcement.
Finally, the Clinton plan endorses the concept of mitigation banking. In practice,
however, the establishment of mitigation banks encourages the destruction of wet-
lands because it makes mitigation requirements easier to comply with. Moreover,
creating wetlands through mitigation banks, in order to replace wetlands proposed
for new development, is extremely difficult and fraught with risk and uncertainty.
At a minimum, mitigation banking should be restricted to "restoration" of wet-
lands, and never used for simple "preservation."
Alaska's Wetlands
The protection of Alaska's wetlands is another critical, albeit emotionally-charged
and controversial, issue that must be of high priority and central focus for this Sub-
committee. As with so m£iny other facets of the wetlands debate, there is no short-
age of misinformation, distortion, and "horror stories" being generated by those who
seek to relax protection for Alaska's wetlands. Due to the importance of Alaska's
wetlands and the continuous threat they are under, it is important that we specifi-
cally address this issue.
Following, we provide an overview of the many important functions and values
Alaska's wetlands provide our Nation, a discussion of the ecological and economic
significance of these habitats to Americans and to the international community, and
an overview of the threats to Alaska's wetlands. This is followed by an in-depth dis-
cussion and analysis of what the Alaska Natural Resource Center and many of our
colleagues in the environmental community consider to be the single most impor-
tant wetlands issue facing Alaska: the Bush Administration's proposal to wholesale
exempt Alaska from the Section 404(b) (1) mitigation requirements, oftentimes re-
ferred to as the "One Percent Rule" or exemption. Although the Clinton Adminis-
tration formally withdrew this ill-conceived proposal as a part of its 24 August 1993
announcement, and we commend them for this action and for recognizing the im-
portance of Alaska's Wetlands, there will be considerable pressure from the Alaska
delegation and others to breathe new l^islative life into the One Percent Rule.
An Overview of the Resource At Stake
America's largest state is also its wettest. Almost half of Alaska — 170 million
acres — can be classified as wetlands. With nearly two-thirds of the Nation's wet-
lands within its borders, Alaska boasts many of the most diverse and critical wet-
land habitats on the continent. The State's coastal estuaries, saltwater lagoons,
river corridors, marshes, muskegs, bogs and wet tundra all support an astounding
variety of fish and wildlife species. In fact, no complex of natural systems has had a
greater influence than Alaska's wetlands in shaping the State's economy.
Alaska's Fisheries
Alaska's wetlands sustain some of the world's richest commercied and sport fisher-
ies. Because the maintenance of customary and traditional lifestyles is dependent
upon fish and wildlife resources sustained by wetlands, 200 of the 209 remote vil-
lages in Alaska are located in, or near, wetland ecosystems.
For Alaskans, fish are one of the most important natural resources critically de-
pendent on the State's wetlands. Freshwater wetlands provide essential spawning,
feeding, rearing and over-wintering habitat for all five species of Pacific salmon
found in Alaska as well as trout, whitefish, grayling and pike. Wetlands also provide
a valuable source of inland and marine detritus to coastal estuaries, supporting
shrimp, crab and other shellfish as well as a number of commercially-important
marine fish species. Alaska's wetlands are essential in maintaining water quality in
salmon spawning streams and rivers and in nearshore spawning and rearing areas
for marine fish and shellfish.
In addition:
• The gross revenues from harvest of salmon in Alaska exceed $500 million annu-
ally [ex-vessel]. Gross revenues to processors exceed $1 billion annually. The
salmon harvest Eilone involves nearly 17,000 licensed vessels, over 500 proces-
sors and buyers, and more them 70,000 johe.
• The seafood industry is the largest private industry employer in Alaska, ac-
counting for more than one quarter of all the personal income generated by pri-
vate industry in Alaska.
1296
• As a result of the economic activity generated by the harvesting, processing and
marketing of fish, every major region of the state is directly or indirectly affect-
ed by the health of the commercial fishing industry.
• Sport fishing in Alaska sustains a significant service industry. Anglers pay for
tackle, boats, moorage, transportation, lodging, food and beverages, guiding, and
other fishing-related goods. Clollectively, sport anglers' annual expenditures in
Alaska result in gross business revenues of approximately $350 million, 5,000
full-time jobs, and $115 million in personal income.
• Gross revenues, jobs and personal income generated outside Alaska by sport
fishing in the state equal or exceed those generated within the state due to im-
portation of goods and pajmient for goods and services occurring outside the
state.
• Almost two-thirds of the annual subsistence harvest is composed of fish and
shellfish. Subsistence fishing supplies over 20 million pounds of food annually to
rural areas in Alaska.
• Fish provide a major portion of the diet of rural Alaskans. In comparison to the
average American who consumes about 13 pounds of fish per year, the average
rural Alaskan consumes approximately 230 pounds of fish per year.
Alaska's Wildlife
Many of Alaska's wildlife species, including moose, brown bear, caribou, beaver,
mink and otter are dependent on Alaska's wetlands during some, or all, of their life
cycle. These wildlife resources sustain a significant segment of the State's economy.
Similar to sport fishing, hunting in Alaska supports a broadbased service indus-
try. Hunters pay for guns, ammunition and other equipment, transportation, lodg-
ing, food and beverages, guides and guiding services, meat processing and other re-
lated goods and services. Hunter expenditures alone contribute $82 million annually
in gross revenues to Alaska businesses.
In addition:
• Conservative estimates of the nonconsumptive values of Alaska's wildlife in-
clude over one-fourth of the $400 million spent annually by tourists in the
State. Aesthetically and biologically, wetlands generate a large portion of this
revenue.
• Alaska's wetlands provide nesting, rearing and staging habitats for millions of
waterfowl and shorebirds important to hunters and birdwatchers throughout
the Nation. For example:
• Thirty-four species of waterfowl nest in Alaska's wetlands, including eight spe-
cies that nest nowhere else in the United States.
• Eighty percent of the world's Trumpeter Swans and 50 percent of all Tundra
Swans nest in Alaska's wetlands.
• Ten million ducks, 750,000 geese and 80,000 swans migrate annually from nest-
ing grounds in Alaska to wintering areas in the lower 48 states, Canada,
Mexico, and Asia. Another two million ducks and 300,000 geese depend upon
Alaska's wetlands for critical staging areas.
• Alaska's wetlands support up to 60 percent of North America's Northern Pin-
tail ducks, 25 percent of Wigeon, and nearly 20 percent of Scaup and Canvas-
backs.
• Seventeen percent of all geese and 11 percent of all ducks harvested in North
America are reared in Alaska's wetlands.
Finally, Alaska's wildlife comprise a significant component of the subsistence
economies of the State's rural villages. Of the estimated 35 to 45 million pounds of
food harvested afinually by subsistence users, approximately 18 percent is land
mammals [primarily wetlands-dependent species such as moose and beaver] and
nearly eight percent includes waterfowl and wild plants. The remainder of the har-
vest includes fish, shellfish and marine mammals.
Alaska Wetlands Are At Risk
Despite their vastness, their critical role in supporting abundant fish and wildlife
populations, and the significant contribution they make to the State's economy,
Alaska's wetlands are at risk. Development and urban expansion threaten Ameri-
ca's last remaining stronghold of expansive wetland ecosystems. In carrying out
their aggressive attack on Alaska's wetlands, pro-development forces have tried to
cleverly use the argument that, because Alaska's wetlands are more abundant than
wetlands in the Continental United States, the regulations protecting them are un-
necessary and far too stringent.
1297
The truth is that, while Alaska's wetlands acreage is indeed vast, many critical
wetland habitats are extremely limited in extent. For example, Alaska's coastal salt
marshes — literally the cradle of an array of economically-important fish and shell-
fish species — comprise only 345,000 acres and are especially vulnerable because
most of Alaska's urban development occurs in coastal areas. Despite blanket state-
ments that Alaska is up to its ears in wetlands, losses in some parts of the State
have been dramatic. For example, nearly 60 percent of Anchorage's original wet-
lands base and 30 percent of Juneau's Mendenhall Valley have been destroyed by
development. These losses, in fact, exceed the national average.
Efforts to Legislatively Exempt Alaska from Wetlands Mitigation Sequencing [The
"One Percent Rule"] Must Be Soundly Rejected
The NWF and numerous other national £uid local conservation and environmental
organizations strenuously oppose revising the Clean Water's Act's Section 404(bXl)
guidelines to exempt Alaska from mitigation sequencing. Although the Administra-
tion formally withdrew from consideration the EPA proposal [57 Federal Register at
52716], we have every reason to expect that an aggressive effort will be made to
seek a legislative remedy to this misperceived problem.
The Alaska One Percent Rule was proposed by the Bush Administration on the
eve of the general election and was driven by politics, not science. The EPA has pro-
vided little evidence supporting the "assumptions" under Ijdng this ill-conceived pro-
posal and — in fact — are contradicted by the agency's own experts as well as those
from other resource agencies who dispute the need to grant an exemption to Alaska.
As proposed, EPA would have provided a blanket exemption to oil interests and
developers in Alaska to disregard cost-effective alternatives to wetlands destruction
and avoid the requirement, applicable in every other state, that wetlands destruc-
tion be offset by compensatory mitigation. At a time when the Nation is striving for
no net loss of wetlands it is inconceivable that the EPA would have granted the
opening up of 1.7 million acres of Alaska's wetlands — an area larger than the state
of Delaware — to development.
The projwsed exemption would have unacceptable adverse effects on the environ-
ment.
The objective of the Clean Water Act is to "restore and maintain the chemical,
physical, and biological integrity of the Nation's waters." In fact, the EPA has ex-
plicitly singled out wetlands as a resource especially deserving of protection [see,
e.g., 40. C.F.R. § 230.1(d)]. Special treatment for Alaska would strip protection from
these "special aquatic sites" and, in so doing, flatly ignore the national and interna-
tional importance of Alaska wetlands to fish, waterfowl, shorebirds, and marine and
terrestrial mammals. Even the EPA's own experts in its Regional Office, and those
of the U.S. Fish and Wildlife Service, have articulated compellingly that the loss of
millions of acres of Alaskan wetlgmd habitat as a result of the One Percent exemp-
tion would cause irreparable harm to the fish and wildlife populations that depend
on these aquatic ecosystems.
The proposal to exempt Alaska wetlands from mitigation sequencing under sec-
tion 404 would have severe negative environmental effects and, from a resource per-
spective, would actually undermine the objective of the Clean Water Act to preserve
the waters of the United States.
The proposed exemption would have unacceptable adverse effects on the economy of
the State of Alaska.
As discussed at length above, the wetlemds.of Alaska are a keystone to the State's
economy. Thus, anything to erode or diminish the State's wetlands base will also
diminish the health of its economy. This is because the State's commercial and rec-
reational sport fisheries — which employ thousands of people and generate billions of
dollars annually — would be put at risk by the exemption.
For example, the wetlands most critical to Alaska's fisheries and subsistence
economies are also among its scarcest. According to the government, only 345,000
acres of the State's wetlands are vegetated estuarine or intertidal wetlands. These
are precisely the rare and productive coastal wetlands that are the most vulnerable
to urban growth and development. Thus, loss of one percent of the State's wetlands,
as has been proposed, could entirely eliminate Alaska's coastal wetlands and the
enormous and sustainable economic benefits they provide.
In summary, withholding full Clean Water Act protection from millions of acres
of Alaska wetlands will have a negative impact on the functions and values of those
systems. Because the Alaska economy relies, in substantial part, on the health of its
wetlands, the economy would unquestionably suffer as well. In its barest form,
1298
adopting the One Percent Rule would be an economic and ein environmental disas-
ter.
The premises underljdng the proposed exemption are not supported by the evidence.
The chief premise of the One Percent Rule is that the section 404 program, gener-
ally, and the Section 404(bXl) guidelines, specifically, are unacceptably rigid and
burdensome to the regulated community operating in the state of Alaska. Thus, it is
lamely argued that an across-the-board Alaska wetlands exemption is an appropri-
ate remedy because [1] there is lack of practicable alternatives to developing in wet-
lands emd [2] opportunities to perform wetlands compensatory mitigation in Alaska
are extremely limited.
The NWF tested the underlying.premise of the proposed exemption and its as-
sumptions in respect to mitigation sequencing by serving Freedom of Information
["FOIA"] Requests on the Corps and the EPA. In evaluating the issue of unaccept-
ably rigid and burdensome requirements, we requested, reviewed and analyzed docu-
ments establishing the implementation record of section 404 in Alaska during the
past 20 years and all records justifying EPA's decision to protect wetlands in Alaska
less stringently than in other states. The agencies' responses to our requests were
striking and, by almost any standard, demonstrate beyond a doubt that the existing
guidelines are already extraordinarily flexible and that the section 404 program is
not an unreasonable impediment to wetlands development in Alaska.
In its request, NWF obtained all records indicating the number of section 404 per-
mits processed, approved, and denied in Alaska in the 20 years since 1972. We also
requested all records reflecting the number of occasions in which compensatory
mitigation was required by the Corps. According to the government's own records,
of the 3,997 individual permits processed by the Corps between 1 January 1972 and
15 October 1992, only 108 [2.7%] were denied. Of the 3,017 individual section 404
permits authorized by the Corps during that time, only 15 [0.5%] were conditioned
on compensatory mitigation. Clearly, the Corps' records do not support the premise
that the Section 404(bXl) guidelines are unduly rigid in Alaska and require weaken-
ing. If anything, these data suggest the guidelines have proven too flexible to accom-
plish the important task of protecting the Nation's waters.
With respect to the second issue, that there is a lack of available upland sites for
development, NWF submitted a FOIA requesting of EPA all records indicating that
lack of available uplands sites has prevented development in Alaska. The EPA was
unable to produce a single responsive document £md — in fact — the agency actually
produced four documents demonstrating quite the opposite, that "lack of available
upland sites has not limited or prevented" development in the State. The contention
that in many cases there are no practicable alternatives for development in Alaska
except in wetlands is apparently an opinion with little basis in fact.
In a similar vein, EPA produced only slightly more evidence that compensatory
mitigation in not feasible in Alaska because of technical difficulties and a lack of
restoration sites. Our analysis of this issue is beyond the scope of this statement and
can be read in the attached comments, but suffice it to say that the government has
provided little hard evidence to demonstrate compellingly that developers are
unable to compensate for wetland losses in Alaska.
In conclusion, although the proponents of the One Percent Rule argue that the
section 404 program has been too restrictive in Alaska, that there are limited practi-
cable alternatives, and that mitigation sequencing is impracticable, a thorough
review of the administrative record compels the conclusion that these tenets are un-
founded and largely without merit.
NWF Position on Alaska Wetlands
For the aforementioned reasons, NWF vigorously opposes the exemption of
Alaska from the mitigation sequencing provisions of the Section 404(bXl) guidelines.
Our independent analysis of records from the Army Corps of Engineers plainly dem-
onstrate that the section 404 program has been no more burdensome to the regulat-
ed community in Alaska than in any other state. However, should questions or un-
certainties still remain concerning the application of section 404 in Alaska — particu-
larly as it relates to permitting and compensatory mitigation — then we urge the
commissioning of a Government Accounting Office investigation to develop what-
ever additional information might be warranted on Alaska wetlands and the section
404 regulatory program.
The flexibility already built into the Section 404(bXl) guidelines has easily accom-
modated the "unique" Alaska circumstance of pristine and abundant wetlands. The
Alaska Exemption would take an already flexible program and convert it into a
giveaway. Adoption of the proposal by Congress would not only permit developers to
1299
fill wetlands even when there are convenient upland alternatives, but as well ignore
obvious opportunities for compensatory mitigation. The result would be the unmiti-
gated loss of 1.7 million acres of Alaska's wetlands. This proposal simply cannot be
justified, and we urge the subcommittee and the Senate to soundly reject efforts to
legislate an Alaska One Percent Rule.
Summary and Conclusion
Wetlands provide many critical ecological functions and values that are of enor-
mous benefit to all sectors of society. Those values and functions include: flood con-
veyance; storm surge abatement; water quality maintenance;habitat for endangered
and threatened sf>ecies and other wildlife; fish and shellfish habitat; recreational op-
portunities; water supply; food production; timber production; historic and archae-
ological sites; education and resesirch areas; and open space and aesthetics.
Despite the economic, ecological, and sociological benefits of wetlands, wetlands
have been destroyed throughout our history, and they continue to disappear today
at an alarming rate. While defenders of the ongoing destruction of the nation's wet-
lands often cite narrow "economic" arguments to support their positions, any sound
emalysis of the wetlands regulatory protection pn^ram must include the broad eco-
logical, economic, and social ramifications of further reducing America's valuable
wetlands resource.
S. 1195 and H.R. 350 (The Wetlands Reform Act), introduced by Senator Barbara
Boxer (D-CA) and Representative Don Eklwards (D-CA) respectively, offer a balanced
solution to the problem of wetlands protection that is flexible and fair. In contrast,
S. 1330 (The Comprehensive Wetlands Conservation and Management Act of 1993),
introduced by Jimmy Hayes (D-LA), is clearly designed to weaken or eliminate fed-
eral protection of wetlands. In light of the many important benefits that wetlands
provide, any bill that would accentuate the decline and destruction of wetlands eco-
systems must be disregarded as economic and ecolc^cal folly. The NWF appreciates
the work of Senators Max Baucus (D-MT) and John Chafee (R-RI) in drafting S. 1304
(The Wetlands Conservation and Regulatory Improvements Act), but without signifi-
cant improvements, such as those outlined herein, this bill too, faUs in its mission to
protect our wetlands heritage. Going beyond S. 1304, the Clinton Administration
plan is fatally flawed. In exempting 54 million acres of prior-converted wetlands,
proposing a one-sided j)ermit appeals process, and endorsing the concepts of wet-
lands categorization and mitigation banking, the Administration has "balanced"
wetlands right out of the policy equation.
With the reauthorization of the Clean Water Act this year, Congress can send an
important message — that we will no longer tolerate the annual loss of nearly
300,000 irreplaceable acres of wetlands. Each day of inaction only exacerbates the
problems we face today: polluted drinking water for our families, flood damage to
our homes, collapsing commercial and recreational fisheries, and — ^perhaps most
devastating — a downward spiral of biodiversity.
The time has come to pass a strong, effective national wetlands protection policy
that has an explicit goal of protecting wetlands. We have allowed, indeed, encour-
aged, the destruction of more than half of the nation's heritage of wetlands. We now
understand what has been lost and the values of the natural wetlands that remain
untouched. We must not, in the name of political expediency, ignore the dismal con-
sequences of continued wetlands loss to our nation's ecological and economic heedth.
Congress must take a leadership role, casting aside specious arguments, false
horror stories, and politicEil pressures, to rechart this nation's existing course of wet-
lands destruction. 1116 course is clear and it remains only for a resolve to be trans-
lated into action.
1300
TABLE 1: Anglars, days spent fishing, and expenditures in 1991 in
states represented by Members of the Clean Water, Fisheries, and
Wildlife Subcommittee
State
Anglors
Days Fishing
Expenditures
Connecticut
345,000
4,473,000
$
252,997,000
Florida
2,677,000
36,528,000
$1
,654,594,000
Idaho
365,000
2,878,000
$
145,456,000
Maine
449,000
4,552,000
$
177,931,000
Minnesota
1,450,000
17,701,000
$
846,246,000
Nevada
171,000
1,181,000
$
80,123,000
New Jersey
963,000
11,718,000
$
774,375,000
North Carolina
1,481,000
15,909,000
$
577,546,000
Pennsylvania
1,397,000
23,849,000
$
677,152,000
Rhode Island
171,000
2,056,000
$
63,523,000
Source: U.S. Fish and Wildlife Service, 1991 National Survey of
Fishing. Hunting, and Wildlife-Aasociated Recreation.
31
1301
TABLS 2. Watland Lossas In S«l«ct*d Stafces
Stafca
Watland Xerma
1780' a
» T.OM
laaoiA
Connecticut
670,000
172,500
74%
Florida
20,325,013
11,038,300
46%
Idaho
877,000
385,700
56%
Maine
6,460,000
5,199,200
20%
Nevada
487,350
236,350
52%
New Jersey
1,500,000
915,960
39%
North Carolina
11,089,500
5,689,500
49%
Pennsylvania
1,127,000
499,014
56%
Rhode Island
102,690
65,154
37%
Source: Dahl, T.E. 1990. Wetlands Losses in the Onited States
1780' s to 1980' s.
Wildlife Service,
U.S. Department
!, Washington, D.C
of the Interior, Fish emd
• 13 pp.
32
1302
REMARKS OF THE FOUNDATION
FOR ENVIRONMENTAL AND ECONOMIC
PROGRESS BEFORE THE ENVIRONMENT
AND PUBUC WORKS COMMITTEE
OF THE UNITED STATES SENATE
SEPTEMBER 15, 1993
Preaentedby
TED R. BROWN, Pr«ddeiit
Foqndadon for Envlroniiieiital
and Economic PlngraB
c/o Arvida Coopanjr
7900 Glades Road
Boca Raton, FL 33434
(407) 479-1144
1303
ivranpuCTiON
Mr. Oudnium, Memben of the Cmimlttee:
I am appevlng beftm you today in my capacity u Ptesideiit of the Foimdatioa for
Eovironmental and Economic Piogien, a ooalltloo of large laodownan and community
d*v*lopen whidi, while imall in number, ii nonetheless significant bi the dlveniiy and
m^itiMVi of tbeir oolleettvc real estate holdings. The member companies have projectt in 44
states in ttw United Stales. We shaie in common the ownership of large tracts of developed and
undeveloped land for which there niiti both a long-term commitment to develop and signlflcant
captMl htvestment. Among the memben are Newhall Land and Farming: Del WdA
Corporation; Cargill, Inc. ; Westinghouse Cnmmunhies; Mobil Land and Development Conqiaity :
Arvida Company; the Woodlands Convaiqr; Westvaco Compaity; and the Newland Qnap.
As I come before you today, h is acknowledged by all that wethmds and thefar flinctiona
are vind to a balanced ecoiogiGal system and, u such, carefol attention needs to be given not
only to existing wetlaiil anas but id the potential fior enhancing, reatoring aivl creatfaig new
wetland areu. Bodi Coqgress and the PreaidBa are to be applauded for their movement into
diis arena, but it is extremely impoitant that you and the Presidem be bold u yon ooUedively
addicn the various conqieting fanevcsts and dlfllarett policy choices confronting you b the
wetlands arena. The fUhuc to participate in this process hi a meanlngftil way aasoresfliat there
will be cnnfhmfirt regulatory and Judicial expansion of die program. Nowhere is this more
evident than in die Final Rule proposed to settle the case ot North CaroUna WUtB^ PmkratloH
V. TVOooh. Clvtt No. C90-713-CIV.3-BO (S.D.N.C. 1992). Here is a clear attempt by the
Tr\ CTi r\ C\A _ A'i
1304
regnlatoiy buieaucncy to expand the deflnbkni of "diicharge" to include excavatioa, i.e.,
•ctividei wfaoM esKntiil nature ia lemoval of material tnm waten, not addition of material to
waten. The Federal govemment la now attempting to regulate acdvitiei that affect wetlanda by
improperly uiing incidemal aoU movement at a Juriadictional 'book.*
Let me be clear. The Foundation believes it entirely appropriate to expand the icope of
acdvitiea regulated in a wetland, but for the Administration to suggest that Congress should
amend the Clean Water Act to make it consistent with this rulemaking has die cazt before the
horse. Congress must decide; dien agencies can adopt rules to iroplenient that direction - not
the other way around. Without Coi^reuional sancdon, this program will ultimately lack
politisal legidmacy and, if diat occurs, the very proper goal of effective resource miiMgemfflt
will be undermined, as wiU dv credibility of the program itself.
The direction suggested both by Seoats Bill 1304 and by tbs Presklent's policy initiative
of August 24, 1993, moves In die right direction, but bodi fUl to addrau several in^ortam
issues. My Ibcus is to higbUght fbr you diose aieas where progress hu been made as well u
diose where more remains to be done. We do so in the belief ttmt the Auxiamental eH^ta^t at
the wetlands regulatory program is to provkle a series of procedures snd protocols that allow
fbr the efltedve management and conservation of die resource but not at the aacriCloe of die
economic engine of this country and, in particular, die g"'«iri?ngm pact of diet engine diet la
rqireeented by die land devekipment industry. What we believe is needed is s balance; one
which tatkmalisBe durough cteadve fanning the uaeftdness of selected portkna of our wetland
resouices while exchidlng or severely restricting acceu to odiers.
1305
WONRTLOSS
The Fnaidenc bu uticulaied ud we wppon tbe go«l of "no overall net low of ttae
mtioa'i remaining wetUndi and (he loogHenn goal of iocmaing ttae qualiQr and qoantity of tbe
nttkm'a wetlanda reaouice baae.* While we acknowledge dw valkUqr of that goal, it ia
bqxmant to recognize diat widiout Aindamental change in die preaeot 404 program, we do not
believe it ia poailble lo achieve die goal. Tbe preeent 404 progiam, u it haa been intplementrd
by tite Bovironnental Prelection Agency and the Coipi of Engineen, pranotea a program Qiat
empbuiaa itrkt and abaohite protectioaiim u Ifae piefencd regulttcny approach. TUi
approach ignorea two bivortant concqits of die no net loai doctrine. Pint, tf» term 'net"
impUea diat diexe will neceaaarily be aome loaaea to be ofhet by odier kinda of gaina. Second,
die concept of "no net loei" hu alwayi been inieipieted to mean no net loaa of die "(jgotujoai"
and "xiluH* of wedanda u oppoaed to the concqit of no net loas of tenltory or land Mfldhig
alone.
Tbe Fniident'a policy lenarka potentially leave open tbe queftkm of whether or mt no
net kMa ia to be viewed u no net loai of Auction or value. We believe diat dK Pieaident'B
position, paiticidarly when viewed hi die context of die whole program, acoqiti die hiatoiical
faiterpretition of no net loas, but we would urge bodi the Congreas and the Admhdatiation to
make diat clear u they oflbr both legishutve and legulatoiy guUance to the impleiDentlQg
agendea. The inadnitionalization of dds coocqK ia critical to die ability to inoeMe the qoaliiy
and quandty of die nadon'a wedanda resource.
1306
CONSOUDAHON OF WETLANDS ADMINISTRATIONt
REGULATORY PROGRAMS MUST BE FAIR, BIEXIBLB
AMn ppgnirr^LR, DUPLICATIOW MUST BR AVOmgD
An imiounced ptioc^k of tbe PrnkJem't plan it thit tbe nguUtory prognm nnut be
efllcieot, blr, flexible md piedictible, ind idminiitered in a manner that avoida unuwwaiy
bnpacti upon private property and tbe regolated public whik providing effective protection (br
wetbuda. Duplication among r^ulatory agenciea muat be avoided, and die publk muat bave
a clear undentanding of regubuoiy requirement! and vacioui agency relet.
SubitantiaUy all of the eftati wggeitBd by the Pretident in implementing thii particular
aapect of hii wetlanda policy were directed toward the igricullund lector, wldi little relief being
provided to the other portion of the regulated community. If we are lerioui ibout avoiding
duplication and achieving a meaaire of efficiency, fkimeu. flexibility and predictabUiiy, tfaen
terioui contideratlon mutt be given to emMniMaritu the 404 prognm under one agency. The
Preiideot, while not outright eodoning the concept, recognized the necetdty for contlnufaig to
review tUi matter, for in tbe 'Queitioni and Aniwen' diitilbuted with the narrative of his plan,
the Pretident acknowiedget diet 'the Adminittntion will udce ttept to i>«npti«Bt|»y g lingie
dedtion maker to itreamline the vazioua Fedeial wetlandi prograsu and reduce dupUcatioo,
overi^ and delay . . ."
At each of you are aware, pieiently die Corpt of Eoghieert it charged with the
responsibility of issuing a permit, but die Environmental Protection Agency hu die right to veto
the pennit or to elevate a permit dedskn for ftuther review in Washington. The U.S. Fish and
1307
Wildlife Service ii i commenting agency which alio hu rlghti to cequeit an elevation to
WaaUfligton. Add to that additionaJ layera of review in viitually every atate, and it la not
difficult to undentamJ why coniolidation at the Federal level ahould be addreaaed.
The tension that exlata between the Coipi of Engineer!, the Environmenlil Protection
Agency aul the U.S. Fiib aixl Wildlife Service resulta In an adveraarlal lyttem in which the
permit appllcam is caught in die middle and ia forced to engage In a process of abuttle diplomacy
between the offices of these various agencies while he works the proceai duough to completion.
We have urged and would urge again that die Congress of die United States, give renewed
consideration to consolidating die permitting process into one agency. Other agerciea may, of
course, be commenting agencies, but one agency should have the final authority to iasue or deny
dK permit without havitv its p^Kr graded by another agency at die same time. No one atep
would do more to promote efficiency, fairness, flexibility and predictabili^ while at die same
time eliminating much diq>lication of staff and expertise.
If dds approach is politically impnctical, dien we would recommend a compcomiaB that
would allow die Environmental Protection Agency, if it certifies afCected wetlanda to be of
national aignificance within 60 days of the filing of an appltcadon. to take over die permitting
responaibility firom die Corps for a particular permit qiplication. Appropriate interagency
guidance could be developed to more precisely define die criteria hy which the EPA could take
over a permit, but die intent la diat it must be an ^iplicadon of n^)or significance. If die EPA
exercises its takeover authority, then it would have exclusive decision making power on the
permit, and the Corps of Engineers would sinqily become a commenting agency for the balance
1308
of the proceu. If, on the otter band, tte EPA doei not exeiciie its takeover authority, then the
Coipi would be the excbiiivBdeciaion maker, and the EPA would be a commenting agency with
no right of a veto or other right of elevation. Thii coii^iraiiiiae effectively leaves hi play the
regulatory appantos of both agencies, allows both agencies to contlnie to paitlclpatB in die
pennitting arena, but allows tte applicant, at a particular point in time in tte ptooess, to deal
with one Federal decisbn maker and one set of managerial prerogativM.
Tte recently annouiged hiitiative which reestablished tte Corps as tte lead agency for
permit review hu proved somewhat uaefljl, but it does not uneliorate tte fundamental fhct tfiat
as and to tte extent tte EPA ii not a satisfied constituent, tte Corps of Engineers ii. ai a
practical matter, powerleu to move forward until that constituency has been satisfied.
Movemett on this agenda is critical If we are to eliminate diq)lication amoiv tte regulatory
agencies, and we would mge tte Coqgrees to refocus legislative effort on this issue.
ADMDWgrKATIVK/JUDICIAL BRVIEW
Significantly, both Senate Bill 1304 and tte President's program move fbrwaid to provide
additional protectiona to landowners in tte areas of administntive and Judicial review at various
stages of tte peimittfaig process, and we tpp]»ud diat effort. We believe, however, that some
reflnements are deainble hi tte interests of fkimeu and in tte interest of leveUng tte playing
field. Tte Piesident's Initiative to allow an adnynJsttative review of Juriadictioaal <ii>Htie«rinm
is kmg overdue and clearly should te bcoipoFBlBd into any Illation coming out of tte
Congreu of tte Unfted Stales. Senate Bill 1304 does not presently provfcle for tte same, but
1309
it U an extremely importaiit concept that cries of fundimental fidrneu and auuita a aignlflcaiitly
increaaed level of accountability in the delineation of wetlands by those charged with that
re^nsibility. We would urge in the sttoflgest way possible that administrative review of
jurisdictional delineations should be a pan of the law and that die law should require that
administrstive review be conducted independent of the regulatory oflke of the Corps.
Parochialism is, at best, a perceived threat to oiigectivity and, at worst, a real threat to
objectivity. It cannot be ignored is this type of endeavor.
Senate Bill 1304 ptopoaet a Aiodaxnental change in the review of permit denials, and we
believe it imqipropriate. As it is presently proposed, it would require that a permit denial must
flist be administratively reviewed prior to seeking judicial relief. Oiven the finality of a permit
denial and die inqMct that it has upon a bodowoer, we believe that a lanlowner should have the
right to pursue aibtti of these alternatives. The necessity for administrative review, however,
la an important plus that ought to be available to a hmdowner, and It should, therefme, be
retamed but not at the expense of immediate judicial review. If the issues which give rise to tttt
denial of the permit are perceived as negotiable, they may well be able to be resolved in the
administrative review format. On the other hand, if the issues which gave rise to the denial of
the permit are issues fDr whkh diere is little dumce of ctnnpromise, it may well be that die only
perceived recourse avaihible to die applicant is through the courts. In that case, the ^>plicant
ought not have to eiQiendanodier six, nine months to a year in die administrative review process
beftne he can seek judicial relief from a decision be considen adverse to hia interesta. So, we
1310
would uige that It tte point in time duu a pennit is denied, a landowner would bive dtfaer
opdon available; adminiitiative review or acceit to the couiti.
nRAIW.IWIW ■«■ TgBMlT APWJCATIQN
TbB Preiident'i initiative, u well IS that of Senate Bill 1304, wggeitt the eilibUaliinBnt
of deadllua for wetlands pennitting decisions under tlw Clean Water Act. imoMtlngly, the
i^ulatoiy appmtus pieaently in (dace provides for similar deadlines, and while tfaey seem to
add some sense of predictabiliiy, satisfying a public that craves pitdictablUty, they, in teallQr,
doootwoik. No ooB who has spent dw time and effort to get an qiplication to the public notice
stag* wants die ippUcatlon denied simply because the deadline has been reached, and absent one
of the triggers for extensian, dut outcome is virtually assured. The Issue is, how do you oeate
a ftamewotk for maUng timely decisions which advance die proceu to a place where a pennit
dedakm can be made. While deadlines may contribute to that ftamework. we would stroagly
urge that in svety faartanoe. the itfp'««^Tf be given die right to waive the 90-day period hi order
to keep die applicant's appUcatian alive and suttject to continued review and processtaig.
Assuming the applkaw is acdvdy engaged in addressiag regulatory comments and is hi good
fiidi pursuing die obtaining of a peonh. arbitrary daadltaies controlled by die government are
couaterproducdve. However, die appUcam should always be sbie to call for a decision snd,
OQce called for, obtain ons whhin 90 dcys. These concepts ihouU be bshided in Senste Bill
1304.
1311
CTAWDFATHWaiNCt SEC. jmOSit SECTION TflOfS)
Hk propoMd lugiuige of Sec^on 70)(B) of Scnite BUI 1304 ii problMnitic to die extent
ttiat it vokU ehfaer an existing Geoenl Pennlt or one whicli bu been and ii being actively
pumied limply becauae *a unit of government' over which a private party hu no control bu
fkiled to become "part of a wetlandi and watershed management plan approved under Section
322* by 12/31/96. Tbe Foundation hu a nunber of memben who are cuirently involved in
negodationa with ACOE, EPA, USFWS, together with itate and local agencies punulng an
ACOE Geoenl Permit Hundreds of thousaods of dollan have already been expended in
rellaiKe on die validity of the presently existing regulatoiy scheme. It would be bhttantly nnfata-
to prechide a validly and legally adopted General Permit to remain in effect simply becauae
another aim of goveranienthuintconpltedwidi the new policy direction in a timely way. The
potentia] ftir abuse is great and, accordingly, "remain in effect' should be deleted from Section
7(3X8).
Additlonaily. predictability requires consistently applied standards. Section 7(e)(9).
«iiich terminates General Petmita after five yean, should be rethought. We find no merit in
srbitiaiily tenninating General Peimits simply by reason of the l^Me of time. In contrast, we
would wwrtw^Mwrf that they be automatically reixwed every five years provided the condltionB
of die origioal General Permit have been satisfied sod there is no affbmatlve ahowing by tbe
Goverament fliat matnial changes have occurred which require different treatment.
1312
CLASSmCATION
Tuning to the iatw which we believe 10 be ouMt cntkal to the ntioQ^^
prooen ud to cieidqg • fitmawoik that ■ttncta private cqiital to the reetontioa of wetlind
resources, we believe the ftilure of Senite Bill 1304tosddresicluslficitloniiidihePreaideiit'i
lomewhat lukewinn endoneoieiu of the concqit needs to be letbougbt.
On « positive note, the Admhilstiatkn's accqxance of the nodon thit not all wetlands
are aeated equal and that pennit qiplicanti deserve "a timely and ptedicuble leguhtoiy
response that is appraiHiate for the project behig proposed" are important first steps which are
to be applauded and encouraged to be made a part of a Congressionai response.
Unfortunately, oehber the Administntioa nor Senate BUI 1304 go far enough to leeognitt
ttie ahiQluie neeeMity far itewalrtp<t^ a mtn-hmnimm far »Tt''t'^t clastiUcHton. On the One hand,
the President suggests that 'the prior categorization and ranldng approach would not provide fbr
Gonskieradon of the individual faiqMcts associated with specific projects" and uses that as a
rationale for ooochiding diet national dassification is not an agenda hem for die Secdoo 404
program. However, in die same breadi, die Administndoo npports, as does Senate Bill 1304,
die concept of advanced planning which, if taoplemented with die rigidity diat has characterized
our expeiieiaw widi die Advanced Idenriflcation program, will also "not provide fior die
oonsidendoo of halividual fanpacts aaaodalBd widi specific projects.*
We would suggest thtt bodi extremes are miahig die pohit and dMt the devekipment of
I that aiB watershed specific can be done, and when done, can be detennhiBd
10
1313
linmltaneoualy with ■ JuriMlktioml MioMtlon. Cliulflcatkin ii the eMentkl iindyin to
esanpolidag prlvite oqrital to iccoovUih the ftinriimwitil otijeGtive of xxx only futoring
d^gzided wetUttii but ttwr— <"g the wetland inventory beyond no net Ion. The notkm that
lener value wetlaods ibouU icceive ksub meaiun of oqwdltBd pemitttlng iutborlQr> wliUe
antithetical to tte envlioomentil BfeixU. if HnwtlieteM an faiyoctant tndeoff if ^
to bear maifcet driven foioea to eocouiase the mtoration of lower value wethmda whh higher
vahie wetlandi and to iteer development activity away from thoae reaoorcet which are of higher
quall^ attl ought, hi all fidmeai, be immunB from the prewure of development If nch a
progiam were implemented with iqiUuxment ratioa determined by Auction and vataie that
repaired Goo^eiaatoiy mitigation to exceed 100% of the ftucdon and vahiea being imfMCied,
dien the ayitem will return more in wetland flmctlon and value than wai taken away, and it will
do lo witlKMt tax levenuM. In ihoit, it inqioiea market-driven lequepcing and deliven private
capital to wetlanda reatoration and enhancement by directing development to low value wettandi
in *«g>i«np for lettoiation and enhancement mitigation.
Ite Pntident'i appraach aeemi to hint at moving in thii direction, but the regulatory
goklam which emerged aa a rewlt of thii dliectkin continue! to tai^wee a set of appUcantp^lriven
prerogatives which are rigid and coniklerably mora inflexible than the President'i approach
woukl have suggested. The Prsakient's spproach also suggests that u a precondition to the
fanposition of a dassiflcation system, then needs to be watershed level analysis within specified
regkms of the country that take into account the unique ecological chaiacteristks of thoae
regkms. We do not disagree with that approach, but a few words of cautkm are appropriate.
11
1314
A witenhed ptaaning prooew •hoold be pfanaed to otibliih the lizBs. Qrpet, lad
locatlou of wettiQd/apltnd caiiq>lexet that hive the potential for long-term lurvival u
ftuctkning ecoiyiteaii. Thii ^pe of ■nilyib doei jut hive u Iti goil the rigid dimlflritlon
of wetlands for pennlt pupoaei, but, ia like maimer, it does not aeek to elaisUy wetlands fbr
long-term preservation purposes either. In this context, tt is entirely appropriate to couiderint
only die ecological coosequencea of wetland clanificatlon, but the ecoaomk and political
consequences u well.
Our experieoce hu been diat when Ae classification process gels too fiu- in front of a
permit application, it Inevitably develops a rlgidiQr that constraiiu creative sohitions, giving rise
to enormous txpeiae and delay bi attempting to worlc through more precise and accurate data
In an effort to overcome what has become intentionally or unintentionally die 'official map."
It fanmed lately denies any proapectlve foOire development use to the pucel and is faEonsittent
widi die stated iniplemeniation of die 404 permit review which icq)lk8 that a 'public interest
balancing' will occur only when an immedlaie and certain use for the site is identified. It can
be argued, of couiw, that advannd classification is itself a balancing proceia, but all lands are
not ripe for development at the same time, and it Is for that reason that the Presidem's comments
are well taloen when he again, and I repeat, points out diat 'prior categorization would not
provide considention for individual fanpacts associated widi specific projects.' It is also true
that prior classification H«<«t£niHi to limit access to lands ia alio burdened by the same constnhtt.
What we believe is needed is a comprehensive and holistic look at the needa of a
paiticuhu' region which are overlaid with the wetlands agenda, but it is not so precise as to
12
1315
tpeclflcally take out ofjiUyuiy.paiticuterwetltnd resource, and Cot^reu should eocounge and
appropriiic flmda to aocon^liih this study. Thia aiipioacb avoids premature conflict between
the landowner and the goverament and recognizes that eaviromnental resources and wetlands to
particular, an fluid. That is, ibey will change over time. Tbcy will either faiqirove, get wane,
or stay about the same but, dearly, change Is inevitable. When the watershed analysis is
complelB, then Joint consideration of a variety of flKtors can lead to a classificatlaii system fbr
application to individual pennits. Significant, amoitg othen, are:
1) The magoiiude of the ecology value to the watershed of the wetland site
proposed fbr development, if developed Is denied. This would be analyied considering (a) how
the site might in the future be isolated or fragmented &om the watershed system even if the
pennit is denied; and
2) the acarcity of the wetlands type m the watershed; and
3) the difficully and cost of restoring or creating lost ftmcdons, to relation to their
ecological vahie, if development on the site is accqjted.
In diis altecnative. wedands classification is uiriettalten on a case-by-case basis and, u
such, does not confront the takings problems over the entire watenhed. Importantly, it allows
the pennit application to be evaluated in die context of the existing dynamics within the
watenhed and, as such, allows for considention of individual inqiacts associated with the
^wdfic ^iicatkm. At the same time, it imposes a dauiffcation on the targeted wetland that
will be determinative of the level of regulatory attention that is to be focused on the applieation.
13
1316
For example, for low vilue wetlaodi Impacts, the applicant can move immediately to
mitigation. For mediuD value wetlanda, lome sbowioB of bow tlie applicant ni4mnt
practicable alternatives and sequencing would be retpiiied, but the i^ication would be viewed
holisHcally, and the mitigation component would be considered simultaneously. For tbose
wetlands that are of Ugli value, rigid sequencing and rigid pracdeable alternatives would
continue to apply.
Such a syitem unlfbnnly assures that market-driven capital would be attracted to low
value wetlands, and If impacted, the tradeoff is mitigation provided and paid for by the
qiplkaM. Private cqiitil will not move to high vahie wetlands excqk in extreme cases and, u
a result, avoidance wUl be accomplished through the market. The restoration of low and
oMdium vahM wetlands will oeeur with private ciqiital and will edvanoe the agenda of "net gain"
while allowing some measure of developraent.
Tlie system that presently exists and is still beiqg hnplwnCTitwl through die recent
regubttions Just enacted on August 23 does not move in this direction. Senate Bill 1304 does
not deal with claasifkatka of wetlands or the estahlishmert of protocols for developing die
same. Until we can move to a system In which it is recognized first that all wetlands are not
the same and develop procedurea for permitting around that reality, then the reguhrted
community remains confined and constrained by a process in which there is no relaxation of die
permitting standards irrespective of the quality of the resource being faqwcted and irreqiective
of effortt to inculcate flexibility where none hu existed before. We would urge serious
reflectkm on diese notkms.
14
1317
MinCATION BANKING
Both tbe Admlnlitntion and Seaiie Bill 1304 ire to be commBoded for telr ncoxnttioD
of midgition banking u i part of the aohitloo and not a part of the problem. While that
recognitioD ii explicit, there ia not much in die way of lubitantive direction that la provided ibr
indthw tbe Sciw^ Bill or hi the Pieiident'a remarica and aubaequent regulatory guidance. Of
particular concern ia the aeemlQg hiabUity to come to gr^ia with a ftindamental reality - that
mitigation banking ia not going to h^)pett inany meanhigftil aenae whh private capital until there
is created aome aet of incemtvea that allowi it to attract private capital. In thii context, let'a he
dear what I mean by a mitigation bank. 1 do not mean a large wetland area developed by a
permit qppUcam for internal mitigation credit. I regard that not u a bank but dmply aa a credit
reaerve fbr a particular applicant. A mitigation bank, in my parlance, ia a waioration or
enhanoenmt effort of a degraded Of ahnoit deflioet wetland to which unrelated third partiea may
gain acoeu for mitigatioo credit by die payment of caih and, once obtained, may go fttrward
with an unrelated project, provided other regulaioiy requireraenta are latisiled.
To my knowledge, only two luch banka exiat presently hi the United Statea, and the Jury
ii a loQg way from out on whether or not they will be aucceasftil. The tendency of the
regulaton to require that all mitigation be done, hi phne and fanctiwiil befbre credita can be
withdrawn ia totally unworkable ficom any practical point of view. For thoae who would ledc
to inveit b a mitigation bank, a requirement that it be totally aucceiaftil befbre credha can be
aold eaaeotlally meana that the cvedit nqipUen bear all riaka and coata of mitigation fUhin.
IS
1318
TlioK coiti are too hi^ for any kind of a conqietitive return on ioveatment, and fbr a matkei-
baied tndlng ayttem to woik, nqjpUen muit be allowed to tell credha from mitigation aliet that
aie not yet flilly mature or even Mlf-oittainliig. Stated dlffcreotly, the abllily to aell the
mitigation credtta mnat be moved back on the demand/nipply icale where lome element of rlak
is aiaumed on the regvlatcoy aide of the equation. That riak can be minimizBd in aome wiya by
qipropriate bonding w«*f»«t»««m« ud the like, but it ia wholly inappropriate If we hope to attract
private capital to ttda type of a venhire to aaaume that it will be acoompliahed without atrong
economic Incentlvea to do it. The developer would be, and clearly la, much better off to Binq)ly
make a permit plication and proceai hia requirements for mitigation limultaneoualy with the
permit application. If he ia uooeaaflil In achieving the permit, the mitigation component will
be defined, and he wHI inatall it and build it in accordance with the permit igyllcafton, all
oontingencka being aMiafled tfanultanBoualy. The other mechaniam ia a high riak gamble whidi
no OIK, in my underatandfaig, would undertake other than other governmental agencies such as
road departments, Gountlei. muddpalitiea. achoDl boards and the like which do not have to e«n
return oncq>itai and do not have the same attendant riak associated widi the expendhure of that
caphal u does the private sector.
ail!CTIOWB321.311ANDSgl
The development of Stale Wetlanda Conaervatkm Plans pursuant to direction by the
Federal govemnieat ia obviously important to bringing continuity and predictability to the
16
1319
roguUtoiy procen. Oiven our itzong eaSonaoM of 'dmifiotton,' the Foundttioa would
uz|e tfait Sectkm 321(b)(2) be Kiieiided to zeed u foUowi:
(b)(1) An inventDiy of weiUadi mources ia the State which ineludee criterl* tot
cliulflcatioD of ftuictioo ind vilue.
lliB iiBceHity for iwblk iivut lod the fidlure to provide for the ntne hive been iie^
fzett Goocem unoog the reguleted canummlty, ptitieularly ai the 404 prognm hu mitund io
nceat yetn. Aocordiogly. the Fooodatkn beUevei thit Section 322(bK3) ihoiild provide thit
die Qovemor will make liis rfi^nmlnitinn under thii MCtion 'after notke and opportunity ftar
public comnenL'
In like manner, the regnhted tamnmnity 1m iiiapproptitely teen -exetadBd-from Hk
policy making anne in fkvor of weighted panela of govemmeot employeei and '■^hnidfifw
Given die accepted hct that lomewfaerB between 73% anl 83% of die nadon'i wetlands are in
private owoenfato. we believe die propoied Inteigoveinmeijial Wetkndi C<MMrfliif»tng Crwnnilw^f
■houU have pthfiie property owner rq^rexntatkn and recommend, dierefbre, diat a aubaectloa
(cXlO) be added to Section 323 aa fbUowt:
(cXlO). Ten private prppeiiyownenielectcd and appointed by die Adminiitnttor
fhxn aouaig nominationi nibmitted by die Oovemor of each State.
CQWCLUfflQW
On beianoe.wc remain pkaaeddiat die Congreai of the United Stitea anl die Pteekteit
are beginning to aggreaalvely addresi dieae iawea and believe diat much hu been aocompUahed.
There ia a unique oppommiiy at ddi patticutar point in dme to itnicaiie a regniatoiy feaouce
17
1320
^■«.g>»iw.n* .ppftiM tht not only worin hut wUl utnot cipital to iPCompHrii the fiiiriiifwdal
olijective of adding to the natkm'i welluid inventoiy. Tbe eovironmeDlal ■geoda b admlttBdly
nupect of that oodon, but the other mechanlam, which ia * oonunand ud control i^ulitoiy
•ppuatus «<— 'g"^ to fiuttiitB even ■ modtaim of cooperation between guvenunent and die
private Kctor bu not proved workabte. and inipUdt in both Senate BUI 1304 and dK Pretident'i
plan 1b a lecognltlon of diat reality. I would urge you to be cteative. to go beyond the bounds
of normal ftetoric and to, in the words of die Preiident, 'reinvent government* In a way in
which it ic^xmda to the need not only to maiiage die reiouroe but to encourage maiket-drlven
incenttva to restore and rqileniih die resource.
Respectftilly submtded,
Ted R. Brown, President
Foundation for Environmental and Economic
Progress
c/o Arvida Company
7900 Olades Road
Boca Raton. FL 33434
(407) 479-1144
IB
1321
STATEMENT OF KEVIN C. MARTIN, PRESIDENT, SOIL AND
ENVIRONMENTAL SERVICES, INC.
I will keep my statement short in order to allow more time for questions, which in
my opinion are normally the most productive part of these hearings. Forty percent
of my work is wetlsmd related. I have a B.S. in Conservation, and a M.S. in Soil
Science with a mirror in Hydrology. I currently chair the Technical Committee of
the National Society of Consulting Soil Scientists, I am on the Wetlemd Restoration
Committee with ASTM, I assisted in testing Wetland Manuals in 1991, and I am on
the NC Wetlands Rules Committee.
1. I come as a hands-on field person who, on a daily basis, deeds with wetlands, de-
lineation, mitigation, permitting etc. And therefore, my comments are based on
my experience in dealing with the 404 program. Unlike a lot of the testimony I
have heard in these and other hearings, I will stick only to aspects of the pro-
gram I have first hand experience with.
2. In general the White House Policy and S. 1304 (the Chafee-Baucus Bill) takes
steps in the right direction to clarify this murky issue. In fact, I am pleased to
see that some of the specifics that many of us presented during the White
House Interagency Task Force meetings have been incorporated into the cur-
rent Policy Statement.
3. However, I do have several concerns related to those and other wetland issues.
A. An appeals procedure for both delineation and permitting is a necessity. This
should be by persons not involved in the original action, possibly from an adja-
cent Corps district, since the original regulator involved would not have an un-
biased opinion.
B. A vsdue rating system is a must for a reasonable wetland program. However,
the one proposed by the White House, (HGM, Hydrogeomorphic Classification
System, developed in NC) would have to be significantly modified to work. It
identifies types and kinds of wetlands but not in a way that their functions and
values can be "ranked" into high, medium and low. It only results in high and
medium categories. Other systems like those developed by the N.C. Division of
Environmental Mansigement, Water Quality Planning, Wetlands Group have
been utilized and shown to work effectively. This has enabled me or anyone else
who utilizes the system to have a feel where we stand instead of having to at-
tempt to read a government employee's mind.
C. Corps Districts are too free to develop policy or opinions that can in many cases
significemtly change their authority. They should be required to follow DC guid-
ance, otherwise property owners on the same type area in different districts do
not get equitable treatment. In N.C. The Corps has approached this matter rea-
sonably.
However, I have seen a site in Rhode Island where a "significant impact" exist-
ed according to Corps and permits were denied even though USF&WS and the
state Environmental Agency approved the project. Later, on the very same site,
the Corps issued permits which impacted much more wetland than the first,
while stUl maintaining the first was significant and the latter were not.
D. Development of regional indicators of hydric soils by the Soil Conservation
Service is dangerous and USDA should rename or drop this project. It was origi-
nally titled Regional Indicators of SoU Saturation. You cannot reduce an entire
field of science to a 2 page list of indicators. No one has proposed doing this for
vegetation criteria so why do it for soil? It seems that some of the agencies do
not want to require their personnel to be trained thoroughly in all parameters
of wetlands. If you want to water down soU science you will have to accept huge
errors one way or another in delineations. If persons performing delineations
are properly trained, there is no need for this list.
E. Continued funding of NWI maps meikes no sense, they are not accurate enough
for wetland delineation and by their own admission, do not even use the same
criteria for wetland delineation as required in the 404 program. These funds
could be better used elsewhere. For example, funding exists for states to set up
wetlemd programs but once set up, no money is available to help run the pro-
gram. This money could be better utUized in the application of such programs.
F. Proposed funding to map all wetlemds in the U.S. is ridiculous. Senators should
consider costs and need for this. Who will do it, how, where wiU qualified per-
sons be found, how long will it t«ike and at what cost? There is no need to map
wetlands on property unless there is a proposed change in the use of property.
The EPA has already funded projects in various states for mapping wetlands
1322
that will not be accurate enough for Corps use. Why not divert these funds to
running state programs?
G. Contrary to popular belief agricultural land is not exempt from wetlginds regu-
lation. In fact it is subject to two sets of regulations: Swampbuster and 404. This
can have drastic impacts to continued operation of existing "noncommodity"
crop farmland.
H. Delineator certification is a good idea for the private sector and government
personnel involved in wetland programs. Currently anyone who wants to claim
to be a wetlemds expert can. I have seen some catastrophic results due to un-
qualified persons practicing in this field.
I. There is currently no consideration for project size in permit approval. This
leads to small, piece-meal, poorly planned projects that attempt to avoid regula-
tion rather than comply, because compliance is not practical for many large
projects under the current regulations.
J. I have been very disappointed in hearings of the past and in government test-
ing and formulation of criteria for wetland delineation because of the absence of
field persons with hands-on experience from the private and public sector in all
relevant fields of science. After all, if anyone knows the problems with the cur-
rent and past manuals, it is those who daily utilize them in the field.
The biggest drawback I have seen to the almost exclusive reliance on academics
and office-based government employees, is that they are often not in touch with
reality. There is a need for academics on the "cutting edge" of technology to
work together with experts who have extensive field experience delineating wet-
lands utilizing the various manuals. Unfortunately the NAS Committee is very
top heavy on the academic end.
Ironically the NAS is also completely devoid of experience in the field of soil
genesis, morphology and taxonomy even though soils is one of only three crite-
ria that m£ike up wetland delineation criteria. A balanced committee of 18
would therefore seem to warrant at least 4 to 6 soil scientists with expertise in
Soil Taxonomy. I do not see how any workable recommendations can come from
NAS without their having qualified soil scientists on the committee.
K. I would strongly recommend you and your staffs spend some time in the field
to learn more about some of the tj^pes of margined areas we are currently deal-
ing with in msmy csises. I doubt any of you would believe that such areas are
wetland or should be protected by the Clean Water Act. A system utilizing con-
sideration of values in permit decisions or a reasonable change in the delinea-
tion manual if done properly will lead to protection of truly high quality wet-
lands.
STATEMENT OF DAN JAMES, FEDERAL AFFAIRS REPRESENTATIVE,
PACIFIC NORTHWEST WATERWAYS ASSOCIATION
The Pacific Northwest Waterways Association (PNWA) is a regional association
that has been working for 59 years to maintain the multiple use concept in the de-
velopment and management of the Northwest region's natural resources.
PNWA membership includes 149 organizations and individuals in Idaho, Oregon
and Washington. PNWA represents:
• Public port authorities on the Pacific Coast. Puget Sound, and Columbia/ Snake
River Systems;
• Public utility districts, investor-owned utilities, and direct service industries;
• Irrigation districts;
• Grain growers, greiin grower cooperatives, and upriver elevator companies;
• Major manufacturers in the region;
• Forest products industry manufacturers and shippers; and
• Transportation providers, consulting engineers, and others interested in the eco-
nomic vitality of the Pacific Northwest.
Our Association thanks the Subcommittee for this opportunity to share our vision
of wetlands progreim reform with you and your colleagues.
PNWA created a Wetlands Committee nearly a year £igo to study the variety of
issues that will be discussed during reauthorization of the Clean Water Act. The
Committee offers an expansive range of expertise, including wildlife biologists,
water quality specialists, natural resource attorneys, a former high ranking Admin-
istration wetlemds regulatory official, port staff and utilities staff. This group pre-
pared the following testimony on S. 1304 and has accomplished a review of the Ad-
ministration's recently announced wetlands policy objectives.
1323
Wetlands Regulation Needs to he Incorporated into the Lund Use Planning Process
The states in the Pacific Northwest have a well deserved reputation for their high
quality comprehensive land use planning. We believe that sound land use decisions
have resulted from our local and regional comprehensive plans.
Under previous federal policy, federal wetlands regulation occurred after local
land use decisions had already been made, significantly reducing the predictability
for public £md private landowners. PNWA has been seeking to improve the process
by giving local jurisdictions the option to include federal wetlands delineation einti
alternatives analysis much earlier in their comprehensive land use planning proc-
ess.
Description of the Problem. Most Northwest cities and counties develop land use
plans to guide both development and preservation. Land is zoned for natural preser-
vation, residential, commercial, industrial and other purposes. That process is gener-
ally open to the public, and local and federal governmental agencies participate in
the development and review of the plans. The problem arises after the planning
process is completed when a public or private landowner seeks to develop its proper-
ty. For example, public port authorities own a substantial portion of their communi-
ties' industrial or marine industrial zoned property. It is not until a client has been
identified and the port seeks to develop its industrially zoned property, after all
other land use decisions have been made, that the federal wetlands process begins.
Often, it results in a portion of the port's industrial property being delineated as
wetland, which reduces the community's inventory of industrial property and re-
duces the ability of the local community to meet its economic needs.
PNWA's Solution. PNWA is proposing amendments which would provide that
state and local land use planning processes, subject to certain criteria and subject to
ongoing Corps of Engineers or Environmental Protection Agency oversight, would,
at the option of the local jurisdiction, trigger the federal regulatory process. For
those states with effective land use planning processes, federal wetlands regulation
should be integrated into the local planning process. The presence or absence of wet-
lands would b« considered along with all other factors in determining appropriate
zoning for all classes of activity. If wetlands are present for any given class of zone,
alternatives would be anal3rzed and the zone would be located in the most appropri-
ate location as part of the alternatives analysis. Once the land use plan is adopted,
the alternatives analysis required by the National Environmental Policy Act will be
deemed to have been satisfied. Upon completion of an approved mitigation schedule,
if required under the plan, development appropriate for the zone may occur.
This Approach Works. The State of Oregon provides an example of how this might
be applied. Oregon has established a land-use planning goal for the preservation of
natural resources. In Oregon's planning process, criteria are developed and natural
resources are inventoried. The plans are implemented so as to protect the identified
resources. Rules established by the State lay out a procedure for identifying conflict-
ing uses. This involves determining the "economic, social, environmental and energy
(ESEE) consequences" of the proposed use. The local planning jurisdiction is then
responsible for classifying the site according to its ESEE. Management directives in-
clude hill protection for sites with high ESEE values, limiting conflicting uses to
balance the ESEE or, in certain cases, allowing the conflicting use without restric-
tion.
Incorporating Wetlands R^ulation into the Land Use Planning Process
Section 12, 322(bXlXF) sets criteria for Wetlands and Watershed Management
Plana "to integrate wetlands planning and management with broader water re-
source Emd land use plsmning and management. ..." We agree with this approach.
However, we propose to take this concept one step further by offering local jurisdic-
tions three options:
1. To proceed under the current regulatory programs, under which development ac-
tions would be permitted individually.
2. To develop a land use plan which meets the requirements of a Wetlands and Wa-
tershed Management Plan. Which, upon completion, is approved by the federal
government, or
3. To allow local jurisdictions to elect to initiate the federal regulatory process, in-
cluding sequencing and alternatives analysis for Ismd use classes, as a part of
their local land use planning process. The result of this cooperative process
would be the issuance of a Programmatic General Permit for development, pro-
tection and mitigation activities consistent with the plem.
We believe that this will increase the quality of local land use plans, increase the
certainty of implementing the land use plans adopted by local jurisdictions, increase
1324
the certainty of protection for valuable wetlands and increase the certainty that
local communities will be able to meet their economic development needs.
We are pleased to submit, for your consideration, concept language that will in-
crease the capability of local jurisdictions to achieve the policies and goals of S.
1304, as stated in Section 3. Our draft language, entitled "PNWA Concept Lan-
guage, section 404 Amendments" is attached.
Comments on Other Provisions of S. 1304
PNWA endorses many elements of S. 1304 that will help local jurisdictions meet
local and federal objectives for both protecting wetlands resources and meeting the
economic needs of our communities £ind the nation. Among those elements are:
1. Sec. 4(b) Delineation of Wetlands. We support the continued use of the 1987 Wet-
lands Delineation Manual untU the National Academy of Sciences has complet-
ed the study of wetlands authorized by Public Law 102-389.
2. Sec. 6 Permit Processing Improvements. PNWA supports the establishment of
deadlines for issuing permits.
3. Sec. 9 Mitigation Banks. We support the establishment of mitigation banking as a
form of advanced compensation for development.
There are some key sections of the bill for which we are suggesting modifications.
They include:
1. Sec 5(2) The Term Fill Material. . . . The definition, by including "any material,"
is too broad. We propose replacing this definition with the definition of fill ma-
terial in the Corps of Engineers and Environmental Protection Agency's Final
Rule published in the August 25, 1993, Federal Register.
2. Sec. 6 Permit Processing Improvements, (c) Administrative Appeal of Permit De-
cisions. This section appears to allow the appeal of all provisions related to the
issuance of a permit. This is likely to be an unre£isonable drain on federal staff
resources and prohibit the agencies from meeting the deadlines specified else-
where in Section 6. We propose the bUl be £miended to include the Administra-
tion's policy regarding appeals, which would limit appeals to determination of
regulator jurisdiction, permit denials and administrative penalties.
3. Sec. 8 Coordination euid Clarification . . . (c) Other Exempt Waters and Areas.
We agree that the items on the list of areas that shall not be considered to be
navigable waters are appropriate, but we propose adding the following after
(4XAXvi), "(vii) confined dredge material disposal areas constructed in uplands."
4. Sec. 9 Mitigation Banks, (2) Definition. PNWA agrees with the definition, but
would go one step further, adding an expressed preference for using mitigation
banks over on-site mitigation. We agree with the Administration's policy state-
ment which states that mitigation banking "offers numerous advantages," in-
cluding greater certainty of success, consolidation of fragmented mitigation
projects and other benefits. (See attached PNWA C!oncept Language.)
5. Sec. 12, 322(dX4) Programmatic General Permits. PNWA endorses the codification
in law of Programmatic (Jeneral Permits (PGP's), however, we propose to broad-
en the authority to issue PGP's to include activities consistent with approved
state or local land use plans. (See attached PNWA Concept Language.)
6. Sec. 12, 323 Intergovernmental Wetlands Coordinating Committee. We agree with
the need to integrate federal, state and local wetlands policies and planning,
but we are concerned that the establishment of this Committee will drain the
resources of the regulating agencies and will prohibit them from meeting other
requirements of the Act, including meeting permit deadlines.
There is one issue that is not included in S. 1304, which we propose adding. There
needs to be more flexibility in the permitting process to adjust the regulatory re-
quirements based upon differences in wetlands functions and values. PNWA be-
lieves that this is a necessary improvement, and it is included in the Administra-
tion's wetlands policy.
PNWA greatly appreciates this opportunity to present our views on wetlands
reform to the Subcommittee. We look forward to working with the Subcommittee
throughout the Clean Water Act amendment process.
PNWA CONCEPT LANGUAGE, section 404 Amendments
The policy of the United States is to preserve and protect wetlands for their bene-
fits to wildlife, flood control, water quality and other natural values. The Congress
recognizes that a sound wetlands protection policy must permit responsible public,
private, commercieil and industrial activity. Current policy impedes development of
land because Federal wetlands regulation occurs after local land use decisions have
been made. Thus, an area may be designated under state and local law as suitable
1325
for commercial or industrial development, yet Federal wetlands review and alterna-
tives analysis would not occur until a specific development project is proposed. The
result is uncertainty and delay. The Congress finds that land development and wet-
lands protection can better be reconciled if the Federal wetlands permit process is
integrated with state and local land use planning £md approval processes.
1. To assure continued coordination and to provide stronger Federal recognition and
participation in the state and local land use planning process, the Secretary will
publish final regulations within 180 days of enactment of these amendments
that set forth specific criteria which at the option of the state and local govern-
ments may be used when preparing land use plans, watershed management
plans, wetlands conservation plans and other similar, comprehensive plans sind
reports.
2. To the maximum extent practicable the Secretary shall ensure that the 404(bXl)
guidelines are satisfied in the state and local planning processes, including the
alternatives analysis and mitigation requirements.
3. When requested by the state or loced planning agency, the Secretary will cooper-
ate fully and provide the staff resources necessary to ensure that the final plan
will satisfy the Federal requirements under both NEPA and section 404 of the
Clean Water Act.
4. Upon submittal by a state or local government, the Secretary shall review state
emd local plans for consistency with specific criteria set forth in the final regu-
lations published in accordance with Paragraph 1, above, and approve or reject
the adequacy of the plans within 180 days of submittal.
5. Within 90 days of approval of the state or local plan, the Secretary will imple-
ment programmatic procedures which will provide the section 404 authorization
for specific activities that are consistent with the state or local plan.
6. After notice and opportunity for public hearing, the Secretary may issue Pro-
grammatic General Permits and Procedures including for example State Pro-
gram General Permits (SPGPs), Local Program General Permits (LPGPs), or
provide Abbreviated Processing Procedures (APPs) to authorize activities within
the Secretary's jurisdiction.
7. Programmatic General Permits and Procedures are preferable approaches to case
by case permitting of activities which the Secretary deems consistent with state
or local land use plans or comprehensive plans prepared by Federal, state, or
local governments or their respective agencies, port districts, river authorities,
or similar entities.
8. Programmatic Greneral Permits and Procedures may be used to authorize a wide
variety of activities, provided the Secretary determines that the activities, in-
cluding any appropriate and practicable mitigation, will have minimal cumula-
tive impacts to the watershed.
9. Full compensation for wetlands can be provided by mitigation banks which have
been approved by the Secretary to provide mitigation credits.
10. When the Secretary determines that full compensatory mitigation will be provid-
ed by a mitigation bank or site specific mitigation plan, the Secretary may
waive the requirement for an off-site alternatives analysis for those wetland^
which the Secretary determines to be low value. This provision satisfies the al-
ternatives analysis reqviired by both NEPA and the Section 404(bXl) guidelines.
11. Credits from approved mitigation banks should be used as compensatory mitiga-
tion for low-value wetlands when available and practicable. Compensatory miti-
gation from approved mitigation banks when available is preferable to compen-
satory mitigation built during or £ifter the wetleuid fill.
1326
STATE OF AUSKA TESTIMONY
STATEMENT OP COMMISSIONER JOHN A. 8AND0R
COMMISSIONER
DEPARTMENT OF CNyiRDNMENTAL CONSERVATION
TO THE
SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE
CONCERNING WETLANDS POUCY
SEPTEMBER 15, 1893
1327
ALASKA WETLANDS ISSUES
HlfirnRV AND STATUS:
Regulations for Alaska's wetlends should be tailored to the erotic, suD-aralc and
coastal ecosystems and related to tn© suslainabte developmetit objuotlves of the State.
in many of the lower 4S states, wetlands vs^ere inadequately protected and are now a
scarce resource. Some states lost most a' their wat!ar«3s. In contrast, Alssxa has
substantial wetlands - with minimum estimates of 130 million acres - more then the
entire 48 states eombinod - end to date, 83.85 per sent af th.ese wetlanda remain.
L^nd ownersNp, restricted devslopment opportunities and the unique arctic-subarctic
environment also differentiate the Alaska watlands situation from the rest of the United
States.
Approximate!-/ 87 per cent of Alaska is in public ov^nership; 5S% in federal owne.'shiq,
where most development acthritiM are prohibited c carefully regulated Approximately
12 per cent of Alaska is Native owned w'th only the remaininc 1 per cenx privately
owned. Private lands have very limited ddMebpmditt opportunities compared to ether
states because of the lack of developed erergy eources, very limited surfeoe
transportation systems and small populatlcn base (less than eX.XO). Even
agriculture is limited witn less irtan lOO.OCX: acres of the state's 375,C00,000 acres in
agricultural production or use.
Up to 80 per cent of Alaska can be olassifi'XJ as wetlands. The nature of ths eirctio -
subarctic environment and dlmatic condittcns create oxtonsive interior permafrost and
muskegs which cover mllliors of acres. Most or Alaska's 200 rural Alaska Native
communities are located In the midst of arr^as classified as wetlands which wir have to
be developed if these communities are to achieve and sustain acceptable economic
and environmental objectives. 135 of thesm Native villages lack basic water sno
sanitation systems, and the devekspment cf such facilrtiea will require oischerge of
dredge or fill In wetlands.
Less than two tenths of one per cent (0.15%) of Alaska v/etlards have been
developed. This compares to the National average of 53 per cent. The other 49
states have developed from 20 per cent in Maine tc 95 per cent In Ohio. Although a
minuscule percentage of Alaska's wetlands, have been developed; Alaska has a
number of programs in place to preserve end protect high-quality wetlands.
Particular attentksn has been glvsn to protection of anadromous stream corridors and
coastal areas. For example, a large portiC'i cf the 3r\etol Bay drainage basin (Bristol
Bay is the worid'a rr>o3t productive seimon fishery) Is protected by a State Park,
Wood-TlKchIk, which Is the largest state park tn the United States. Alaska has leo the
effort to buy back federal oil drilling leases off the Bristol Bay coest. Aiaska has a
vested Interest in protecting its fishing Industry. Proof ot Its success Is demonstrated
1328
Alaska Wetlands Issues »2- September 15, 1903
by the fact that moat ccmmorcial salmon harvests have boon at high or record-
braaKlng levels the last ten years.
Special protection of coastal areas and meny inland ereas such as the erUtB North
Slope Is provided by ihe Alaska Coastal Maragemsnt Program (ACMP) which
encompflssoa 43,000 miles of shoreline. The ACMP Brviron.-renial protection
standards prohibit devalopmeni unless an lappilcan: passes a practicable alternative
test, a water quality test, and demonstrates a significant public need for the proposed
project
Because AJaeka has already taken special rteasures to protecT its unique wetlands
and related resources, and less than two ti:>nths of one per cent of Its .vetlards have
been deveioped, imposing the ssffns restrictlor.s on Alaska that are imposed on the
conterminous 48 states would be burdensome and unfair. Thv imposition of such
restrictions would retard the sustainable devsiopmsnt Initiativtai underway in rural
Alaska Native '/iliages and other communities, tr faot, the larger communitiee and
entire State's sustainable development potontiai would bo sevwey restricted.
RECOGNITION OF ALASKA'S iJNir>LJF V^TTLANDS S.'TUATiQN:
The National Governor's Assoctatkjn recognized Alaska's unique shuation and
unanimously adopted tne following statemti.nt:
"Finally, the Governors believe the matlcnal strategy should recognize the
unique situation encountered by the State of Alaska... Because of certain
geographic characterist'os unique tc the- stats (it is arctic end ^uberctlc,
wrth development constrained to lim ted geogrephic areas), pcJicies and
procedures that are reasonable in the conterminous states are not
always app!iceble In Alaska...
The Governors recommend thet the appropr ate government agencies
and stakeholder gnsups In Alaska week cooperatively to develop regior>a!
wetlands strategies that accommod&'M sustainable v/e:l6nds piotection
and economic yowth for the state,'
In recognition of Alaska's unique circumstances, ths Environrr^mal Protection Agency
Issued proposed regulations (1% rule) providing lim led exceptions from National
policy. These regulatlcns have not yet been finaiized.
It should be noted that the proposeo 1 per cent exception IS riGT a blanket
authorization to fill wetlands. The p.'opcse<:l ejfception leaves h place the Corps of
Engineers pemnltting procese. Through its mitigation author'ty, the Corps can require
1329
Alaska WotJandc ItsuM -3- Septetrber 13, 1893
that project size and configuration be alteriixj to minimize adverse impacts on the
environment.
Compensation ■ creating or restoring wellends - is Inapprcjprlet? In a state that has a
low loss rate, limited uplands and substant al natu'-ai wetlands. In effect,
compensation would require convertlna limited natural upland habitat into artif oial
wetlands.
BURDENSOME NATURE OP ALASKA WFIXANDS PERMIT PROCESS:
Due to the abundance of Alaska wetlands, the fedf=ral government, through tne
wetlands permit program, controls an inorcJinete aniourt of Iccal land use. From
Barrow to KotchH<or there is fnjstration wit i federa' control of 'oca! lard use. The
nature of the permitting prtjcess Is that It % net necessary for -eguiators to deny a
permit in order to stop a proposed activity. Denials often resilt through extensive
delays In the permit process. In a sun/ey of Alaska communities, fifty-one of fifty-thres
communities reportad wetlands problems ciue to federal conflicts whh local land use.
STATg OF ALASKA POSITION:
Standards developed for wetlands protectif n in the tower 45 states a-e not appropriate
for Alaska's arctic, subarctks and coastal eoosystenis, and th© comnjnities and
cultures associated with this environment. The proposed one per ceit exception Is
logical, iDecause it maintains wetlands protoct'on th-ough the rninimizatlon requirement,
and pn:>vJdes a total cap on losses.
The State of Alaska is already working to identify high-vaiue wetlands which c«n be
protected through no-net-lcss compensatlc n requiraments. The Stat j Is also tvorking
with the Native vtilagee and other commun ties to dsvelop safe water and sanltatlor,
systems and the related Infrastructure required for sustainable cevelcpmant.
We encourage federal agencies to enter Ini© a partnership wit-i the State of Alaska
and its oommunities to cooperatively devebp wetland slratagiee .hat are teilorad to
Alaska's ecosystems, a.Td are consistent with the joint commitment to sustainable
development.
STATE OF ALASKA'S PARTNgRSHiP PRQ30SAL:
When one considers that Al8^<a's land ownership panem is:
1330
Alaska Wetlands Issues -4- September 15, 1993
FEDERAL: 208 MiLUON ACRES • 5) PERCENT
STATE: 104 MILUON ACRES • 2B PERCENT
native: 44 MILJJON acres • l;;j PERCENT
PRIVATE: 5 MILLION ACRES - • PERCENT
Tho olaaalfieation, managdrntnt and protection of Isnds and resources, cen most
effectively be accomplished through a partiershlp nrrangernert between t,^B local,
state and federal governments and the involvement o^ Aiask* Native and private land
owners.
The desirability of a partnership an'sngement Is particularly ev'^' ic Vi^hen one looks at
the ownership patterns on a land status map. Certainly, fie'' aides, wildlife, oth^r
resource and environmental values are not restricted to ^overnrrent boundarlas.
Add to this, the mix of the large and smai! cftles, ar'^ <ne njrai, Alaska Native v-llages
and one must corx:lude that the people's needs jrd values as very closely relatsci to
that resource base. One of Governor Wall:!?'' Hlckel's favorite expressions is that
people, people's needs and nature mus^ ja considered in the msnageiTent of a
country, region or state.
Alaska proposes a partnership, with the fsceral agencies, sorrewhat along the lines cf
the arrangement already f^.ifned through ti^e Alaska Rural Natve Village Water and
Sanitation Task Force ?..id the Alaska State Rural Devetepment Council. The Task
Force is co-chaired "j^ the State, Environmental Prioteotion Agancy and the City
Manager of the community of St. Paul in tlie Pribllof Islands. The Ccuncil Is a
partnership of the Stata (and ail its components) w th the U.S Department of
Agriculturd.
The goals of a wetlands pa'tr jrship would enable communities to r.eet their economic
and environmental prot&ctior^ needs; to define these needs ajid vaiucs and to develop
a plan to sustain them over ti.ne. This, in my view is what si^stainatie development is
all about.
Alaska proposes, therafci a, tne the federiil, state and local ccmrr^uritles of Alaska
develop a wetlands clPs^.Ccat' ;i, manage -nent and protection partnership prooess
integrated into ttts D'cad?/ i ^iialnatle development objective.
1331
ALASKA WETLANDS COALITION
121 W. Fireweed Lane, Suite 250, Anchorage AK 99503 (907) 279-1783 Fax: 276-3887
Amendment Concepts for S. 1304
1 . MITIGATION BANKING CREDIT
Any banking effort must be designed to reward good behavior
for wetlands protection and give incentives which cause states to
protect wetlands. Those states having a good record or meeting
certain performance standards on wetlands protection would not be
burdened with the same mitigation requirements of a state with
severe wetlands loss.
For instance, states which have contributed land to federal and
state parks, refuges, preserves and wilderness areas would be
provided with an advance credit of X percent of the protected acres
in the mitigation bank, provided they have a low historic loss of
wetlands.
Any compensatory mitigation requirements attached to a
Section 404 permit would be deemed to be satisfied by debiting, on
a like wetlands value basis, the advance mitigation credit. Only when
that credit was exhausted would actual on-the-ground compensatory
mitigation occur.
Alternatively, in order to focus on wetlands only, any state
which has protected X percent of its wetlands could be entitled to a
mitigation banking credit of Y.-
1332
2. HIGH-LOW RANKING SYSTEM
A strict regulatory regime designed to aggressively protect
"remnant " wetlands is not warranted where substantial or abundant
wetlands remain unused or protected.
A national regime which classifies wetlands into high, medium or
low value categories should be established. High-value, scarce
wetlands would remain subject to a strict regulatory regime akin to
the Section 404 program. Conversely, low-value wetlands or
wetlands of any value which are abundant would be granted more
regulatory flexibility.
A further step would be to set up expedited permitting in those
states which retain over 50 percent of the original wetlands in each
category, again providing an incentive to protect or restore
wetlands to that level.
3. EXEr^PTION FROM MITIGATION REQUIREMENTS
This would provide, under certain circumstances, that a state is
exempt from the upland alternatives presumption and the
compensatory mitigation step of sequencing. Eligibility criteria for
the exemption could be as follows:
a. any state with X oercent of its original wetlands still
intact;
b. any state that has X acres or more of protected
wetlands;
c. any state that has more than 50 percent of its lands
in public ownership and more than X percent of those
lands committed to conservation purposes; or
1333
A variation would provide that only "high-value" wetlands in
certain states remain subject to the alternatives analysis and
compensation step. All other wetlands within an otherwise eligible
state would be exempt.
4. STATE TAKE-OVER WITH EXPANDED FLEXIBILITY
This option envisions inducing states to manage Section 404
program by enabling them to run programs with fewer restraints
than provided by the current COE/EPA program. A qualified state
program would preempt federal regulation, but individual permits
would be subject to federal review or veto. COE/EPA would be
barred from taking back the program unless they can affirmatively
demonstrate that the state is failing to properly administer its
program.
5. SECTION 404 JURISDICTION
Enact into law a definition of jurisdictional wetlands that
incorporates the original 7th Circuit ruling of the Hoffman Homes
case. This would exempt isolated wetlands from the reach of Section
404. Most coastal wetlands, as well as those along major rivers and
streams, would still remain subject to Section 404.
6. ANCSA LANDS CONCERNS
Section 404 unfairly diminishes the value and purpose of lands
which were part of the federal government's aboriginal lands claims
settlement in Alaska, conveyed under the Alaska Native Claims
Settlement Act (ANCSA) in 1971. This problem should be recognized
and corrected, since village and regional corporations were given
the land for community needs, including expansion and development,
and have no alternative but to use those lands. Any action which
unfairly impacts native lands or de-values them should be removed
from consideration in this bill.
1334
7. RURAL COMMUNPTYCXDNCERNS
Although wildlife habitat is important, the Alaska National
Interest Lands Conservation Act (ANILCA) set aside tens of millions
of acres of the best Alaska habitat wetlands in 1980. At the same
time, more than 200 Alaska villages still reflect Third World living
conditions, in particular with regard to water and sewer facilities.
Basic human health needs must be given adequate status in Alaska.
S. 1304 should enable human health needs to have an overriding
priority, especially in any state where wetlands preservation efforts
have been significant, where wetlands are abundant, or where
practical alternatives to utilizing wetlands are scare, limited or non-
existent.
Thank you for the opportunity to submit these comments for
the record on S. 1304. Briefing papers on each topic of concern
outlined above are available and will be sent to the Committee as
mark up on the bill begins.
1335
WRITTEN TESTIMONY OF ARCO
Mr. Chairman, members of the Subcommittee, ARCO appreciates the opportunity
to testify on S. 1304, the Wetlands Conservation and Regulatory Improvements Act,
introduced by Senators Baucus and Chafee. ARCO agrees with Senator Chafee that
any amendments to wetland protection regulation should result in enhanced effec-
tiveness, fairness and flexibility. We think Congress can provide a legislative solu-
tion to eliminate the unnecessary delays and confusion that continue to encumber
the wetlands permitting process. For the past decade, EPA and others have attempt-
ed to solve this problem by continually modifying regulations which were never
originally intended to protect wetland habitats. We have the opportunity now to
adopt new legislation for wetland permitting that will specifically provide both pro-
tection of wetlands and flexibility sufficient to allow appropriate development to
continue.
ARCO's comments and opinions have been prepared prmcipally by Mike Joyce,
Senior Consultant for Biological Sciences for ARCO Alaska, Inc. Mr. Joyce is a
trained wetlands scientist with a Master's Degree in Zoology. For the past 23 years,
19 of which have been in Alaska, he has participated in a wide variety of wetlands
research projects. In Alaska, this research has focused on the study of wetland habi-
tat values, fish and wildlife habitat use, site mitigation and restoration, and wetland
classification and functional assessments. Mr. Joyce has also monitored the response
of wetland habitats and their fish and wildlife populations to the development of
North Slope oil fields since 1974. Mr. Joyce is a respected expert in wetlands biol-
ogy.
ARCO's comments relate primarily to Alaska, but they also touch on concerns in
the lower 48 states. This testimony focuses on four important wetland protection
issues:
• The need for a wetlands policy that recognizes regional classifications based on
value as an important and necessary element. All wetlands are not identical.
They vary not only in size and function but also in relative value.
• The use of general permits, which ARCO supports.
• The use of mitigation banking which is appropriate for use in the lower 48
states, but not for Alaska.
• TTie need for a special approach to mitigation in Alaska. Alaska is unlike any of
the lower 48 states. Much of the State is comprised of wetlands and there has
been relatively little development. Mitigation procedures appropriate for use in
Alaska are necessarily different from those appropriate for the lower 48. ARCO
recommends basing Alaska mitigation rules on the 1981 U. S. Fish and Wildlife
Service mitigation policy.
REGIONAL CLASSIFICATION AND CONTROL
ARCO believes any new wetlands legislation should recognize regioned wetland
differences and provide a clear mechanism for local authorities to determine appro-
priate actions within their regions. The situation in Alaska is illustrative of why
this is so important. The White House Wetlands Task Force recognized the unique
conditions in Alaska. The vast abundance of wetlands there, combined with the low
availalaility of sites for mitigation, justifies alternative regulatory treatment. Conse-
quently, the Task Force proposal calls for appropriate means to ensure regulatory
flexibility and an alternative permitting procedure in Alaska. S. 1304 discusses the
benefit of regional conditions and permitting flexibility in a general sense. We be-
lieve this bill can be greatly enhanced by specifically recognizing and authorizing
regional classification of wetland habitats.
In addition to regional classification, we believe it is necessary to tie any require-
ment for mitigation to the regional abundance of each of the classified habitats.
Without classification and mitigation based on value and abundance, we don't be-
lieve any legislation will successfully reduce the current controversy.
ARCO also agrees with environmentalists, regulators, and others who advocate
that wetland decisions should be based on sound science and local conditions. For
this to occur, several questions must be answered in each region. How abundant are
wetlands in a particular region? What are the cumulative losses to date? What are
the projected future losses? How are those wetlands being used to support local fish
and wildlife populations? Are those populations being stressed? What other func-
tions do the wetlands provide? Wetlands protection policy must address these ques-
tions in order to mitigate any losses of the functions provided by wetland areas that
are or have been developed. . . , ^ t^^k i. ..u
Finally, we favor permitting decisions at the local level without EPA veto author-
ity. The existing veto authority clouds wetland permitting without adding meamng-
69-677 0-94-43
1336
fully to the process. EPA has vetoed only 11 permit decisions in over 150,000 re-
viewed during the past 21 years.
GENERAL PERMITS
We endorse S. 1304's use of general permits (GP's) and believe it will enhance the
regional flexibility we all seek. However, the bill appears to contain a contradiction.
Under S. 1304, GP's are to be used to cover activities that are recognized as having
only minimal adverse environmental effects. It appears, however, that compensato-
ry mitigation could be required for any activity authorized under a general permit.
Requiring compensatory mitigation for each action authorized under a GP should
not be necessary, since GP's cover only those actions which have minimal environ-
mental impact. Requiring mitigation will reduce, rather than enhance flexibility.
We suggest eliminating compensatory mitigation from the general permitting provi-
sions of the bill.
MITIGATION BANKS
S. 1304 calls for creation and implementation of mitigation banks to be used
where individual applicants have difficulty achieving in-kind and on-site compensa-
tory mitigation. However, the bUl requires that in order to bank replacement habi-
tat, the bank must be fully established in advance of authorizing any future pro-
posed developments. For projects that have to begin in the next 3 to 5 years, it is
not possible to provide replacement habitat in advance. It will likely take that long
to authorize, locate, design, and implement mitigation banks. In Alaska, completion
of successful replacement habitat will then take an additional 5 to 8 years. It is not
practical to stop all development until this replacement habitat is frilly functional.
We support the use of mitigation banks in the lower-48 states, where substantial
wetland loss has occurred. However, due to the conditions in Alaska, we do not be-
Ueve a bank is necessary and, under any circumstances, should not require comple-
tion of replacement habitat in advance.
MITIGATION POLICY IN ALASKA
Alaska is a region where wetlands are abundant and not being depleted. The diffi-
culty is not that we have few wetlands left, but that we have a state dominated by
wetlands with few alternative upland sites to use for development. In fact, there are
about 170 million acres of wetlands in Alaska. The rest of the state is mostly moun-
tain slopes and ice fields. Additionally, about 99% of the state is owned by govern-
ment authority. These facts greatly complicate the wetlands permitting process in
Alaska.
Some of the difficulties involved in compensatory mitigation in Alaska are demon-
strated by the following hypothetical development on the North Slope of Alaska.
ARCO has announced the discovery of a potentially commercial oil find in the Beau-
fort Sea about 60 miles east of the existing Prudhoe Bay oil fields. This reservoir is
about 12 to 18 miles offshore. If this prospect is economically viable, a pipeline
would need to come on shore at the nearest land fall and then proceed across the
North Slope coeistal plain to tie into the existing facilities at Prudhoe Bay. In addi-
tion to the pipeline itself, a gravel road would follow the pipeline route. This route
lies in an area that has been classified as jurisdictioned wetland by the Corps of En-
gineers and is peu-t of a large contiguous wetland habitat that is 37 million acres in
size. Thus the project will necessarily be located in wetlands.
If compensatory mitigation were to be required for the pipeline, there are no dis-
turbed footprints or upland habitats in the vicinity of the pipeline route to provide
in-kind, on-site replacement. The only disturbed areas are the existing oil fields 60
miles to the west. However, these sites are already subject to restoration require-
ments suid, therefore, are not available for mitigation credits. Thus, there are no on-
site locations available for compensatory mitigation for this new project. Additional-
ly, if ARCO were required to use a mitigation bank with mitigation credits created
in advance, this project would be delayed for up to 10 years waiting for development
and completion of the replacement habitats.
Furthermore, we know that not all of the wetlands on the coastal plain have
equal values and functions. They include a wide diversity of habitat values. As indi-
cated above, the permitting process also needs to recognize those different values
and encourage location of facilities on the least valuable habitats. Without classic-
cation and mitigation based on value and abundance, there is no incentive for an
applicant to locate facilities to avoid higher value areas.
Although we do not believe the mitigation bank system in S. 1304 can be used
effectively in Alaska, we believe there is an alternative, acceptable approach. It is
based on a program already in existence, the U. S. Fish and Wildlife Service Mitiga-
1337
tion Policy finalized in 1981. The fundamental principles of this policy are based on
the notion that: 1) avoidance or compensation should be recommended for the most
valued resources; and 2) the degree of mitigation should correspond to the value and
scarcity of the habitat at risk. In implementing its policy, the Service established
four wetland resource categories: 1) high value and unique or irreplaceable ; 2) high
value and scarce in the region; 3) high value but abundant within the region; £ind 4)
medium to low value. The Service applies a mitigation requirement to each of these
values, ranging from no loss of habitat value for the top categories to minimized loss
of habitat value without further compensation for areas that are of medium value
or are abundant in the region.
A program based on these concepts will work in Alaska. It provides flexibility and
the recognition that, in Alaska, where we have few upland sites to turn to, we still
need to build schools, airports and other public facilities, as well as explore for and
produce oil.
Mr. Chairman, thank you again for the opportunity to testify on the wetlands reg-
ulatory program. ARCO has extensive experience with development in Alaska, and
we would hope that this experience would prove useful to you as you consider wet-
lands regulation. We will be happy to provide any addition£d information you may
need.
1338
Chamber of Commerce
OF THE
United States of America
William T Archey 1615 H Street, N. W
SENroR Vice President, Poucy Wasmncton, D. C. 20062-2000
AND Congressional Affairs 202/463-5417
September 15, 1993
The Honorable Bob Graham
Chairman
Subcommittee on Clean Water, Fisheries and Wildlife
Committee on Environment and Public Works
United States Senate
Washington, D.C. 20510
Dear Mr. Chairman:
The U.S. Chamber of Commerce, the world's largest federation of 215,000 businesses,
3,000 state and local chambers of commerce, 1,200 associations, and 68 American Chambers of
Commerce abroad, appreciates this opportunity to present its views on S. 1304 and related
proposals regarding this nation's wetlands policy. The Chamber appreciates your leadership and
that of Senator Chafee and welcomes S. 1304, "The Wetlands Conservation and Regulatory
Improvements Act," as a constructive step toward Section 404 reauthorization. We respectfully
request that a copy of this letter be included in the hearing record.
Any reform of wetlands policy should include the streamlining of the permit process. For
too long, people have lost substantial resources because administrative and regulatory agencies have
been slow to issue permits. The provisions in this bill, including the 90-day limit on permit
decisions and the greater use of general permits, would enable landowners and businesses to plan
for the future without unnecessary and costly delays.
Furthermore, the bill's relief for agriculture is timely and necessary. By making the Soil
Conservation Service the lead agency for agricultural wetlands, S. 1304 recognizes the importance
of having a regulatory agency that is sensitive to the needs of production agriculture. In addition,
the exemption for prior converted croplands is consistent with the policies of the previous
administration. Also, full funding of the Wetlands Reserve Program will ensure protection for
some of this nation's most valuable wetlands.
We appreciate S. 1304's recognition that wetlands have different values and functions.
Wetlands differ in their relative value, and this must be taken into account by regulatory agencies
when making permit decisions.
In addition, the Chamber believes that mitigation banking — a market mechanism with the
potential to minimize the economic impacts on individuals — will help resolve the wetlands debate.
By allowing property owners to trade reclaimed wetlands for building on a specific site, there will
1339
be greater flexibility in the system, and therefore, a more efficient means of protecting this nation's
wetlands.
The Chamber welcomes the recent administrative proposals, which are consistent with
S. 1304 and which further contribute to the resolution of the wetlands debate. Specifically, a
return to the use of the 1987 delineation manual, in which all three traditional indicators of a
wetland — saturation for 21 days, hydric soils, and hydrophitic vegetation — are necessary for
such classification, will ensure a balance between wetlands protection and economic development.
While the Chamber agrees with the Clinton Administration's position on the treatment of
prior converted croplands, mitigation banking, and permit process streamlining, we have concerns
regarding other provisions in both the Administration proposal and S. 1304. Both seek to use state
and local watershed management programs to assess the values and functions of wetlands rather
than having the regulatory agencies decide. Although this may increase the flexibility of
landowners with regard to developing low-value wetlands, it will not ensure that the regulatory
agencies will abide by the decisions of the local planners. The Clinton Administration believes that
the cost of mapping all the nation's wetlands will be prohibitive. The Chamber believes, however,
that a general classification system would greatly reduce arbitrariness in the decisionmaking
process, and can be completed within budgetary limits.
The sequencing process currently used, and outlined in the Administration proposal, is long
and costly. A landowner must seek alternate sites, minimize environmental harm, and then
compensate for the damage to the wetland. This approach is a long and unnecessary delay to the
individual's use of private property. In addition, each time an agency prohibits an individual from
developing private property due to the presence of wetlands, the agency, in effect, commits a
regulatory "taking," and the owner should be justly compensated.
The Chamber thanks you and the Committee for taking significant steps toward resolving
the wetlands debate. We look forward to working with you to ensure that the final version of
Section 404 is one that provides the protection that is warranted for the preservation of our
wetlands, but does not unduly burden or restrict landowners.
Sincerely,
William T. Archey
Clean Water, Fisheries, and Wildlife Subconmiittee Members
Bill Leary, Majority Counsel
Jinunie Powell, Minority Professional Staff Member
1340
THE CONFEDERATED SALISH AND KOOTENAI TRIBES
OF THE FLATHEAD NATION
P.O. Box 278
Pablo. Montana 59855
(406) 675-2700
FAX (406) 675-2806
Joseph E. Dupuii ■ Eiacuuva Stanui
Vtfn L Claitmofit ■ Eiecuove Treasurgf
Bemics Howankam - SaTgnra-a(-Anr.£
September 28, 1993
The Honorable Senator Max Baucus, Chairman
Senate Environment and Public Works
Subcommittee on Clean Water, Fisheries and Wildlife
SD-456 Dirksen Senate Office Building
Washington, D. C. 20510-6175
TRSAL COUNCIL MEMBERS:
Uictaci T- 'Micksy- Pablo - Ctamian
U»jr6oc« Kenrrolte - Vi« Chairman
Elrrw 'Sorry' Mongoau, Jr. . 5«cr«a/y
AnlDina Ten/ Incashola - Tr««jr«r
Louis Adama
Lloyd Irvine
Pamck LoWond
Heniy 'Hank' Baylor
John 'Chns' Lozflau
0. Frad Man
Dear Senator Baucus:
The Confederated Salish and Kootenai Tribes of the Flathead
Nation have reviewed Senate Bill 1304, titled " the Wetlands
Conservation and Regulatory Act". The Tribes take a special
interest in this legislation because some of the best examples of
glaciated wetland habitat located in the intermountain west are
located within the boundaries of the Flathead Indian
Reservation. The Tribes have long recognized the importance of
this wetland habitat and have taken special measures to protect
and preserve the integrity of these areas.
Enclosed with this letter please find technical and policy
comments on the proposed legislation. We wish to ask the
Subcommitee to accept these comments as the Tribes' testimony on
the legislation. Hopefully, these comments will be utilized by
the Senate Environment and Public Works Subcommittee on Clean
Water, Fisheries and Wildlife in amending some of the provisions
of the legislation to incorporate concerns that the Tribes hold
with regard to the present version.
The Tribes appreciate the opportunity to provide testimony on
this important piece of legislation. If questions arise
regarding the contents of this testimony, please do not hesitate
to contact me.
Sincerely,
Confederated Salish and Kootenai Tribes
--^^^^^^/^^
Michael T. Pablo, Chairman
Tribal Council
1341
TESTIMONY OF THE CONFEDERATED SALISH AND KOOTENAI TRIBES
SENATE BILL 13 04
"WETLANDS AND REGULATORY IMPROVEMENTS ACT OF 1993
The Confederated Salish and Kootenai Tribes of the Flathead
Nation wish to provide testimony on the contents of Senate Bill
1304, titled "The Wetlands Conservation and Regulatory
Improvements Act of 1993". The Confederated Salish and
Kootenai Tribes take a special interest in the conservation of
wetland resources because of the significant wildlife and
fisheries habitat values they provide, their functions in
improving water quality, their flood control capabilities, their
groundwater recharge functions, and their recreational value.
The presence of some of the last and best examples of
glaciated wetlands with in the Intermountain West and a
realization of the importance of such areas within the exterior
boundaries of the Flathead Indian Reservation led the Tribes to
adopt the Tribal Aquatic Lands Conservation Ordinance in 1987.
That ordinance established a mechanism to slow the rapid pace of
wetland conversion on the Reservation and created a review and
permitting process for project proposals. The Tribes have
applied for "treatment as a state" for purposes of Section 404,
and the Tribes' ongoing concern for wetland resource values has
resulted in Tribal initiatives in wetland inventory and
classification and conservation. Initiation of work on the
development of a wetland conservation strategy for the Flathead
Reservation is presently in the early stages of planning.
The Confederated Salish and Kootenai Tribes applaud the
efforts of Senator Baucus and Senator Chaffee in attempting to
resolve some of the controversies that have occurred with respect
to wetland issues. Language contained in Senate Bill 1304 sets
the stage for resolution of some of these controversies.
However, some of the other components of the legislation raise
significant technical and policy concerns for the Confederated
Salish and Kootenai Tribes. These concerns are detailed below.
The Tribes' primary concerns with the language contained in
Senate Bill 1304 involves the nearly total lack of consideration
of the jurisdictional concerns of Indian Tribes and the lack
specific language to allow Tribal governments to play active
roles in wetland conservation planning, oversight, cooperative
ventures, training opportunities, funding grants, conservation
incentives, and restoration efforts. This is cause for major
concerns for Tribes, especially in light of the fact that many
piees of environmental legislation do contain language in
reference to Tribes and Tribal interests. Some of the examples
include the Clean Water Act, the Clean Air Act, and the Safe
Drinking water Act. In addition, there is no stipulation for
representation of the interests of Indian Tribes on the
Intergovernmental Wetlands Coordinating Committee. By
1342
essentially ignoring these concerns, the legislation disregards
the Federal government's trust responsibility to Indian Tribes
established by the various treaties entered into by Tribes and
the United States. We remind you that Indian Tribes take the
language contained within these treaties very seriously. In
general, we recommend that Indian Tribes be added to the language
of the bill to all sections which specify activity by state and
local governments.
As written. Senate Bill 1304 contains the following language
about which the Confederated Salish and Kootenai Tribes are
concerned :
Sec. 3 Declaration of Policies and Goals
The term "all levels of government" is ambiguous. Although it
should be assumed that this language includes all departments and
agencies of Federal, Tribal, State and local government,
clarification is needed. We recommend amending Sec. 3 as
follows: "(8) ....involving all levels of government, including
Tribal governments".
The term "no overall net loss of the remaining wetlands resource
base of the United States" can be defined as mandating an acre-
for-acre replacement of wetlands lost to various development
activities, yet this approach is not clearly stated. In many
areas, acre-for-acre replacement is in fact inadequate. The
bill's language should not limit wetland replacement to that
formula .
Sec. 4 Definition and Delineation of Wetlands
Continued use of the 1937 Corps of Engineers Wetland Delineation
Manual is mandated. The use of the 1987 manual may be acceptable
for the short term, but it should be noted that the primary
reason for development of the 1989 version of the manual was that
the 1937 manual was deemed inadequate in scientifically-based
wetland delineation criteria and more was considered to be to
subjective. Use of the 1989 manual would be more acceptable, as
well as more defensible based upon scientific merits. In fact
the 1989 manual was based upon the best available scientific
information; and it did take into acccount regional variations in
hydrology, soils, and vegetation.
We recommend amending Sec. 4 as follows: "(2) (A) be developed
in consultation with interested States and Indian Tribes".
We agree with the concept of standardized training of wetland
delineators, but we would like to see the inclusion of Tribal
1343
delineators along with consultants, and State and local
government personnel as eligible for training and certification.
Before agencies can instruct the general public regarding wetland
delineation, there is a need to assure that agency personnel know
how to delineate a wetland. This situation does not seem to
uniformly exist today. Thus, standardized methodologies are
essential during the early stages of redesigning this process.
Sec. 6 Permit Processing Improvements
In general, we support the language and processes included in
Section 5; however, we recommend that the language be amended to
reflect the role that Indian Tribes can play in these processes.
As a result, we recommend amendment of Section 6 as follows: "(4)
(C) ...the Governor of the State, or the Chief Executive Officer
of the Indian Reservation in which the activity occurs ...".
Sec. 7 General Permit Improvements
We recommend amendment of Sac. 7 as follows: "(2) Categories of
Activites. General permits may be issued on a State, Reservation,
regional, or national basis...".
Sec. 8 Coordination and Clarification of Program Concerning
Agricultural Activities
The language regarding prior converted cropland is a concern
because it seems to totally disregard the thousands of acres of
once productive wetland that have been lost to agriculture. A
methodology is needed to attempt to reclaim the wetland values of
at least some of these lands and to protect "farmed wetlands",
which still exhibit wetland characteristics.
We recommend amendment of Sec. 8 as follows: "(d) (F) resulting
from any activity with respect to which a State or Indian Tribe
has an approved program . . . " .
Sec. 9 Mitigation Banks
The Tribes recommend that the Administrator and the Secretary's
rules for mitigation banking include Indian Tribes along with
States in the list of entities properly authorized to operate
such banks, upon submission of approvable plans.
Sec. 12 Wetlands Conservation, Management and Restoration
We recommend amendment of Sec. 12 as follows: (A) . "Funding
1344
For State and Tribal Wetlands Conservation Plans. - Section 104
(b)(3) (33) U.S.C. 1254(b)(3) is amended by inserting immediately
before the seinicolon"and for the development and implementation
of State and Tribal wetlands conservation plans under Section
321."
Sec. 321 State Wetlands Conservation Plans
We recommend amending the title of Sec. 321 to " State and Tribal
Wetlands Conservation Plans". We also recommend inclusion of the
following language.
"(a) ...grants to States and Indian Tribes to assist in the
development and implementation of wetlands conservation
plans . . . " .
"(b) Contents of Plans. To qualify for assistance under
subsection (a) , a wetland conservation plan shall generally
include:
(1) management strategies and policies for achieving within
the State or Indian Reservation, as applicable, the goal
expressed in Sec. 101(a)(8);
(2) an inventory of wetland resources;
(3) a description of the major causes of wetland losses and
degradation in the jurisdiction, including an estimate of
historic wetlands losses;
(4) a description of State, Tribal, and local government
programs applicable to wetlands resources in the jurisdiction;
(5) identification of sites with wetland restoration
potential ;
(6) identification of riparian areas with restoration
potential;
(7) ...a schedule for implementing the elements of the plan;
(S) ...a mechanism for monitoring achievement of the stated
goals of the plan
(9) . . .measures to assist in the development of wetlands and
watershed management plans under section 322, and
(10) involvement of individuals and organizations with
expertise or interest in wetlands conservation, land use
planning and responsible development."
Sec. 322 Wetlands and Watershed Management Plans
This is perhaps the area of our gravest concern, primarily
because as it is now written, local conservation districts appear
to be eligible to obtain "management authority" over any area
designated by the Governor of a State, our lengthy litigation
history with a local irrigation board serves as an excellent
1345
example of the problems that tribes might face should they have
to accede to "substate regional planning organizations". As a
result, we recommend that this entire section be rewritten to
recognize that Governors cannot unilaterally delegate such
authorities, at least on Indian reservations, and that Tribal
Chief Executive officers can perform that function, if they so
choose, on reservations.
We specifically recommend that Tribal governments be included in
the eligible governments list at (f) Research Program.
Sec. 323 Intergovernmental Wetlands Coordinating Committee
Under this sections, we recommend that Tribes be accorded the
proper government-to-government relationship with the federal
government by inclusion of the word "Tribal" between "federal"
M mum (a), nm nmm m \ ii (ii, iii Kr inLai"
after "state" and at (c) Membership, include qualified
representatives of Indian interests. We further recommend that
the number of State wetland experts to be appointed by Governors
be reduced to five and that five such experts be appointed by
Indian Tribal governments. In addition, we fail to see a
constructive legitimate role which might be played by the
National Association of Counties or National League of Cities,
both of which ought to be fairly well represented by the National
Governors' Association and the State wetland experts. We also
recommend that a qualified Indian representative serve as co-
chair of such a group.
Sec, 324 National Cooperative Wetlands Strategy
We recommend the inclusion of the word "Tribal" after "State" and
before "regional" at (c) (1) .
In conclusion, the Confederated Salish and Kootenai Tribes
believe that there is a need to achieve consistency among the
various governmental agencies that delineate and regulate
wetlands. However, this need should be tempered by the need to
develop sound scientifically-based methodologies for delineation,
as well as the need to treat all qualified governments with the
proper respect. We also believe that Indian Tribes throughout
the United States can and should be allowed to play a role in
this national effort to conserve and manage the wetlands
resources of the nation. We firmly believe that the language
changes that we have recommended as amendments to Senate Bill
1304 will serve to achieve both of these objectives.
1346
Past and Preaant
Angel Island
Mt Tamalpais
Samuel Taylor Park
Botinas Lagoon/Kent Island
Simson Beach
Drakes Bay Beach
Tomales Bay
Pt. Reyes National
Seashore
Richardson Bay Sanctuary
Cofle Madera Tidelands
Strawberry Tidelands
Bothin Marsh
Heerdt Marsh
The Northridge
Rancho Olompali
Marin's Agricultural Lands
Marin's Dairy Farms
Coastal Protection
Golden Gate National
Recreation Area
Offshore OH Drilling
Marin Planning Issues
Wild and Scenic Rivers
S. F. Bay Protection
Exacullva Director
Karin Urquharl
Public Education
Kay Slagia
Financial Davalopmant
Nancy Noralll
MARIN CONSERVATION LEAGUE
A non-protil corporation founded in 1934
35 Mitchell Boulevard, Suite 11
San Rafael, CA 94903
Office telepfione: 472-6170
Augusts, 1993
Senator Bob Graham
Senate Environmental and Public Works Committee
United States Senate
Washington, D.C. 20501
Dear Senator Graham and Committee Members:
Please enter this letter into the Record of your Committee's Hearings on
the Clean Water Act.
The Marin Conservation League representing 4,500 members locally has
long been interested in wetlands. It is essential that our nation
strengthen its wetlands laws. We urge your strong support for wetlands.
We also urge support of Senator Boxer's wetlands bill, SB 1 195.
Board of Olroctor*
Joyce Applen
Peter Behr
Jean Berensmeler
Bob Berner
Priscllla Bull
Carole d'Alesslo
Joy Dahlgren
Grant Davis
Brian Dolclnl
Ken Drexler
Rick Fraltes
Harvey M. Freed
Patty Gartsarlno
Richard Gray
Roger Hooper
Steve KInsey
Lisa Klalrmont
Ned Lagin
Marge Maoris
Larry McFadden
Jane Mills
Bill Noble
Ellana Ponce de Leon Reeves
Ellle Rllla
Walter Ryce
Barbara Salzman
George Sears
Lawrence Smith
Gary Spratllng
Jean Starkweather
Perlann Wood, Ph.D.
Sincerely,
Karin Urquhart
Executive Director
FAXED
To preserve, protect and enhance the natural assets of Marin County for all people
1347
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Yellowstone Valley
Audubon
Billings
Montana Audubon Council
state Office: P.O. Box 595 • Helena, MT 59624 • (406) 443-3949
Senator Max Baucus, Chairman
c/o Jo-Ellen Darcy, Professional Staff
U.S. Senate Conunittee on Environment and Public Works
505 Hart
Senate Office Building
Washington, D.C. 20510
Dear Senator Baucus,
October 14, 1993
On behalf of the Montana Audubon Coimdl, we submit the
following comments on the S. 1304, . Please include these
comments, as well as the enclosed report entitled Protecting
Montana's Wetlands: An Overview of Montana's Section 404
Program, as part of the official hearing record for S. 1304.
The Montana Audubon Council is the unified voice of the
nine Chapters of the National Audubon Society in Montana. Our
membership currently stands ai approximately 2,300. You may
receive comments on this legislation from others in the Society.
First, there are some positive aspects to S. 1304 which should
be recognized. The good aspects of this legislation are as follows:
1. The bill provides for a landowner assistance program,
which would assist small landowners with the delineation of
wetlands on their property and also furnish them with technical
assistance in order to prepare wetlands management plans.
2. The bill creates an appeals process for permitting
decisions under Section 404. This would allow the landowner or
any person who participated in the public comment process to
appeal permitting decisions without having to resort to the judicial
system as the only means of appealing decisions.
3. The bill requires the Corps to monitor the issuance of
General Permits. Currently, the Corps caimot adequately track
general permitting decisions because general permits are generic
authorizations that are issued only with minimal environmental
review. The Corps needs a monitoring program to determine the
real impact that general permits have on wetland habitat. A review
would occur every two years, and would include estimates of
acreages of wetlands impacted.
1348
Montana Audubon Council, Page 2
As far as the negative aspects of the bill are concerned, the Montana Audubon
Council has numerous concerns. Below we detail our concerns on a number of
issues, including some issues that are not dear because of vague drafting language.
The negative aspects of this legislation are as follows:
1. In the past, the Corps has not regulated activities such as draining,
channelization or excavation, even though these activities could harm wetlands.
The Corps recently completed a rulemaking process that expanded the scope of
regulation under Section 404 to include these activities. Even so, the Corps only
regulates those activities to the extent that they actually result in a "filhng" of
wetlands. This interpretation still leaves a loophole for the "pure" drainage,
flooding, etc of wetlands or other activities which does not involve the physical
placement of fill in wetlands.
Although S. 1304 claims to expand the scope of wetlands regulation to
draining, mechanized land clearing, ditching, channelization, or other excavation, it
only does so as it relates to the "addition or redeposit of dredged or fill material,"
thus preserving the limited scope of jurisdiction recognized by the Corps in its
recent rulemaking (and leaving the loophole for "pure" drainage, flooding, etc).
In comparison, S. 1195, introduced by Senator Boxer, focuses on the following
activities: draining, excavation, channelization, flooding, clearing of vegetation,
driving of pihngs or placement of other obstructions, diversion of water, or other
acttvities "which impair the flow, reach, or circulation of surface water, or which
result in a more than minimal change in the hydrologic regime, bottom contour, or
configuration of such waters, or in the type, distribution, or diversity of vegetation,
fish, wildlife that depend on such waters."
In other words, S. 1304 focuses on the activity and the "addition or redeposit
of dredged or fill material," while S. 1195 focuses on the impacts to water and water
quality. The approach taken in S. 1195 is a much more logical approach for the
Qean Water Act.
2. Current Corps regulations require that before development in a wetland is
approved: 1) it must first be shown that there is no practicable alternative site for
the project ("avoidance"); 2) any wetland impacts must be minimized if there is no
alternative site ("minimization"); and 3) all wetland impacts that have been
identified and minimized must be mitigated ("mitigation"). This three step process
is known as "sequencing," and is based on a policy of preserving natiu'al wetlands as
a priority.
S. 1304 sets up a regulatory framework that will undermine the use of
sequencing for the protection of wetlands. Basically, the bill implements the use of
watershed management plans (i.e., watershed-wide planning) to obtain the goal of
"no net loss." Part of the watershed management plan approach includes the use of
restored wetlands through mitigation "banks," where the preservation or
1349
Montana Audubon Council, Page 3
restoration of an existing wetland may be used as mitigation for the loss of an
existing natural wetland.
Since the only overall goal of watershed management plans is "no net loss, "
and restored wetlands may be used to mitigate losses of natural wetlands to achieve
this goal, the overriding policy behind sequencing (i.e., the protection and
preservation of natural wetlands as a priority), is lost. Under S. 1304, individual
wetlands could be destroyed as long as there is an overall "no net loss" in a region,
which may be satisfied as long as there is a plan for restored wetlands.
The Montana Audubon Council opposes this undermining of the use of
sequencing for the protection of wetlands. In 1992 the National Academy of
Sciences stated that, "It has not been shown that restored wetlands maintain
regional biodiversity and recreate functional ecosystems..." (from. Restoration of
Aquatic Ecosystems, National Academy Press, 1992). Because restoration of wetlands
is, at best, uncertain; it is not appropriate to rely on mitigation - avoidance and
minimization should always be the preferred alternative for any project.
If watershed management plans are to be used, sequencing needs to remain in
tack avoid, minimize and then (as a last resort!) mitigate.
The Boxer bill, S. 1195, maintains the current law which emphasizes
preservation over mitigation, and recognizes that wetland restoration is yet an
uncertain science with uncertain benefits. This bill codifies into law the current
requirements relating to "avoidance," and maintains the current goal that all
wetlands be accorded full protection, including appropriate and practicable
mitigation. We support this approach.
3. Current law does not allow for the use of "mitigation banks." S. 1304 relies
heavily on the use of mitigation banks and the restoration of existing wetlands to
encourage the further destruction of natural wetlands. As noted by the National
Academy of Sciences, "Wetlands restoration should not be used to mitigate
avoidable destruction of other wetlands..." S. 1304 actually provides for taxpayer
subsidies of wetlands destruction, by providing federal funds to private developers
to set up mitigation banks. Similarly, the concept of mitigation banking appears to
contain another taxpayer subsidy of wetlands destruction through allowing the use
of government-funded restoration programs to serve as mitigation for private
activities that destroy wetlands.
S. 1195, in contrast, does not allow for mitigation banks; it creates a pilot
program for wetlands restoration to evaluate the long-term success of restoration
efforts. Based on current knowledge and technology, this approach makes sense.
4. Recently, the Corps amended its rules to provide that wetlands converted
to agricultxire prior to 1985 are no longer wetlands. S. 1304 makes this the law, but
seems to extend this exemption to all prior converted wetl<mds (i.e., not just before
1350
Montana Audubon Council, Page 4
1985). Thus, with a stroke of the pen, at least 53 million acres of wetlands are no
longer considered to be worthy of protection. Yet many of these wetlands, even
though stripped of their natural vegetation, still serve important wetland funrtions.
These lands can now be converted to other uses in addition to agriculture, such as
shopping centers, subdivisions and other development.
The Montana Audubon Council feels that an appropriate balance needs to be
struck in regards to prior converted wetlands. Please keep existing exemptions from
regulation for farmers, but only for ongoing farming operations.
Thank you for the opportunity to comment on S. 1304. We are concerned
about the protection of wetlands in Montana. At a current approval rating of 99.5%
of Section 404 permits in our state. The current law needs to be strengthened to
better protect these valuable, fragile, rare areas.
Sincerely,
1351
Chapters:
BIttetToot Audubon
BItterroot Valley
Flathead Audubon
Flathead Valley
Five Valleys Audubon
Missoula
Lost Chance Audubon
Helena
Plntlar Audubon
Southwest Montana
Rosebud Audubon
MUes City
Sacajawea Audubon
Bozeman
Upper Missouri
Brealu Audubon
Great Falls
Yellowstone Valley
Audubon
Billings
Montana Audubon Council
state Office: P.O. Box 595 • Helena, MT 59624 • (406) 443-3949
Protecting Montana's Wetlands:
An Overview of Montana's Section 404 Program
A Report by the Montana Audubon Council, October 1993
Executive Summary
Protection and enhancement of Montana's remaining wetlands is a priority issue
for the Montana Audubon Council. Because of this commitment, we have researched
and compiled the following report on Montana's 404 program, a critical program for
wetlands protection.
This 32-page report loolcs at how wetlands are protected in our state under Section
404 of the Clean Water Act. It outlines why wetlands are important, Montana's wetland
resources, the 404 program, and how the 404 program is working in Montana. The
study covers the time period from January I, 1989 to August 31, 1993.
For most of our country's first 200 years, "wetlands" were generally viewed with
contempt. As a result, we waged a war to destroy these wet, tangled places. Now, as
we have begun to understand the importance of wetlands, we have developed programs
to protect these precious places.
Montana has lost approximately 27% of its original wetlands. Wetlands are rare
in this state, making up less than 2% of Montana. They are also precious - for wildlife,
flood control, and maintaining our high water quality.
The 404 Program
Section 404 of the Clean Water Act regulates the filling of wetlands. Under the
Section 404 program, it is unlawful to fill wetlands without first receiving authorization
(known as a "404 permit") from the U.S. Army Corps of Engineers (Corps).
There are three types of permits issued under the 404 program: individual,
nationwide and general permits. The biggest projects regulated by the Corps are done
through the issuance of individual 404 permits. Individual permits are the only 404
permits with any public involvement. The Corps also can authorize "nationwide" or
"general" permits. These permits are granted for projects that the Corps believes will
have minimal adverse effects on the environment. They are issued either on a
nationwide basis ("nationwide permit") or on a regional or statewide basis ("general
permit").
An Overview of Montana's 404 Permits
During the study, the Corps was involved with 1,756 permits, including: 1,333
(75.9%) nationwide permits; 240(13.7%) individual permits; and 183 (10.4%) general
permits.
1352
Based on our review of individual files, only 9 of the 1,756 projects did not get
approval by the Corps, for an overall approval rating of 99.5%. The report reviews the
reasons that permits were denied and/or withdrawn.
Nationwide Permits
Currently, there are 36 authorized nationwide permits, 21 of which have been used
in Montana since January 1, 1991.
Consistently, the most commonly used nationwide permit in Montana is # 26,
relating to the filling of headwaters and isolated waters. During the review period!
Nationwide Permit # 26 accounted for over one-quarter (25.3%) of all nationwide permit
activity occurring in Montana. It allows the filling of up to 10 acres of: isolated wetlands,
the headwaters of streams (under 5 cubic feet per second, average annual flow), and lakes!
The report details the problems with Nationwide Permit #26 in an arid state like
Montana. We reviewed 132 of the 246 (54.0%) Nationwide Permit #26 files during the
study period. Of those, only 36 files included any information on acreage. The total
acreage of wetlands lost as reflected in these 36 files was approximately 18.5 acres.
General Permit
Currently there are 10 authorized general permits in Montana. The general permits
that have been authorized cover such activities as boat ramp facilities, electric transmis-
sion lines, and water intake facilities.
Conclusions
The Montana Audubon Council's research demonstrates that 99.5% of all 404
applications are approved. Contrary to much of the rhetoric heard in discussions
surrounding the Section 404 program, it does not significantly stop wetland filling
activities in Montana.
A detailed look at the reasons why these permits were denied, showed that there was
good cause for each denial. Additionally, the Corps has, whenever possible, worked with
applicants to modify projects that face denial. These modifications appear to have
improved the effectiveness of projects and reduced the damage done to aquatic ecosys-
tems.
The most alarming part of our research surrounded the loss of wetlands under
Nationwide Permit #26. Through the use of that permit, valuable Montana wetlands are
being "nickeled and dimed" out of existence. Under Nationwide Permit # 26, it is assumed
that: 1) isolated wetlands under 1 acre in size (70% of a football field) are of no value;
and 2) isolated wetlands under ten acres in size (7 football fields) are of limited value. In
an arid state like Montana, these assumptions do not hold true for our small isolated
wetland complexes, complexes that are often seasonal in nature.
Given the precious nature of wetlands - a resource that supports a staggering number
of Montana's plants and animals, a resource that plays a critical role in flood protection,
controlling water pollution, and protecting water quality - our research indicates that
wetlands need more protection, not less.
For more information contact Janet Ellis, Program Director, at the Montana Audubon
Council office.
1353
Introduction
Montana is fortu-
nate to still have
approximately
73% of its
original wet-
lands, occupying
less than 2% of
the state.
A great blue heron stands motionless, staring into the water. A painted turtle suns itself on the
bank. A green-winged teal tips itself forwand and submerges its head, looking forprotein-rich insects.
The wetland is alive and well.
For most of our country's first 200 years, "wetlands" were generally viewed with contempt.
They were thought of as a threat to public health and a waste of productive space. As a result, we
waged a war to destroy these wet, tangled places. Now, after 200 years of destruction, we have lost
over half of all the wetlands in the lower 48 states. Montana is fortunate to still have approximately
73% of its original wetlands, occupying less than 2% of the state.
As wetlands disappeared, we began to recognize their value. Today many people believe that
we cannot afford to lose any more of these precious places. Why? The answer is simple: wetlands
are an important part of our natural environment that provide significant benefits to the public.
We first heard the battle cry for "no net loss" of wetlands four years ago. At that time, those
words were believed to usher in a new era of wetlands appreciation. What we have found, however,
is that these three words mean different things to different people.
Recently a group called the National Wetlands Coalition began a strong push for serious reform
in the way that wetlands are regulated and protected. Contrary to what their name might indicate,
this group is made up of organizations that want to develop - not protect - wetlands. Its membership
includes multinational oil and gas interests, timber companies, real estate developers, agricultural
interests, and others bent on developing wetlands. They claim that wetland regulations under Section
404 of the Clean Water Act place an unnecessary burden on the economy of our nation, and that these
regulations need to be weakened. Legislation has been introduced in Congress to achieve their goals.
In Montana, the Montana Farm Bureau is one group that has joined the push to weaken Section
404 - at the same time admitting that the issue of wetlands regulation did "not affect Montana
landowners as much as itaffectsotherparts of the country,..." (See Wetlands— How WillThey Affect
Private Property Rights?, Montana Farmer-Stockman. August, 1991).
Facing this declaration of war on wetlands regulations, the Montana Audubon Council decided
to look at the facts surrounding Montana's 404 program; the rhetoric associated with the efforts to
weaken the Section 404 program did not seem to be supported by any facts. The question we set out
to answer was: how much of a regulatory burden is the Section 404 program in Montana?
After months of pouring over files and analyzing databases, we have decided to publish the
results of our research. In this report we have outlined why wetlands are important, what kinds of
wetland resources Montana has, a general description of the 404 program, and details on how the 404
Program is working in Montana. It is our hope that discussions in Montana about wetland regulations
will now look at the facts - and not fictional rhetoric.
This study does not occur in a vacuum. Several pieces of legislation have been introduced in
Congress relating to reform of Section 404. The bigger issue of reauthorization of the entire Clean
Water Act will also be taken up in this session of Congress. The Montana Audubon Council will work
Montana Audubon Council - Page 2
1354
to ensure that the proposed changes to Section 404, and the Clean Water Act as a whole, correct
problems in the current law, while maintaining adequate protection to preserve and enhance existing
wetlands. The Council will also continue working to identify and clarify exactly what has and has
not been problematic in Montana with the current law.
Why Are Wetlands Important?
Wetlands provide a
major part of the
habitat required
to support a
staggering
number of
creatures.
Wetlands play a
critical role in
flood protection,
controlling water
pollutants, and
maintaining
water quality.
Perhaps the best known reason for wetlands protection is the importance of these areas as
critical habitat. From pintails, great blue herons and tiger salamanders, to beaver, cattails and bog
orchids, wetlands provide a major part of the habitat required to support a staggering number of
creatures. The biological diversity supported by these precious areas in the arid West is beyond
debate: wetlands provide some of the most productive wildlife habitat in our state.
Birds especially need wetlands. In Montana more than 50% of our bird species depend upon
or frequent wetlands. For such waterfowl, wading birds, shorebirds, songbirds and others, wetlands
provide important habitat for breeding, nesting, migration and wintering. Temporary wetlands, those
areas that have water for only a short time in the spring, are critical for migrating birds; they provide
birds with much needed food and resting areas on their long journey to nesting sites in the north. In
addition, wetlands are also vital to all freshwater fish throughout their existence, for spawning,
feeding or predator avoidance.
This bounty of species supported by wetlands provides another benefit in the form of outdoor
recreation opportunities: according to the U.S. Fish & Wildlife Service, in 1985 over 141 million
Americans participated in wildlife-associated recreation, spending 55 billion dollars. Those figures
are growing each year. The majority of these activities depended upon the existence of productive
wetlands.
In addition to providing important habitat, wetlands also provide other significant public
values. They play a critical role in flood protection, controlling water pollutants, and maintaining
water quality. At a time when the govemment and private sector are spending billions each year to
address these problems, it seems "a pound foolish" to eliminate the natural features which provide
these same services at practically no cost.
Wetlands act like a big sponge. During storms they collect and hold water, releasing it slowly
over time. This action lowers flood peaks, slows water velocities, provides temporary water storage,
and acts as a water filter for pollutants and nutrients. As suspended particles move through a wetland,
they are held in the vegetation and soil. Toxic substances, including heavy metals, toxic chemicals
and pathogens, are filtered out. Captured nutrients. Including phosphorous and nitrates, are slowly
returned to the water or are used by plants, thus stabilizing nutrient loads. The filtering ability of
wetlands helps maintain - or even improve - water quality, including groundwater.
When adjacent to lakes and rivers, wetland vegetation can be invaluable for shoreline
stabilization. Riparian vegetation absorbs and dissipates wave energy and captures sediments that
are suspended in the water, reducing the amount of soil erosion from banks.
Protecting Montana's Wetlands - Page 3
1355
Montana's Wetland Resources
Montana's prairie
potholes and
western riparian
wetlands are
among the nine
identified wetland
habitats nation-
wide of critical
concern.
Wetlands in Montana, while small in number and acreage, are critical areas for irrigators,
homeowners, recreationists and scientists, as well as for wildlife and aquatic plant communities.
Less than 2% of our state is occupied by wetlands.
It is worth noting that Montana, in comparison to other states, can apparently consider itself
fortunate to still have approximately 73% of its original wetlands intact. When considered relative
to the losses of ourneighbors, however(South Dakota, 35% lost; North Dakota, 50% lost; Wyoming,
38% lost; Idaho, 56% lost, and; Minnesota, 43% lost), it is obvious that Montana's remaining wetland
resources are extremely valuable and must be protected. The value of wetland resources in the
otherwise arid West, where well over 50% of all wetlands have been lost (among all western states),
cannot be overstated.
A glimpse of the remaining wetland resources in Montana is found in the Regional Wetlands
Concept Plan for the Mountain-Prairie Region, published by the U.S. Fish and Wildlife Service,
dated July, 1990 (Plan). According to the Plan, Montana contains a wealth of what are identified
as "high priority" wetlands. These critical areas are defmed as "rare, declining, and threatened
wetlands providing a multiple array of benefits such as production and migration habitat for nongame
migratory birds, as well as waterfowl; flood water protection; environmental education and research;
water purification; bird watching, fishing, hunting, and other recreation; open space in urban
settings; and habitat for furbearers and resident game species."
Our priority wedands include the prairie potholes in northeast Montana, subalpine meadows
in the mountainous part of the state, small intermountain glaciated wetland complexes, western
ripariaii wetlands, and isolated closed basins in central and south-central Montana. Of these types
of wetlands, two (prairie potholes and western riparian wetlands) are among the nine identified
wetland habitats nationwide of particular critical concern. In the Plan, losses of these two types of
wetlands are described by the U.S. Fish & Wildlife Service as "severe."
Prairie Pottioles
The prairie potholes in the northeast comer of the state are productive in every sense of the
word. These wetlands vary in size from less than one acre to several hundred acres. Most of them
are less than two feet deep and dry much of the year.
The "prairie pothole region" is widely recognized as the most significant "duck factory" in the
lower 48 states. Common nesting species of waterfowl include mallard, northern pintail, gadwall,
blue-winged teal, shoveler, redhead, canvasback, scaup and Canada goose. The typical wetland
complex associated with prairie potholes provides optimum habitat for waterfowl reproduction and
growth. Each part of the complex serves a distinct phase in the bird's nesting, breeding, and brood-
rearing cycles.
These areas are also critical "resting" habitat for other waterfowl and shorebirds as they
replenish protein and energy reserves to sustain them through migration and nesting. Forthis reason,
seasonal and temporary wetlands in this region are invaluable to millions of arctic and subarctic
nesting birds that pass through each spring.
Montana Audubon Council - Page 4
1356
Over 225 species of
birds are con-
firmed nesters in
the prairie
pothole region.
The small, inter-
mountain glaci-
ated wetlands in
the Flathead
Valley support
the highest
published density
of nesting red-
head ducks in
North America.
Over 225 species of birds are confirmed nesters in the prairie pothole region, many of which
occur in Montana. This list includes nesting pairs of the threatened piping plover, endangered least
tern, and the endangered bald eagle. These wetlands are also of critical importance to several
endangered species during migration, including the whooping crane and peregrine falcon.
Wetland habitats in the prairie pothole region are also vital to many prairie mammals, which rely
upon such habitats for both cover and a substantial portion of their food. Additionally, various
Montana amphibians and reptiles also depend upon the prairie potholes, including the tiger
salamander, rocky mountain toad, chorus frog, painted turtle and plains garter snake.
Finally, prairie pothole wetlands are the focal point in the hydrologic regime of the prairies.
These wetlands store runoff water and serve as floodwater storage reservoirs by allowing water to
"evapotranspire" to the atmosphere or slowly seep into the groundwater. While leaving prairie
pothole watersheds intact will not necessarily prevent flooding in lower parts of a watershed,
artificially draining these watersheds will make flooding problems worse. Prairie pothole complexes
also play an important role in groundwater recharge or flowthrough, nutrient trapping, water quality,
and the prevention of soil salination.
Western Riparian Wetlands
The western side of Montana also possesses many valuable wetland resources. In particular,
the Plan describes western riparian wetlands as significant in terms of "resource values," and notes
that in Colorado and Wyoming, about 90% of all wildlife species depend upon such riparian habitats,
which account for less than 2% of the total land space in those states. It is likely that a similar
conclusion can be dravm for Montana, which has essentially the same ratio of riparian habitat to land
space.
Western riparian wetlands provide critical nesting and wintering habitat for bald eagles, as well
as important seasonal or year-round habitat for a wide range of other resident wildlife, including deer,
songbirds, upland game birds, small mammals, elk, moose and bear.
Western riparian wetlands also perform many important hydrologic functions such as ground-
water storage and recharge of adjacent river systems and streams. These activities help to replenish
connected aquifers, which provide water for irrigation, and supply late season instream flows which
are important for water quality and fisheries. They also provide some degree of flood control and
serve to reduce floodplain erosion.
Other wetlands in western Montana are also significant. For example, the small, intermountain
glaciated wetlands in the Flathead Valley support the highest published density of nesting redhead
ducks in North America. This fact becomes even more noteworthy when one considers that the U.S.
Fish & Wildlife Service has reported that the 1991 redhead population was 6% lower than in 1990,
and 26% below the 35-year average. As with prairie potholes, intermountain glaciated wetlands
provide important habitat for a diverse number of species, including peregrine falcons, and provide
critical wintering, nesting and migration habitat for bald eagles.
Many rare plant species in Montana are wetland-dependent. For example, Howell's gumweed
(Grindellia howelUi) occurs largely in the glacial potholes and old river oxbows of the Swan Valley.
Other rare plant species dependent upon or associated with wetlands in the state include the yellow
springbeauty (Claytonia lanceolate war.flava) and the sepal yellowcress {Rorippa calycina).
Finally, montane palustrine wetlands of the mountains of western Montana are identified for
their important functional values in serving as "seeps" and "sediment traps." Both of these functions
work to protect existing fish populations.
Protecting Montana's Wetlands - Page 5
1357
The 404 Program:
How it Works
It is unlawful to
discharge
dredged or fill
materials into
waters of the
United States
without first
receiving autho-
rization (known
as a "404 per-
mit") from the
U.S. Army Corps
of Engineers.
There are three
types of permits
issued under the
404 program:
individual,
nationwide and
general permits.
An important role of Section 404 of the Clean Water Act is to regulate the filling of wetlands.
In order to understand how well our wetlands are protected, it is important to understand which
wetlands are protected under Section 404.
The Clean Water Act calls for restoring and maintaining the chemical, physical, and biological
integrity of the nation's waters. While retaining and strengthening existing water quality standards,
the Clean Water Act also limits activities in "waters of the United States," including wetlands.
Section 404
Basically, Section 404 of the Clean Water Act helps protect wetlands by regulating the
"discharge of dredged or fill material" into "waters of the United States." "Water of the United
States" include all streams to their headwaters (5 cubic feet per second, average annual water flow);
lakes over 10 acres; some isolated wetlands; and wetlands adjacent to waters of the United States.
The "discharge of dredged or fill material" involves the physical placement of soil, sand, gravel,
dredged material or other such material into waters of the United States.
Under the Act, it is unlawful to discharge dredged or fill materials into waters of the United
States without first receiving authorization (known as a "404 permit") from the U.S. Army Corps of
Engineers (Corps). Although the idea sounds simple enough, there are several important exceptions
to the law that allow for the filling of wetlands.
Exemptions from 404
Not all activities in wetlands or waterways are subject to the Section 404 program. Congress
has specifically exempted some activities from regulation, including normal farming, forestry, and
r£uiching activities. To fall under these exemptions, the activities must be part of an on-going
fanning, ranching or forestry operation - and not associated with bringing a wetland into agricultural
production or converting an agricultural wetland to a non-wetland area. Several years of disking,
planting and draining can effectively dewater a wetland. Developers have used the "agricultural
exemption" as a cover for converting wetlands for development.
Recently, the Corps determined that mechanized land clearing, ditching, channelization and
excavation require a Section 404 permit. However, there are still several development activities that
cause direct wetland damage that are not regulated under Section 404. These activities include the
drainage ofwetlands without excavation; lowering of groundwater levels; flooding of wetlands; and
activities on upland areas that affect wetlands through soil erosion, pollution, or diversion of water.
404 Permits
There are three types of permits issued under the 404 program: individual, nationwide and
general permits.
The application for a permit is two pages. The application requests information on the
description, location, and purpose of the proposed project; the amount of fill or dredged material to
be used in the project; a list of adjoining property owners; and a list of any other permits needed for
Montana Audubon Council - Page 6
1358
Currently, there are
36 authorized
nationwide
permits, 21 of
which have been
used in Montana
since 1991.
Currently there are
10 authorized
general permits
in Montana.
the project, including wiiether other permits have been approved or denied. Drawings of the
described project may also be required.
Normally it takes two to three months for the Corps to process a routine individual permit. Less
time is required to process applications for routine general and nationwide permits. It may take a
longer time to process the application for larger and more complex projects .
Individual Permits
The biggest projects regulated by the Corps are done through the issuance of individual 404
permits. Individual 404 permits require that apublic notice be issued on the project. The public notice
contains information about the location of the project, the amount of fill to be placed, the amount of
excavation proposed, and the purpose of the project. The public has 15-30 days to comment on a
public notice. The notice is also reviewed by local, state and federal agencies at this time. If the
project is large and controversial enough, a public hearing may be held on the project.
After the public comment period is over, the Corps examines the comments that have been
submitted, and evaluates the impacts of the project. Based on the comments received, the Corps can
work with the applicant to modify the project. Modifications are usually done to improve the
effectiveness of the project and/or reduce the environmental impact of the project. After its
evaluation, the Corps will then either approve or deny the application.
You may request that you or your organization be put on the mailing list to receive public notices
of permit applications on the Missouri River, Yellowstone River, or throughout Montana. To do this
contact the Army Corps of Engineers, 1520 East Sixth Ave., Helena, MT 59620-2301 (444-6670).
Nationwide and General Permits
The Corps also can authorize "nationwide" and "general" permits. These permits are granted
for projects that the Corps believes will have minimal adverse effects on the environment. They are
issued either on a nation wide basis ("nationwide permit") or on a regional or statewide basis ("general
permit"). An individual permit is usually not required of projects that fit the criteria of a nationwide
or general permit.
Cutrenily , there are 36 authorized nationwide permits, 2 1 of which have been used in Montana
since 1991 (See Appendix III for the nationwide permits used in Montana). Nationwide permits
cover such activities as small bank stabilization projects, the maintenance of previously authorized
structures, and small hydropower projects. Probably the most controversial is Nationwide Permit #
26, which authorizes discharge of dredged or fill material in up to 10 acres of: isolated wetlands, the
headwaters of streams (under 5 cubic feet per second, average aiuiual flow), and lakes. Nationwide
Permit # 26 thus exempts a wide variety of riparian areas, ponds and springs from permit scrutiny.
Currently there are 1 0 authorized general permits in Montana (See Appendix IV for the general
permits used in Montana). The general permits that have been authorized cover such activities as boat
ramp facilities, electric transmissions lines, and water intake facilities.
Projects qualifying for a nationwide or general permit have no public notification or review
process. State and federal agencies do, however, review somfe of these permit applications. A general
or nationwide permit may be challenged, but only on the grounds that the project has "more than
minimal adverse environmental effects, individually or cumulatively, or would be contrary to the
public interest." In such cases, the Corps may use its discretionary authority to require an individual
permit for these projects.
Nationwide and general permits, and their use in Montana, are discussed in more detail below.
Protecting Montana's Wetlands - Page 7
1359
The Section 404
permit program
is jointly admin-
istered by the
Army Corps of
Engineers and
the U.S. Environ-
mental Protection
Agency. State
natural resource
agencies also
play an important
role in reviewing
404 permits.
After-the-Fact Permits
The Corps may require an after-the-fact permit from anyone who has filled a wetland without
a permit. The Corps may allow the fill to remain, with conditions, or may order the fill removed if
the project does not meet the requirements for a permit. After-the-fact permits provide an opportunity
to rectify unauthorized and/or damaging activities.
Approval Requirements
All 404 permits must follow certain minimum requirements before they can be approved.
Among these requirements, projects must be "water dependent", meet certain public interest criteria,
follow Environmental Protection Agency guidelines, and follow state water quality standards.
Additionally, if the project can be completed by using a practical alternative that would have a less
damaging impact on the aquatic ecosystem, then the less damaging alternative must be considered
and, whenever possible, followed by the applicant.
Only projects that are "water dependent" can be approved under Section.404. The purpose
of this requirement is to prevent the filling of a wetland if there is an upland site that the same project
can be completed on. If the wetland does not have to be filled to accomplish the same result, the
project cannot be approved. For example, a restaurant does not need to be placed in a wetland to fulfill
its basic purpose of feeding people.
The public interest criteria considered by the Corps include conservation, economics, aesthet-
ics, environmental quality, historic values, fish and wildlife values, flood damage prevention, land
use, food production, recreation, water supply, energy needs, safety, and the needs and welfare of the
public.
The Role of Govermnent Agencies
The Section 404 permit program is jointly administered by the Corps and the U.S. Environmen-
tal Protection Agency (EPA). The Corps is responsible for processing permit applications, issuing
or denying permits, and taking enforcement actions against permit violators.
The EPA has the authority to set the environmental standards with which the Corps must
comply when issuing permits. It also shares enforcement authority with the Corps and is the final
authority in regard to wetlands delineation (what is - and what is not - a wetland). Importantly, the
Environmental Protection Agency also has veto power over a permit issued by the Corps, if it will
have an unacceptable adverse impact on municipal water supplies, shellfish beds, fishery areas,
wildlife, and recreational areas. Since the Clean Water Act was passed in 1974, the EPA has used
this veto power on less than two dozen occasions in the United States, out of more than 1 50,000 permit
applications filed under Section 404. There have been no EPA vetos in Montana.
State natural resource agencies also play an important role in reviewing and approving Section
404 permits that are considered by the Corps. Under Section 401 of the Clean Water Act, the state
has the right to deny a proposed project if the project will impair Montana's water quality.
Montana Audubon Council - Page 8
1360
An Overview of 404
Permits in Montana
During the period
from January I,
1989 to August
31, 1993. the
Corps was
involved in 1,756
permit applica-
tions in Montana.
Of those permits,
99.5% were
approved by the
Corps - only 9 of
the 1,756 projects
did not get
approval.
This overview of Section 404 permit activity in Montana relates to all activities conducted
during the review period that meet two criteria; first, the activity is conducted in Montana under
Section 404, and; second, the activity was reported or otherwise tracked, authorized or permitted by
the Corps. As noted below under the discussion relating to nationwide permits, the Corps is not
required to receive notification for all activities conducted in wetlands.
During the period from January 1 , 1989 to August 31,1 993, the Corps was involved with 1 ,756
permit applications. The following is a breakdown of the types of permits:
Nationwide Permits 1,333 75.9%
Individual Permits (or Amendments) 240 13.7%
General Permits 183 10.4%
Total Activity 1,756
Based on our review of individual files, 99,5% of all 404 applications were approved by
the Corps - only 9 of the 1,756 projects did not get approval. Keeping this in mind, the "regulatory
burden index" associated with the Section 404 program in our state is minimal. Clearly, the operation
of the Section 404 program in Montana is not stopping proposed activities from occurring in
jurisdictional wetlands.
Of the 1,756 applications processed during our study, 5 applications were denied and 24
applications were withdrawn. We examined these files individually to determine the reasons that
these permits were denied or withdrawn.
A denied application did not always mean that a project could not proceed. Two of the five
denied applications were subsequently authorized by the Corps under another type of permit: one
of the denials was eventually authorized under a nationwide permit, and one was granted an
individual Section 404 permit.
Of the 24 applications that were withdrawn, six may be characterized as withdrawn "in the face
of likely denial by the Corps." Six of the remaining 18 applications that were withdrawn were
subsequently authorized by the Corps under another type of permit: four of the withdrawals were
eventually authorized under nationwide permits, one was later authorized under a general permit, and
one was later permitted under Section 10 of the Rivers and Harbors Act. The remaining twelve
applications that were withdrawn were the result of voluntarily action by the applicant, taken for a
number of reasons, largely unrelated to the Section 404 regulatory program.
The reasons behind denial by the Corps and withdrawal by the applicant are varied, and are
reviewed in greater detail in the following sections.
Protecting Montana's Wetlands - Page 9
1361
404 Permits Denied in Montana
During the relevant
time period of
this study (56
months), there
were only five
Section 404
permit applica-
tions "denied" in
Montana by the
Army Corps of
Engineers.
During the relevant time period (56 months), there were only five Section 404 permit
applications that were "denied" by the Corps. Our review looked at all five of these files (Foss,
Baugus, Burlington Northern, Valley Ditch, and Hathaway Ranch). Details on each of these
applications can be found in Appendix I.
Three of the five applications were denied because the State of Montana did not certify the
project under Section 401, meaning that the State believed the proposed project would result in a
violation of Montana water quality standards (Foss, Baugus, Burlington Northern). Initially, the two
remaining applications were also denied for lack of Section 401 certification, but State certification
was later granted. As a result. Valley Ditch received an individual section 404 permit, and the
Hathaway Ranch application was later authorized under Nationwide Permit # 13.
Although in each denied application the action of the State refusing Section 401 certification
is the reason provided to the applicant for the denial, four of these projects were controversial in their
own particulars, and in at least three of these projects there was clearly other grounds that may have
served as a basis for denial. A short description follows:
In the Baugus application, the applicant sought to riprap property that he did not own on die
Yellowstone River. The applicant had already received authorization from the Corps for a previous
project and apparently had not completed that work in a satisfactory fashion. In addition, the
applicant did not have the required 310 permit from the local conservation district.
In the Burlington Northern application, the applicant sought to construct a new railroad bridge
on Stanton Creek, adjacent to the Flathead River. In addition to the water quality concerns of the
Montana Department of Health & Environmental Sciences; the Montana Department of Fish,
Wildlife & Parks expressed concerns regarding impacts upon migrating westslope cutthroat and bull
trout; and the Montana Department of Highways was concerned that the proposed project would
disrupt existing runoff and drainage patterns associated with the existing road. Both the Montana
Department of Health & Environmental Sciences and the Montana Department of Fish, Wildlife &
Parks asserted that an acceptable alternative was available to accomplish the project.
In the Foss application, the applicant proposed to use tires as riprap along the Missouri River.
Concerns were expressed by the Environmental Protection Agency, U.S. Fish & Wildlife Service,
and the Corps over the desirability and prospects for success of this proposal.
In the Valley Ditch application, the applicant sought a permit to perform required restoration
work stemming from illegal fill activities on the Gallatin River. The applicant, without authorization,
bulldozed a channel across the river, and was taken to court by both the local conservation district
and the Montana Department of Health & Environmental Sciences. After the initial denial of Section
401 certification by the Montana Department of Health & Environmental Sciences, the restoration
project was subsequently amended and approved.
In the Hathaway application, the applicant proposed to use concrete slabs on a river bank to
prevent erosion. The Montana Department of Health & Environmental Sciences objected, noting
that the proposed project involved placing a pollutant in a position where it was likely to pollute state
Montana Audubon Council - Page 10
1362
waters, and that the density of concrete was inadequate to sufficiently protect the streambank.
Ultimately, the Montana Department of Health & Environmental Sciences granted Section 401
certification on a demonstration basis only, after requiring the applicant to permanently anchor pre-
poured concrete slabs, and conduct monitoring and reporting.
404 Permits Withdrawn
in Montana
During the study
period, a total of
24 filed applica-
tions were with-
drawn for vari-
ous reasons.
Only in six cases
was a permit
withdrawn in the
face of possible -
or even likely -
denial by the
Army Corps of
Engineers.
During the study period, a total of 24 filed applications were subsequently withdrawn for
various reasons. Of these applications, we were able to look at 23 of the files. The remaining file,
relating to the application of Copps Construction, could not be located. Details on each of these
applications can be found in Appendix 11.
Withdrawal in the Face of Likely Denial
Although the process of withdrawing an application is a voluntary one undertaken by the
applicant, in six of the cases the voluntary withdrawal was made by the applicant in the face of
possible - oreven likely - denial by the Corps [Griffel (2 applications). Auto Auction, Whitmer, Land
& Lake Recreation, and Clothier].
In four of these files, the Montana Department of Health & Environmental Sciences had denied
certification under Section 401, because it was anticipated that the proposed project would violate
Montana water quality standards [Griffel (2 applications). Auto Auction, Whitmer]. In all four cases
other grounds appeared to exist for denial by the Corps.
In the two Griffel applications, the projects involved placing rock jetties in the Yellowstone.
The applicant had received a 3 10 permit from the Stillwater Conservation District for blanket riprap
as opposed to rock jetties. Comments opposing the application because of the use of rock jetties were
filed by the Montana Department of Fish, Wildlife & Parks; Environmental Protection Agency; and
the U.S. Fish & Wildlife Service.
In the Auto Auction application, the applicant proposed to fill a slough adjacent to the
Yellowstone River to provide space for parking. The previous owner of the property had filled
adjacent wetlands under a previous Corps permit, but had not performed the required mitigation
activities. In addition, both the Environmental Protection Agency and the U.S. Fish & Wildlife
Service objected to the project as not water dependent.
In the Whitmer application, the applicant proposed to remove sand from an existing irrigation
intake structure, £ind place the excavated material on a sand bar in the river. The U.S. Fish & Wildlife
Service expressed concerns over nesting activities of the endangered least tern and threatened piping
plover. The Environmental Protection Agency also expressed concerns in regard to the placement
of excavated material on a sandbar within the high water mark, and noted that this was not a practical
alternative for the discharge of dredged material. When the applicant did not respond to inquiries
from the Corps regarding the status of the application, the application was deemed withdrawn.
In the application of Land & Lake Recreation, Inc., the applicant proposed to place fill on land
they did not o wn at Noxon Reservoir. The Washington Water Power Company objected because the
project would take place on company property and was not a long term solution to the identified
Protecting Montana's Wetlands - Page 1 1
1363
In six of the files
that were re-
viewed, the
application was
withdrawn only
to be authorized
by the Corps
under other
permits.
problem. The Montana Depanment of Health & Environmental Sciences withheld certification
under Section 401 until the water quality impacts and other alternatives could be further assessed.
The Environmental Proteaion Agency objected as the applicant had not considered less damaging
alternatives. The Montana £>epartment of Fish, Wildlife & Parks objected because the project would
cause further bank destabilization and siltation. The Montana State Historic Preservation Office
raised concerns about historical sites.
Finally, in the Clothier application, the applicant proposed to use tires as riprap in a backwater
of the Flathead River. Concerns were expressed by the Corps over the desirability and prospects for
success of this proposal. Clothier was also denied a 310 permit from the Flathead Conservation
District, and the project was cancelled.
Withdrawn But Authorized Under Other Permits
In six of the files that were reviewed, the application was withdrawn only to be authorized by
the Corps under other permits. One project was subsequently authorized under Section 10 of the
Rivers and Harbors Act (Nemitz), one project under a general permit (Junction City Ranch), and four
under nationwide permits, including Nationwide Permit # 18 (Fort Peck Marina, Olson), Permit #
13 (Thomas), and Permit # 26 (Heckford).
Other Reasons for Withdrawal
Of the eleven remaining files that were examined: four projects were revised during the review
process so that Section 404 permits were not required (City of Great Falls, Fox, Beaudette, Whitefish
Lake Golf Course); two projects were withdrawn because of funding (Montana Power Company,
Montana Department of Highways), although the Montana Department of Highways project was
subsequently revised and authorized; two applications (Steppler, Schellinger Construction) were
unable to secure other necessary approvals or agreements, unrelated to water quality concerns, and
the projects were cancelled (a real estate easement, and a Forest Service permit, respectively); and
three projects, that had faced little or no opposition, were cancelled for undisclosed reasons (Bilden,
Urbani & Associates, Victor Land & Livestock).
As HKntioned above, only one file, relating to the application of Copps Construction, could not
be located. Records indicate, however, that the application was withdrawn on the same day that the
Corps received it
Nationwide Permit Activities
As described above, the Army Corps of Engineers may provide blanket authorization for certain
activities in wetlands or waterways that the Corps believes will have minimal adverse effects on the
environment. The permits may be issued on a nationwide basis, as nationwide permits, or on a local
or regional basis (general permits). Currently, there are 36 authorized nationwide permits, 21 of
which have been used in Montana since January 1, 1991. A description of the nationwide permits
used in our state can be found in Appendix m.
A dramatic increase in the use of nationwide permits has been seen in recent years: 323 in 1 991,
346 in 1 992, and 300 (to date) in 1 993. These figures are up from the previous high of 202 in 1 990,
and 156 in 1987.
Nationwide permits apply to a wide range of activities: from bank stabilization projects to small
Montana Audubon Council - Page 12
1364
During our study,
nationwide
permits were
used in 971
separate occa-
sions in Montana.
Consistently, the
most commonly
used nationwide
permit in Mon-
tana is # 26.
hydropower. The various nationwide permits contain restrictions, conditions, and in some cases,
notification procedures which must be met.
Who Reviews Nationwide Permits
The State of Montana, under Section 401 of the Clean Water Act, can either review or waive
review of nationwide permits that may result in a discharge into waters of the United Sutes.
Currently, the Montana Department of Health & Environmental Sciences has waived certification
on all nationwide permits except Nationwide Permit Numbers 12, 13, 16 and 26.
The Environmental Protection Agency (EPA) is the certifying agency for Indian Lands within
the State of Montana. The Environmental Protection Agency has waived Section 401 certification
for all nationwide permits £2S£SE1 Nationwide Permit Numbers 12, 13, 15, 16, 17, 18,23,26,32,33,
40, and for any nationwide permit where the proposed activity involves the placement of wood
timbers treated with chemical preservatives in a river, stream or adjacent wetland.
Anyone in Montana applying for a nationwide permit that is reviewed by the Montana
Department of Health & Environmental Sciences or the Environmental Protection Agency [12, 13,
15, 16, 17, 18, 23, 26, 32, 33, and 40] needs to: 1) comply with all the requirements of the nationwide
permit; and 2) obtain Section 401 water quality certification from the Montana Department of Health
& Environmental Sciences or the Environmental Protection Agency.
As mentioned above, the Corps retains the discretionary authority to modify, suspend, or revoke
nationwide permits for specific projects. If the Corps does this, the project is required to obtain an
individual Section 404 permit. This may occur if an activity is determined to have more than minimal
adverse environmental impacts (either individually or cumulatively), or would be contrary to the
public interest.
During the duration of this study, no nationwide permit was denied by the Department of Health
& Environmental Sciences, Environmental Protection Agency, and/or the Corps.
Montana's Nationwide Permit Activities
Less information is readily accessible on nationwide permits, than on individual and general
permits. For this reason our research regarding the details of nationwide permits covers the time
period from January 1, 1991 to August 31, 1993. During that time, nationwide permits were used
in 971 separate occasions in Montana. The annual use of nationwide permits issued in Montana is
detailed in Table I on Page 14.
Consistently, the most commonly used nationwide permit in Montana is # 26, relating to the
filling of headwaters and isolated waters. During the review period. Nationwide Permit # 26
accounted for over one-quarter (25.3%) of all nationwide permit activity occurring in Montana (1991
— 25.5%; 1992 — 25.4%; 1993 — 25.0%).
Other significant areas of activity under the nationwide permit system include #3 (Mainte-
nance), #12 (Utility Line Backfill and Bedding), # 1 3 (Bank Stabilization), and #14 (Road Crossing),
which when combined accounted for 57.0% of all nationwide permit activity during the review
period(1991 —63.1%; 1992—57.5%; 1993 — 53.0%). Aside from Nationwide Permit #26, which
is discussed further below, the activities conducted under these nationwide permits are self-
explanatory (for example. Nationwide Permit # 12 is generally used for activities relating to utility
lines). As a general rule, the Corps files contain no information on the size of the wetlands involved
in these nationwide projects.
Nationwide Permit Numbers 1 4 (Road Crossings) and 1 8 (Minor Discharges) were used for a
Protecting Montana's Wetlands - Page 13
1365
As a general rule,
the Corps files
contain no
information on
the size of the
wetlands involved
in nationwide
projects.
wide variety of projects. Duringthereviewperiod,there were 131 authorizations under Nationwide
Permit # 14. After looking at over half (70 out of 131) of the Nationwide #14 files, approximately
3 1 % involved government road projects, 26% were attributable to residential development, and 20%
related to various ag-
ricultural activities.
The remainder were
the result of miscel-
laneous activities.
Only one of these
seventy files con-
tained any informa-
tion regarding wet-
lands acreages: an
Environmental As-
sessment completed
for a Federal High-
way Administration
project in the Bitter-
root Valley noted
that twelve separate
wetland areas rang-
ing in size from 0. 1
to 3.4 acres would
be impacted, for a
total acreage of 7.8
acres; other wet-
lands would also be
encroached upon.
Some mitigation, by
expanding existing
wetlands, was an-
ticipated for this
project.
During the re-
view period, there
were 51 authoriza-
tions under Nation-
wide Permit # 18.
After looking at
most (38 files out of
51) of these, the
majority of activities
were conducted by
various governments (26%) and utilities (26%), and the majority of the utility activities involved the
assessment of archeological sites. Other activities under Nationwide Permit # 18 included the
construction of boat ramps and docks (16%) and various agricultural activities (13%). The remainder
were the result of miscellaneous activities. Only one of these thirty-eight files contained any
information regarding wetlands acreages: a track realignment by Burlington Northern along
Whitefish Lake involved the disturbance of 0.05 acres of wetlands.
Table 1. Nationwide Permit issued in
Montana between
January 1, 1991 and August 31,
1993.
Nationwide
Year
Permit
1991
1992
•1993 Totals
%
1 Navigation Aids
0
0
3
3
0.3%
2 Artificial Channel Structure 1
0
1
2
0.2%
3 Maintenance
80
49
38
167
17.2%
4 Wildlife Harvest Devices
0
0
1
1
0.1%
5 Scientific Devices
0
1
0
1
0.1%
6 Survey Activities
2
2
1
5
0.5%
7 Outfall Structures
0
0
1
1
0.1%
1 1 Temp. Recreation Device
1
7
6
14
1.4%
12 Utility Line Fill
44
45
29
118
12.2%
13 Bank Stabilization
41
52
44
137
14.1%
14 Road Crossing
40
43
48
131
13.5%
1 5 Approved Bridges
0
1
0
1
0.1%
17 Small Hydropower Projects 0
1
0
1
0.1%
18 Minor Discharges
25
16
10
51
5.3%
19 Minor Dredging
3
2
4
9
0.9%
21 Approved Coal Mining
0
1
1
2
0.2%
22 Removal of Vessels
0
7
0
7
0.7%
23 Approved Exclusions
5
7
13
25
2.6%
26 Fill up to 10 Acres
83
88
75
246
25.3%
27 Restoration
0
17
11
28
2.9%
33 Temp. Construction
0
2
1
3
0.3%
36 Boat Ramps
0
5
13
18
1.9%
Totals
325
346
300
971
* 1993 information covers the
period between January
1 and
August 31.
Montana Audubon Council - Page 14
1366
Nationwide Permit Number 26
Nationwide Permit
# 26 authorizes
the filling of up to
10 acres, the size
of 7 football
fields, of isolated
wetlands, head-
waters or lakes.
As described above. Nationwide Permit # 26 is the most commonly used nationwide permit in
Montana. It allows the filling of up to 1 0 acres of: isolated wetlands, the headwaters of streams (under
5 cubic feet per second, average annual flow), and lakes.
In an arid state like Montana, wetlaxids, headwaters and lakes up to 10 acres in size are a valuable
resource - especially when one considers that Montana's wetland resources are principally small in
size: prairie potholes, glaciated potholes, montane palustrine wetlands, and the headwaters of all our
streams.
To understand Nationwide Permit # 26, you must also understand what 1 0 acres - and one acre
- means. For this reason, we compare these acreages to something found in almost every community
in Montana: a football field. According to Webster's New Coilegjate Dictionary, a football field is
130 yards by 53-1/3 yards or 6,933 square yards. One acre is 4,840 square yards, or 70% of one
football field. Ten acres is 48,400 square yards, or the size of 7 football fields.
Nationwide Permit # 26 authorizes the filling of up to 1 0 acres, the size of 7 football fields, of
isolated wetlands, headwaters or lakes. For this reason, we feel it is important to review in detail the
activities completed under this nationwide permit.
For projects that involve the filling of less than 1 acre of wetland (70% of one football field),
no notice or approval from the Corps is required. For acreages from 1 to 1 0 acres a "pre-discharge"
notice is required. This pre-discharge notice requires a site check by the Corps, and a quick review
of the project by necessary wildlife agencies. There is no public notice for any nationwide permits.
To get a feel for what kind of activity was occurring under this nationwide permit, we examined
individual Nationwide Permit # 26 files. We were able to review 132 of the 246 files (54.0%)
authorized during the study period. Of the 1 32 total, only 3 of the projects involved greater than one
acre, and thus required "pre-discharge" notice to the Corps. The total acreage for these three projects
was 6.24 acres. Since no notice to the Corps is required for projects involving less than one acre, it
is anticipated that many projects conducted under Nationwide Permit # 26 are not even repoted to
the Corps at all, and are thus not reflected in their records.
The majority of Nationwide Permit # 26 activities (approximately 75%) reported to the Corps
during our study involved "knowledgeable" participants (railroads, development corporations,
consultants, government agencies, or work performed under the supervision of government agen-
cies). Attempting to ascertain the extent of unreported activities under Nationwide Permit # 26 will
be the subject of future research efforts. It is almost certain that the scope of unreported activity under
Nationwide Permit # 26 is substantial. As an example, only one of the 132 projects that we looked
at involved active mining activities; yet it is known that extensive mining activity in riparian and
wetlands areas takes place in Montana. [See, for example. Inventory of Placer Mining Effects on
Stream Resources in the Vicinity of the Helena National Forest, (Montana Department of Fish,
Wildlife & Parks, 1 987)]. Similarly, it seems intuitive that residential and commercial development
should account for more than eleven of these files.
Of the 132 projects examined, 71 of these projects involved agricultural activities. Sixty-four
Protecting Montana's Wetlands - Page 15
1367
Of the 132 indi-
vidual files we
were able to look
at for Nationwide
Permit # 26, 3 of
the projects
involved greater
than one acre,
and thus required
"pre-discharge "
notice to the
Corps. The rest
of the permits
were under 1
acre in size.
of these projects involved creating watering areas for livestock, and the majority of these activities
were reviewed and approved by the Soil Conservation Service. The Soil Conservation Service
requires the Corps to be notified on all of its projects affecting wetlands, regardless of the wetland
acreage that is involved in the project. The other 7 agricultural projects under Nationwide Permit #
26 primarily involved activities related to irrigation.
The remaining 61 projects may be further broken down into the following categories, which are
largely self-explanatory: residential and commercial development (11); ponds (5); domestic water
supply (1); active mining (1); reclamation (7); railroad and/or vehicle road projects (13); dam
maintenance or construction (2); unidentified (1); and enhancement (20). As a general observation
about the enhancement projects, many of them resulted in a "net gain" of wetlands. However, these
enhancement projects also involved "trading" one wetland type for another (usually a pond is
substituted for a wet meadow). According to the National Academy of Science, the success of
wetland restoration efforts is, at best, uncertain. Given the uncertain success of these efforts, and the
"trading" of one wetland type for another, it is difficult to quantify a true "net gain" for these projects.
As a general rule, the files of the Corps contain very little information regarding the activities
that are conducted under any of the nationwide permits. The files for Nationwide Permit # 26 are no
exception. When combined with the lack of reporting requirements under Nationwide Permit # 26,
it is very difficult to generate any actual acreage estimates regarding the amount of wetlands that are
being lost.
Of the 132 projects reviewed under Nationwide Permit #26, only 36 files included any
information on acreage (including the 3 "pre-discharge" notices). The total acreage of wetlands lost
as reflected in these 36 files was approximately 18.5 acres. Although acreage information was
provided for only a few of the Soil Conservation Corps (SCS) approved stockwater projects, due to
the similarity of these projects, it is possible to extrapolate the acreage lost by projects where no
acreage information was provided. In general, the wetlands acreage lost as a result of these projects
was estimated to be 0.1 acre per project. Multiplying this by the remaining 58 SCS stockwater
projects for which no size information was provided, results in an additional 5.8 acres lost, for a
"known" total of 24 acres lost under Nationwide Permit # 26.
General Permits
In addition to the nationwide permits described above, there are general permits issued in
Montana. Some of these permits are issued on a district basis, others on a statewide basis, and still
others on a waterv/ay basis (for example, such as for the Missouri or Yellowstone River). Although
the Corps records are somewhat unclear as to the total number of outstanding valid general permits,
it appears that ten general permits (GP) are currently used in Montana. A description of the general
permits used in our state can be found in Appendix TV.
During the time from January 1 , 1 989 to August 3 1 , 1993, general permits were used in Montana
on 1 82 separate occasions, with the number of authorizations ranging from a high of 54 in 1 990, to
alowof29in 1991(1989 — 30; 1990 — 54; 1991 —29; 1992 — 31; 1993 — 38).
Over the review period 78 (43%) of the general permit authorizations were granted pursuant
to GP 89-03 (Habitat Improvement), 53 (29%) of the authorizations were under GP 82-10 (Boat
Ramps), and 26 (14%) were under GP 90-01 (Water Intake Facilities on Fort Peck Reservoir). The
remainder of the authorizations were scattered among GP 76-05 (Riprap) (8 permits), GP 79-03
Montana Audubon Council - Page 16
1368
(Electrical Transmission Lines) (1 permit), GP 87-02 (Fill for Boat Ramps and Docks on Flathead
Lake) (2 permits), GP 88-01 (Mitigation Projects) (1 permit), 88-02 (Restoration Projects) (1
permit), 88-03 (Dams for Phase n and Phase m Waterways) (7 permits), and 89-04 (Existing
Structures on Corps Lands) (5 permits).
The Montana Audubon Council's review of Corps' records did not include a review of the
individual files associated with each general permit authorization.
Conclusion
Contrary to much of
the rhetoric
heard in discus-
sions surround-
ing the Section
404 program, an
overall approval
rating of 99.5%
does not support
the claim that the
program imposes
a substantial
regulatory
burden.
One year ago, the Montana Audubon Council set out to answer the question: how much of a
regulatory burden is the Section 404 program in Montana? After months of pouring over files and
analyzing databases, the verdict is in - and the answer is a clear "No."
Currently, 99.5% of all 404 permit applications are approved. Contrary to much of the rhetoric,
our research demonstrates that Section 404 of the Clean Water Act, as now written and enforced, has
not significantly stopped proposed wetland development activities in Montana.
The two page application form for a 404 permit asks basic conunon sense information about
each project. The application process requires individuals to stop and think and plan before filling
a wetland. A detailed look at the reasons why permits were denied, shows that there was good cause
for each denial. Additionally, the Corps has, whenever possible, worked with applicants to modify
projects that face denial. These modifications appear to have improved the effectiveness of projects
and reduced the damage done to aquatic ecosystems.
Given the precious nature of wetlands - a resource that supports a staggering number of
Montana's plants and animals, a resource that plays a critical role in flood protection, controlling
water pollutants, and protecting water quality - our research indicates that wetlands need more
protection, not less.
Our research reveals that the most critical area where Section 404 needs to be strengthened is
in the nationwide permit system. The most startling results of our research reveals that, through the
use of nationwide permits, valuable Montana wetlands are being "nickeled and dimed" out of
existence. In Montana, the nationwide permit system is being looseiy applied, in large part because
of inadequate staffing levels in the local office of the Army Corps of Engineers. It is impossible for
either the Corps, or a concerned public, to really know the extent of wetlands tosses incurred by
Montana under the current nationwide permit system.
The biggest problem with the nationwide permit system, is the assumption that generic
nationwide permits fit Montana's wetland resources. For example, under Nationwide Permit # 26,
it is assumed that: 1 ) isolated wetlands under 1 acre in size (70% of a football field) are of no value;
and 2) isolated wetlands under ten acres in size (7 football fields in size) arc of limited value. In an
arid state like Montana, these assumptions do not hold true for our small isolated wetland complexes,
complexes that are often seasonal in nature. Individually, these small, isolated wetlands are often the
focal point for local biodiversity. Cumulatively, they network to provide critical habitat on a regional
basis. They also significantly contribute to both flood control and water quality.
Montana is losing important wetland resources in a piecemeal fashion. Unless current
regulations are changed, these precious areas will continue to disappear.
Protecting Montana's Wetlands - Page 17
1369
pfrpf^^TFn TO THK PRFSFRVATION AND RESTORATION OF WF.TI^hmx
August 2, 1993
Senator Bob Graham
Senate Environment and Public Works Committee
United States Senate
Washington, D.C. 20510
Dear Senator Graham and Committee Members:
Please enter this letter into the Record of your Committee's
Hearings on the Clean Water Act.
Wetlands are an inportant element in our fragile ecosystem.
They provide nutrients for fish populations, migrating and
shore birds, shellfish. Over 43% of our nations's endangered
species are wetland-dependent--higher in California.
Our organization is comprised of 13 groups in Ventura County,
California, and our mission is to protect remnants of coastal
Southern California wetlands (part of the only 5% left in
the state). We believe that wetland protection is essential
to the environmental health of our country.
The midwest flooding of recent weeks has been attributed, in part,
to the lost wetlands (50% in recent years).
Senator Barbara Boxer has introduced legislation, S1195, which
strengiH^ens the wetland protection now in place. We urge
you to support this bill and to encourage other senators to
join you giving a vote o± confidence to the environment.
We would appreciate a response to our (letter.
Thank you
Simcerely ,
Roma Armbrust, Chair
1370
FOUNDED 1975
Resource Development Council
for Alaska
inc.
121 West Fireweed Une. Surte 250. Andiorage. Aiasia 95Sfl3-2©5
Phone 907/276-0700 FaxZ75^887
tXECUnve CMRECTOR
3ecky L. Gay
EXECUTIVE COMMITTEE
JervjS L. CiCud. P'esxjertl. (1993-&ij
Oav<3 J. Pansn. Sr. vlo* Prestd^oi
£iitabc:n Rcnscn Vicr Pr^-^jdem
Scon L Tnoreon, SecfiStarv
Jaooo Adams.
:<Clly M. CamOOCB
Jirrws M 03V13
John Pofce^e
Mano Pfet
DapH Kack
jowi C. MJier
jefcxne M. Set&y
Ro^cW D Sioc*
Wiiftam A. Tnomas
Lyi8 Von Banpen
Thomas K. wiiiiofTi?
OtRECTOflS
Sriaron E. Anaerson
sfnesta &aiLi"a
Ricnart F Barnes
M,W 8e9.cn
R91 1 Beropp
.ViHian C. ewin
3er3td G Boom
3en9 Qurden
Thomas Cook
Lany Oamels
Lara/oe t.. Oerf
Ja/nes C Oore
James V 0'c«
Paula P Easley
Donald S Poilo*5
Richard f osier
Scoc Golds Tum
LisaB. Hus
John L- Ha/ns
Alan E. Hasoofjs
Rooen S. HaOteW. Jr.
Joseph R, Henri
!<a."Bn J Hotetafl
WUliftm L- Ho^PGf
Norman Ingram
John T, Keisey
^ew Leama'd
W»yne Lflwts
Ro&crt w. L«schef
A. Roy Lyons
Cart M. Mon^
s»ward Mcwiii,artt3
CiO'enoe "Rocky" MiOat
£. H "Pets' Meeon
John K. Ncmon
/^ilOuf OSnen
Jamte Pardon?
Kenrtetn £. Peavynouse
'3aii PhitUtK
K«nnein K Ponie
Sa/t^ra Po?t
Stephen M RennMr9
John A L. Rc"^c
^an Rowtey
leo^je R 3cntn«ct
Thyes J. SftauB
Mwnnr.'i Heriry" Spnnger
a.e swes
John Sturgeon
Scon B ThKmpson
aarry 0. Thomson
Mitch Usibeiu
Li« Ware ham
J.C. Mnrjtietd
Geor^ P Wuercn
HONORARY DIRECTORS
»hii R. Howsworth
•viifiam R. Wood
£X<OFnciO MEMBERS
$«na(ty Ted Stevens
7^nja>f F'snK MufKo-^Ki
1 Yourvg
SEC. 4. DEFINITION AND DELINEATION OF WETLANDS.
(a) DEFINITIONS."
I. Amend the definition of jurisdictional wetlands so as to
remove and reduce regulation of isolated, low habitat value
wetlands.
II. Enact into law a definition of jurisdictional wetlands
that incorporates the original 7th Circuit ruling on the
Hoffman Homes case. This would exempt isolated wetlands
from the reach of Section 404. Most coastal wetlands, as well
as those along major rivers and streams, would remain
subject to Section 404.
(b) DELINEATION OF WETLANDS.-
I. Devise a regulatory scheme for classifying and
discriminating wetlands on the basis of function, value and
abundance.
II.
HIGH-LOW RANKING SYSTEM
Establish a national regime which classifies wetlands
into high, medium or low-value categories. Provide that high-
value, scarce wetlands remain subject to a strict regulatory
regime akin to the present Section 404 program. At the other
end of the spectrum, low value wetlands or wetlands of any
value which are abundant would be granted more regulatory
flexibility.
A further step would be to set up expedited permitting in
those states which retain over 50 percent of the original
wetlands in each category. A strict regulatory regime
designed to aggressively protect remnant wetlands is not
needed in areas where substantial wetlands remain.
III. Adopt a more moderate water dependency test which
allows consideration of other factors such as the general
character of the state's wetlands.
1371
SEC. 5. REGULATION OF ACTIVITIES.
1 . 'ANCSA U\NDS CONCERNS
Section 404 unfairly diminishes the value and purpose of
lands which were part of the federal government's aboriginal land claims
settlement in Alaska. Alaska's Natives were promised 44 million acres,
and the right to govern the use of these lands. It's important to consider
that over 75% of the lands conveyed to the Native peoples of Alaska are
defined as wetlands. As such, compensatory mitigation constitutes an
unfair taking of Native lands in many respects.
Federal regulatory processes have eroded the right of the Alaska
Natives to use their lands in a manner that will benefit them socially and
economically. Reasonable opportunity for economic activity must be
allowed to fulfill the purpose of the entitlements and the spirit of the
accords. This problem should be corrected. Activities to build the
necessary infrastructure to accommodate community economic
development should be unhampered by excessive & extra federal regulation
on native lands.
* (Alaska Native Claims Settlement Act)
1372
SEC. 6. PERMIT PROCESSING IMPROVEMENTS.
I. Eliminate the concept of rigid sequencing embodied in the Army
Corps of Engineers-EPA Memorandum of Agreement (MOA) so as to ensure
flexibility in the consideration of mitigation proposals.
II. Require a broader focus on and consideration of public interests m
the permitting process.
III. EXEMPTION FROM MITIGATION REQUIREMENTS
Under certain circumstances, a state could be exempted from the
alternatives and compensatory mitigation steps of sequencing. Eligibility
criteria for the exemption could be as follows:
a. any state with X percent of its original wetlands still intact;
b. any state that has X acres or more of protected wetlands;
c. any state that has more than 50 percent of its lands in public
ownership and more than X percent of those lands committed to
conservation purposes; or
A variation would provide that only "high-value" wetlands in certain
states remain subject to the alternatives analysis and compensation
steps. All other wetlands within an otherwise eligible state would be
exempt.
IV. RURAL COMMUNITY COfCERNS
More than 200 rural Alaska villages reflect Third World living
conditions; basic human health needs must be elevated to priority status.
Such a status is inhibited or prevented by Section 404 regulations. Basic
infrastructure development such as potable water systems, roads,
housing, schools, medical and transportation facilities, and basic
sanitation systems require using land regulated as wetlands, and these
problems will be excaterbated by strict regulatory practices.
Resource Development Council Comments on S. 1 304 page 3
1373
SEC. 7. GENERAL PERMIT IMPROVEMENTS.
(3) STATE AND LOCAL PROGRAMS--
I. Streamline the procedures and requirements for state/local
assumption of program jurisdiction in general.
II. Specifically - State takeover with expanded flexibility
This option envisions inducing states to take over the Section 404
program be enabling them to run programs with fewer restraints than
provided by current COE/EPA program. A qualified state program would
preempt federal regulation, but individual permits would be subject to
federal review or veto. CEC/EPA would be barred from taking back the
program unless they can affirmatively demonstrate that the state is
failing to properly administer its program. (For greater detail, a draft of
legislative principles will be forwarded upon request.)
III. Municipalities that have taken measures to limit urban sprawl and
subsequent wetlands degradation should not be unduly burdened with
stringent regulation, rather they should be given flexibility with regard to
further development within the city. Cities that have localized growth
and development, thereby limiting development in surrounding municipal
areas, should be given flexibility in managing the remaining wetlands
within the city.
For instance, a state which has one-third or more of its entire
population living in any urban area should be granted extra flexibility in
all categories of wetlands, since the net effect of such distribution is to
preserve many more acres of wetlands in adjacent settings. Local land
planning decisions in such areas should be given priority consideration in
permitting decisions, since trade-offs of such a nature are greatly
determined on a site-specific and community needs basis.
Additionally, any urban area as defined above, which surrounded by
utilized wetlands, adjacent or contiguous, should receive regulatory relief
from wetlands permitting since dry lands are scarce, and perhaps more
biologically important, to ecosystem diversity in the area.
IV. Require that program modifications or reforms be accomplished
through legislation or full administrative procedures, including public
notice and comment.
V. Reform the Advanced Identification process so as to prevent its
abuse at the expense of landowners and local governments.
69-677 398
Resource Devebpment Council Commenis on S.1304 page 4
1374
SEC. 8. COORDINATION AND CLARIFICATION OF PROGRAM
CONCERNINC AGRICULTURAL ACTIVITIES
(d) EXEMPTED ACTiVITIES.--
I. In clarifying what is meant by normal farming, RDC supports the
addition of "haying" and "grazing."
Additionally, RDC recommends that the silvaculture language also
warrants an addition to include "log storage, transfer and sort yards"
which are obviously integral to "harvesting for the production of food,
fiber, and forest products" as defined as exempted activities under this
section.
Resource Devetopment Council Comments on S.I 304 page 5
1375
SEC. 9. MITIGATION BANKS.
I . MITIGATION BANKING CREDIT
Compensatory mitigation would continue to apply nationwide, as
would a prospective mitigation banking system. States which have
contributed land to federal and state parks, refuges, preserves and
wilderness areas would be provided an advance credit of X percent of the
protected acres in the mitigation bank.
Any compensatory mitigation requirements attached to Section 404
permits would be deemed to be satisfied by debiting, on a like wetlands
value basis, the advance mitigation credit. Only when that credit was
exhausted would actual on-the-ground compensatory mitigation occur.
Alternatively, any state which has protected X percent of its wetlands
could be entitled to mitigation banking credit of Y.
Alaska has more wetlands than all the other states combined (at least 170
million acres), and the least wetlands development of any state (less than
one-tenth of one percent, or approximately 0.05%). When considering the
amount of credit Alaska should be forwarded, it's crucial to consider that
Alaska has contributed 62% of all federally designated Wilderness lands,
70% of all park land, and 90% of all wildlife refuge land in the national
system.
Of the 170,000,000 million acres of wetlands within the State of Alaska,
62,335,685* million acres or 36.7% are protected in Federal & State
Conservation Units. These millions of protected wetlands must be
considered when establishing a mitigation banking system that affects
Alaska. Alaska must be given credit for the wetlands already protected,
otherwise there will be no incentive for other states to preserve
wetlands.
" This number along with all statistics outlined in the addendum
were complied by Robert Senner & Co. and RA Kreig & Associates.
November 5, 1989.
Compients submitted September 30. 1993
^,^3rMnn^
Ken Freeman
Projects Coordinator
Resource Development Council Comments on S.I 304 page 6
1376
ADDENDUM
FEDERAL CONSERVATION UNITS WITHIN THE STATE OF ALASKA
Of 52,041,133 acres in the NATIONAL PARK SYSTEM within the State of
Alaska, 12,372,845 or 23% are wetlands.
Of 457,000 acres in the NATIONAL WILD and SCENIC RIVER SYSTEM withi
the State of Alaska 176,250 or 39% are wetlands.
Of 22.869.467 acres in the NATIONAL FOREST SYSTEM within the State ni
Al.dska 5,603.650 or 25% are wetlands
Of 73.553.172 acres In the NATIONAL WILDLIFE RFFUGF SYSTEM within th€
State of Alaska 41,228,620 or 56% aro wetlands
Of 2.2?r),000 acres in the BUREAU OF LAND MANAGEMENT SYSTEM within
The State of Alaska 544.000 acres or 25% are wetlands.
Of 1b1.940,//2 acres in the TOTAL FEDERAL CONSERVATION SYSTEM
within the State of Alaska 59,925,366 or 39% are wetlands.
STATE OF ALASKA CONSERVATION UNITS
Of 3,050,991 acres in the STATE PARK SYSTEM within Alaska 408,493 or
13% are wetlands.
Of 2,057,000 acres in the STATE FOREST SYSTEM within Alaska 374,700
or 18% arc wetlands.
Of 1,065,300 acres in the STATE GAME REFUGE SYSTEM witfiin Alaska
932,573 or 88% are wetlands.
Of 93.568 acres in the STATE GAME SANCTUARY SYSTEM within Alaska
8,870 or 9% are wetlands.
Of 841.940 acres in the STATE CRITICAL HABITAT SYSTEM within Alaska
685,682 or 81% are wetlands.
Of 7, 1 08,887 acres in the TOTAL STA I E CONSERVATION SYSTEM
2,410,319 or 34% are wetlands.
Of l.sq OAtj 659 acres in the TOTAL FEDERAL & STATE CONSERVATION
SYSlbM within Alaska 62.335.685 or 34% are protected wetlandr..
'M. TOTfiL rflCC.OQO
1377
THE WILDLIFE SOCIETY
14 September 1993
The Honorable Bob Graham, Chairman •
Subcommittee on Clean Water, Fisheries, and Wildlife
U.S. Senate
SH-524 Hart Senate Office Building
IWashington, DC 20510-0903
Dear Mr. Chairman:
The Wildlife Society assembled a Wetlands Technical Committee to prepare the at-
tached report, MITIGATION BANKING AND WETLANDS CATEGORIZATION.
The Need for a National Policy on Wetlands, for your consideration in addressing
wetlands conservation in the Clean Water Act. The Wildlife Society is the scientific
and educational association of wildlife professionals dedicated to excellence in wild-
life stewardship through science and education.
The Technical Committee consists of experts on wetlands from federal and state
government agencies, academia, conservation organizations, industry, and private
consulting. This diverse panel of professionals has voluntarily developed this paper
in considering the best biological information available on the key issues of MITI-
GATION BANKING and WETLANDS CATEGORIZATION.
The Society urges you to consider a NET GAIN or NET RECOVERY of wetlands
policy in recognition of the enormous historical losses and the importance and array
of wetland functions and their inherent values to society.
We would be pleased to meet with you and/or participate in hearings related to wet-
lands conservation. Please enter this Technical Committee report in the official
record of the 15 September hearing on this subject. The Wildlife Society Council will
be considering the panel report for adoption at its meeting next week, and we will
provide you a copy of the final document when it becomes avEiilable.
Thank you for your consideration.
Sincerely,
Thomas M. Franklin
MITIGATION BANKING AND WETLANDS CATEGORIZATION THE NEED FOR
A NATIONAL POLICY ON WETLANDS
A Report for The Wildlife Society
PREPARED by: ThE COMMITTEE ON MITIGATION BANKING AND WeTLAND
Categorization
Richard D. Crawford; Ann Hodgson Huffman; Mary C. Landin; Joseph S.
Larson; Joseph A. McGuncy; Douglas B. Inkley; Ronald Stromstad; Milton
W. Weller; David E. Wesley; and Donald A. Hammer, Chair
SYNOPSIS
Wetlands represent a small fraction of our Nation's land area, but they harbor an
unusually large percentage of our wildlife. Natural wetlands once occupied 11% of
the 48 contiguous states and now occupy 5% — a loss of over 50%. Between the mid-
1950's and mid-1970's, 700 miles ^ of wetland were altered and drained each year.
The greatest losses were more or less equally balanced between the upper midwest
(potholes) and the south (forested and coastal wetlemd).
An astonishingly rapid reversal of public attitudes and policy towards wetlands
occurred during the last 20 years. Wetlands were considered wastelands and society
encouraged wetland destruction and conversion with financial incentives. In the
1960's, Massachusetts passed protective legislation and many other states followed.
On the national scale, incorporation in the 1972C1 Clean Water Act (CWA) was fol-
lowed by the 1977 Executive Order leading to modifications in the Corps of Engi-
neers (COE) regulations implementing provisions of the CWA, specifically Section
404. A number of states implemented similar regulations. Unfortunately, none of
these efforts represent clearly defined national policy; hence, the confusion, contro-
versy, costs and disenchantment with present approaches. In contrast to wetland
drainage, we have not determined and codified a wetland protection /management
policy.
1378
Resolution of the present controversy is only possible through public discussion
and consensus establishment of a national policy on wetland protection/manage-
ment embodied in national legislation and unified implementing regulations. Any-
thing less will simply perpetuate the current controversy and eventually undermine
support for wetland protection. We need a broad national policy that reduces wet-
lands loss, restores drained or altered wetlands, protects wetlands through public or
private ownership, and enhances wetland functions while accommodating desirable
economic development.
The enormous historical losses and the importance and array of wetland func-
tions, and their inherent values to our society, mandates that a national policy im-
plement NET GAIN or NET RECOVERY of wetlands, until 25% of the original wet-
lands acreage has been restored and our combined wetland resource base is 75% of
the original.
Natural wetlands are an ephemeral component of the landscape resulting from
geological incidents and to a lesser extent, biological and human activities. Specific
location, type and size of every wetland is dependent on a series of geophysical phe-
nomena that created and maintain suitable hydrological and edaphic conditions at
that site. Consequently, attempts to preserve every wetland or even to require on-
site replacement are in fact attempts to maintain the status quo disregarding the
series of unintentional events that created and maintain a wetland. This philosophy
is inherent in rigid application of in-kind, on-site restoration/creation requirements
of the COE/EPA MOA on mitigation signed in January 1990. In contrast, a strate-
gic, landscape approach might well identify more suitable locations for certain types
and sizes or even different types and sizes to enhance one or more functional values
to society.
Unfortunately, fear of change has obscured serious consideration of arguments for
strategic, landscape planning for wetland management that might increase values
of wetlands through judicious location. It also has inhibited restoration of wetlands
to their original form and function especially in the coastal regions where freshwa-
ter marshes have become saltwater marshes after the intra-coastal and associated
canals permitted extensive salt water intrusion. Rigid attempts to maintain the
status quo totally disregard historical conditions and man-induced changes, as well
as the ever changing, d3Tiamic nature of all wetlands.
Natural wetlands are interdependent and interact with terrestrial components of
the landscape and with other wetlands, especially within a watershed or biotic
region, such that meaningful management must incorporate a landscape, watershed
or biotic region approach. Because of these strong interactions and interdependen-
cies, it is not possible to evaluate, assess or categorize a wetland unit in isolation
from other components in the watershed or biotic region. Wetlands management
must also include temporal factors since age/successional stage, as well as geo-
graphical location, strongly influences both form and function of wetland resources.
The Committee believes that wetlands protective legislation should incorporate a
philosophy that bases permit decisions on whether or not we can afford to lose a
wetlands, not whether or not the wetlands can be replaced. This is an extension and
endorsement of the current philosophy ("the sequencing rules") of:
1) encouraging wetland restoration whenever and wherever feasible and practical;
2) minimizing detrimental impacts to wetland form and function when avoidance
is not feasible or practical; and
3) compensating detrimental impacts to wetland form and function when those
occur.
We also recommend expanded planning level assessment by state and federal
agencies to:
1. Improve and standardize application of current knowledge applicable to wet-
land evaluation
2. Encourage multi-disciplinary approaches to wetland protection/management;
3. Encourage systems approaches to wetland protection/management;
4. Improve agency consistency in the wetland permit review process; and,
5. Provide advance warning of wetland areas that will require extended review
and mitigation.
Because poor scientific understanding of wetlands and their functional values has
been an important contributing factor to conflicting attitudes and ambiguous ap-
proaches, we are convinced that major new initiatives must be undertaken, requir-
ing substantial funding from public and private partnership, develop adequate
knowledge upon which appropriate policies and regulations will be founded. Simply
lack the essential information to correctly place wetlands in the landscape and to
formulate a sound protection policy and implementing regulations. Consequently, a
1379
national wetland policy must first provide financial resources to develop the requi-
site information base.
MITIGATION
Despite society's desire to protect remaining wetlands, some water-related projects
are impossible without impacting wetlands. Therefore, regulations require compen-
satory mitigation of wetland impacts if the proposed development is approved. Com-
pensatory mitigation has become a tool that expands the regulators' role from a
simple yes or no to one of negotiated development.
Due to the broad scope and many interpretations of the term, we define mitiga-
tion as: replacement of the form and function of the wetland that will be detri-
mentally impacted.
Inclusion of function is important since current mitigation is largely based on re-
placement of wetland form, i.e., physical components of the impacted wetland. How-
ever, replacement of the major components may or may not replace wetland func-
tions depending upon specific functions, wetland form, and spatial and temporal lo-
cations.
Numerous compensatory mitigation projects have failed, and these failures are
commonly cited as reasons to deny the validity of the concept. Unfortunately, exist-
ing information is often not used in restoration, enhancement and creation projects.
Failure of many projects lies with the lack of, or improper application of, existing
knowledge. Too few developers employ experienced biologists in the design, con-
struction and operation of wetland projects and subsequent failures are predictable.
Certain types of wetland — prairie potholes, midwestern marshes, salt marshes and
some forested wetlands— have been successfully restored, enhanced and/or created,
but our information on other wetland ecosystems is rudimentary. Similarly, our in-
formation on wetland functional values varies considerably. We have the ability to
establish some life support functions — waterfowl, wetland mammal, fish and timber
production — ^but only limited information on man other biological products, hydro-
logic buffering functions and water quality improvement functions. Our ability to
replace functional values is limited because of our poor understanding of these func-
tions.
Since compensatory mitigation projects attempting to create new wetlands have
had widely varying success rates and because opportunities for wetland restoration
or enhancement are finite, regulatory agencies should require natural wetland res-
toration or enhsmcement for mitigation rather than creation of new wetland. In sit-
uations where restoration or enhancement are not feasible, mitigation in the form
of created wetland may be acceptable if:
1) documentation is available on the success of projects creating similar tjijes of
wetland in that region; or,
2) the permittee provides funding for research on similar natural wetlands in the
region that would identify means by which the form and function of the impact-
ed wetland could be duplicated in a newly created wetland; and,
3) the permittee insures that development of the new wetland is conducted under
the direction of competent biologists emplojdng current information or informa-
tion obtained from studies on the model natural wetland;
4) the permittee agrees to provide for long-term monitoring to insure the new wet-
land is functional and self-perpetuating; and,
5) the permitee agrees to provide for long-term financial support through an irrev-
ocable trust to ensure funding for necessary management.
MITIGATION BANKING
Existing regulatory delays and the inability of some developments to avoid detri-
mentally impacting wetlands led to proposals for establishing wetland banks to fa-
cilitate compliance with replacement requirements. Various groups have proposed
establishing specific areas where wetlands are protected/restored/created and coop-
erating parties could receive "credits" for wetlands in the bank that would be used
to offset liability for detrimentally impacting wetlands in a new development.
Current delays and lengthy regulatory processes reflect:
1) the complexity of wetlands and our inability to adequately evaluate functional
values and insure replacement of form and function through mitigation; and,
2) inability of regulatory agencies to agree on and implement standardized permit
processing procedures.
The present regulatory quagmire serves neither to protect wetlands nor their
functional values, accomplish no-net loss or net-gain, nor to accommodate economic
development in an orderly, cost effective manner. Present regulations, in some in-
1380
stances, may contravene societjr's goals to protect and restore wetlands, and current
wetland regulations need to have more latitude to encourage and support wetland
restoration/creation projects by various organizations. Increased r^ulatory flexibil-
ity must include pro-active acquisition and long-term management if compensatory
mitigation and mitigation banking are to protect and restore our Nation's wetland
resources.
Economics are part of natural resources management and are certainly no reason
to oppose the concept of wetland mitigation banks. Furthermore, opposition is no
longer timely. Mitigation banks and banking prc^rams are increasing almost expon-
entially. Preliminary results from the COE mitigation banking survey indicate ex-
isting banks had increased from 13 in 1988 to 20 in 1991 with at least 100 in active
or planning status in 1992.
What impact do mitigation banks have on the Nation's wetland and wildlife re-
sources and can current rigid regulatory applications be modified to achieve the
goal of minimizing loss, and maintaining and restoring wetland functions? Do we
achieve better quality management for wetland resources within the structure of
mitigation banking than without it? Mitigation banking gambles that focusing ef-
forts on fewer and more significant wetlands will have positive results for the land-
scape, even though centralization of those elements, and loss of peripheral elements,
may have some negative effects.
Mitigation banking may have many positive as well as negative impacts on wild-
life, wetlands and society and a summary of each is included the report. Wildlife
scientists and managers must initiate a pro-active approach to mitigation and miti-
gation banking and develop guidelines that will respond to the needs of developers
and accomplish a net gain in wetland resources. More over, the policy must increase
wetland form and functional values and concurrently reduce and standardize regu-
latory requirements.
CATEGORIZATION
Classification and categorization are useful tools in ordering chaos. Wetland clas-
sification generally represents groupings of wetlands on hydrologic, biologic £ind
edaphic characteristics without including value judgments. Cat^orization, however,
implies grouping wetlands based on a value r^ime.
Value is determined by society and is not an inherent characteristic. Value has
socioeconomic implications that go far beyond an £kssessment of presence or absence
or even quantitative measurements. Valuation is also a function of time in that soci-
ety's values change, and therefore the very same wetland could have a very differ-
ent perceived value in the same society at a different point in time. If valuation
schemes are employed to Cat^orize wetlands, evaluators must be able to estimate
future values, as well as adequately assess present values, of existing wetlands. Fur-
thermore evaluation of a wetland is inevitably related to time of year and age of
system. Wetlands are djmamic ecosystems undergoing seasonal and annual change
as well as progressive change over time, as the wetland system ages. Time, tech-
niques and location of data collection can have substantial impact on the result of a
one-time evaluation.
We recognize the importance of evaluation of natural resources as an important
basis for land use decision meiking. R^^atory agencies now engage in wetland as-
sessment as they decide what level of review is necessary when permits are filed.
But the basis for this decision is not clear, interpretable or availadble to the permit
applicant in advance.
A method of evaluating wetlands to determine the appropriate category for each
individual wetland must be a key element of any categorization proposal. We are
familiar with widely used evaluation methods (technical assessment tools). We do
not believe that any existing evaluation regime is adeqiiate to measure the value of
each function performed by the myriad of types of natural wetlands in the U.S. Con-
sequently, any attempt to evaluate and subsequently categorize natural wetlands
with existing methodologies would result in irretrievable harm to the Nation's wet-
land and wildlife resources.
For the vast majority of wetlands and even for most different types of wetland, we
lack quantitative information even on the biologic productivity, much less adequate,
comparable information on other important functional values. We are aware of the
potentied costs of assessing the functions of individual wetlands; however, it is also
clear that careful and costly study of watersheds is a prerequisite to designing flood
protection programs. Wetlands must be included in similarly comprehensive water-
shed planning. Wetlands are providing important functions in maintaining water
quality, reducing flood damage and conserving biological diversity, and their man-
1381
agement requires an appropriate public investment in data collection and functional
assessment.
We are concerned that some categorization proposals would allow for valuation/
categorization by non-wetland professionals, i.e., developers or engineers. We do not
believe that other disciplines are competent to evaluate wetlands or wetland func-
tional values and we disagree with these approaches.
The Ck)mmittee is concerned that certain proposals for categorization do not dis-
tinguish among several functions of wetlan(k, and lump values, such as flood con-
trol and wildlife habitat that have different biological and physical bases, into a few
simple "value" classes. Schemes to put wetlands into nation-widevalue classes with-
out providing for any process to distinguish between regional differences are simi-
larly. Suspect. In addition, some categorization proposals a pear to have a strong
element of triage, i.e., if wetlands were assigned to high (Type A), medium (Type B)
and low value (Type C) categories, the Committee is concerned that wetlands in the
low value category would receive less protection than they currently are provided,
allowing development and subsequent loss of "low value" wetlands when in fact,
their value is largely unknown.
Finally, high priority must be given to funding research to develop improved tech-
niques and methodologies to quantify the functional values of wetlands and effects
of wetland alterations. This research should develop an objective, quantitative, eval-
uation process that can be coupled with the National Wetlands Inventory. Similar
research is urgently needed to improve methods to create compensatory wetlands
that provide important wetland functions.
INTRODUCTION
Natural wetlands once occupied 11% of the 48 contiguous states but now occupy
only 5% — a loss of over 50%. Wetlands represent a very small fraction of our total
land area, but they harbor an unusually large percentage of our nation's wildlife.
For example, 900 species of wildlife in the United States require wetland habitats at
some stage in their life cycle, with an even greater number using wetlands periodi-
cal. Representatives from almost all avian groups use wetland to some extent and
one-third of North American bird species rely directly on wetlands for some re-
source (Feierabend, 1989).
Between the mid-1950's and mid-1970's, a proximately 700 miles ^ of wetland were
altered and drained nationwide each year according to the National Wetlands In-
ventory status and trends reports (Dahl and Johnson 1990). While losses were na-
tionwide, most were more or less equally balanced between the upper midwest (pot-
holes) and the south (forested wetland). Nineteen states lost over 50% of their wet-
lands and Ohio and California lost over 90%. A second status and trends report for
the mid-1970's to the mid-1980's found a significant reduction in the loss rate, but
losses continued at 300 miles ^ per year. During this period the largest losses oc-
curred in the south (primarily forested but also coastal wetland). Most wetland
losses were caused or induced by human activities.
The last 20 years have witnessed an astonishingly rapid reversal of public atti-
tudes and policy towards wetlands. For over 100 years, public attitudes embodied in
consensus policy, considered wetlands £is "wastelands" and encouraged wetland de-
struction and conversion with financial incentives. But in the 1960's, Massachusetts
passed legislation requiring a state permit for any alteration of wetland and many
other states followed. On the national scale, growing public awareness of wetland
values led to equivocal incorporation in the 1972 Clean Water Act (CWA) followed
by the 1977 Executive Order but E.O.'s only apply to actions of Federal agencies.
This however, led to modifications in the U.S.A. Corps of Engineers (COE) regula-
tions implementing provisions of the CWA, specifically Section 404, see Appendix A.
Later a number of states implemented similar regulations. Unfortunately, none of
these represent clearly defined national policy; hence, the confusion, controversy,
costs and disenchantment with present approaches. In contrast to wetland drainage,
we have not determined and codified a wetland protection/management policy.
Ileversing the drainage/conversion policy probably could not have been accom-
plished 20-30 years ago, but increasing public awareness and support are the basis
for present concern over wetlands protection and the controversy surrounding wet-
land regulations. The Committee is convinced that resolution of the present contro-
versy over wetland protection is only possible through adequate public discussion
and consensus establishment of a national policy on wetland protection /manage-
ment embodied in national legislation and unified implementing regulations. Any-
thing less will simply perpetuate the current controversy and eventually undermine
future support for wetland protection. We Need a broad national policy that ad-
dresses regulations and incentives to reduce wetland loss, protects wetlands through
1382
public or private ownership, restores drained or altered wetland, and enhances wet-
land functions. Only a nationed wetland policy that repudiates previous conversion
policies and encourages/compels wetland protection/restoration/creation/manage-
ment will reverse continuing losses while accommodating desirable economic devel-
opment.
The enormous historical losses of national wetlands and the importance and wide
array of wetland functions and their inherent values to our society, memdates that
we go beyond a national policy of NO NET LOSS of wetlands. We must implement a
NET GAIN or NET RECOVERY of wetlands policy until such time as the combined
wetland resource base approximates 75% of the original base. Since the present
base is estimated at approximately 50% of the original, this would entail restoration
of some 25% of the Nation's natural wetland acreages. And it will likely include
creation of considerable wetland acreages since many former wetlands could be
costly to restore. Many of our most important wildlife species are inextricably de-
pendent on wetlands and diminished populations of these species are unlikely to be
restored without restoration or creation of a significant portion of the wetland habi-
tats they require.
Natural wetlands are an ephemeral component of the landscape that largely
result from geological incidents and to a lesser extent, from biological and human
activities. Specific location, ts^pe and size of every wetland is dependent on a series
of geophysical phenomena that created and maintain suitable hydrological and eda-
phic conditions at that site. Consequently, attempts to preserve every wetland or
even to require on-site replacement are in fact attempts to maintain the status quo
disregarding the series of unintentional events that created and maintain a wetland
on that specific site. This philosophy is inherent in rigid application of in-kind, on-
site restoration/creation requirements of the COE/EPA MOA on mitigation signed
in January 1990. In contrast, a strategic, landscape approach might well identify
more suitable locations for certain types and sizes or even different tjrpes and sizes
to enhance one or more of the functional values to society.
Unfortunately, fear of change has obscured serious consideration of arguments for
strategic, landscape planning for wetland management that might increase the
values of wetland through judicious location. It also has inhibited restoration of wet-
lands to their original form and function especially in the coastal regions where
freshwater marshes have become saltwater marshes sifter the intra-coastal and asso-
ciated canals permitted extensive salt water intrusion. For example, in Texaco's
Bessy Height's field near Port Arthur, Texas, cjrpress stumps are still prominent in
a saltwater marsh but the regulatory process discourages efforts to restore the origi-
nal freshwater marshes. Required permitting contravenes the goal of restoring
freshwater wetlands on sites where those wetlands previously existed despite the
fact that salt water intrusion resulted from man-induced and not natural changes.
Rigid attempts to maintain the status quo totally disregard historical conditions and
man-induced changes, as well as the ever changing, dynamic nature of all wetlands.
Wetlands interactions and interdependencies in a watershed negate management
approaches based on evaluating potential imjiacts to discrete wetland units. Current
site specific approaches, especially regulatory measures, to wetland resources man-
agement are inadequate to conserve or restore the Nation's wetland and wildlife re-
sources. Natural wetlands are interdependent and interact with terrestrial compo-
nents of the landscape and with other wetlands, especially within a watershed or
biotic region, such that meaningful management must incorporate a landscape, wa-
tershed or biotic region approach. Because of these strong interactions and interde-
pendencies, it is not possible to evaluate, assess or categorize a wetlsmd unit in isola-
tion from other components in the watershed or biotic region. Wetlands manage-
ment must also include temporal factors since age/successional stage as well as geo-
graphical location, strongly influences both form and function of wetland resources.
For example, small isolated wetlands strat^cally located throughout a watershed
may have considerably more value in terms of flood amelioration and water quality
improvement than a single, leirge wetland at one position, even though it may be
situated at the lower end of the watershed. Relatively, narrow bands of riparian
vegetation may have inordinate importsmce as travel lanes for some species of wild
life. Consequently, wetland resource management must include the context of the
surrounding:s on a watershed, landscape or biogeographical unit basis.
In recognizing the complex of hydrologic, biologic, and edaphic components and
processes that combine to create and maintain viable wetland ecosystems, the Com-
mittee recommends that management efforts and pn^rams employ multi-discipli-
nary and system analysis approaches to insure adequate representation and evalua-
tion of all aspects of wetland ecosystems. Managers must also incorporate cumula-
tive/multiple impact assessments to wetland resources (and other natural resources)
1383
within a hydrological or biogeographical unit since loss or damage to a single wet-
land could have serious repercussions to the functional values from remaining wet-
lands (and other resources) within the hydro/bio/geographical unit.
Because of the wide distribution and permeating impacts on world-wide public
health, safety and welfare, wetland management must also adopt an international
approach in developing a basic philosophy to reverse the loss of additional wetlands
and instead, encourage restoration and replacement of previously lost wetlands
throughout the world.
The Committee believes that wetlands protective legislation should incorporate a
philosophy that bases permit decisions on whether or not we can afford to lose a
wetland, not whether or not the wetlands can be replaced. This is an extension and
endorsement of the current philosophy ("the sequencing rules") of:
1) encouraging wetland restoration whenever and wherever feasible and practical;
2) avoiding further loss or degradation of the Nation's wetland resources;
3) minimizing detrimental impacts to wetland form and function when avoidance
is not feasible or practical; and
4) compensation of detrimental impacts to wetland form and function when those
occur.
Wetland resource management must employ these approaches in descending
order of priority, i.e., compensatory Impact mitigation is the last resort, to be imple-
mented only when avoidance and minimization of impacts are not feasible or practi-
cal. Restoration or creation must not be used to mitigate avoidable destruction
unless it has been thoroughly demonstrated that the replacement wetlands have
equal or better form and function.
Where compensatory mitigation is required, acquisition of previous or degraded
wetland and restoration, should take precedence over attempts at creation of new
wetland because of the indifferent history of creation projects. Certain types of wet-
land may be relatively easily created, but our knowledge of many other wetland
types is inadequate and numerous attempts to create these wetlands have been less
than successful. Granted, failure of many projects was due to the lack of, or poor
application of, existing knowledge — the developers lacked proper expertise (Erwin,
1991; Landin 192). And many other failures were related to overly ambitious goals
or objectives, unrealistic time frames and/or inadequate resources. However, even
successful creation projects will require continued maintenance/management for
the foreseeable future. Unless responsibilities and resources are funded by long-term
financial commitments, the end result may not be viable wetland ecosystems.
Changes in society's attitudes towards wetlands resulted from characterization
and education on wetlands worth to the public, i.e., the quantitative and qualitative
benefits that society derives simply because the wetland exists in that location. Ben-
efits that result from the processes or functions carried out by the wetlands may
have significant values. To create a direct linkage between wetland functions and
value to society, we define functional values as: those products and effects resulting
from the natural processes and functions of a wetland that have economic, educa-
tional, recreational and social impacts (positive and negative) on various segments
of society.
Because poor scientific understanding of wetlands and their functional values has
been an important contributing factor to conflicting attitudes and ambiguous ap-
proaches, the Committee is convinced that major new initiatives must be undertak-
en, requiring substantial funding from public and private partnerships, to develop
adequate knowledge upon which appropriate policies and regulations will be found-
ed. We reject arguments that it would be too costly to identify, categorize and classi-
fy all wetlands in order to implement wetland management policies. We believe
that a complete understanding of all the functional values for each and every wet-
land regardless of size is unnecessary. None the less, our present knowledge base
lacks the ability to evaluate important functional values for major wetland catego-
ries or to designate major interchange relationships within the landscape. We
simply lack the essential ability to identify, describe, evaluate, and place wetlands
in the landscape and to formulate a sound national policy and implementing regula-
tions.
Previous failures to provide adequate funding for wetland inventory and research
have been costly to society due to extensive loss of functional values and their eco-
nomic benefits. For example, nonpoint source pollution is frequently cited as the
largest remaining contributor to water quality problems, and improper resource
management is identified as the culprit. Doubtless, poor land management is a
factor, but rural land management is generally better today than 50 years ago when
water pollution was less severe. Recently we have learned that 10-20 acres of con-
structed wetland can provide high level treatment for municipal wastewaters from
1384
1000 residents for 10-50% of the $3-4 million costs of conventional treatment sys-
tems (Hammer 1991). How much was the natural wetland worth before it was de-
stroyed? And 100 year floods seem to occur at 10 or even 5 year intervals despite the
fact that a much larger percentage of rural land is vegetated. Over harvest has been
important in the depletion of fishery stocks but what has been the contribution of
lost wetland nurseries? The critical element may well be natural wetlands that pre-
viously protected society from the ill effects of flooding and water contamination
and provided the foundation for larger fish/food populations. Loss of natural wet-
lands has been costly to society and attempts to reverse those losses are unlikely to
recover significant benefits without an adequate understanding of wetlands, their
functional values and their importance in the landscape.
Significant increases in funding for:
) research on functional values, including economic benefits;
2) landscape interchanges and interactions;
3) inventory;
4) classification and categorization; and,
5) wetland restoration/creation methods.
are critical to recovering financial losses to society caused by previous costly subsi-
dies supporting drainage/conversion programs.
MITIGATION
Despite society's desire to protect remaining wetland resources through positive
efforts to avoid and minimize wetland impacts (the sequencing rules), certain types
of developments, such as water-related projects, are impossible without detrimental-
ly impacting on-site wetlands. Therefore protective regulations include a third cate-
gory requiring compensatory mitigation of wetland impacts' in cases where wet-
lands will inevitably be impacted if the proposed development is approved. Under
current philosophies, compensatory mitigation must occur only after avoidance and
minimization of impacts have been attempted. In its simplest form, compensatory
mitigation allows the regulatory agency to say yes to development with a series of
requirements. In that sense, mitigation is a tool that expands the regulators role
from a simple yes or no to one of negotiated development. However, it is important
to maintain our perspective. Mitigation banking is only applicable within the pre-
scribed wetland regulatory process; at present non-regulatory wetlands (those built
for other than mitigation purposes) account or 99% of all man-made wetland resto-
ration and creation. Mitigation cure to the wetland loss problem. It is only one tool,
in a bag of tools, that we have to protect/ manage the nation's wetland resources.
Due to the broad scope and many interpretations of the term, the Ck)mmittee
defines mitigation as: replacement of the form and function of the wetland that
will be detrimentally impacted.
This definition deliberately excludes the concept of minimizing harm from mitiga-
tion, though the latter often is included. We have deliberately avoiding specifying
locations, acreages, creation, restoration, enhancement, etc. in an effort to simplify
the definition because we recognize that full replacement may be accomplished
through a variety of means. Since our charge is to evaluate impacts of mitigation
banks on wildlife and wetlands, we chose to restrict the definition and limit our dis-
cussion to the concept.
Our inclusion of function within the above definition is important since we be-
lieve that current mitigation is largely based on replacement of wetland form, i.e.,
the physical components of the impacted wetland. However, replacement of the
major components may or may not replace the wetland functions depending upon
the specific functions, the wetland form and spatial and temporal locations. Howev-
er, given that definition, we must then examine the viability of the basic approach
to replacement. Since mitigation assumes that the form and functions of the wet-
land can be replaced, a review of wetland functions may be useful.
Important functional values deriving to human societies from natural wetlands
include:
ground-water recharge, ground-water discharge, floodwater alteration, sediment
stabilization, sediment/toxicant retention, nutrient removal/transformation,
production export, aquatic and wildlife diversity/abundance, storm buffering,
recreation and uniqueness/heritage (Adamus, et al 1991).
This list may be grouped into four major categories:
1) life support;
2) hydrologic buffering;
3) water quality improvements; and,
1385
4) historic£il/cultural significance.
Because wetland functions are controlled by physical, chemical and biological
processes, wetland functions are strongly related to complexity, pristiness (diversi-
ty), size and location of the wetland as follows:
Complexity Pristine Size Location
Life Support High High High Mod
Hydro Buff Low Low Mod High
W Q Improve Low Low Low Mod
Histor/Cult Low High Mod High
Life support is largely biological though obviously dependent on physical and
chemical processes. It has moderate site dependency with moderate to high size,
complexity and pristine dependency. It includes production and maintenance of
flora and fauna — forbs, grasses, shrubs, trees, fungi, invertebrates, birds, mammals,
fishes, herptiles, and microbial populations that are valued for commercial products
and recreation.
Hydrologic buffering is largely a physical function that is extremely site depend-
ent and highly size related. It includes flood amelioration such as flood water stor-
age/retention, i.e., desynchronization and reductions in magnitude of downstream
flows reducing flood water damages during unusual storm events. Conversely, de-
layed discharges of flood waters augment base flows in rivers and streams support-
ing diverse aquatic life in our waterways. In some instances wetlands can have an
important groundwater recharge function, supplementing other mechanisms to in-
crease total ground water resources. Natural wetlands protecting and supported by
groundwater discharge can provide important surface water sources £md of course,
some wetlands have essentially flow-through groundwater patterns (Clark and Ben-
forado 1981, Gosselink et al 1990, Gosselink and Turner 1978).
In the water quality improvement function, chemical and physical processes tend
to dominate biological processes. This function has moderate site dependency and
lower size, complexity and pristine dependency. It includes removal of pollutants/
contaminants from in flowing waters — principally surface flows — ^but it can also in-
clude subsurface inflows — to purify natural water supplies. Principle actions include
(Faulkner and Richardson 1989):
1) chemical — oxidation, reduction, cation exchange, adsorption, precipitation;
2) physical — sedimentation, filtration, precipitation; and,
3) biological — microbially mediated reactions, assimilation/uptake, nutrient recy-
cling.
The historical /cultural preservation function is highly site specific and strongly
related to natural condition but only moderately related to size and complexity of
the wetland. It includes preservation of anthropological and historical resources.
Physical and chemical processes are much less dependent upon complex, diverse
and perhaps pristine wetland. A very simple or severely degraded system may have
important hydrologic buffering value and/or water quedity improvement values but
little or no life support value. Generally, life support values increase with increas-
ing complexity and proximity to natural conditions. However, a simple wetland (low
diversity/ complexity) can have very high productivity for certain products. A small
system (perhaps 0.1 ha) may have important water quality improvement values but
little or no flood amelioration or life support value. Exceptions include very small
systems that provide habitat for unusual or threatened or endangered species. Mod-
erate size (>2 ha) systems may have significant hydrologic and life support values
and increasing size is related to increasing importance for these values. Obviously,
location in the watershed is extremely important to the hydrologic buffering func-
tion and moderately important to water quality but may be much less important to
the life support function. Location in a state, region, country or continent may be
quite important to the life support function, however.
Numerous compensatory mitigation projects have failed, and these failures are
commonly cited as reasons to deny the validity of the concept. Given the broad vari-
ety of wetland tjrpes, their geographic distribution, and diverse nature of wetland
functional values, generalizations are fraught with peril. This is especially true for
1386
smaller wetlands and unique types with isolated distributions. Furthermore, the
interrelationships of wetland units within a geographic area and their interdepen-
dencies on associated terrestrial environments, make evaluations of replacement dif-
ficult at best. However, certain types of wetland have been restored, enhanced and/
or created for many years. We have a considerable body of knowledge on restora-
tion, enhancement, creation and management of marshes — especially the Prairie
Potholes and other midwestern marshes. Similar though less extensive information
is available for freshwater marshes in the interior valley of California, the Inter-
mountain West and coastal marshes along the Atlantic and Gulf coasts. Some infor-
mation is available for northern bogs, less for Coastal Plain bogs and very little for
high elevation bogs. Our inibrmation on forested wetlands, especially the great river
swamps of the Southeast is rudimentary at best and it's almost non-existent for
unique systems such as pocosins, vernal pools, riparian bands, Carolina Bays, etc.
Similarly, our information base on wetland functional values varies considerably.
We have the ability to accomplish certain-life support functions — notably waterfowl,
wetland mammal, fish and timber production but only limited information on the
host of other biological products deriving from wetlands. Very few investigations
have-explored the hydrologic buffering functions and results have been multi-direc-
tional. The water quality improvement function has received considerable attention
within the last few years but much of the information has derived from deliberately
constructed wetlands and extrapolation to natural wetlands is largely unknown.
Consequently, our ability to replace functional values, with a few exceptions, is lim-
ited because of our poor understanding of these functions. We do not believe that
the state of the art for functional values is adequate to enable us to replace these
functions in most newly created wetlands.
Unfortunately, existing information is often not used in restoration, enhancement
and creation projects. Failure of many projects lies with the lack of, or improper
application of, existing knowledge. In most cases, problems are caused in application
not by the science. Too few developers employ experienced biologists in the design,
construction and operation of wetland projects and subsequent failures are predict-
able.
Since compensatory mitigation projects that attempted to create new wetlands
have had widely varying success rates and because opportunities for wetland resto-
ration or enhancement are finite, regulatory agencies should require natural wet-
land restoration or enhancement for mitigation rather than creation of new wet-
land. Our emphasis on restoring former or prior-existing wetland is pragmatic in
that, in many cases, restoration of damaged or degraded wetland is much more
likely to succeed than attempts to create a wetland in a formerly terrestrial envi-
ronment. Quite simply, the residual hydrology, edaphic and biological components
in the previous wetland make it possible to restore the wetland simply by removing
or modifying the factors causing degradation.
In situations where restoration or enhancement are not feasible, mitigation in the
form of created wetland may be acceptable if:
1) documentation is available on the success of projects creating similar t3T)es of
wetland in that region; or,
2) the permittee provides funding for research on similar natural wetlands in the
region that would identify means by which the form and function of the impact-
ed wetland could be duplicated in a newly created wetland; and,
3) the permittee insures that development of the new wetland is conducted under
the direction of competent biologists emplojdng current information or informa-
tion obtained from studies on the model natural wetland; and
4) the permittee agrees to provide for long-term monitoring to insure the new wet-
land is functional and self-perpetuating.
Although various agencies and individual offices of these agencies have developed
replacement acreage requirements, the Committee is reluctant to delve into that
morass. Suffice it to say, that replacement of functions for an individual wetland
could easily require replacement at ratios greater than 1:1 depending upon the func-
tions and the time period during which the replacement is expected to be accom-
plished.
MITIGATION BANKING
The complex web of regulations and the inability of some developments to avoid
detrimentally impacting wetlands has led to the concept of replacing wetland in
various forms or systems. Costs for compljdng with current regulations and uncer-
tainties over permit delays and/or approvals have encouraged proposals for estab-
lishing banks of protected/restored/created wetland that could facilitate compliance
with the replacement requirements. In a further attempt to expedite regulatory re-
1387
views various groups have proposed establishing specific areas where wetlands are
protected/restored/created and cooperating parties could receive "credits" for wet-
lands in the bank that would be used to offset their liability for detrimentally im-
pacting a wetland in a new development. Developers, often caught in a confusing,
seemingly interminable web of unknowns related to potentially impacting a wetland
as part of their overall development proposal, are leading advocates. And it is un-
derstandable that developers seek a simplified solution; many simply ask that they
be told what it will cost and when a permit will be issued so they can factor the
delay and cost into their project planning.
However, current delays and lengthy regulatory processes reflect:
1) the complexity of wetlands and our inability to adequately evaluate functional
values and insure replacement of form and function through mitigation; and,
2) inability of regulatory agencies to agree on and implement standardized permit
processing procedures.
The present regulatory quagmire serves neither to protect all wetlands or their
functional values, accomplish no-net loss or net-gain, nor to accommodate economic
development in an orderly, cost-effective manner. Some would say that the current
regulatory approach fails to provide adequate protection while others fault the in-
terminable, costly delays and inability to plan developments. Others cite the contin-
ued, often piecemeal, loss of thousands of acres of wetland and our failure to imple-
ment no-net loss on a local, regional, state or national basis much less accomplish
any improvements in restoring wetlands and their functioned values. Many exam-
ples of disparate implementation of regulations have eiIso been articulated. Forceful
arguments can doubtless be made for both sides of the issue. The present controver-
sy regarding wetland protection is not surprising given the short time period for an
almost complete reversal of a long established drainage policy. But our poor scientif-
ic understanding of wetlands has also been a contributing factor.
Economics are part of all natural resources management and are certainly no
reason to oppose the concept of wetland mitigation banks. Furthermore, opposition
is no Mitigation banks and banking programs are increasing almost exponentially
and developers are leading the efforts while environmentalists often find themselves
on the outside in opposition. A progress report on the COE mitigation banking
survey (IWR 1992) showed that existing banks had increased from 13 in 1988 to 20
in 1991 with at least 100 in active or planning status in 1992. The survey identified
37 existing banks with 64 planned banks that were expected to become active in
1992, and an additional 5 mitigation trusts. Of the existing banks, 38% are on the
west coast, 27% in the northern plains, with 16% in each of the mid Atlantic and
Gulf regions. Highway construction projects were involved in 60% of the banks and
port (14%) and industrial development (11%) were the next most common. States
exclusively own 50% of the banks, 20% are privately owned, and local public bodies
and federal ownership account for another 20%. The largest was 7000 acres but only
15% were >640 acres, while 51 were >40 acres and only 5% were <10 acres. Over
two-thirds were located in the same hydrologic unit.
The relevant question now is what impact do mitigation banks have on the Na-
tion's wetland and wildlife resources and can current rigid regulatory applications
be modified to achieve the goal of minimizing loss, and maintaining and restoring
wetland functions. Do we achieve better quality management for wetland resources
within the structure of mitigation banking than without it? A mitigation bank, in
its Usu^ form, gambles that focusing efforts on fewer and more significant wet-
lands will have positive results or the landscape, even though centralization of those
elements, and loss of peripheral elements may have some negative effects.
The effects of mitigation banking on wildlife, wetlands and society, have positive
and negative aspects. Mitigation banking pluses include:
1) alternatives for improving quantity of high quality wetlands as well as acquisi-
tion and management opportunities
2) opportunities for restoration of degraded wetlands;
3) increased diversity and isolation for wildlife species;
4) scale, size and location improvements if regulators and developers are required
to employ a landscape
5) preservation of existing habitats through acquisition and management;
6) better adherence to fish and wildlife needs:
7) exploits new management opportunities and approaches;
8) potential for a net gain of wetland if creation is successful;
9) better technical and professional expertise are likely to be available on larger
projects;
1388
10) greater involvement and possible cash flow for owners of lands that now have
little market value;
11) facilitates conflict resolution;
12) reduced delays encountered by developers; could provide clear direction to de-
velopers and enhance their ability to estimate total project costs; gives develop-
ers a degree of certainty in terms of permit approvals and timing so they can
deal with banks, other funding sources and planning agencies; could be seen as
positive effort by environmentalists to work with developers; and, could posi-
tively influence developers attitudes towards wetlands and wildlife in general;
13) mitigation banking could create greater acceptance and understanding in the
regulated community of wetland functions and values that might encourage de-
liberate use of created/constructed wetlands in development projects.
Mitigation banking negatives include:
1) converting to wetlands can cause loss of other habitats especially certain terres-
trial habitats.
2) influencing the natural distribution of wetlands;
3) altering tjT)es of wetlands;
4) altering functions of wetlands;
5) impacting size (including sacrificing many small wetlands for one large wet-
land);
6) increasing regulatory requirements;
7)potential losses of wetland since enforcement in mitigation banks hgis been poor
or lacking;
8) potential losses due to lack of long-term funding. Many projects lack provisions
for management and funding in perpetuity; can guaranteed, long-term funding
be provided and who will be responsible for long term management?
The Committee believes that wildlife scientists and managers must initiate a pro-
active approach to mitigation and mitigation banking and develop guidelines for
mitigation and mitigation banks that will respond to the needs of developers and
accomplish a net gain in wetland resources. Developing and promoting a program/
policy to enhance the positive resource aspects of banking while reducing the nega-
tive we an impacts and improving regulatory conditions for developers could become
a win-win situation. However, the policy must increase wetland form and functional
values and concurrently reduce and standardize regulatory requirements. The Insti-
tute of Water Resources Survey currently underway is likely to provide additional
information in the near future. However, in the interim, the mitigation banking
policy should include:
1) recognition that the b£isic precepts of mitigation banking are:
— economic and development driven
— permit driven
— not altruistic
must deal with areal scale
— ownership (covenant codes £ind restrictions)
— administration
— continuity
2) national guidelines smd oversight as part of a national wetland policy;
3) regional modifications/specifics;
4) state or regional level decision making and implementation;
5) administration by joint private/state/federal consortia established for that spe-
cific purpose. Mitigation banks must be established and managed by cooperative
agreements among various organizations and not necessarily controlled by gov-
ernment. COE and EPA are unlikely to actually manage banks, but will only
regulate them. On the other hand, many existing private organizations could
provide long-term management and new consortia of private and governmental
organizations could be established for the specific purpose of providing funding
and management in perpetuity. We must develop means to provide for perma-
nent protection and management of wetlands in any mitigation bank;
6) compensatory mitigation should include ecological equivalency as a specific goal
including replacement/increase of form and functions;
7) compensatory mitigation should include landscape, watershed and bydro/bio/
geographical evaluations;
8) general guidelines on within-kind vs out-of-kind, within-site vs off-site, near- or
far-site, in- or out-of biotic/hydro/geographic region that are designed to in-
crease the acreages, form and functional values of wetland that will be refined
at state or regional levels;
1389
9) establishment of escrow/trust funds or other means to ensure funding for full
implementation and long term management; funding of the mitigation bank
must not be susceptible to company failure/bankruptcy or reorganization;
10) improved methods/means to provide, record and monitor mitigation credits,
including guidelines for third party brokering of mitigation credits;
11) less regulatory attention to the permit that leads to a decision of "yes, you
may develop this wet following mitigation stipulations," and more followup on
what was actually done. Federal agencies have done a very poor job of monitor-
ing wetland permit compliance once the permit was grant.
12) reduced regulatory requirements to improve opportunities for net gain to wet-
lands and wetland resources.
13) requirements for incorporation of wetland science with careful, conscientious
planning and construction for any mitigation projects to reduce the amount of
poor planning and execution.
14) requirements that mitigation is in place and functioning, concurrent or a
priori other aspects of the project. Current regulations are largely tied to the
same time line as the developer's project. Regulations must have the flexibility
to allow for accumulation of mitigation credits in banks prior to and/or concur-
rent with loss of the natural wetland. In to many instances, developer's cash
flow problems have caused mitigation failures. In other cases, a priori mitiga-
tion may be necessary to insure that mitigation projects will succeed before the
development is initiated.
15) guidelines on locations, tjT)e, size and establishment of mitigation banks in-
cluding how acreages/form/function are established/accepted in the banks;
16) clear, quantifiable goals must be set for each of the mitigation banks; goals
that have measurable outputs.
17) each mitigation bank plan and program must contain a monitoring and eval-
uation plan and funding to achieve that plan.
18) application of mitigation banking credits must be such that credits are not
transferable from one project to another without adequate evaluation by quali-
fied professionals. This seems to be occurring in the Upper Yazoo Basin Restudy
Effort by the COE. Apparently, the COE has indicated that they have "over
mitigated" in the Upper Steele Bayou project (located in the Mississippi Delta)
by some 12% and plan to move these "excess" credits to the Upper Yazoo
project (also Mississippi Delta) for mitigation application. While this may result
in acceptable mitigation in these two comparable drainages, the practice cer-
tainly requires scrutiny.
19) recognition that education is an important goal of mitigation not only for the
public but for specific user groups and resource managers. Also recognition that
wetlands are not only important in terms of wildlife but for many other func-
tional values.
Present regulations, in some instances, may contravene society's goals to protect
and restore wetlands and current wetland regulations need to have more latitude to
encourage and support wetland restoration/creation projects by various organiza-
tions. Increased regulatory flexibility must include pro-active acqiiisition and long-
term memagement if compensatory mitigation and mitigation banking are to protect
and restore our Nation's wetland resources.
An example of an active mitigation bemking scheme — North Dakota's no net loss
of wetland law — is described in Appendix B.
CATEGORIZATION
Classification and categorization are useful tools in ordering chaos whether the
subjects are insects, stamps, job descriptions or wetlands. Wetlands classification is
generally understood to represent groupings of wetlands based on their hydrologic,
biologic and edaphic characteristics without any attempt to include a value judg-
ment on one group or another. Categorization, however, implies grouping wetlands
based on some form of assigned value regime.
Valuation or determining/ assigning values by nature must include by whom, for
whom, and for what purpose. The value of something is determined by society and
is not an inherent characteristic, i.e., flood alteration function of a specific wetland
could have significant value to a downstream community yet lack any value to an
upstream community. Value has socioeconomic implications that go far beyond an
assessment of presence or absence or even quantitative measurements. Valuation Is
also a function of time in that society's values change, and therefore the very same
wetland could have a very different perceived value in the same society at a differ-
ent point in time.
1390
The Committee recognizes the importance of evaluation of natural resources as an
important basis for making decisions concerning land use. Mapping and scientific
assessment of soils and forest stands has long been recognized as essential to pru-
dent management of agricultural and forest resources. Wetlands resources likewise
must have a similar level of assessment and hasty legislation to lump wetlands into
categories without a sound science base will put health, safety and welfare at un-
warranted risk.
We regularly put wetlands and other resources in different categories for maneige-
ment and protection without reducing the effectiveness of management programs.
EPA makes advance designation of wetlands under the 404 program, the FIVS desig-
nates wetlands for the RAMSAR list of Wetlands of International Importance and
has identified high priority wetlands for each region of the count. Biosphere Re-
serves and Natural Heritage Sites are other well recognized categories that do not
reduce the value of the basic resource.
The Committee also recognizes that wetlands regulatory agencies are already en-
gaged in wetland valuation as they decide what level of review is necessary when
permits are filed. Some permits receive a desk review and others require costly field
data and expert consultants. However, in many cases, the basis for this decision is
not clear, interpretable or available to the permit applicant in
Some agencies make these assessments in advance of the permit process. COE and
EPA make advance designations to advise the public that certain wetland complex-
es will require more rigorous review. New Hampshire and Connecticut have adopted
manuals to guide in identifying prime wetland that will require higher levels of
review.
A key element of current categorization proposals must be a means of evaluating
wetlands to determine the appropriate category for each individual wetland. The
Committee is familiar with widely used evaluation methods (WET, HEP, etc.) most
of which are technical assessment tools, see Appendix C. We do not believe that any
existing evaluation regime is adequate to measure the true value of each function
performed by the mjrriad of t3rpes of natural wetlands in the U.S. Consequently, any
attempt to evaluate and subsequently categorize natural wetlands with existing
methodologies for the purposes of determining those with lesser values, would result
in irretrievable harm to the Nation's wetland and wildlife resources. Unfortunately,
at the present state of the art, evaluation is still largely subjective based on cursory
examination or it requires detailed and costly investigations that attempt to charac-
terize the form and function of an individual wetland system. In too many cases,
cursory evaluations are highly dependent upon a few highly regarded functional
values, with little avenue for encompassing the sum of the myriad functional values
from even a small isolated wetland much less larger and/or multiple wetland units
within hydro/bio/geographical units. Consequently, present valuation methods are
likely to underestimate the value of even the highest priority wetland and could not
hope to produce a realistic value for lesser wetland systems. The latter would likely
include smaller systems, isolated/disjunct systems, disturbed or degraded systems,
drierend wetlands or transitional zones of wetlands, and ephemeral wetlands. Many
of these could have significant but unmeasured functional values.
With a few exceptions, we lack quantitative data on many functions in most im-
portant types of natural wetlands. The exceptions (mostly in fresh or salt water
marshes) include components of the life support function, i.e., production of avian
and mammalian fauna, finfish, shellfish, a few instances of plant products and iso-
lated cases of water purification. For the vast majority of wetlands and even for
most different types of wetland, we lack quantitative information even on the bio-
logic productivity, much less adequate, comparable information on other important
functional values.
Historically wetlands were grossly undervalued but later, a few waterfowl hunters
led efforts to protect and preserve certain types of wetlands. Recently, other life
support functions along with hydrologic buffering and water quality improvement,
have been identified as significant values. Major segments of society now place high
value on wetlands and government policy is to protect rather than destroy our re-
maining wetlands. A complete reversal in society's valuation of wetlands has oc-
curred in less than 60 years. In fact, the most significant change took place within
the last 20 years. Who can estimate the functional values of wetlands to society or
society's attitudes, in the 21st century? If valuation schemes are employed to catego-
rize wetlands with certain categories subsequently receiving little or no protection,
evaluators must have the ability to estimate future values as well as adequately
assess present values of existing wetlands. Lacking an estimate or assumption of
future values, evaluators could easily under-rate a significant portion of our existing
wetland resources, resulting in che loss of that segment before it has been evaluated
1391
(valued) under the standards of a future society. It does not appear likely that a
significant new category of functional value would emerge from future investiga-
tions but it would not be surprising to discover additional functions and values or a
complete reordering of priorities with further understanding of "low" value wetland
systems.
Furthermore evaluation of a wetland is inevitably related to time of year and age
of system. Wetlands are djmamic ecosystems undergoing considerable seasonal and
annual chsmge as well as progressive change over time, as the wetland system ages.
Time, techniques and location of data collection can have substantial impact on the
result of a one-time evaluation.
While wetland science is limited in its ability to provide quick and inexpensive
methods of quantifying all wetland functions, some means to predict wetland func-
tions are available and being improved. The general functions of wetlands within
regions of the U.S. And within local landscapes, i.e., bottomland hardwoods, estu-
aries, are well known. There is no longer any excuse for development, agricultural,
forestry, transportation and other land use programs to fail to use current knowl-
edge and assessment techniques to identify potential consequences of wetland loss
with the intent of avoiding wetland and reducing impacts to those that, based on
public values, are unavoidable. The Committee concludes that much of the past and
current loss of wetlands, and the current controversy in legislative circles, is exacer-
bated by single-sector, land-use decisions that have not made use of available infor-
mation on wetland functions and assessment techniques.
Project siting is a critical element in assessment of wetland functions. Placing
monetary values on wetlands requires an economic assessment that is sensitive to
the land values and economy of the locale within which the project is located. We
are aware of the potential costs of assessing the functions of individual wetlands;
however, it is also clear that careful and costly study of watersheds is a pre-requi-
site to designing flood protection programs. Farming practices are guided by profes-
sioneil surveys of regional and individual farm soil conditions. Forest management
plans are based on detailed studies of stand composition, volume and growth. Wet-
lands must be included in similarly comprehensive watershed planning.
To the extent that wetlands are providing important functions in maintaining
water quality, reducing flood damage and conserving biological diversity, their man-
agement requires an appropriate public investment in data collection and functional
assessment. Costs for these efforts can be contained if the functions of wetlands
were given due consideration and incorporated in the course of current and future
publicly funded flood control, water quality, soil and forest survey and natural her-
itage programs. Part of the reason that the nation has experienced massive loss of
wetlands is that their functions and limitations have been poorly understood by en-
gineers and agricultural land managers.
Those who would develop or drain wetlands search for a simple value system that
requires no biological expertise and limited data collection or technical review. The
Committee is concerned that some categorization proposals would allow for categori-
zation by non-wetland professionals, i.e., developers or engineers. We do not believe
that other disciplines are competent to evaluate wetlands or we an national values
and at this stage in the development of the science, we are opposed to those efforts.
The Committee advocates expanded use of planning level assessment by state and
federal agencies for the purpose of:
a. Improving and standardizing application of current knowledge that is applica-
ble to wetland evaluation;
b. Encouraging a multidisciplinary approach to wetlemd evaluation;
c. Encouraging a systems approach to wetland evaluation;
d. Improving agency consistency in the wetland permit review process, and
e. Providing advance warning to the regulated community of wetland areas that
will require more than a basic level of review.
The Committee is concerned that certain proposals for categorization for regula-
tory protection purposes do not distinguish among the several functions of wetlands,
and lump values, such as flood control and wildlife habitat that have different bio-
logical and physical bases, into a few simple "value classes. Schemes to put wetlands
into nation-wide value classes without providing for any process to distinguish be-
tween regional differences are similarly suspect. In addition, some categorization
proposals appear to have a strong element of triage, i.e., if wetlands were assigned
to high (Type A), medium (Type B) and low value (Type C) categories, the Commit-
tee is concerned that wetlands in the low value category would receive less protec-
tion than they currently are provided. Low value wetlands could easily fall under a
nationwide permit, allowing development and subsequent loss of these so-called low
value wetlands when in fact, their value is largely unknown.
1392
Finally, the Committee recommends that high priority be given to funding re-
search to develop improved techniques and methodologies to quantify the functional
values of wetlands and effects of wetland alterations. This research should develop
an objective, quantitative, sound evaluation process that can be coupled with the
National Wetlands Inventory and should be accomplished by joint private, state and
federal action. Similar research is urgently needed to improve inadequate methods
to create compensatory wetlands that provide all of the identified wetland functions.
Literature Cited
Adamus, P.R., L.T. Stockwell, E.J. Clairain, Jr., M.E. Mortow, L.P. Ro2as, and
R.D. Smith. 1991. Wetlands Evaluation Technique (WET); Volume I: Literature
review and evaluation rationale. U.S. Army Corps of Engineers, Waterways Experi-
ment Station. Tech. Rep. WRP-DE-2. Nat. Tech. Info. Serv., Springfield, VA 22161.
Adamus, P.R., E.J. Clairain, Jr., R.D. Smith, and R.E. Young. 1987. Wetlands
Evaluation Technique (WET); Volume II: Methodology. Operational Draft Tech. Rep.
Y-87. U.S. Army Corps of Engineers, Waterways Experiment Station, Vicksburg,
MS.
Dahl, T.E. And C.E. Johnson. 1990. Status and Trends of Wetlands in the Conter-
minous United States, 1970's to 1980's. U.S. Department of the Interior, Fish and
Wildlife Service, Washington, D.C. 21 pp.
Erwin, K.L. 1991. An Evaluation of Wetland Mitigation in the South Florida
Water Management District, Vol. 1. S. FL. Water Management District, West Palm
Beach, FL.
Faulkner, S.P., and C.J. Richardson. 1989. Physical and Chemical Characteristics
of Freshwater Wetlands Soils. In D.A. Hammer (ed.) Constructed Wetlands for
Wastewater Treatment — Municipal, Industrial, Agricultural. 821 p. Lewis Publish-
ers, Inc., Chelsea, MI.
Feierabend, J. Scott. 1989. Wetlands: The Lifeblood of Wildlife. In D.A. Hammer
(ed.) Constructed Wetlands for Wastewater Treatment — Municipal, Industrial, Agri-
cultural. 821 p. Lewis Publishers, Inc., Chelsea, MI.
Gosselink, J.G. And R.E. Turner. 1978. The Role of Hydrology in Freshwater Eco-
systems. In Good, R.E., D.F. Whigham and R.L. Simpson (eds.) Freshwater Wetlands
Ecological Processes and Management Potential. 378 p. Academic Press, Inc., N.Y.
Hammer, D.A. 1991. Creating Freshwater Wetlands. 256 p. Lewis Publishers, Inc.,
Chelsea, MI.
Landin, M.C. 1992. Achieving Success in Wetland Restoration, Protection, and
Creation Projects. Pres. Fourth Internationgil Wetlands Conference INTERCOL IV,
Columbus, Ohio, Sept. 1992.
Larson, J.S. 1991. The Future of U. S. Wetlands. Forum for Applied Research and
Public Policy Vol 6(1): 66-72.
Larson, J.S. 1992. Is "No Net Loss" a Useful Concept for Wetland Conservation?
Pres. Intn'l Waterfowl & Wetlands Res. Bur., St. Petersburg, FL. 12-19 Nov. 1992.
Ray, C. Washington Perspectives on Wetlands Mitigation Banking.
Shabman, L., P. Riexinger and T. Brown. 1993. Clarifying Classification. National
Wetlands Newsletter. Jan/Feb 1993.
U.S. Army Engineer Institute for Water Resources. 1992. Preliminary Report on
Mitigation Banks in the United States. Fort Belvoir, VA.
APPENDIX A LEGISLATIVE HISTORY OF WETLANDS PROJECTION IN THE
UNITED STATES
Legislation
The Water Pollution Control Act of 1948 (PL 80-845) was the first comprehensive
statement of federal interest in clean water programs. PL 80-845 was also the first
statute to provide state and local governments with some of the funds needed to
solve their water pollution problems.
There were no federally required goals, objectives, limits, or even guidelines.
There were no mandatory indicators of whether pollution was indeed occurring.
Nevertheless, the U.S. Surgeon General was charged with developing comprehensive
programs to eliminate or reduce the pollution of interstate waters.
During the latter half of the 1950's and well into the 1960's, water pollution con-
trol programs were shaped by four statutes: the Federal Water Pollution Control
Act of 1956 (PL 84-60); the 1961 amendments to that Act (PL 87-88); the Water Qual-
ity Act of 1965 (PL 89-234); and the Clean Water Restoration Act of 1966 (PL 89-753).
All of these statutes dealt largely with federal assistance to municipal discharges
and with federal enforcement programs for all discharges.
1393
Water quality standards become a prominent feature of the law with the passage
of PL 89-234, the Water Quality Act of 1965. That law created the Federal Water
Pollution (Control Administration (FWPCA) and required the development of state
water quality standards for interstate waters.
In 1963, Massachusetts enacted a permit-based wetland regulation program, fol-
lowed by Rhode Island, Connecticut and several other northeastern states.
The Federal Water Pollution Control Act Amendments of 1972 — as the Clean
Water Act is officially titled — was enacted October 18, 1972. It was the 500th public
law passed by the 92nd Congress, hence its short title, PL 92-500. Local, state, and
national water quality programs since 1972 have been more firmly shaped by the
assumptions in PL 92-500 than by any other law. In more ways than most people
realize, Congress changed "business as usual" when it passed PL 92-500. The statute
has been amended 12 times since 1972.
The 1972 Federal Water Pollution Control Act Amendments added the section 402
National Pollution Discharge Elimination System (NPDES) permit program, 33
U.S.C. 1344 (1988), to eliminate water quality problems by regulating the discharge
of pollutants to the nation's waters.
The Coastal Zone Management Act of 1972, 16 U.S.C. 1451, (1972), requires appli-
cants to obtain certification from the relevant state coastal resources agency that a
permitted activity complies with the state's coastal zone management program. The
state's program must be approved by the Commerce Department.
The Water Quality Act of 1987, emphasized technology-based standards for indus-
trial dischargers; enhanced enforcement authority with increased civil, criminal,
and administrative penalties; and recognized the criticsd pollution problems of non-
point sources.
The federal government has adopted a number of policies aimed at reducing the
direct effects of its activities on wetlands. Relevant authorities include the National
Environmental Policy Act (NEPA), the Fish and Wildlife Coordination Act, Execu-
tive Order 11990 on the Protection of Wetlands, and the Water Resources Develop-
ment Act of 1986, which includes requirements for mitigation of adverse effects on
wetlands. In some coastal areas, the Coastal Barriers Resources Act (CBR), which
m^es new development projects in designated areas ineligible for most federally fi-
nanced assistance pr<^ams, is also important.
The Tax Reform Act of 1986 eliminated most of the special tax advantages that
accrued to farmers and developers for new investments, particularly in wetland
areas. The Food Security Act of 1985 included a "swampbuster" provision that
makes farmers ineligible for agricultural income-support programs if they convert
wetlands and plant commodity crops on them. The Coastal Barriers Resources Act
of 1982 withdrew all federal subsides for development on designated coastal barrier
islands and beaches, where wetlands are a critical feature of the environment.
In 1986, the Congress enacted the Emergency Wetlands Resources Act to promote
the conservation of our nation's wetland in order to maintain the public benefits
they provide, as well as help fulfill international obligations contained in various
migratory bird treaties and conventions. The intent was to protect, manage, and
conserve wetlands by intensifying cooperative and acquisition efforts among private
interests and local, state, and federal governments.
Regulation
The Clean Water Act (CWA) section 404 permit program regulates the discharge
of dredged or fill material into "navigable waters of the United States, which in-
cludes adjacent wetlands. 33 U.S.C. 1344 (1972). The program is jointly administered
and enforced by the U.S. Army Corps of Engineers (Corps) and the United States
Environmental Protection Agency (EPA). The Corps has the primary permit issu-
ance authority. The CWA authorizes the Corps to issue individual and general per-
mits.
The individual permit process under section 404(a) requires the Corps to apply a
broad-based "pubic interest" review test. This test balances a variety of factors
ranging from economic to energy considerations. The Corps must also ensure that
the permit complies with EPA's detailed environmental criteria — the section
404(bXl) guidelines. 40 C.F.R. 230 (1991).
Section 404(bXl) of the CWA requires the EPA to establish guidelines that specify
where and under what conditions dredged or fill material can be discharge lawful.
33 U.S.C. 1344(bXl). The practical alternatives test is one component of the section
404(bXl) guidelines.
The practical alternatives test prohibits the discharge of dredged or fill materials
to waters of the United States, including wetlands, if there is a "practicable alterna-
tive to the proposed discharge that would have less adverse impact on the aquatic
1394
ecosystem, provided that the alternative does not have other, more adverse environ-
mental impacts." 40 C.F.R. 230.10(a) (1991).
Under section 404(c), Congress granted EPA the right to veto Corps permit actions
if the discharge would result in "unacceptable" adverse effects on municipal water
supplies, shellfish, fishing areas, wildlife or recreation areas.
The second avenue for approval of discharges is authorized by section 404(e). 33
U.S.C. 1344(e) (1972). Here, a propos discharge may fall under one of thirty-six gen-
eral permits.
The federal wetland delineation manual is the Corps' primary resource in making
wetland determinations. In the 1992 Energy and Water Development Appropria-
tions Act, congress mandated that the Corps use the 1987 manual pending resolu-
tion of the proposed changes to the 1989 manual. Pub. L. No. 102-104, 105 Stat 511
(1991).
MOAs/Executives Orders
Memorandum of Agreement (MOA) Between the Department of Army and the
Environmental Protection Agency CJoncerning Federal Enforcement for the section
404 program of the Clean Water Act (Jan. 19, 1989) (1989). Under this accord, the
Corps retains primary responsibility for matters of jurisdiction, that is, determining
whether wetland regulations apply.
The 1990 Memorandum of Agreement (MOA) on mitigation between the Army
Corps of Engineers (Corps) and the Environmental Protection Agency (EPA) provid-
ed new guidance for wetland mitigation 55 Fed. Reg. 9210 (1990).
The MOA is the first joint guidance issued. It is used by the Corps and EPA to
determine the type and level of mitigation necessary for compliance with the guide-
lines.
The MOA gives wetland a higher priority than other aquatic areas. The Corps
agreed that, as to wetland, it will seek to achieve a goal of no overall net loss of
values and functions.
In one of the most significant sections of the MOA, it adopted the CouncU on En-
vironmental Quality's (CEQ) definition of mitigation, 40 C.F.R. 1508.20 (1991), which
is avoiding, minimizing, and rectifying impacts; reducing impacts over time, and
compensating for impacts, summarized in the MOA as avoidance, minimization, and
compensatory mitigation. The MOA then went further than CEQ by requiring that
mitigation measures be applied in the sequence set forth in the CEQ regulation.
Executive Order No. 11990, titled, "Protection of Wetlands," although not apply-
ing to private work done under federal permit with no federal funding or assistance,
does direct that each agency shall take action "to minimize the destruction, loss or
degradation of wetlands, and to preserve and enhance the natural and beneficial
values of wetlands." It further directs that work conducted or funded by a federal
agency shall "to the extent permitted by law avoid undertaking or providing assist-
ance for new construction located in wetlands unless "there is no practicable alter-
native to such construction" and "the proposed action includes all practicable meas-
ures to minimize harm to wetlands.
Executive Order No. 11988, dealing with protection of floodplains, similarly re-
quires written agency justification for a project proposed to be located in a flood-
plain; a statement indicating whether the action conforms to applicable state or
local floodplain protection standards; and a list of alternatives considered. Unlike
Executive Order No. 11990, this one reaches federal permit issuance as well as other
federal activities.
Agency Policies
EPA
Section 404 authorizes a special permit program to control dredge and fill oper-
ations. It makes the Secretary of the Army responsible for issuing such permits. But
the Secretary and the EPA Administrator are jointly responsible for setting the
guidelines by which permits are to be judged.
EPA's guidelines are often considered the driving force in the Corps permit proc-
ess. These guidelines, which were issued in 1980, state that Ino discharge of dredged
or fill material shall be permitted if there is a practicable alternative to the pro-
posed discharge which would have less adverse impact on the aquatic ecosystem" 40
C.F.R. 230.10(a) (1980). EPA is involved in the 404 permit program in other impor-
tant ways, too. For example, EPA controls what areas can be listed as suitable dis-
posal sites and can prohibit certain materials from being discharged at an approved
site on certain grounds. Permits issued under section 404 expire at the end of five
years.
1395
The land use control trend becomes apparent particularly when reviewing EPA
decisions made pursuant to its section 404(c) authority. To substantiate a veto under
section 404(c), 33 U.S.C. 1344(c) (1988), EPA must find unacceptable adverse effects
on municipal water supplies, shellfish beds and fishery areas, wildlife, or recreation-
al areas.
EPA first published rules implementing section 404(c) on October 9, 1979 — some
seven years after passage of the Act. These rules included reference to a prior set of
section 404(bXl) guidelines, which EPA said set forth not only the criteria for permit
issuance by the Corps, but also "the substantive criteria by which the acceptability
of a proposed discharge is to bejudgedS for purposes of section 404(c). 44 Fed. Reg.
58,076 (1979). Late the following year, EPA published new section 404(bXl) guide-
lines without amending its section 404(c) regulations. 45 Fed. Reg. 85,336 (Dec. 24,
1980).
EPA has since interpreted section 404(c) and these guidelines to provide a smgle
environmental imperative which is applied only after the Corps' "public interest"
review has determined that the project is on balance, socially beneficial.
Under section 309 a of the CWA, the EPA is empowered to issue administrative
orders in response to wetland violations. 33 U.S.C. 1319(a) (1986).
Department of Interior
FWS
The Fish & Wildlife Service recognizes the definition of mitigation provided by
the Council of Environmental Quality that includes a logical sequence of steps: (1)
avoiding the impact, (2) minimizing the impact, (3) rectifying the impact, (4) reduc-
ing or eliminating the impact over time, and (5) compensating for the impact as a
last resort action. Further, the Service's mitigation policy established a concept of
Resource Categories with designation criteria for each category, and mitigation
goals for each category.
COE
The Act gives the Ck)ri)s permitting authority under section 404(a), 33 U.S.C.
1344(a) (1988); with the obligation to consider the criteria promulgated by EPA pur-
suant to section 404(b), 33 U.S.C. 1344(b) (1988).
To comply with the court ruling in NRDS v. Callaway, the Clorps expanded the
jurisdictional reach of the section 404 program from the traditional concept of navi-
gable waters to one consistent with other CWA programs.
Department of Agriculture
SCS
The Soil Conservation Service is charged with delineating wetland under the
swampbuster provision of the Farm Act. They use the 1987 Wetlands Delineation
Manual during this process.
Department of Transportation
The Federal Highway Administration funded the development of the Wetland
Evaluation Technique (WET) in 1982-83. This technique has since been refined and
reissued by the U.S. Army Corps of Engineers (WET II).
State Protection
As detailed above, state wetland relations date from the Massachusetts legislation
of 1963. Today, all coastal states have some form of regulation over alteration of
marine wetlands, and 14 states have a freshwater wetland regulatory program.
Congressional response to the lack of success undersection 208 resulted in the ad-
dition of section 319, the Nonpoint Source Management Program, in 1987.
Under section 319, EPA funding grants encourage the states to voluntarily opt
into the federal program. The states may identify and Inventory nonpoint source
problems affecting their waters, prioritize and develop strategies for addressing
them, but no federal permit progremi is created under section 319.
CWA section 401(a) certification requirement is a power tool for state participa-
tion in CWA section 404 federal permitting of dredge and fill activities in wetland.
The section 401(a) certification requirement is designed to insure that projects re-
quiring a federal permit comply with certain CWA requirements including state
water quality standards.
Few states have promulgated water quality criteria for wetlands. EPA as recom-
mended that states develop water quality criteria for wetlands by using a two-phase
approach. Phase I involves development of water quality standards for wetlands
1396
based upon existing in formation. EPA expects the states to accomplish phase I by
the end of fiscal year 1993. Phase II involves further refinement of the water quality
standards using new science and program developments.
Currently, about 10 states utilize some form of classification system in their regu-
lation of activities affecting wetland.
Under section 401 of the CWA, 33 U.S.C. 1341 (1988), and section 307(cX3) of the
Ck)astal Zone Management Act (CZMA), 16 U.S.C. 1456(c)(3) (1988), Congress has pro-
vided every state ample authority to "veto," or to impose virtually any condition it
wants, in every federal section 404 permit and almost every federal permit under
section 10 of the Rivers and Harbors Act (RHA).
Proposed Legislation
In October 1990, the Comprehensive Wetlands Conservation and Management Act
of 1990 (H.R. 5968) was introduced. The bill, reintroduced as H.R. 1330 on March 7,
1991, would substantially modify the section 404 wetland permit process by estab-
lishing a federal wetland classification program.
Other bills regarding wetland classification and/or protection have been intro-
duced into the House to moderate or offset the thrust of H.R. 1330, for example the
Wetlands No Net Loss Act of 1991, H.R. 251, and the Wetlands Protection and Regu-
lation Reform Act of 1991, H.R. 404.
Two bills have been introduced into the House of Rep representatives this year,
H.R. 350 and H.R. 1330. Both bills address amendments to section 404 of the CWA.
APPENDIX B NORTH DAKOTA'S NO NET LOSS OF WETLANDS LAW
North Dakota is located in the 300,000 sq. mi. Area know as the Prairie Pothole
Region, and it produces one-half of the ducks produced in the lower 48 states in an
average water year. Prairie wetland exist in complexes of various types that are
most easily defined by the degree of permanency of water. Of the estimated original
3 million acres of prairie wetland in the state, about 2 million acres remain.
In 1987, the North Dakota Legislature passed a law commonly referred to as the
No-Net-Loss of Wetlands (NNLW) law. The final bill that was passed by the legisla-
ture was the result of intense negotiations between water development and wildlife
interests in the State, where tradeoffs were made on both sides. Historically, wet-
land laws in North Dakota were permissive to the point of encouraging wetland
drainage for agricultural purposes. Thus, the NNLW law was designed as a means
of restricting wetland drainage to reduce the average annual loss of 20,000 acres per
year. This law is by far the most significant piece of legislation affecting North Da-
kota's wetland ever passed by the State Legislature, and includes a policy which
states, in part, "the legislative assembly therefore concludes that wetlands should
be protected and preserved".
More recently, the law has been closely scrutinized and criticized for being a
"wetland mitigation bemk" with serious flaws by some conservation interests, yet
attempts have been repeatedly made to repeal the law by praHirainage interests
saying the law is too restrictive. The origin intent of the North Dakota law was to
restrict and restrain wetland destruction. The law, as most true compromises, has
areas which can be improved.
To accomplish NNLW, North Dakota law requires acre-for-acre replacement of all
wetlemds drained under permits authorized by the state. A state permit is required
for all wetlands with a drainage area of 80 acres or more (note that is drainage
area, not wetland acres). A statewide wetland banking system is used to track wet-
land losses and replacements within four biogeographical units (biotic gireas) and in-
dividual counties. Only the acreage of restored and created wetland with "material
wildlife values" as determined by the North Dakota Game and Fish Department are
credited to the bank as replacement wetland. This system is used to target replace-
ments so that at least 50 percent of the lost acreage is replaced in the same biotic
area. The law ensures that statewide wetland losses do not exceed replacements by
more than 2500 acres at any one time, and the banking system is divided into tem-
porary and permanent replacements. Only permanent replacements are allowed to
be credited against drainage acres in the bank.
A party draining a wetland under a state drainage permit may replace an equal
wetland acreage at entirely their own expense or busing replacement credits in the
wetland bank with pajmient of 10 percent of the replacement cost. Replacement
costs are calculated by adding the average land value in the biotic area and the esti-
mated construction costs to replace that acreage. The wetland bank cannot be used
if replacements are not available. There is no direct requirement to replace wet-
lands which do not require a state drainage permit (less than 80 acre watershed),
1397
but those acres are registered as losses (debits) in the bank and reduce the available
replacement acres (credits) in the area of drainage.
North Dakota enacted the nation's first no net loss of wetlands legislation in 1987.
The concept embodied in this legislation, and the actual nuts and bolts of the
system, may do more to protect wetlands, and guarantee the existence of a non-de-
creasing wetland base, than any other regulatory approach could possibly hope to
achieve. In fact, the widely accepted Fish and Wildlife estimate of 20,000 acres of
wetland lost per year has been eliminated, and the wetland bank currently shows a
net increase of approximately 500 acres. Swampbuster is probably the main reason
for halting the wetland drainage, but over the long-term, it is the no net loss pro-
gram which will maintain the existing wetland base.
Unlike other regulatory programs. North Dakota's no net loss incorporates flexi-
bility, management and balance. The key points of the program include:
1. Wetland Policy. This is essential, as it is opinions and attitudes which deter-
mine the support and actions of landowners.
2. Drain Permit. Only those wetlands with a watershed area of 80 acres or more
require a state permit.
3. Wetlands Bank. All wetlands, regardless of size, are counted as debits in the
bank if drained, and credits in the bank if restored or created (created wetland
must have material wildlife values).
4. Replacement Requirements. All wetlands drained must be replaced with an
equal acreage of replacement wetland. If a wetland has a watershed area of
more than 80 acres, it must be replaced by the sponsor or landowner, using one
of three options:
a. Replacement on-farm
b. Replacement off-farm arranged by the project sponsor
c. Replacement off-farm through application to the wetland bank.
5. Replacement Costs. The project sponsor, whether individual landowners or
other wise, is required to pay only 10% of the replacement costs if replacement
is satisfied through wetland bank.
6. Debit Limits. The wetland bank cannot carry any more than 2500 acres as
debit.
7. Wetland Replacement Acquisition. This must come from willing sellers, and
cannot interfere with natural waterways or artificial channels.
8. Replacement Tax Payments. This law requires that land placed into federal
ownership to meet replacement requirements must not diminish tax payments
to local governments. Full replacement tax payments must be made.
9. Wetlands Bank. The wetland bank, for record purposes, is divided into four ac-
counts:
a. Government agency account
b. Surface coal mining account
c. Temporary account
d. Permanent account. This account is for permanent credits and debits
which comprise the true, usable bank balance.
10. Location of Replacement Wetlands. The replacement of wetland must come
from the following areas:
a. Same or surrounding counties — 50%
b. Statewide— 50%
c. If not avedlable from same county or surrounding counties, replacement
wetland can come from same biotic area
11. Administration. The no net loss program is jointly administered by the State
Engineer and the Game and Fish Director, to guarantee an equal balance of
management and decisionmaking. All permits must have joint approval.
12. Flexibility and Management. The no net loss program requires that the exist-
ing wetland base be maintained, but allows flexibility and management.
The North Dakota no net loss of wetlands law, being the first ever developed, is
certainly subject to improvement and refinement. The results achieved to date are
remarkable. The support and approval of the state (Governor and State agencies)
and local governments cannot be under-estimated for those who are seriously inter-
ested in protecting wetlands.
When these laws were developed, it was recognized that acre-for-acre replacement
is a less than perfect method for conserving wetlands because it risks the loss of
wetland values. An ecological equivalency method of replacement is obviously an
ideal, though may be impossible due to lack of knowledge in some areas of wetland
functions. It was also recognized, however, that a value based system such as in-
1398
kind replacement on a project-by-project basis would place unworkable demands on
state agencies and individuals, and inherently lacks the flexibility to be acceptable
and workable to North Dakota. There may also be an under-reporting occurring of
wetlands that have a watershed less than 80 acres that don't require a permit, but
may be placed as a debit in the bank. Also, a recent review by the Ck)rps of Engi-
neers of the North Dakota wetland bank found that replacement credits weren't oc-
curring in the biotic area of loss as desired.
Another topic of concern is that state and federal agency wetland restorations, as
required by state law, are recorded as credits in the wetland bank. Some people con-
clude that state and federal agencies are restoring wetland in order to facilitate wet-
land drainage in other areas. A true mitigation bank would require those needing
the mitigation credits to pay for them in entirety.
In summary, the no-net-loss of wetlands law for North Dakota was heralded by
many conservation interests as a landmark in wetland protection for the state. Pro-
ponents of this legislation point out that the law needs refinement and improve-
ment over time, but believe that this type of system can lead to balanced water
management in prairie states.
OPERATION OF THE NORTH DAKOTA WETLANDS BANK
The Wetlands Bank in its most limited definition is simply the accounting system
that records acreages of wetlands drained and wetlands created in North Dakota,
pursuant to Chapter 61, NDCC. The accounting system maintains a net balance of
wetland acres for each county, within contiguous counties, within each of the four
biotic areas of the state, and statewide.
Operation of the Wetlands Bank is governed by a number of definitions and rules
relative to how wetland acreages are determined, what is credited and what is deb-
ited, how the cost of replacement acreages are determined, and other functions nec-
essary to maintain these wetland acreage accounts.
In operation, the Wetlands Bank is actually the system which performs the many
functions necessary to monitor wetland drainage and replacements and ensures that
there is essentially no net loss of wetland acres within North Dakota by maintain-
ing a net balance above the established 2,500 acre deficit limit. By monitoring wet-
land acreage changes within individual counties, contiguous counties, and biotic
areas, the Wetlands Bank also serves to target replacement efforts and ensure that
50 percent of the replacement acreage is located in the area of drainage.
Because of the nearly infinite variety of wetland drainage and replacement
projects which the Bank must handle, the operational rules must be flexibly inter-
preted and applied. Judgments and determinations necessary to implement these
rules and operate the Bank are jointly made by the state engineer and the Game
and Fish Director. An interagency evaluation team comprised of one person from
the state engineer's office and one from the North Dakota Game and Fish Depart-
ment handle day-today debiting and crediting operations. If the team cannot reach
agreement, then the state engineer and Director directly resolve the matter.
Credits to the Bank are made for all acreages of restored wetland and for acre-
ages of manmade wetland that are determined by the commissioner and state engi-
neer to have "material wildlife values". Guidelines for determining whether a man-
made wetland has (or will have) material wildlife value requires the evaluation
team to consider soil types, water depth and permanence, adjacent land use, the
likelihood that desirable wetland vegetation will become established, the potential
for wildlife use, and other factors pertinent to the wetland under consideration. In
essence, the determination is the evaluation team's judgment that the man-made
wetland will provide habitat comparable to a natural wetland in good condition. The
evaluation team may determine that only a portion of a man-made wetland has ma-
terial wildlife value and limit credits to that acreage.
Debits are made for all wetland acres drained. Although only drainage of wet-
lands with 80 acres or greater watersheds requires a state permit and is, therefore,
easily tracked and accounted in the Bank, drainage of smaller wetlands is also sub-
ject to debiting.
Exceptions to the above credit and debit rules are made for wetlands replaced as
required mitigation for federal projects, wetlands involved in active mining oper-
ations, and wetlands that are or may be only temporarily restored such as those
under the Conservation Reserve Program. Separate accounts are kept for wetlands
involved in mining operations and temporary restoration programs. These accounts
will be reconciled and incorporated into the permanent banlang system upon com-
pletion of the mining operation or a finalization of temporary wetland restoration
programs.
1399
The acreage of any wetlands which are drained or created is determined by the
spring water level in years with typical amounts and rates of runoff during periods
judged to be of normal precipitation. Aerial photographs, meteorological data, soil
surveys National Wetland Inventory maps, and watershed size, wetland basin size
and watershed yield calculations, plus any other enlightening information may be
used to arrive at the most accurate acreage determination possible.
Under North Dakota wetlands law, only projects that either store more than 12 Vz
acre feet of water or drain wetland with greater than 80 acre watersheds require
permits from the state engineer. All wetland drainage and wetland creations are,
however, eligible for debiting and crediting to the Wetlands Bank. An additional
function of the wetlands banking system is, therefore, to coordinate directly with
the many pubhc and private entities involved in small wetland projects to create a
timely and efficient reporting network that allows debiting and crediting of unper-
mitted wetland drednage and development.
In both debiting and crediting operations, the state engineer's office assumes pri-
mary responsibility for developing technical information on water volumes, acre-
ages, and depths. The Game and Fish Depsirtment is principally responsible for
identifying the ecological Limits of wetland and determining acreages with material
wildlife vedues. With experience, members of the interagency evaluation team
become well acquainted with technical £ispects of determinations made by both
agencies and the basis for judgments made by each. This results in some ability for
critical review, productive discussion, and problem resolution by the team beyond
what may be initially apparent.
Day to day operation of the Wetland Bank can perhaps be better understood by
considering typical credit and debit situations and the major complexities associated
with each.
Wetland Credits:
In credit determinations, the major challenge for the evaluation team is to agree
on the size of the wetland that will be created and the acreage of the created wet-
land that will have material wildlife value. In other words, to determine the size of
the credit that should be made to the Bank.
For projects requiring permits, the application received by the state engineer gen-
erally contains sufficient information relative to watershed and basic characteris-
tics, the proposed water retention structure, and any proposed operational features
or water management purposes so that the size and general characteristics of the
wetland to be created can be reasonably determined. IF aU regulatory requirements
external to the Wetlands Bank are met, a permit to construct is issued and all avail-
able project information is submitted to the interagency evaluation team's repre-
sentative at the state engineer's office. Information relative to credit projects that
do not require permits is submitted directly to the evaluation team at the state en-
gineer's office.
A preliminary determination as to the amount of credit is made by the state engi-
neer^ office, a standardized wetland evaluation form is completed and this form
along with other relevant project and watershed information is forwarded to the
North Dakota Game and Fish Department of review and concurrence. If there is
dis£igreement, the evaluation team representatives meet and attempt to resolve dif-
ferences.
Upon agreement of both agencies, the Wetlands Bank eveduation form is co-
signed, the credit acreage is entered into the proper account, and copies of the eval-
uation form are permanently filed at the state engineer's office.
Projects that attempt to restore natural wetland at or near their original water
level through a simple ditch block are the most common credit project and are gen-
erally quite easy to agree on. Projects that involve increasing the size of an existing
natural wetland and those which utilize mechanical structures to p2u^;ially restore a
basin or manipxilate water levels for wetland enhancement or other water manage-
ment purposes are more problematic. Determining a proper credit acreage for such
projects is done case-by-case and often involves professional judgment to reach "best
guess as to the acreage that has material wildlife value and will be credited to the
Bank.
Cases involving credits for man-made wetland are so veuiable that it is difficult to
discuss a typical situation. Varying from easUy evaluated small, shallow dams smd
stock ponds to very complex, large multipurpose reservoirs, each project must be
considered separately, if not uniquely, by the evaluation team. Thus far few niles
for crediting man-made projects have been developed. In general, full acreage credit
is given for most small (less than 5 acres), shallow (less than 6' maximum water
depth) man-made wetland that meet other regulatory guidelines for determining
69-677 0-94-45
1400
material wildlife value. For larger impoundments, only acreages covered by water
less than 3 feet deep are considered for credit; again, pending application of other
regulatory guidelines for determining materitd wildlife value.
Undoubtedly, with more experience, additional methods, and guidelines for credit-
ing manmade wetland will be established. For the present, the evaluation te£un is
very conservatively crediting man-made wetland to attempt to give credit for only
those acreages which clearly provide material wildlife values.
Wetland Debits:
Debits to the Bank are similarly processed, but generally less problematic. In the
C£kse of debits, the team must first reach agreement on the acreage to be drained
and then check the statewide account to determine whether or not the 2,500 acre
debit limit will be exceeded. If the debit limit would be exceeded, a drainage permit
cannot be issued and no debit is made. Projects not requiring permits are not sub-
ject to the 2,500 ace limit, but are debited to appropriate accounts.
In order to debit the Bcmk, the party proposing the drainage must agree to pay 10
percent of the cost of replacement. A final function of the debiting operations of the
Wetlands Bank is, therefore, to determine wetland replacement costs.
Wetland replacement costs are annually determined for each of the four biotic
fireas. These costs are a composite of the average land value in each biotic area plus
a statewide average construction cost for wetland restoration projects. These per
acre costs are jointly determined by the commissioner and state engineer based on
land values annufdly published by North Deikota State University and actual con-
struction costs obtained from the U.S. Fish and Wildlife Service, Ducks Unlimit, and
others involved in wetland restorations and developments.
Although debits are generally less problematic to process, determination of the
acreage of a wetlemd to be drained is not always as simple as it may sound £md cer-
tainly not immune from debate or external criticism. The potential for disagree-
ment over debit wetland acreage determinations arises largely because of the 10
percent replacement cost^share that is required of the party desiring to drain. This
cost is a per acre figure within each biotic area of the state and so obviously the
larger the debit determination (wetland size), the greater the amount pay able. The
highly variable and often difficult to determine boundaries of many wetlands offers
considerable room for debate and criticism. As outlines in Section 81-02-03-11 of the
draintkge rules, the evaluation team is required to consider virtually all available
information in determining wetland acreages. The final determination may be ar-
rived at as a compromise or "best guess" of the team.
APPEISfDIX C HABITAT EVALUATION TECHNIQUES
Several approaches to wetland evaluation for v£u-ious community functions are in
use, the Habitat Evaluation Procedure (HEP) of the Fish & Wildlife Service, the
Corps of Engineer's Wetland ESvaluation Technique (WET), and a less widely known,
community-oriented, Guild Matrix Analysis (GMA). The three differ markedly in ap-
proach and merits. Although all include habitat assessment, they do so in quite dif-
ferent levels and for different reasons. Accuracy of aU systems is reduced by mini-
m£il data bases, but different goals may be more important than precision.
The Habitat Evaluation Procedure (HEP) is wildlife species-oriented (Flood et al.
1977), although several species have been pooled in some studies to provide an as-
semblage or community-level treatment. The key feature of this analysis is the
Habitat Suitability Index (HSI with a maximum value of 1.0) based on the best-
available-data on habitat use by a particular species. This index is calculated for a
specific area and is multiplied by acreage to produce Habitat Units (HU). The logic
of the calculation is that habitat lost or replaced should be estimated on the basis of
quality rather than acreage. Thus, the technique can be applied to two areas for
current comparison or to a before-and-after setting to measure loss (as in habitat
damage) or improvement (as in restoration projects). It is limited by the fact that
HSI models are not available for all species or areas, and often are based on few
variables and minimal data.
WET is a broader system used to estimate all wetland functions, using a rating of
high, moderate or low, and including functions such as hydrology, water purifica-
tion, food production and export, fish and wildlife habitat, and values such as es-
thetic, historic and passive recreation (Adamus, et al. 1987). A major advantage is
that of a landscape approach which considers topography, wetland connectivity, and
other geomorphic ptirameters. Although WET uses waterfowl and waders as biologi-
cal in^cators, groups rather than species are assessed, and habitat associations £U'e
1401
not very specific. Moreover, rare species are immediate "red flags" that outweigh
other considerations.
Partly a an outgrowth of attempting to broaden HEP to assemblages or communi-
ties rather than species, Short & Burnham (1982) devised a guild analysis using a
resource matrix for bird species. As a commvmity or habitat-oriented approach,
GMA allows eissessment at various scales, and attempts to assess habitat resource
availability in relation to behavioral characteristics of the guilds that limit them to
certain habitats. The overall advantage is that it deals with large- and mid-scale
issues using simple measures like presence and absence, meaning that general infor-
mation can be used when detailed data are not available. Additionally, the scale can
be modified to more detailed habitat units or by species selection, but the focus re-
mains on availability of habitat resources such as food, nest-sites, rest areas, etc. for
a guild of species rather than on detailed knowledge of a single species or taxonomic
group banking),or to assess quality of a replacement wetland. Greater precision is
required to measure enhancements than to measure restoration success (because
they tend to improve habitat less dramatically than those actions that start from
near-zero), which itself is more demanding than measuring the success of wetland
creation. Hence, different goals demand different levels of precision.
References
Adamus, P.R., E.J. Clairain, Jr., R.D. Smith, and R.E. Young. 1987. Wetland Eval-
uation Technique (WET); Volume II: Methodology. Operational Draft Tech. Rep. Y-
87. U.S. Army Corps of Engineers, Waterways Experi Stat., Vicksburg, MS.
Flood, B.S., M.E. Sangster, R.D. Sparrowe, and T.S. Baskett. 1977. A handbook for
habitat evaluation procedures. U.S. Dept. Int. Fish Wildl. Serv., Resour. Publ. 132.
77p.
Short, H.L. and K.P. Burnham. 1982. Technique for structuring wildlife guilds to
evaluate impacts on wildlife communities. U. S. Fish and Wildl. Serv. Spec. Sci. Rpt.
(Wildl.) No. 22. 34 pp.
1402
103d congress
1st Session
S. 1304
To amend the Federal Water Pollution Control 'Act to improve the conserva-
tion of wetlands and thereby restore and maintain the physical, chemical,
and biological integrity of the Nation's waters, and for other purposes.
IN THE SENATE OF THE UNITED STATES
July 28 (legislative day, June 30), 1993
Mr. Baucus (for himself and Mr. Chafee) introduced the following bill;
which was read t\^'ice and referred to the Committee on Environment and
Public Works
A BILL
To amend the Federal Water Pollution Control Act to im-
prove the conservation of wetlands and thereby restore
and maintain the physical, chemical, and biological integ-
rity of the Nation's waters, and for other purposes.
1 Be it enacted hy the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 SECTION 1. SHORT TITLE.
4 This Act may be cited as the "Wetlands Conservation
5 and Regulatory Improvements Act".
1403
2
1 SEC. 2. AMENDMENT OF FEDERAL WATER POLLUTION CON-
2 TROL ACT.
3 Except as otherwise expressly provided, whenever in
4 this Act an amendment or repeal is expressed in terms
5 of an amendment to, or repeal of, a section or other provi-
6 sion, the reference shall be considered to be made to a
7 section or other provision of the Federal Water Pollution
8 Control Act (33 U.S.C. 1251 et seq.).
9 SEC. 3. DECLARATION OF POLICIES AND GOALS.
10 Section 101(a) (33 U.S.C. 1251(a)) is amended—
11 (1) by striking "and" at the end of paragraph
12 (6);
13 (2) by striking the period at the end of para-
14 graph (7) and inserting "and"; and
15 (3) by adding at the end the followng:
16 "(8) it is the national policy to achieve, through
17 regulatory and nonregulatory strategies involving all
18 levels of government —
19 "(A) the restoration of wetlands to in-
20 crease the quality and quantity of the wetlands
21 resource base of the United States; and
22 "(B) no overall net loss of the remaining
23 wetlands resource base of the United States.".
24 SEC. 4. DEFINITION AND DELINEATION OF WETLANDS.
25 (a) Definitions.— Section 502 (33 U.S.C. 1362) is
26 amended —
S 1304 IS
1404
3
1 (1) in paragraph (7) by inserting ", including
2 wetlands" immediately before the period; and
3 (2) by adding at the end the following new
4 paragraph:
5 "(21) The term 'wetlands' means those areas that
6 are inundated or saturated by surface water or
7 ground water at a frequency and duration sufficient
8 to support, and that under normal circumstances do
9 support, a prevalence of vegetation typically adapted
10 to life in saturated soil conditions. Wetlands gen-
1 1 erally include swamps, marshes, bogs, fens, potholes,
12 playa lakes, vernal pools, and similar areas.".
13 (b) Delineation op Wetlands. —
14 (1) Revisions to delineation proce-
15 dures. — ^After the date of enactment of this Act, no
16 revisions to or clarifications of the guidelines for
17 identifying and delineating wetlands areas under sec-
18 tion 404(a) of the Federal Water Pollution Control
19 Act (33 U.S.C. 1344(a)), as amended by this Act,
20 shall be issued until the National Academy of
21 Sciences has completed the study of wetlands au-
22 thorized by Public Law 102-389.
23 (2) Continued use of i987 manual. — Until
24 the guidelines for identifying and delineating wet-
25 lands areas are issued pursuant to section 404(a) of
S 1304 IS
1405
4
1 the Federal Water Pollution Control Act (33 U.S.C.
2 1344(a)), as amended by this Act, the Secretary of
3 the Army, acting through the Chief of Engineers,
4 and the Administrator of the Environmental Protec-
5 tion Agency shall use the January 1987, "Corps of
6 Engineers wetlands delineation manual" and imple-
7 menting guidelines to identify and delineate such
8 wetlands areas.
9 (3) Delineation guidelines. — Section
10 404(a) (33 U.S.C. 1344(a)) is amended by inserting
11 "(1)" after "(a)" and by adding the following new
12 paragraph:
13 "(2) The Administrator in conjunction with the
14 Secretary, the Secretary of Agriculture and the Sec-
15 retarj' of the Interior shall, after field testing and
16 notice and opportunity for public review and com-
17 ment, issue guidelines to identify and delineate wet-
18 lands areas. The guidelines shall —
19 "(A) be developed in consultation with the
20 States;
21 "(B) be based on the best available sci-
22 entific information; and
23 "(C) take into account regional variations
24 in hydrology, soils, and vegetation.".
S 1304 IS
1406
5
1 (4) Delineation training, certification
2 AND outreach. —
3 (A) Training of wetlands delinea-
4 TORS. — The Secretary of the Army, acting
5 through the Chief of Engineers, and the Admin-
6 istrator of the Environmental Protection Agen-
7 cy shall, in consultation with the Coordinating
8 Committee establish under section 323 of the
9 Federal Water Pollution Control Act, as amend-
10 ed by this Act, develop materials and conduct
11 training courses for consultants and State and
12 local governments to explain the guidelines for
13 identifying and delineating wetlands areas pur-
14 suant to section 404(a) of the Federal Water
15 Pollution Control Act (33 U.S.C. 1344(a)), as
16 amended by this Act.
17 (B) Funding for training and certifl
18 cation program. — Of amounts appropriated
19 for each fiscal year beginning after the date of
20 the enactment of this Act for administration of
21 section 404 of the Federal Water Pollution
22 Control Act (33 U.S.C. 1344) by the Corps of
23 Engineers, the Secretary of the Army, with the
24 Administrator, shall use such amounts as are
25 practicable to carry out the Corps of Engineers
S 1304 IS
1407
6
1 Program for interagency wetlands delineation
2 training and the program for training and cer-
3 tification of Federal employees and other indi-
4 viduals as wetlands delineators authorized by
5 section 307(e) of the Water Resources Develop-
6 ment Act of 1990 (Public Law 101-640).
7 (5) Assisting small landowners with wet-
8 LANDS delineation. —
9 (A) In general. — Of amounts appro-
10 priated for each fiscal year beginning after the
1 1 date of enactment of this Act for administration
12 of section 404 of the Federal Water Pollution
13 Control Act (33 U.S.C. 1344), the Secretary of
14 the Army, acting through the Chief of Engi-
15 neers, and the Administrator of the Environ-
16 mental Protection Agency shall use such
17 amounts as are necessary, but not to exceed a
18 combined total of $5,000,000, to assist private
19 landoAMiers who lack the financial capacity to
20 identify or delineate wetlands in order to apply
21 for permits under that section or to avoid im-
22 pacts to wetlands.
23 (B) Form of assistance. — The assist-
24 ance under subparagraph (A) shall be provided
25 in cooperation with the Director of the United
S 1304 IS
1408
7
1 States Fish and Wildlife Service and the Chief
2 • of the Soil Conservation Service and shall
3 include —
4 (i) the delineation of wetlands bound-
5 aries within ninety day^ of a request for
6 such delineation to the maximum extent
7 practicable; and
8 (ii) technical assistance to owners of
9 wetlands in the preparation of wetlands
10 management plans for their lands to pro-
11 tect and restore wetlands and meet other
12 goals of the Federal Water Pollution Con-
13 trol Act, including protection and propaga-
14 tion of fish, shellfish, and wildlife, control
15 of nonpoint and point sources of pollution,
16 prevention and reduction of erosion, and
17 protection of estuaries and lakes.
18 (C) Regulations. — ^Within one hundred
19 and eighty days after the date of enactment of
20 this Act, the Secretary and the Administrator
21 shall issue regulations defining the scope of
22 technical assistance and which landowners are
23 eligible for assistance under this paragraph.
24 (6) Education and information. — The Sec-
25 retary of the Army, acting through the Chief of En-
S 1304 IS
1409
8
1 gineers, and the Administrator of the Environmental
2 Protection Agency shall, in cooperation with the Co-
3 ordinating Committee established under section 323
4 of the Federal Water Pollution Control Act (as
5 amended by this Act), prepare, update on a biannual
6 basis, and make available to the public for purchase
7 at cost —
8 (A) an indexed publication containing all
9 Federal regulations, general permits, and regu-
10 laton,^ guidance letters relevant to the permit-
1 1 ting of activities pursuant to section 404 of the
12 Federal Water Pollution Control Act (33 U.S.C.
13 1344); and
14 (B) information to enable the general pub-
15 lie to understand the delineation of wetlands,
16 section 404 permitting requirements, wetlands
17 restoration, and other matters considered rel-
18 evant.
19 SEC. 5. REGULATION OF ACTIVmES.
20 (a) Definition of Fill Material. —
21 (1) Section 404(d) (33 U.S.C. 1344(d)) is
22 amended —
23 (A) by inserting "(1)" after *'(d)"; and
24 (B) by adding at the end the following:
S 1304 IS
1410
9
1 "(2) The term 'fill materiar as used in this
2 section means any material that has the effect
3 of replacing portions of navigable waters or
4 changing the bottom elevation ot configuration
5 of a water body.".
6 (2) Section 502(6) (33 U.S.C. 1362(6)) is
7 amended by inserting "fill material, dirt," after
8 "dredged spoil,".
9 (b) Definition op Discharge op Dredged or
10 Fill Material.— Section 404(d) (33 U.S.C. 1344(d)),
11 as amended by this Act, is amended by adding at the end
12 the following:
13 "(3) The term 'discharge of dredged or fill ma-
14 terial' means any addition of dredged or fill material
15 into navigable waters and includes, without limita-
16 tion, any addition or redeposit of dredged or fill ma-
17 terials, including excavated materials, into the navi-
18 gable waters which is incidental to any activity, in-
19 eluding draining, mechanized landclearing, ditching,
20 channelization, or other excavation that has or would
21 have the effect of destroying or degrading any area
22 of navigable waters.".
S 1304 IS-
1411
10
1 SEC. 6. PERMIT PROCESSING IMPROVEMENTS.
2 (a) Permit Decision Deadlines. — Section 404(a)
3 (33 U.S.C. 1344(a)), as amended by this Act, is amended
4 by adding the following new paragraphs:
5 "(3) Except as provided in paragraph (4), a de-
6 cision with respect to an application for a permit
7 under paragraph (1) shall be made not later than
8 the ninetieth day after the date the notice of such
9 application is published under paragraph (1).
10 "(4) The Secretary's decision with respect to an
11 application for a permit under paragraph (1) may be
12 made after the ninetieth day referred to in para-
13 graph (3), only if—
14 "(A) with respect to issuance of the per-
15 mit, the Secretary is required under the Na-
16 tional Environmental Policy Act of 1969, as
17 amended, to issue an environmental impact
18 statement, in which case the decision shall be
19 made within thirty days of date on which the
20 requirements of that Act are met;
21 "(B) the permit application involves an ac-
22 tivity that may affect any species that is listed
23 or any critical habitat that is designated under
24 the Endangered Species Act of 1973, as amend-
25 ed, in which case the decision shall be made
8 ia04 IS
1412
11
1 within thirty days of the date on which the re-
2 quirements of that Act are met;
3 "(C) the Administrator, the Secretaries of
4 the Departments of Agriculture, the Interior,
5 Commerce, or Transportation, the head of an-
6 other appropriate Federal agency, or the Gov-
7 emor of the State in which the activity occurs
8 requests that the decision be made after such
9 day, in which case the decision shall be made
10 not later than the one hundred and fiftieth day
11 after the date the notice of application is pub-
12 Hshed under paragraph (1);
13 "(D) the Secretary and the permit appli-
14 cant determine that additional time is needed to
15 evaluate such application; or
16 "(E) the decision is precluded as a matter
17 of law or procedures required by law.".
18 (b) Deadlines on Prohibition or Restriction
19 OF AcTRiTiES BY ADMINISTRATOR.— Section 404(c) (33
20 U.S.C. 1344(c)) is amended by adding at the end the fol-
21 lowing new sentence: "The Administrator shall make any
22 determination under this subsection to prohibit or restrict
23 any discharge into navigable waters resulting from an ac-
24 tivity for which a permit may be issued under subsection
25 (a) not later than the one hundred and eightieth day after
8 1304 18
1413
12
1 the date of decision with respect to an application for such
2 a permit under subsection (a).".
3 (c) Administrative Appeal of Permit Deci-
4 SIGNS. —
5 (1) In general.— Section 404(a) (33 U.S.C.
6 1344(a)), as amended by this Act, is amended by
7 adding at the end the following new paragraph:
8 "(5) The Secretary shall, after notice and an
9 opportunity for public comment, issue rules estab-
10 lishing procedures under which —
11 "(A) an applicant for a permit under para-
12 graph (1) or any person who participated in the
13 public comment process regarding such permit
14 application may appeal a decision under this
15 subsection with respect to such a permit; and
16 "(B) an appeal shall be heard and decided
17 by an official other than the person who made
18 the decision with respect to such a permit.".
19 (2) Deadline for issuance of rules. — The
20 Secretary shall issue rules under section 404(a)(5)
21 (33 U.S.C. 1344(a)(5)), as amended by this Act, by
22 not later than one hundred eighty days after the
23 date of the enactment of this Act.
S 1304 IS
1414
13
1 SEC 7. GENERAL PERMIT IMPROVEMENTS.
2 Section 404(e) (33 U.S.C. 1344(e)) is amended to
3 read as follows:
4 "(e)(1) In general. — In carrying out the functions
5 of the Secretary under this section relating to the dis-
6 charge of dredged or fill material, the Secretary may, after
7 notice and opportunity for a public hearing, issue general
8 permits.
9 "(2) Categories of activities. — General permits
10 may be issued on a State, regional, or nationwide basis
11 for any category of activities involving discharges of
12 dredged or fill material if the Secretary determines that
13 the activities in such category are similar in nature, will
14 cause only minimal adverse environmental effects when
15 performed separately, and will have only a minimal cumu-
16 lative adverse effect on the environment.
17 "(3) State and local programs. —
18 "(A) In GENERAL. — ^A general permit may be
19 issued for an existing State, tribal, regional or local
20 regulatory program to avoid unnecessary duplication
21 of requirements by Federal, State, tribal, regional,
22 and local programs if the general permit —
23 "(i) requires that the State, tribal, re-
24 gional, or local regulatory program has jurisdic-
25 tion over the activities and waters within the
26 scope of the general permit;
S 1304 IS
1415
14
1 "(ii) provides adequate safeguards to en-
2 sure that the State, tribal, regional, or local
3 regulatory program will have no more than
4 minimal cumulative impacts on the environment
5 and will provide at least the same degree of
6 protection for the navigable waters as that pro-
7 vided by this section;
8 "(iii) provides at least the same oppor-
9 tunity for public review, comment, and hearings
10 as that provided by this section; and
11 "(iv) includes provisions to provide an op-
12 portunity for the Secretary, the Administrator,
13 the Secretary of the Interior (acting through
14 the Director of the United States Fish and
15 Wildlife Service), and the Secretary of Com-
16 merce (acting through the Administrator of the
17 National Oceanic and Atmospheric Administra-
18 tion) to review permit decisions submitted to
19 the State, tribal, regional, or local regulatory
20 agenQT to ensure that the requirements of this
21 subsection are met.
22 "(B) After December 31, 1996, a general per-
23 mit shall not be issued or remain in effect for a local
24 or regional regulatory program unless the program
25 is part of a wetlands and watershed management
8 1804 18
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1 verse impacts to wetlands and other navigable
2 waters.".
3 SEC. 8. COORDINATION AND CLARIFICATION OF PROGRAM
4 CONCERNING AGRICULTURAL ACnVITIES.
5 (a) Coordination With Agricultural Pro-
6 GRAMS.— Section 404(q) (33 U.S.C. 1344(q)) is amended
7 by inserting "(1)" after "(q)" and by adding the following
8 new paragraph:
9 "(2) Not later than one hundred and eighty
10 days after the date of enactment of this subsection,
11 the Secretary, the Administrator, the Secretary of
12 the Interior, and the Secretary of Agriculture shall
13 enter into agreements to develop consistent criteria
14 and procedures for making technical determinations
15 under subtitle C of title XII of the Food Security
16 Act of 1985 (16 U.S.C. 3821 et seq.) and this sec-
17 tion concerning wetlands located on agricultural
18 lands, including but not limited to the delineation of
19 wetlands and prior converted croplands and to pro-
20 vide information and education concerning these cri-
21 teria and procedures.".
22 (b) Exemption for Prior Converted Crop-
23 land.— Section 404(f) (33 U.S.C. 1344(f)) is amended by
24 adding the following new paragraph:
S 1304 IS-
1419
18
1 "(3)(A) Areas determined in accordance with
2 subparagraph (B) to be prior converted cropland
3 shall not be considered to be navigable waters.
4 "(B) The Secretary, the Administrator, the
5 Secretary of Agriculture, and the Secretary of the
6 Interior shall promulgate regulations, after notice
7 and opportunity for public review and comment, for
8 identifying areas that meet the description under
9 subparagraph (A) for administering the programs
10 established under this section and subtitle C of title
11 Xn of the Food Security Act of 1985 (16 U.S.C.
12 3821 et seq.).".
13 (c) Other Exempt Waters and Areas. — Section
14 404(f) (33 U.S.C. 1344(f)), as amended by this Act, is
15 amended by adding the following new paragraph:
16 "(4) (A) For purposes of this section, the follow-
17 ing shall not be considered to be navigable waters —
18 "(i) nontidal drainage and irrigation
19 ditches excavated in uplands;
20 "(ii) artificially irrigated areas which
21 would revert to uplands if the irrigation ceased;
22 "(iii) artificial lakes or ponds created by
23 excavating or diking uplands to collect and re-
24 tain water, and which are used exclusively for
25 stock watering, irrigation, or rice growing;
8 1S04 IS
1420
19
1 "(iv) artificial reflecting or swimming pools
2 or other small ornamental bodies of water cre-
3 ated by excavating or diking uplands to retain
4 water for primarily aesthetic reasons;
5 "(v) water-filled depressions created in up-
6 lands incidental to construction activity and pits
7 excavated in uplands for the purpose of obtain-
8 ing fill, sand, or gravel, unless and until the
9 construction or excavation operation is aban-
10 doned and the resulting body of water meets
11 the definition of waters of the United States;
12 and
13 "(vi) artificial stormwater detention areas
14 and artificial sewage treatment areas that are
15 not modifications of navigable waters.".
16 (d) Exempted Activities. — Section 404(f)(1) (33
17 U.S.C. 1344(f)(1)) is amended to read as follows:
18 "(f)(1) Except as provided in paragraph (2), the dis-
19 charge of dredged or fill material into navigable waters —
20 "(A) from normal farming, silviculture, and
21 ranching activities, such as haying, grazing, plowing,
22 seeding, cultivating, minor drainage, harvesting for
23 the production of food, fiber, and forest products, or
24 upland soil and water conservation practices;
S 1304 IS
1421
20
1 "(B) for the purpose of maintenance, including
2 emergency reconstruction of recently damaged parts,
3 of currently serviceable structures such as dikes,
4 dams, levees, groins, riprap, breakwaters, causeways,
5 bridge abutments or approaches, and transportation
6 structures;
7 "(C) for the purpose of construction or mainte-
8 nance of farm or stock ponds or irrigation ditches,
9 or the maintenance of drainage ditches;
10 "(D) for the purpose of construction of tem-
11 porary sedimentation basins on a construction site
12 which does not involve a discharge of fill into navi-
13 gable waters;
14 "(E) for the purpose of construction or mainte-
15 nance of farm roads or forest roads, or temporary
16 roads for moving mining equipment, where such
17 roads are constructed and maintained, in accordance
18 with best management practices, to assure that flow
19 and circulation patterns and chemical and biological
20 characteristics of the navigable waters are not im-
21 paired, that the reach of the navigable waters is not
22 reduced, and that any adverse effect on the aquatic
23 environment will otherwise be minimized; or
24 "(F) resulting from any activity with respect to
25 which a State has an approved program under sec-
S 1304 IS
1422
21
1 tion 208(b)(4) which meets the requirements of sub-
2 paragraphs (B) and (C) of such section,
3 is not prohibited by or otherwise subject to regulation
4 under this section or section 301(a) or 402 of this Act
5 (except for effluent standards or prohibitions under sec-
6 tion 307).".
7 (e) Cooperation With Secretary of Agri-
8 CULTURE.— Section 404(f) (33 U.S.C. 1344(f)), as
9 amended by this Act, is amended by adding the following
10 new paragraph:
11 "(5) In carrying out this subsection, the Sec-
12 retary and the Administrator shall coordinate their
13 efforts with the Secretary of Agriculture.".
14 SEC. 9. MITIGATION BANKS.
15 Section 404 (33 U.S.C. 1344) is amended by adding
16 at the end thereof the following new section:
17 "(u) Mitigation Banks. —
18 "(1) Establishment. —
19 "(A) In general. — Not later than one
20 year after the date of the enactment of the
21 Wetlands Conservation and Regulatory Im-
22 provements Act of 1993, the Secretary and the
23 Administrator shall jointly issue rules, after no-
24 tice and opportunity for public review and com-
S 1304 IS
1423
22
1 ment, for establishment, use, maintenance and
2 oversight of mitigation banks.
3 "(B) Provisions and requirements. —
4 Rules for establishment, use, maintenance and
5 oversight of mitigation banks shall ensure that
6 mitigation banks —
7 "(i) comply with the guidelines under
8 subsection (b)(1);
9 "(ii) to the extent practicable and en-
10 vironmentally desirable, provide in-kind re-
11 placement of lost wetlands functions and
12 be located on or in proximity to the same
13 watershed as impacted wetlands;
14 "(iii) provide for the long-term secu-
15 rity of ownership interests of wetlands and
16 uplands on which projects are conducted to
17 protect the wetlands values associated with
18 the mitigation bank;
19 "(iv) employ consistent and scientif-
20 ically-sound methods to determine debits
21 by evaluating wetlands functions and
22 project impacts at the sites of proposed
23 permits for discharges of dredged or fill
24 material pursuant to this section, and
25 methods to be used to determine credits
S 1304 IS
1424
23
1 based upon wetlands functions, values, and
2 acreages at the sites of mitigation banks;
3 "(v) base fee charges for participation
4 in the mitigation bank on the full costs of
5 replacing lost wetlands functions and acre-
6 age, including the costs of land acquisition,
7 wetlands establishment, management
8 measures, long-term maintenance, monitor-
9 ing, and protection, potential remediation
10 of project failure, and other relevant fac-
1 1 tors;
12 "(vi) shall specify responsibilities for
13 long-term monitoring, maintenance, and
14 protection; and
15 "(vii) shall provide opportunity for
16 public review of proposals for mitigation
17 banks through one or more opportunities
18 for public notice and comment.
19 "(2) Definition.— As used in this subsection,
20 the term 'mitigation bank' means wetlands restora-
21 tion projects undertaken by one or more parties, in-
22 eluding private and public entities, expressly for the
23 purpose of providing, in advance, mitigation com-
24 pensation credits to fully offset reasonably foresee-
25 able wetlands losses from future discharges of
S 1304 IS
1425
24
1 dredged or fill material into the navigable waters,
2 where compensatory mitigation at the project site is
3 not practicable or is not environmentally desirable.".
4 SEC. 10. GRANT AUTHORITY FOR RESEARCH, INVESTIGA-
5 TION, AND TRAINING.
6 Section 104 (33 U.S.C. 1254) is amended by adding
7 at the end the following new subsection:
8 "(v) The Secretary of the Army, acting through the
9 Chief of Engineers, is authorized to make grants to and
10 enter into cooperative agreements with State agencies,
1 1 interstate agencies, other public or non-profit agencies, in-
12 stitutions, organizations and individuals for purposes stat-
13 ed in paragraph (1) of subsection (a) of this section.".
14 SEC. 11. REPORTS AND ANALYSIS.
15 (a) Effects of Program on Wetlands. — Section
16 404(a) (33 U.S.C. 1344(a)), as amended by this Act, is
17 amended by adding at the end the following new para-
18 graph:
19 "(6)(A) The Secretary, the Administrator, and
20 the States which have a permit program approved
21 under subsection (h)(2) shall collect and make avail-
22 able to the Congress and the public every two years
23 information regarding the effects on navigable wa-
24 ters of activities conducted under permits (including
S 1304 IS
1426
25
1 general permits) issued pursuant to this section,
2 including —
3 "(i) the number of permit applications that
4 were granted, withdrawn or denied;
5 "(ii) estimates of the total acreage of navi-
6 gable waters affected adversely by issuance of
7 individual permits;
8 "(iii) estimates of the acreage of navigable
9 waters affected by each general permit, in order
10 to determine whether the individual and cumu-
1 1 lative adverse environmental effects of activities
12 authorized by each general permit are minimal;
13 and
14 "(iv) estimates of the acreage of navigable
15 waters preserved or restored through mitigation
16 of permitted activities and the rate of compli-
17 ance with such mitigation requirements.
18 "(B) Monitoring. — For purposes of preparing
19 reports under this paragraph, the Secretary, the Ad-
20 ministrator, and the Secretary of the Interior shall
21 jointly monitor the achievement of the policy stated
22 in section 101(a)(8) under permits issued under this
23 section.".
24 (b) Needs Analysis. —
S 1304 IS
1427
26
1 (1) In general. — Not later than ninety days
2 after the date of the enactment of this Act, the
3 Comptroller General of the United States shall sub-
4 mit to the Congress an analysis of the needs of the
5 Department of the Army, the Environmental Protec-
6 tion Agency, the United States Fish and Wildlife
7 Service, and the National Marine Fisheries Service
8 for additional personnel, administrative resources,
9 and funding to improve implementation of section
10 404 of the Federal Water Pollution Control Act (33
11 U.S.C. 1344) and to carry out the provisions of this
12 Act.
13 (2) Contents. — The analysis submitted under
14 this subsection shall —
15 (A) give particular emphasis to the needs
16 of the agencies identified in paragraph (1) with
17 respect to improving and expediting wetlands
18 delineation and section 404 permitting, includ-
19 ing advance planning and early consultation;
20 (B) include specific recommendations re-
21 garding additional appropriations and staffing
22 necessary for that improvement and expedition;
23 and
24 (C) include specific recommendations con-
25 ceming allocation of additional appropriations
S 1S04 IS
1428
27
1 and staffing to the regional, district and field
2 offices of the agencies identified in paragraph
3 (1) according to the workload of those offices.
4 sec. 12. wetlands conservation, management and
5 restoration!
6 (a) Funding for State Wetlands Conservation
7 Plans.— Section 104(b)(3) (33 U.S.C. 1254(b)(3)) is
8 amended by inserting immediately before the semicolon "
9 and for the development and implementation of State wet-
10 lands conservation plans under section 321".
11 (b) Wetlands Conservation, Management and
12 Restoration.— Title III (33 U.S.C. 1311 et seq.) is
13 amended by the adding at the end the following new sec-
14 tions:
15 "SEC. 321. state wetlands CONSERVATION PLANS.
16 "(a) Development and Implementation Assist-
17 ANCE. — Subject to the requirements established by the
18 Administrator and this section, the Administrator is au-
19 thorized to make grants to States to assist in the develop-
20 ment and implementation of State wetlands conservation
21 plans.
22 "(b) Contents of Plans. — To qualify for assist-
23 ance under subsection (a), a State wetlands conservation
24 plan shall generally include
S 1304 IS
1429
28
1 "(1) management strategies and policies for
2 achieving within the State the goal under section
3 101(a)(8);
4 "(2) an inventory of wetlands resources in the
5 State;
6 "(3) a description of the m^or causes of wet-
7 lands loss and degradation in the State, including an
8 estimate of historical wetlands losses;
9 "(4) a description of State and local govem-
10 ment programs applying to wetlands resources in the
11 State;
12 "(5) identification of sites in the State with
13 wetlands restoration potential;
14 "(6) identification of riparian areas in the State
15 with restoration potential;
16 "(7) a schedule for implementing the elements
17 of the plan;
18 "(8) a mechanism for monitoring achievement
19 of the stated goals of the plan;
20 "(9) measures to assist in the development of
21 wetlands and watershed management plans under
22 section 322; and
23 "(10) involvement of local public and private
24 agencies and organizations which have expertise in
8 1304 IS
1430
29
1 wetlands conservation or land use planning or devel-
2 opment.
3 "SEC. 322. WETLANDS AND WATERSHED MANAGEMENT
4 PLANS.
5 **(a) Designation and Approval of Management
6 Units AND Entities. —
7 "(1) In generaIj. — The Governor of a State
8 may at any time designate wetlands and associated
9 land areas within the State as a wetlands and water-
10 shed management unit.
11 "(2) Unit boundaries. — The boundaries of
12 each wetlands and watershed management unit shall
13 be identified on a map and shall be based on the
14 best available scientific information and, to the ex-
15 tent practicable, consistent with the hydrological
16 units identified by the United States Geological Sur-
17 vey of the Department of the Interior as the most
18 appropriate units for planning purposes.
19 "(3) Management entity. — The Governor of
20 a State shall determine the entity responsible for de-
21 veloping and implementing a plan for each wetlands
22 and watershed management unit designated under
23 this section. The management entity may be an
24 agency of State government, a local government
25 agency, a substate regional planning organization, a
S 1304 IS
1431
30
1 conservation district or other natural resource man-
2 agement district, or any other public or nonprofit
3 entity which has adequate powers to carry out the
4 responsibilities authorized by this section.
5 "(4) Approval. — Each designation of a wet-
6 lands and watershed management unit and a cor-
7 responding management entity under this subsection
8 shall be submitted to the Administrator and the Sec-
9 retary of the Army, acting through the Chief of En-
10 gineers (hereinafter in this section referred to as
11 'Secretary'), for approval. The Administrator and
12 the Secretary shall approve the designation of a
13 management unit and entity not later than one hun-
14 dred and eighty days after the date of submittal, if
15 the designation meets the requirements of this sec-
16 tion. If the Administrator and the Secretary dis-
17 approve the designation, they shall notify the State
18 in writing of the reasons for disapproval. The State
19 may resubmit the designation amended to meet the
20 objections of the Administrator and the Secretary.
21 "(b) Development and Approval of a Wet-
22 LANDS AND WATERSHED MANAGEMENT PLAN. —
23 "(1) Plan development.- -An approved man-
24 agement entity shall be eligible to receive funding
25 pursuant to section 106(h), 205(j), 319(e), or
1432
31
1 604(b) (or any combination thereof) for the follow-
2 ing activities in the development of a wetlands and
3 watershed management plan:
4 "(A) Inventory and mapping of —
5 "(i) all navigable waters within the
6 proposed wetlands and watershed manage-
7 ment unit; and
8 "(ii) potential wetlands restoration
9 sites.
10 "(B) Assessment of the functions and rel-
1 1 ative value of wetlands within the wetlands and
12 watershed management unit.
13 "(C) Categorization of activities according
14 to the degree to which they have an adverse ef-
15 feet on navigable waters within the wetlands
16 and watershed management unit.
17 "(D) Identification and adoption of pro-
18 grams, policies and measures to achieve within
19 the wetlands and watershed management unit
20 the goal under section 101(a)(8).
21 "(E) Identification of potential mitigation
22 banks.
23 "(F) Identification and adoption of meas-
24 ures to integrate wetlands planning and man-
25 agement with broader water resource and land
S 1304 IS
1433
32
1 use planning and management, including flood-
2 plain management, water supply, stormwater
3 management, and control of point and nonpoint
4 source pollution.
5 "(G) Identification and adoption of meas-
6 ures to increase consistency in Federal, State,
7 and local wetlands definitions, delineation meth-
8 odologies, and permitting approaches.
9 "(H) Identification and establishment of
10 management strategies for restoring wetlands
11 on a watershed basis.
12 "(2) Public participation. — Each State shall
13 establish procedures, including the establishment of
14 scientific and citizens' advisory committees, to en-
15 courage the public to participate in developing wet-
16 lands and watershed management plans under this
17 section.
18 "(3) Approval op plans. —
19 "(A) Submission of plan. — The Gov-
20 ernor of a State may submit to the Adminis-
21 trator for approval a wetlands and watershed
22 management plan developed pursuant to this
23 section.
24 "(B) Decision on plan. — The Adminis-
25 trator and the Secretary shall, in consultation
S 1304 IS
1434
33
1 with the Secretaries of the Interior, Agriculture,
2 and Commerce, and after notice and oppor-
3 tunity for pubUc comment, approve or dis-
4 approve a wetlands and watershed management
5 plan within one hundred and eighty days of the
6 date the plan is submitted by a Governor pur-
7 suant to this paragraph.
8 "(C) Plan requirements. — The Admin-
9 istrator and the Secretary shall approve a wet-
10 lands and watershed management plan submit-
11 ted pursuant to this paragraph if they deter-
12 mine that the plan satisfies each of the foUow-
13 ing conditions —
14 "(i) the plan has been developed for a
15 wetlands and watershed management unit
16 designated and approved pursuant to sub-
17 section (a);
18 "(ii) the management entity with re-
19 sponsibility to carry out the plan has been
20 designated and approved pursuant to sub-
21 section (a) and has the legal authority and
22 financial resources to carry out the plan;
23 "(iii) the plan contains an inventory
24 and mapping of —
S 1304 IS
1435
34
1 "(I) all navigable waters within
2 the proposed wetlands and watershed
3 management unit; and
4 "(II) potential wetlands restora-
5 tion sites with a description of their
6 intended functions upon completion
7 and the time required for completion;
8 "(iv) the management entity has
9 adopted programs, policies and measures
10 that will ensure achievement within the
11 watershed of the goal under section
12 101(a)(8); and
13 "(v) the plan provides that the man-
14 agement entity will report to the Adminis-
15 trator, the Secretary and the public every
16 two years on implementation of the plan
17 and on the losses and gains in functions
18 and acres of wetlands within the wetlands
19 and watershed management unit.
20 "(c) Plan Implementation and Revision. —
21 "(1) Planning and implementation sched-
22 ULE. — Each wetlands and watershed management
23 plan submitted and approved under subsection (b)
24 shall include a planning and implementation sched-
25 ule for a period of at least ten years.
S 1304 IS
1436
35
1 "(2) Duration op approval. — The approval
2 of a plan by the Administrator and the Secretary
3 shall apply for a period not to exceed ten years.
4 "(3) Plan revisions. — ^A revised and updated
5 plan may be submitted for approval prior to the ex-
6 piration of the period specified in paragraph (2) pur-
7 suant to the same conditions and requirements that
8 apply to any initial plan for a wetlands and water-
9 shed management unit that is approved pursuant to
10 subsection (b).
11 "(d) Incentives for Wetlands and Watershed
12 Management Planning. —
13 "(1) Funding op projects and activi-
14 ties. — Projects and activities identified in an ap-
15 proved plan as necessary for achievement within the
16 wetlands and watershed management unit of the
17 goal under section 101(a)(8), and not otherwise re-
18 quired by this or other Federal law, shall —
19 "(A) be eligible for funding under section
20 603(c)(1)(F);
21 "(B) be included in any needs assessment
22 conducted pursuant to section 516; and
23 "(C) be eligible for funding under section
24 604(a)(2)(C).
s tao4 IS
1437
36
1 "(2) Expedited permit review. — Notwith-
2 standing section 404(a), a decision under that sec-
3 tion with respect to a completed apphcation for a
4 permit for discharge of dredged or fill material into
5 navigable waters within a designated wetlands and
6 watershed unit and subject to an approved wetlands
7 and watershed management plan shall be made not
8 later than the sixtieth day after the date the notice
9 of such application is published under section
10 404(a)(1), unless—
11 "(A) with respect to issuance of the per-
12 mit, the Secretary is required under the Na-
13 tional Environmental Policy Act of 1969 to
14 issue an environmental impact statement;
15 "(B) the permit application involves an ac-
16 tivity that may affect any species that is listed
17 or any critical habitat that is designated under
18 the Endangered Species Act of 1973;
19 "(C) the Administrator, the Secretaries of
20 the Departments of Agriculture, the Interior,
21 Commerce, or Transportation, the head of an-
22 other appropriate Federal agency, or the Gov-
23 ernor of the State in which the activity occurs
24 requests that the decision be made after such
25 day, in which case the decision shall be made
S 1304 IS
1438
37
1 not later than the ninetieth day after the date
2 the notice of application is published under sec-
3 tion 404(a)(1);
4 "(D) the Secretary and the permit appli-
5 cant determine that additional time is needed to
6 evaluate such application; or
7 "(E) the decision is precluded as a matter
8 of law or procedures required by law.
9 "(3) Mitigation banks. —
10 "(A) At the request of an approved man-
11 agement entity, the Secretary and the Adminis-
12 trator shall provide assistance in establishment
13 of mitigation banks under this section and sec-
14 tion 404(u) by the approved management entity
15 to achieve the goal under section 101(a)(8)
16 within an approved wetlands and watershed
17 management unit and in accordance with an
18 approved wetlands and watershed management
19 plan.
20 "(B) Establishment and oversight of miti-
21 gation banks within an approved wetlands and
22 watershed management unit and in accordance
23 with an approved wetlands and watershed man-
24 agement plan shall be eligible for funding under
25 paragraph (1).
S 1304 IS
1439
38
1 "(4) Programmatic general permits. —
2 After December 31, 1996, a general permit may be
3 issued or remain in effect under section 404(e)(3)
4 for a local or regional regulatory program if the pro-
5 gram is part of a wetlands and watershed manage-
6 ment plan approved under section 322.
7 "(f) Research Program. — The Administrator, in
8 cooperation with the Secretary, the Secretary of the Inte-
9 rior and other appropriate Federal, State, and local gov-
10 ernment entities, shall initiate a research program of wet-
1 1 lands and watershed management. The research program
12 shall include —
13 "(1) study of the functions, values and manage-
14 ment needs of altered, artificial, and managed wet-
15 lands systems;
16 "(2) study and development of techniques and
17 methods for determining and analyzing the functions
18 and values of different types of wetlands;
19 "(3) study and development of techniques for
20 managing and restoring wetlands within a watershed
21 context;
22 "(4) study and development of techniques for
23 better coordinating and integrating wetlands protec-
24 tion, floodplain management, stormwater manage-
S 1304 IS
1440
\ 39
1 ment, point and nonpoint source pollution controls,
2 and water supply planning on a watershed basis;
3 "(5) development of criteria for identifying wet-
4 lands restoration sites on a watershed basis; and
5 "(6) recommendation of procedures and ecologi-
6 cal criteria for wetlands restoration.
7 "SEC. 323. INTERGOVERNMENTAL WETLANDS COORDINAT-
8 ING COMMITTEE.
9 "(a) Establishment. — Not later than ninety days
10 after the date of the enactment of the Wetlands Conserva-
11 tion and Regulatory Improvements Act of 1993, the Ad-
12 ministrator shall establish a committee to coordinate Fed-
13 eral. State, and local government wetlands policies (here-
14 inafter in this section referred to as the 'Coordinating
15 Committee').
16 "(b) Functions. — The Coordinating Committee
17 shall—
18 "(1) assist in coordinating Federal, State, and
19 local wetlands policies;
20 "(2) make comments available to the Secretary
21 of the Army, acting through the Chief of Engineers,
22 or the Administrator regarding existing and pro-
23 posed regulatory, policy, program, or technical guid-
24 ance affecting wetlands systems;
8 1304 18
1441
40
1 "(3) in cooperation with the Secretary of the
2 Army, acting through the Chief of Engineers, and
3 the Administrator, assist in the review and field-test-
4 ing of technical and scientific methods utiUzed in
5 wetlands regulatory and non-regulatory program;
6 "(4) encourage the development and implemen-
7 tation of State wetlands conservation plans pursuant
8 to section 321;
9 "(5) encourage the development and implemen-
10 tation of wetlands and watershed management plans
1 1 pursuant to section 322; and
12 "(6) assist in the development of a national
13 strategy for the restoration of wetlands ecosystems
14 pursuant to section 324.
15 "(c) Membership. — The Committee shall be com-
16 posed of eighteen members as follows:
17 " ( 1 ) The Administrator.
18 "(2) The Secretary of the Army, acting through
19 the Chief of Engineers.
20 "(3) The Secretary of the Interior, acting
21 through the Director of the United States Fish and
22 Wildlife Service.
23 "(4) The Secretary of Agriculture, acting
24 through the Chief of the Soil Conservation Service.
S 1304 IS
1442
41
1 "(5) The Under Secretary of Commerce for
2 Oceans and Atmosphere.
3 "(6) One individual appointed by the Adminis-
4 • trator who shall represent the National Governor's
5 Association.
6 "(7) One individual appointed by the Adminis-
7 trator who shall represent the National Association
8 of Counties.
9 "(8) One individual appointed by the Adminis-
10 trator who shall represent the National League of
11 Cities.
12 "(9) Ten State wetlands experts selected and
13 appointed by the Administrator from among nomina-
14 tions submitted by the Governors of each State.
15 "(d) Terms. — Each member appointed pursuant to
16 paragraph (6), (7), (8), or (9) of subsection (c) shall be
17 appointed for a term of two years.
18 "(e) Vacancies. — ^A vacancy in the Coordinating
19 Committee shall be filled, on or before the thirtieth day
20 after the vacancy occurs, in the manner in which the origi-
21 nal appointment was made.
22 "(f) Pay. — Members shall serve without pay, but may
23 receive travel expenses (including per diem in lieu of sub-
24 sistence) in accordance with sections 5702 and 5703 of
25 title 5, United States Code.
S 1304 IS
1443
42
1 "(g) Co-Chairpersons. — The Administrator and
2 one member appointed pursuant to paragraph (6), (7), or
3 (8) of subsection (c) who shall be selected by such mem-
4 bers shall serve as co-chairpersons of the Coordinating
5 Committee.
6 "SEC. 324. NATIONAL COOPERATIVE WETLANDS RESTORA-
7 TION STRATEGY.
8 "(a) Development. — Not later than one year after
9 the date of the enactment of the Wetlands Conservation
10 and Regulatory Improvements Act of 1993, the Adminis-
1 1 trator and the Secretary of the Army, acting through the
12 Chief of Engineers, in cooperation with the Coordinating
13 Committee established under section 323, and with oppor-
14 tunity for public comment and participation, shall develop
15 a National Cooperative Wetlands Restoration Strategy
16 (hereinafter referred to as the 'Restoration Strategy*).
17 "(b) Goals. — The goal of the Restoration Strategy
18 shall be to restore damaged and degraded wetlands and
19 riparian ecosystems consistent with the goals of this Act
20 and with the recommendations of the National Academy
21 of Sciences with regard to the restoration of aquatic
22 ecosystems.
23 "(c) Functions. — The Restoration Strategy shall —
S 1304 IS
1444
43
1 "(1) be designed to help coordinate and pro-
2 mote restoration efforts by Federal, State, regional,
3 and local governments and the private sector;
4 "(2) inventory and evaluate existing restoration
5 efforts and make suggestions for the establishment
6 of additional efforts and funding mechanisms for
7 such efforts consistent with existing Federal, State
8 and local programs and plans;
9 "(3) evaluate the role played by, and success of,
lb wetlands restoration efforts in both regulatory and
1 1 nonregulatory contexts;
12 "(4) evaluate current efforts to monitor restora-
13 tion efforts;
14 "(5) periodically report on the status of wet-
15 lands restoration efforts; and
16 "(6) identify regulatory and nonregulatory ob-
17 stacles to wetlands ecosystem restoration and rec-
18 ommend methods to remove such obstacles.".
o
S 1304 IS
APPENDIX
GENERAL STATEMENTS SUBMITTED FOR
THE RECORD
(1445)
1446
AHm
American Public Power Association
2301 M Street, M,W
Wastiington.DC 20037-1484
202/467-2900
Statement of
Anerican Public Power Association
to the
Senate Clean Water. Fisheries and Wildlife Subconnittee
of the Senate Environnent and Public Works Conaittee
on S. 1114. a bill to amend the Clean Water Act
August 20. 1993
The American Public Power Association, the national service organization
representing nearly 2.000 publicly owned electric utilities, appreciates this
opportunity to present public power's views on the Section 401 certification
process for hydroelectric generation projects as authorized under the Clean
Water Act of 1972. Legislation to authorize this expansion has been
introduced by Environment and Public Works Committee chair Max Baucus (D-MT)
and ranking member John Chafee (R-RI). in the form of S. 1114.
APPA supports the reauthorization of the Clean Water Act. but opposes the
inclusion of provisions in S. 1114 that would expand state authority to
regulate water use. in addition to water quality, in the Section 401 Water
Quality Certification process. Enactment of any provision to expand the water
quality certification process to issues beyond the protection of water quality
could disrupt the Federal Energy Regulatory Commission's (FERC) hydroelectric
licensing and reli censing process and jeopardize power production capacity at
existing federally licensed projects. In addition. APPA objects to language
in the bill that would severely limit the activities of federal hydropower
projects by subjecting such projects to new watershed planning activities
governed by the states.
The Importance of Hydropower Generation
APPA has considerable interest in this legislation because hydro facilities
constitute nearly 23 percent of public power's total installed generating
capacity. The combined capacity of all public power hydro projects is more
than 18,000 megawatts out of a national capacity figure from all FERC- licensed
hydro projects of approximately 47,000 megawatts.
Hydroelectric generation is a clean, renewable source of energy, whose use
limits the emissions that would otherwise result from the burning of fossil
fuels. In fact, hydropower resources have the potential to provide a greater
portion of the nation's electric power needs without any additional emissions
of carbon dioxide, the most commonly- known greenhouse gas. The development of
additional hydropower resources from existing projects and non- power dams
could offset carbon emissions 6 million metric tons per year by the year 2000.
Other special characteristics of hydropower include: a) use of an endlessly
replaceable inflation -free fuel --falling water supplied by rain and snow; b)
- 1 -
1447
potential plant life of as long as 100 years, or more, with stable prices; c)
environmental advantages stemming from a lack of the need to transport and
store fuel and waste; d) low outage rates and high reliability; e) ability to
store electricity in the form of impounded water; f) 90 percent efficiency
(compared to 35* for a fossil -fueled steam plant); g) employment of an
indigenous North American energy source of "juice for jobs'; and h)
multi-purpose nature involving not only power production but also irrigation,
flood control, navigation, municipal and industrial water supply, fisheries
improvement, salinity control, wildlife enhancement and recreation.
Section 401 Water Quality Certification Process
APPA believes that it is not necessary to expand the 401 permit process to
allow states to withhold their water quality certification of federally
licensed projects if the project does not "allow for the protection,
attainment, and maintenance of designated uses." (Section 602 of S. 1114).
Our position is based on the single fact that there are other more appropriate
mechanisms already available within the hydro licensing process that
accomplish the same objectives without jeopardizing energy production or
regional energy strategies. The current process provides the necessary
framework to resolve differences among competing uses and interests of the
nation's waterways.
In establishing the hydroelectric licensing process under the Federal Power
Act. Congress carefully weighed the need to balance competing uses for the
nation's waterways. It took the approach that all concerns and issues needed
to be brought to the same table in the licensing process, with a single
decision-maker weighing all factors and reaching a balanced decision. FERC
was given this authority. Some states have wanted to unravel the unified
approach that Congress took and to assert their own authority to over -rule
FERC's authority. In implementing the Clean Water Act. states would have a
significantly more narrow focus of the issues. For example, the state's
consideration of water quality would not include energy, reservoir
recreational opportunities or water supplies.
The piecemeal approach to licensing advocated by states will never work.
Congress has always recognized the need for a comprehensive approach that
balances competing uses on not only an intrastate but interstate basis.
In testimony APPA provided to the full Committee in July, 1991. we submitted
that hydro projects have far reaching effects beyond individual state
interests. It is as true now as it was then. In the Pacific Northwest region
for example, regulation of unilaterally imposed, single purpose constraints,
such as minimum flow requirements, could have impacts far beyond an individual
project. Such requirements could affect not only the individual project upon
which they are imposed, but potentially every project and utility in the
entire coordinated system. These effects are felt across state and
international boundaries and could result in the disruption of the economic
viability of projects hundreds of miles downstream, impacting thousands of
communities and the people residing within them.
Proponents of expanding the Section 401 permit process on hydro projects argue
that environmental values will receive better treatment by the states than
from FERC. The fact is that disjointed operation of the rivers will result in
more environmental degradation than will be the case with coordinated
1448
operation. Further, by law, FERC must explicitly consider environmental
values in the licensing process.
The congressional mandate to consider environmental values was substantially
strengthened by the passage of the Electric Consumers Protection Act (ECPA) of
1986- -a law that requires FERC to balance carefully environmental factors with
power generation needs in rendering its license decisions. Under ECPA. there
have been a number of cases in which FERC has placed more stringent
environmental conditions on a license than the state had required under the
project's approved 401 permit.
APPA does not question the value of coordinating the policy objectives of
environmental statutes, or belittle the responsibility of appropriate state
and federal agencies to steward the nation's precious resources. However,
ensuring that natural resources are used for the maximum public benefit
requires that one agency, not a multitude of agencies, has the ultimate
authority to review the project and render a decision.
The need to expand the 401 certification process beyond the issue of pure
water quality has yet to be proven. There is no clear and convincing evidence
that the current process does not work, or that the process works to the
detriment of the states or environmental interests. The FERC licensing
process provides an appropriate, coordinated, and balanced public policy
process that permits competing uses of the nation's waterways to be
appropriately considered. To set up any other procedure would be unwise and,
most importantly, would run counter to the public interest.
Watershed Management Plans
APPA is concerned with the provision from Section 302. watershed management
plans, which proposes to make each activity of a federal agency that affects
land use, water quality, or the natural resources within a watershed planning
unit for which a plan has been approved be carried out in a manner that is
consistent with the policies established in~the plan. An exemption to this
requirement will be allowed only when the President determines that the
federal activity in question is in the paramount interest of the United
States .
Our concern is that this provision could severely limit the activities of
federal hydropower projects. Affected projects include those operated by the
Corps of Engineers and the Bureau of Reclamation. Power produced by these
projects is sold primarily to public power systems and rural electric
cooperatives by the U.S. Department of Energy's Power Marketing
Administrations.
The questions we ask of this provision include whether the management plan
will have independent regulatory effect apart from current state water quality
standards, and who makes the determination that each federal activity will be
carried out in a manner consistent with the newly- established watershed
management plans.
In general, APPA believes that the creation of voluntary watershed management
plans submitted by the states and approved by the Environmental Protection
Agency Administrator could enhance overall efforts to identify problems
associated with water quality within the designated watershed and aid in the
1449
selection of measures to meet planning goals. However, if Section 302 is
intended to require a second tier state evaluation of whether a proposed
federal activity would meet state water quality standards, it could result in
duplicative and expanded state authority in a process presently laden with
layers of regulatory review. Under such a process, each state could strip
federal agencies of their authority to comprehensively review a proposed
project's affects on a waterway and could ultimately preclude beneficial
development of our nation's waterways.
APPA agrees with the National Hydropower Association's recommendation that
"any independent consideration of the consistency of a proposed activity with
the state watershed management plan should be conducted by the federal
agencies responsible with authorizing the relevant activity. The plans should
be taken into account with deference by the federal agency in making its
determination of the public interest in acting on a specific proposal."
APPA is additionally concerned about what Section 302 intended in allowing the
Governor to select, as one option, a "non-profit entity with the capacity to
carry out the responsibilities authorized by this section (Watershed
Management Plan, Section 302)." We question the logic behind the option of
selecting a non-profit entity to handle such elevated regulatory
responsibilities and suggest that such an entity be one that has legal
authority and financial resources and experience to fulfill its management
responsibilities.
Lastly, the requirement that any federal activity shall be consistent with
watershed management plans and aay be exempted only on the basis of a
Presidential exemption strikes us as a particularly harsh obstacle to
overcome. We question the rationale behind this exemption provision and
welcome the opportunity to more fully discuss the problems and potential
merits behind structuring a Bore reasonable alternative.
1450
Improving Water Resource Management in the United States:
Suggestions for Reauthorizing the Clean Water Act*
Robert W. Hahn
American Enterprise Institute
1150 IZthSt, N.W.
Suite 1100
Washington, D.C. 20036
Prepared for the Committee on the Environment and Public Works
U.S. Senate
23 July 1993
*The author is a Resident Scholar at the American Enterprise Institute and an
Adjunct Research Fellow, John F. Kennedy School of Government, Harvard
University. I would like to thank Marilyn Arnold, Dan Dudek, Scott Farrow, Barry
Korb, Mark Luttner, and Zach Willey for helpful discussions. The views in this
testimony reflect those of the author and do not necessarily reflect those of the
institutions or individuals with which he is affiliated.
1451
Improving Water Resource Management in the United States:
Suggestions for Reauthorizing the Qean Water Act*
Robert W. Hahn
1. Introduction
Thank you for inviting me to testify.
The purpose of my presentation is to persuade you that there is an alternative
to traditional water quality regulation that is, as the commercial says, "less filling
and tastes great." We now have the know-how to achieve improved levels of water
quality at lower cost to the public, provided that you are willing to embark on a new
approach to regulating water.
I have spent the last ten years trying to develop and implement more
effective approaches for resource and environmental management throughout the
world. A central focus of my recent work has been on the development of economic
approaches for improving water quality and water management. I attach an op-ed
from the New York Times that illustrates the kind of market-based approaches that I
would like to see encouraged in the reauthorization of the Clean Water Act. It is a
proposal to reduce phosphorus loads to the Everglades through introduction of a
market in transferable restoration credits. The proposal is very similar in structure
to the 1990 Clean Air Act provisions for cutting sulfur dioxide emissions by 10
million tons. The idea is to give industry greater flexibility in achieving ambitious
environmental goals, thus saving money and, in some cases, jobs.
I would like to begin my presentation with a quotation from a great, and now
defunct, economist. Joan Robinson once asked: "Why is there litter in the public
park, but no litter in my back garden?" The answer, of course, lies with incentives -
each of us has a direct incentive to keep our backyard clean. And while each of us
would like to see the park kept clean, we would prefer that other people do it while
we cire out on the beach getting a sun tan.
The same problem arises in managing U.S. water resources, the subject of my
remarks today. Because we collectively own most of our major water bodies, none
of us has an incentive to take care of these resources the way we would take care of
our own home. The problem for Congress is, thus, to change the incentive
structure so that individual consumers, governments, and businesses have a direct
stake in taking better care of our precious water resources.
There are basictdly two approaches to changing the incentive structure to
achieve better management of water resources. The first is to sell off major public
waterways, including rivers, lakes and streams. Putting these assets in private
hands has the potential to improve their use provided property rights for both water
1452
quality and quantity are well-defined and enforceable. In this case, the new owners
of these assets would have a very strong incentive to treat these water resources just
like they treat their own backyard. That is, they would have an incentive to keep
the water body clean and allow people to use the water body only if they paid a price
that reflects the value of the resource.
Privatizing water resources could also start a political firestorm, if not a
revolution. Thus, I will not advocate it here today.
Instead, I will focus on a second approach to improving the management of
resources — the introduction of "economic" approaches for improving the public
management of water resources. Within the economic approach, there are two
fundamental issues that need to be addressed - the first is the identification of
appropriate goals for water quality and water use; the second is to choose appropriate
methods for achieving goals.
The choice of goals for water quality should depend, among other things, on
the economic benefits associated with consuming or using the water resource as
well as the economic costs of providing that resource. The benefits include
preservation of species habitat, recreational uses such as fishing, swimming and
boating, commercial uses, the ability to use the resource as a drinking water supply,
and the satisfaction that comes from knowing waterways are clean.
2. Introducing Cost-Benefit Analysis
In conventional cost-benefit analysis, standards are intended to be set so that
the incremental benefit from cleaning up the water just equals the incremental cost.
Admittedly, these concepts are difficult to quantify, particularly on the benefit side.
Nonetheless, it is absolutely imperative that efforts be made to quantify these
concepts if clean water policy is to be developed in a way that is likely to lead to
improvements in our standard of living.
The U.S. Environmental Protection Agency (EPA) has not devoted significant
resources to developing analyses that suggest where regulatory efforts are best
focused under the Clean Water Act. The most comprehensive analysis of the
benefits and costs of current plans to achieve the objectives of the Clean Water Act
has been performed by Lyon and Farrow (1993). These authors argue that in many
current implementation plans, the incremental costs of improving water quality
exceed the incremental benefits. This means that many of the standards and
regulatory methods that EPA has promulgated to date may be wasteful in the sense
that they actually lower our average standard of living. At the same time, there may
be specific instances of heavily polluted and/or heavily used water bodies where
significant improvements in water quality are well worth the cost.
1453
The preliminary results by these authors and results from earlier studies
suggest that more attention needs to be given to doing cost-benefit analysis so that
Congress can be certain we are focusing on the right water problems in the right
water bodies.
Recommendation 1: EPA should commission a state-of-the-art cost-benefit analysis
of the current Clean Water Act by scientists and social scientists so that the political
debate on Clean Water Act reauthorization can be better informed. This analysis
should attempt to point out where standards could benefit from tightening and
where standards coiild benefit from being relaxed.
The analysis also should identify key areas of uncertainty in the estimation of
benefits so that decision makers can make more informed decisions about
appropriate standards. At present, relatively little is knov^m about the dose-response
function for many water contaminants or how people value dean water that they,
themselves, may not use.
Recommendation 2: EPA should develop a database that permits a more refined
assessment of the benefits and costs of the Clean Water Act.
EPA should be required to submit a report to Congress every two years that
addresses the benefits and costs of controlling different pollutants in different
waterways.
The second recommendation is similar to a provision in the 1990 Clean Air
Act Amendments, which Ccills for a cost-benefit analysis of selected statutes in the
Act. Without such information. Congress will not be in a position to make
informed decisions about the economic consequences of their proposed statutes.
3. An Overview of Economic Incentives
Once a standard has been chosen, the question arises as to what is the least
costly way of achieving that standard. One way is to prescribe a technology that each
company in an industry must use. This is sometimes referred to as "command-and-
control" regulation. Command-and-control regulation has been criticized by
economists because it does not leave businesses and individuals with much choice
in how they achieve an environmental target. For example, a law may require that
a power plant use a scrubber to reduce air pollution, regardless of whether another
technology or group of technologies might be more effective in achieving the same
level of air quality.
Economists have argued that many pollution problems can be addressed
1454
more effectively through the introduction of economic incentives. The idea behind
using economic incentives is to save resources while achieving a particular
environmental goal. For example, in 1990, the Congress adopted an economic
incentive approach for limiting acid rain that could save society as much as $1
billion annually when compared to a conventional command-and-control approach
that required the largest polluters to install scrubbers.
There are many different kinds of economic incentive approaches. They
include the use of subsidies, taxes, deposit-refund schemes, marketable permits, and
the removal of institutional barriers that lead to price distortions. In the interest of
brevity, I would like to focus on charges (taxes) and marketable permits.
Charge systems impose a fee or tax on pollution. For example, a chemical
manufacturer would be charged for every unit of pollutant that it discharged into a
river. Several European nations, including France, the Netherlands, and West
Germany currently use water pollution charge systems.
Pollution charges, by themselves, do not restrict the amount of pollutants
that may be emitted; rather, they tax emissions. Such fees ensure that a firm will
internalize the previously external pollution costs and be forced to perform a profit
and loss calculation in order to respond efficiently to the fee. A firm has many
options. It might decide that it is in its interest to pay the fee, completely eliminate
the discharge, or partially reduce the emission.
The advantage of the fee system is that all businesses face the same incentive
to limit pollution at the margin. A firm will control pollution up to the point
where the marginal cost of control just equals the fee. The result is that the total
costs of pollution control are minimized, when compared with other methods of
allocating the pollution control burden across businesses. Pollution charges, like
other market-based mechanisms, also provide ongoing incentives for businesses to
develop and adopt newer, better pollution control technologies.
One problem with emission charge systems is that governments do not know
in advance what level of cleanup will result from any given charge. This problem
stems from a lack of knowledge about how businesses will respond to a given level
of taxation. Governments do not have the information to determine either an
individual firm's pollution control costs or the distribution of costs across
businesses. This inability to specify a target level of pollution that will be achieved
does not, however, alter the reality that charges have the potential to achieve
emission reductions at substantially lower cost than command-and-control
regulation.
Marketable Permit Systems
1455
Marketable or tradeable permits can achieve the same cost-minimizing
allocation of the pollution control burden as a charge scheme, while also avoiding
the problem of uncertain responses by businesses. Under a tradeable permit system,
the allowable overall level of pollution is established and then allotted to businesses
and government entities in the form of permits. A business that keeps its emission
levels below the allotted level may sell or lease its surplus permits to others.
As with a charge system, the marginal cost of control is identical across
businesses and thus the total cost of control is minimized for any given level of total
pollution control. In the case of local water pollution control, for example, this
approach could be substantially more efficient than current regulatory methods,
both because its inherent flexibility takes advantage of differences in control costs,
and because it allows individual businesses to decide where and how to make
desired reductions in loadings.
In the event that overall loading targets are viewed as too strict, the
government may choose to increase the supply of permits. Likewise, in order to
reduce allowable emissions, regulators could take the opposite stance and reduce the
supply of permits.
Permit systems have been used primarily in the United States. Examples
include: the Environmental Protection Agency's Emissions Trading Program for air;
the nationwide lead phasedown in gasoline, which allowed fuel refiners to trade
reductions in lead content; and the gradual pheise out of chlorofluorocarbons in the
U.S., where businesses are allowed to trade the right to produce or import limited
quantities of these chemicals. In addition, several western states have implemented
water quantity trading in limited forms. Some states also are considering water
environmental credit trading programs to achieve least-cost approaches for
controlling discharges from farms and municipal wastewater treatment plants.
4. Encouraging the Use of Economic Instruments for Better Water Management
Congress could encourage EPA to implement both fee systems and
marketable permit approaches. Because I believe fees are likely to encounter more
political resistance, I believe Congress should promote more widespread use of
marketable permits for improving water resource management.
The subsequent recommendations highlight the potential for encouraging
greater use of marketable perniits.
Recommendation 3: EPA should be required to implement marketable permits as
the tool of choice for improving water quality, or justify in writing why it has not
chosen this alternative.
1456
The point of this recommendation is to encourage EPA to rely more heavily on
market-based approaches for improving water quality rather than the command-
and-control approach used for the last l-wenty years.
Recommendation 4: Congress should encourage EPA and the states to implement
trading of environmental credits between point sources where technology-based
requirements do not lead to the attainment of water quality goals (i.e., in "water
quality limited" areas).
Recommendation 5: Congress should encourage EPA to allow for trading between
dischargers whose effluent is then treated at a sewage treatment plant.
The point to point source trading between sources, such as municipal
treatment plants and industrial sources, has the potential to save money and
stimulate environmental innovation. So, too, does trading between dischargers
whose effluent is treated at sewage treatment plants.
Recommendation 6: Congress should encourage trading with non-point sources,
including trading between point and non-point sources and trading among non-
point sources.
It is becoming increasingly apparent that many problems with water quality
arise because non-point sources, such as agricultural runoff, are typically
unregulated or minimally regulated. For example, over 18,000 water bodies will not
attain water standards even if all point sources were to meet their technical
requirements. While EPA has acknowledged non-point sources are a major
problem, there have been few advances in regulation over the last twenty years.
There appears to be a great potential for achieving cost savings if non-point
sources can be brought into the system. One way to bring them into the system is for
EPA to develop guidelines for trading vidth non-point sources. Even if non-point
sources remain largely unregulated, heavily regulated point sources should have
the abihty to trade with non-point sources provided they can show that water
quality will improve as a result of the trade.
The technical challenges of regulating non-point sources are large, but
surmountable. For example, I have proposed a transferable restoration credit system
for the Everglades in South Florida that allows phosphorus to be measured at
specified pump stations in the Everglades Agricultural Area. Where monitoring
can only be done at great cost, then experts may need to use best practical judgment
along with trading ratios to assure that water quality would improve. For example,
in an application of this concept to the Hawkesbury-Nepean River system in
Sydney, Australia, I am working with the government to establish trading rules for
6
1457
phosphorus reductions for fcirmers. These reductions would reduce the occurrence
of blue green algae blooms in the river system.
It is important to note that the technical challenges of regulating non-point
sources are not unique to a market-based approach, but apply to all regulatory
systems including command-and-control. If monitoring costs of actual loadings are
too high, then other alternatives may be appropriate. For example, in the case of
phosphorus use on farms, it may be preferable to impose a tax on inputs, such as
fertilizer, basing the tax on expected harm to the water body.
A key advantage of introducing trading with non-point sources is that it
provides environmental benefits while lowering the overall cost of regulation. If
regulation of these sources remains largely voluntary, a market-based approach
provides a positive incentive for these sources to participate in limiting their water
pollution.
The concept of trading can be expanded to wetlands.
Recommendation 7: Congress should encourage EPA to develop and implement
rules for trading among different kinds of wetlands.
The idea is to encourage the preservation of wetland functions while promoting
economic growth. Because artificial wetlands can be constructed, there is scope for
trading among wetlands. Establishing the rules for trading will be a challenge. EPA
should be instructed to provide guidance on this issue in a timely manner, explicitly
recognizing that different wetlands serve different functions. The practice of
building or maintaining wetlands in exchange for specific forms of development
has been tried successfully in Florida with the construction of Disney World. I
propose to expand on that idea, allowing individuals greater flexibility in managing
wetlands while preserving the environmental integrity of the wetland system.
Under current law, regulated entities would be required to meet technology-
based requirements. This command-and-control regulation should be supplanted
by market-oriented regulation that focuses on the environmental performance of
the water body in question.
Recommendation 8: Congress should encourage EPA and the states to establish
total maximum loads for all non-attainment water bodies.
Recommendation 9: For those areas where a load-based water quality standard is
defined. Congress should permit the states to implement a trading system that does
not require businesses to meet a specific technology-forcing requirement, provided
that it can be shown that trading leads to a comparable or better outcome in terms of
water quality.
1458
The focus on environmental outcomes is likely to lead to better
environmental quality at lower cost. Where there are damage thresholds associated
with specific sites, some command-and-control regulation may be necessary to set
the maximum ceilings on loads from a specific site or a cluster of sites. Nonetheless,
the goal of regulation should be to provide the maximum improvement in
environmental quality per dollar spent. This goal is best achieved through making
greater use of market-based approaches for preserving and enhancing water quality.
While most, if not all, of the preceding recommendations could be
implemented under the existing Clean Water Act, explicit Congressional support for
marketable permits will spur their use.
Recommendation 10: Congress should insert language in the new Clean Water Act
that demonstrates its commitment to the widespread use of marketable permits for
improving the quality and economic value of the nation's water resources.
Congress should make it clear that it is primarily concerned with making
necessary improvements in water quality in a timely manner. The precise method
of achieving those environmental improvements should be left to business and
government entities responsible for making the reductions needed to meet those
goals.
5. Whither Water Regulation?
A fundamental concern for the 1990s will be integrating water quality and
quantity concerns. My testimony has focused primarily on quality issues, but the
two issues are inextricably linked. Just as quality can be improved through the
introduction of markets, so, too, can water quantity. Moreover, markets for water
quantity may also improve water quality by encouraging non-point sources of
pollution to conserve water. While water quantity issues generally are subject to
state law, the federal government could help by endorsing the use of water markets
and allowing the transfer of water contracts for federal reclamation water supply
projects.
We have the technical know-how to implement economic instruments for
improved water quality and allocation. The question is whether we have the
political will. I am optimistic that more markets for improving water management
will be introduced. My only question is whether Washington will lead the charge or
follow. The reauthorization of the Clean Water Act provides you with a unique
opportunity to lead the charge. I hope you take advantage of this opportunity to
benefit the health and welfare of the American jjeople.
Thank you.
1459
Selected References
Farrow, Scott (1992), "The Existing Basis and Potential for Damage Fees and
Tradeable Allowances," F*roceedings, Clean Water and the American Economy, U.S.
Environmental Protection Agency and Resources for the Future, October 19-October
21.
Hahn, Robert W. and Hird, John A. (1991), "The Costs and Benefits of Regulation:
Review and Synthesis," Yale Journal on Regulation, 8, Winter, 233-278.
Hahn, Robert W. and Stavii^, Robert N. (1991), "Incentive-Based Environmental
Regulation: A New Era from an Old Idea?," Ecology Law Ouarterly, 18. 1-42.
Lyon, Randolph M. and Farrow, Scott (1993), "An Economic Analysis of Clean
Water Act Issues," Working Paper No. 92-46, H. John Heinz III School of Public
Policy cmd Management, revised in January.
Podar, Mahesh and Luttner, Mark (1993), "Economic Incentives in the Clean Water
Act: Some Preliminary Results," U.S. Environmental Protection Agency, April 12,
mimeo, 16 pp.
Squitieri, Ray (1992), "Are Permits and Charges the Last Word in Water Pollution?,"
Proceedings, Clean Water and the American Economy, U.S. Environmental
Protection Agency and Resources for the Future, October 19-October 21.
Stavins, R., ed. (1988) Project 88: Harnessing Market Forces to Protect Our
Environment — Initiatives for the New President, a public policy study sponsored
by Senator Timothy E. Wirth arnd Senator John Heinz, Washington, D.C.
Willey, Zach (1992), "Implementing Market-Based Instruments for Clean Water in
America," Proceedings, Clean Water and the American Economy, U.S.
Environmental Protection Agency and Resources for the Futtire, October 19-October
21.
1460
STATEMENT OF AMERICAN FARM BUREAU FEDERATION
TO THE HOUSE PUBLIC WORKS AND TRANSPORTATION SUBCOMMITTEE
ON WATER RESOURCES AND ENVIRONMENT
REGARDING CLEAN WATER ACT REAUTHORIZATION
Presented by Keith W. Eckel
President
Pennsylvania Farm Bureau
and
American Farm Bureau Federation Board Member
April 22, 1993
Thank you Mr. Chairman. My name is Keith Eckel, and on behalf of the American
Fami Bureau Federation we appreciate the opportunity to speak to you about the
reauthorization of the Clean Water Act. Water quality is of great interest to Farm Bureau's
nearly four million member families. Farm families have an inherent self interest in protecting
water quality. Our families, our livestock and our crops and our land are usually the first to be
affected by a degradation af water quality.
From the perspective of farmers and ranchers, there are three broad aspects to the
Clean Water Act that need your attention. First, a non-point source program that retains the
basic tenants of the current 319 program. Second, is the need for a clear, comprehensive
wetland policy. And third, an adequate commitment of resources to make it work.
NONPOINT SOURCE
This issue has been a priority for farmers and ranchers for many years and there is a
tremendous amount of activity on farms and ranches across the country. Farmers are
reducing erosion and increasing efficiency of chemical use. For example:
^ Soil erosion has been reduced 90 percent or more on 35.5 million acres of land that
is in the Conservation Reserve Program,
> Crop protection chemicals used by fanners are down 20 percent from 1982, and
► Corn's nitrogen fertilizer use efficiency is up 14 percent since 1980.
^ Implementation of conservation compliance plans on highly erodible soils is slightly
ahead of the expected rate with 58 percent of planned acres fully implemented. (See
attachment #1 and #2.)
^ Over 88 million acres of cropland are under conservation tillage systems providing
residue cover of 30 to 90 percent,
I An additional 73 million acres of cropland has 1 5 to 30 percent residue cover
providing substantial erosion control benefits, particularly in small grain production
areas of the great plains.
1461
— 2 —
> "No-tiir farming practices soybean acres quadrupled between 1989-1992 to 8.2
million acres.
'The assumption that
American agriculture
is incapable of far-
reaching change is
not true; the changes
we have seen in
tillage and pest
control over the past
20 years would have
been considered
revolutionary in
1969." —Dr. R.G.
Hoeft and ED. «
Nafziger, University of
Illinois
water quality crisis situation.
As an industry, we are more mindful of the potential for
adverse impacts of our activities. The process of education
and promoting awareness began many years ago.
Attached is a summary of several of the environmental
initiatives that American Farm Bureau Federation has had on-
going over the last 10 years which support the effort to protect
our water resources. (See attachment #3.)
As with many issues, perception and reality often tend to
reach different conclusions. Despite the perceptions, all
indications are that surface water quality is improving and the
trend will more than likely continue in that direction for some
time. Senator Chafee has noted that 80 percent of the
nation's waters now meet the Clean Water Act's goal of being
fishable and swimmable. That is something we ought to be
shouting abouti We are making great progressi
We believe, Mr. Chairman, that it is important for the
general public to know that whatever water problems exist in
rural America they are manageable problems. We are not in a
Agricultural chemicals are also often perceived as one of the "major threats" to water
quality. However, the EPA National Pesticide Survey went looking for 1 26 pesticides and or
breakdown products in mral drinking water wells and community wells and DID NOT find 110
of them. Those that were found were generally present at levels that were not threatening to
human health.
Our members have been testing their own wells in record numbers through cooperative
programs developed by Farm Bureau. More than 40,000 wells in 19 states have been tested
for nitrate. More than eighty percent of the tests showed nitrate levels in the range of what is
normally considered naturally occurring background levels.
Mr. Chairman, modem agricultural technology should not be viewed as the problem,
but rather the solution. The amount of cultivated land in the United States is approximately
340 million acres. That is approximately the same amount of land in production at the turn of
the century. However, the U.S. population (consumers) has increased by 179 million people,
while the number of farmers has steadily declined. Farmers account for less than one percent
of population today. Despite these trends we have not only been able to meet the rising
domestic demand for food consumption, but we are exporting approximately 30 percent of our
production eibroad. Furthermore, we are today idling more land to conservation than ever
before and employing better conservation on the land we crop. If it were not for the advances
in technology, our domestic demand for food could require as much as 800 million acres of
additional cropland. It is because of technology such as pesticides and fertilizers and
increased efficiencies produced through agricultural research, that land Is now available for
conservation set asides, wetland restoration, wildlife habitat, forest restoration, parks and
1462
— 3 —
wilderness areas. And, similarly, 99 percent of the population
is free to pursue occupations other than self-sustenance.
Today we have more woodlands, more wildlife, more
conservation, than at anytime in over a century. That has had
and will continue to have a benefit to water quality.
When setting policy, it is important to look at the long-
term trends and avoid decisions based on historical snap-
shots. In the state of Iowa for example, the use of commercial
fertilizers have been blamed for elevated levels of nitrate in the
Des Moines River. Ironically however, the Leopold Center for
Sustainable Agriculture at Iowa State University has recently
issued a report that calls this into question. Their research
found that nearly 50 years ago, before commercial nitrogen
fertilizers began to be used extensively, the nitrate level in the
river was already nearly the same as it is today. It is
important that we understand the nature of the problem in
order to effect the right solution.
ooo
As this Committee prepares to reauthorize the Clean
Water Act provisions addressing nonpoint source runoff, I
would like to offer several observations that come from our
experiences in working with landowners on water quality
issues.
1 . Farmers and ranchers want to do what is right
for the environment. They will respond to problems when
provided with sound, scientifically based information and
reliable cost-effective solutions.
"We must realize that
we cannot turn the
clock back to the good
old days of the I930's
when the world
population stood at 2
billion people and few
agricultural chemicals
were used Given
current scientific
knowledge, it is my
belief that the
judicious use of
agricultural —
especially chemical
fertilizers — is
absolutely essential to
produce food needed
to feed today's
population of 5,3
billion, which is
currently increasing
at the rate of 88
million per year."
— Dr. Norman
Borlaug, Nobel
Laureate
2. Our public policies affecting water quality should
be based on fact, not perception. There is a critical need for continued research and a
greater understanding of the site-specific linkages between farm practices and water quality.
We ought to have the facts to support policy. The cost of being wrong is simple too great.
Sound policy must be based on more than grab samples and generalizations.
3. We believe the programs and solutions that work best are those that come from
the grass-roots up. Achieving improved water quality practices is best accomplished by
voluntary, locally designed and implemented site-specific solutions. We should avoid the
temptation to adopt "one-size-fits-all solutions". In looking at the successes of USDA's Rural
Clean Water Program, it was clear that the more local people took control of the effort, the
better the results.
It is equally important to realize that these practices must be put into use before any
benefit is to be achieved. Therefore, we need a sound, trusted and reliable delivery system of
information, technology, and assistance to the farm-gate. The concept of State primacy in
Sec. 319 should be maintained.
1463
— 4 —
4. As I mentioned above, achieving water quality improvements is a process that
takes time to show results. We should take a reasoned, long-term approach to water quality
improvement and avoid the temptation to make decisions based on historical snapshots.
An assessment from Dr. George Halberg, of the Iowa Department of Natural
Resources who has spent a decade on the widely known Big Spring water quality
improvement project in northeast Iowa sums up the situation.
*We need time. Even if we could do it-implement all known BMP's today-we'd
stUl be a decade away from proving changes in water quality. — Dr. George
Halberg, Iowa Department of Natural Resources"
5. There is an urgent need to consolidate efforts. One of the major problems
facing fanners today is thajnultitude of duplicate programs. We have, as a base, the
voluntary Agricultural Conservation Program (ACP) and general conservation technical
assistance. For farmers who voluntarily wish to receive USDA program benefits there's the
Food Security Act's mandatory conservation compliance, sodbuster and swampbuster
programs. There is the voluntary Conservation Reserve Program, the Water Quality Incentive
Program, the Clean Water Act Sec. 319 programs developed by many states, and the there
are the regional Gulf of Mexico, Chesapeake Bay, Great Lakes and Great Plains programs. In
addition, farmers in many of areas will soon be responding to the Coastal Zone Act
Reauthorization Amendments as their state begins implementation. We've had the Rural
Clean Water Program, the Hydrologic Unit Area Projects Demonstration Program and many
others.
Each of these can have a positive impact on water quality, but it makes no sense tor a
landowner to have to deeil with the papenwork for what could be eight or more separate
programs. And this is just the short list, fy/lany are conflicting and redundant, virtually none
are coordinated.
Representative English has introduced legislation that would enable farmers establish
to a single conservation plan for their farms and ranches. The concept makes sense but
should be expanded to apply to programs from EPA and other agencies as well. We urge
that this Committee look carefully at what is already required and find ways to combine and
consolidate efforts.
With regard to specific suggestions regarding the Sec. 319 program. Farm Bureau and
other farm and ranch organizations have developed the attached Statement of Principles. We
have met with Committee staff and look fonward to working with you on this matter. (See
attachment #4.)
ooo
1464
— 5 —
In summary, we support the following concepts to address the issue of nonpoint source
pollution:
• The central focus of NPS management solutions should be a reasonable and voluntary
approach based on incentives, education, and site specific technical assistance. The
nature of the problem differs substantially from that of point source pollution and hence
requires different approaches. Best management plans and practices should allow
maximum flexibility.
• NPS programs should retain the emphasis on State primacy and the development of
locally designed, implemented and monitored best management practices.
• States should continue to have the authority to identify and resolve their priority water
quality problems through administration of Sec. 319 funds.
• fvlanagement efforts funded by Sec. 319 money should directed to priority watershed
areas based on scientific assessments. Strategies should be developed on a watershed-
wide basis.
• USDA and the Soil Conservation Service should have the primary role in developing
plans and assisting landowners with implementation.
• Reauthorization of the Clean Water Act should include a strong financial commitment to
further research, monitoring and assessment projects. More information is needed on the
source, extent and impact of nonpoint source runoff, as well as the effectiveness, utility
and economic feasibility of conservation practices.
• It is inappropriate for the Clean Water Act to extend citizens suit provisions to individuals
participating in NPS management programs, nor is it appropriate to extend authority for
citizen monitoring and oversight.
Our farmer and rancher members and other mainstream people realize that neither
they, nor the nation, can afford the goals of zero pollution and zero risk when it comes to
controlling soil erosion and agricultural runoff or any other human activity. However, thev are
willing to pursue excellence in conservation.
WETLAND POLICY REFORM
HISTORICAL PERSPECTIVE
For much of our history, wetlands have been viewed as a problem to be eliminated,
rather than a resource to be managed and conserved. Wetlands were altered for purposes
that provided many benefits to society, including flood control, protection of public health,
agricultural production, road construction, government, education, and residential
development.
1465
— 6 —
Only recently has the emphasis shifted with a new
focus on the unique and valuable functions of some wetlands
in their natural state. This shift In public policy, and the view
by some that wetlands are a "public" resource, does not
always mesh with the fact that about 70 percent of wetlands
are on private land, which individuals have purchased,
mortgaged, and pay property taxes on. From an agricultural
standpoint, one of the major shortcomings of the current
wetland regulatory system is the failure to recognize and
respect private property rights. Additional dry land and
uplands have l^een swept into wetland categories by
bureaucratic expansion.
''Outside of Alaska,
the majority-6S
million acres of the
nations wetlands are
owned by the private
sector-'individual
farmers, ranchers,
corporations, land
trusts, and other
private landowners."
— National Wetlands
Policy Forum
A major part of the problem is that we have a wetlands
program that grew not by design but by default, by
bureaucratic expansion rather than congressional intent. In
fact, the Clean Water Act does not even clearly and expressly
direct the regulation of wetlands. Wetlands are not defined as
"waters of the United States." Farmers and other natural resource users are now at the
mercy of four federal agencies engaged in territory battles. Each has its own ideas about
wetlands. None of them really cares what their decisions do to the livelihoods of landowners.
In less than 20 years, we have seen the Section 404 program go from regulating
navigable waters, to regulating corn and soybean fields. Regulatory authority has expanded
from restricting a few activities in the public waters of the United States, to federal planning
and control without compensation. We have a regulatory policy that forsakes all other
elements of ecosystems for wetlands. It rules blindly without weighing the importance of the
wetland or the proposed project, the environmental value of the alternative site impacted, or
for that matter, the cost to the property owners and the taxpayers. It is a policy that has
required highway engineers to cut down, excavate and flood a mature maritime forest in
Savannah, Georgia, in order to "compensate" for the minor wetlands lost during
road-widening. It is a policy that for years has stifled local government officials in
southeastern Virginia, where 80 percent of the land is hydric soils, from building a new
drinl<ing water reservoir for their residents. It is a policy that may cause a farmer to forfeit a
third of his famn as "mitigation" because he could not afford the protracted legal costs of
challenging the Corps of Engineers' allegation that his prior-converted cropland was still a
wetland.
**The United States urgently needs a better system for protecting and managing its
wetlands" — The Nadonal Wetlands Policy Forum
Over the last several years, this Committee has had numerous hearings on wetland
policy. Witnesses have included farmers, businessmen, bankers, local government officials,
concemed citizens, realtors, transportation personnel, members of Congress and even former
regulators at the U.S. Anny Corps of Engineers. Their message contained a singularly
1466
— 7 —
consistent refrain: Something is terribly wrong with wetland regulations. The regulators have
overreached, the regulations have no design or coordination, and there is a lack balance and
perspective with other policy goals. This concern is real and widespread.
This Committee must not let the opportunity pass to improve wetland policy, from both
the standpoint of the resource and the landowners.
WETLAND INVENTORY
There has been much attention given to the loss of wetlands over the years and the
importance of conserving wetlands. Central to this debate is the need to understand the
current rate of conversion of wetlands, as well as where and why those conversions are
occurring.
Recently, the U.S. Department of Agriculture updated its National Resource Inventory
(NRI) which covers the years 1982-1991 . It represents the most recent survey of our wetland
inventory and offers the most up-to-date picture of the wetlands alteration. The inventory
examined the conversion of wetlands on non-federal rural land in the United States, excluding
Alaska.
The NRI shows that the total wetland losses between 1982 and 1991 have trended
down to approximately 110 thousand acres annually on non-federal rural lands. This
Includes alterations from agriculture, development and other categories such as drought,
change to open water and acquisition by the federal government. Keep in mind that there are
no new large-scale farmland clearing projects currently under way. The last large scale
farmland clearings occurred when government inflation policy ran commodity prices to very
high levels.
Of particular importance is the clear downward trend of these alterations. The
alterations attributed to agriculture are particularly worth noting. They have declined to an
average of less than 30,000 acres per year. Furthermore, the inventory does not attempt to
estimate the amount of wetland acres created or restored by farmers and ranchers which we
believe is significant. Nor would this account for the millions of acres of cropland which has
fallen out of production over the last decade.
We believe agriculture already is contributing to sizeable additions to our nation's
inventory of wetlands. We strongly recommend that the federal government adopt a standard
method for inventorying wetleinds, conduct a national inventory, classify these wetlands on the
basis of function and value, and require that all government agencies adhere to this single
inventory. We also suggest that before any federal inventory of wetlands is conducted, the
Congress should adopt a clear, consistent and common-sense definition of wetlands to
minimize confusion.
WETLAND DELINEATION MANUAL
For years, Farm Bureau has argued that there must be a common-sense definition of
wetlands. Wetland delineation has been a major part of the problem, in large part because
cun-ently, wetland delineation equals wetland jurisdiction. Hence, by expanding the scope of
wetland delineation as was the case in the 1989 manual, jurisdiction was also
1467
— 8 —
expanded — without any public review or input, or any attempt to gauge the added regulatory
impact on landowners, small business, property values, bank portfolios or local governments.
The fact that the National Academy of Sciences (NAS) Is currently reviewing the
several of the scientific aspects of wetland delineation should not preclude this Committee
from addressing the policy reforms that are needed. The fundamental question is not the lack
of science, but how to apply the science we have in a rational manner.
There has been abundant science incorporated in the 1987, 1989 and the 1991 draft
version of the wetland manual. The controversy stems from the inescapable fact that under
current law, everything that is deemed to have any wetland characteristics is subject to
regulation, regardless of its functional value. Once regulated, there is no provision in law to
classify high or low value wet soils and apportion protection efforts accordingly.
Consequently, the coastal marsh, bogs, swamps and the damp area in the center of a corn
field are both subject to jurisdiction. Similarly, the lack of any appeals procedure, increased
regulation of landclearing activities, and a strengthening of the Sec. 404(f) provisions
regarding normal farming activities all need to be addressed.
These specific concerns, as well as the overriding issue of what land ought to be
regulated, are all outside of the scope of the National Academy of Sciences study. Any
resolution of these problems will only come from the Congress and originate within the Public
Works Committee. Reform of Sec. 404 must be part of the reauthorization of the Clean Water
Act in 1993.
IMPACT ON AGRICULTURE
Farmers and ranchers, like many other small businesses, have been significantly
impacted by the current wetland regulatory program. Many farmers have unwittingly found
themselves ensnared in a regulatory trap that unnecessarily delays and frustrates all attempts
at good-faith compliance and is prohibitively costly to challenge over a protracted period of
time. In farming or ranching, the agricultural value of the land rarely justifies the cost of
regulatory burdens, which can run into hundreds of thousands of dollars and many years. As
a result, win or lose, the viability of the farming or ranching operation is placed in jeopardy.
Wetland regulations have the net effect of reducing the value of productive assets by
restricting current economic uses and limiting future use opportunities. The incidents are
frequent, and costly and underscore the need for major reform.
From the perspective of farmers and ranchers, most of the problem stems from an
excessively broad federal definition that encompasses land exhibiting few If any true wetland
characteristics. Attempts to regulate so-called "dry wetlands" as they are known to
environmental advocates, has led to many landowners, government officials, small
businessmen and others becoming embroiled in costly conflict.
Regulation of these lands has caused property values to fall and tax burdens to shift
dramatically, limiting the ability to obtain critical financing for farming operations. Dry wetlands
designations also have precluded farmers and ranchers from physically expanding many types
of farming operations, causing inefficiency and reduced competitiveness.
1468
— 9 —
Despite a clear statement of intent from Congress in Section 404(f) that normal and
routine farming and ranching practices are not subject to individual permit requirements, the
opposite Is often the case. Regulators who are anxious to expand their control and power
over private landowners frequently cite normal and routine farming practices as needing a
Section 404 permit. Such activities could be as innocuous as extending a milking parlor into a
dry pasture, cleaning overgrown fence and hedgerows, cleaning and maintaining drainage
ditches, construction of farm and stock ponds, maintaining center-pivot Irrigation systems,
building rice levees and catfish ponds, maintenance of levees, or brush clearing.
These are just a few of the types of normal and routine fanning activities that our
members have reported being cited by federal regulators as requiring federal permits. These
frequent attempts to circumvent and narrow the intent of Congress under Sec. 404(f) actions
are not benign and can result in costly legal disputes. Often, landowners are given an
"opportunity for settlement" that usually includes a severe financial penalty and forfeiture of
some land as mitigation over the so-called violation. In short, the Issue comes down to vague
law, and unintelligible regulations that have eroded credibility of the 404 program among
landowners who are law-abiding people.
Land often Is the farmer's only tangible asset after a lifetime of work. It represents his
retirement, children's education, source of credit and overall financial well-being. To deny a
landowner reasonable and full use of his property is wrong.
Clearly, we can and should do better. The challenge Is to construct a coherent,
national policy that protects the rights of property owners. Good policy is policy that the
average citizen understands what we as a self-governing people are trying to accomplish.
Today, not one citizen can tell you what we are trying to do with wetlands policy. It simply
makes no economic or political sense at all.
While we have attempted to briefly Illustrate the impact of that program on farmers and
ranchers, we offer the following suggestions for correcting the problem. Those most pertinent
to agriculture include the following:
1. Wetland Definitions
The temporary return to the 1987 Wetland manual Is an improvement over the 1989
manual, but it too contains some of the uncertainties that led to the original controversy. The
conflict over wetland delineation stems from the lack of a clear public policy to apply good
science. In that context we look forward to the product of the National Academy of Sciences,
but we do not view the NAS study as a panacea. As members of the House of
Representatives, you. not the NAS, must be the arbiter of that conflict, the source of the
compromise. Eighteen more months of study will not resolve it.
2. Prior Converted Cropland
The Environmental Protection Agency and Corps of Engineers has promulgated rules
to exclude prior converted cropland from the scope of Section 404. This was an important
change and we commend the Corps for their action. Prior converted cropleinds are defined as
lands brought into agricultural production before December 23, 1985 (enactment date of the
1469
— 10 —
Swampbuster provisions of the 1985 Food Security Act). They are lands that have been
physically altered such as ditched, tiled, leveled or drained for the purpose of food production.
They no longer function as wetlands, nor as the Corps indicated in a regulatory guidance
letter of September 26, 1990, do they "show important wetland values." The 1985 farm bill
specifically excludes prior converted cropland, and we believe that a similar exclusion should
be carried through in Section 404.
3. Normal Farming Practices
Section 404(f) of the Clean Water Act intended for farms, ranches and forestry
operations to continue "normal" farming and ranching activities including, but not limited to
plowing, seeding, cultivating, minor drainage, harvesting etc., without having to obtain
individual permits. Despite that intent, many of the conflicts between farmers and regulators
are due to attempts by field office .'egulators with no familiarity with agriculture to define what
constitutes a normal farming practice.
In Louisiana, Arkansas and Missouri, for example, regulators attempted to restrict the
construction of rice levees as practices that were not exempt under Section 404(f) and that a
404 perniit would be required, along with the need for mitigation. It should be noted that this
land is dry and has been in crop production and crop rotations for decades. To grow rice, the
water had to be diverted onto the land. Nevertheless, it took the personal intervention of five
U.S. Senators and several months of effort to convince the Corps of Engineers of its error.
Imagine, all of those resources spent to prove that this one activity involving only one
commodity in one part of the country was a routine one. You can begin to understand why an
individual farmer feels totally helpless and intimidated by this process.
Similar problems have occurred over the construction of catfish ponds, haying and
grazing high mountain meadows, maintenance of drainage ditches, and many other routine
practices.
We believe the intent of Congress is clear that these activities are to be exempt from
permit requirements. Because of the diversity of agriculture among commodities and regions
of the country, Congress should restate and further clarify that intent.
4. Classification of Wetlands
Changes to Section 404 should include a system of classifying wetlands, recognizing
that not all wetlands share the same ecological value or perform the same functions. Those
that are truly unique may be deserving of greater protection, whereas those that are marginal
or only technically meet wetlands criteria should be subject to less stringent oversight.
5. Private Property Rights
Central to the wetlands issue is the question of private property rights. More than 70
percent of wetlands are on private property. The 5th Amendment to our Constitution provides
that private property may not be taken for public use without payment or just compensation.
Historically, the landowner has borne the burden of protecting this resource, both in the form
of direct cost, as well as restricted use of property. We suggest that there is a public
obligation to help shoulder these costs, since the public at large is the beneficiary.
1470
— 11 —
6.
Exclusion of Man-Made Wetlands
Many wetlands are created, intentionally or unintentionally, as a result of man's
activities. Wetland vegetation as a result of crop irrigation, saturation from broken drain tiles,
flooding as a result of neglected stream maintenance, standing water from poorly designed
public works projects, and tfie construction of farm and stock ponds are examples.
These artiftcially created wetlands sfiould not fall under 404 jurisdiction because they
are man-made and often unintentional. Landowners should be encouraged to create wetland
areas and the prospect of regulatory entanglement is not an incentive to that objective.
7. So/7 Conservation Service Role
The USDA Soil Conservation Service should have a
consolidated role in delineating wetlands on agricultural land.
Currently they are responsible for delineating and enforcing
the Swampbuster program. We strongly recommend that
authority for delineation of ^H wetlands on agricultural land be
the sole responsibility of the Soil Conservation Service.
It would provide much needed consistency greatly reduce the
conflict.
8. Compatible Wetland Crops
Under certain circumstances, some types of agricultural
production are entirely compatible with conserving wetland
functions and values. Forestry, cranberry production,
haying/grazing and some types of aquaculture are prime
examples. Where such commodities can be produced in
manner consistent with overall wetland functions, they should
be encouraged and allowed to expand.
9. Establish Appeals Process/Consolidate Enforcement
Another serious problem with the 404 program is the
lack of any appeals process. There must be an equitable,
efficient and inexpensive means for average landowners to
appeal a delineation or a decision without going to court. Similarly, the dual enforcement of
Sec. 404 by the Corps of Engineers and the Environmental Protection Agency needs to be
consolidated.
We believe that the suggestions contained above will greatly improve the wetland
regulatory program and reduce many of the inequities and difficulties faced by landowners and
small businessmen. N^any of these concepts are embodied in legislation currently introduced
in the House of Representatives, H.R. 1330. We urge your support of this legislation.
"The National
Wetlands Policy
Forum strongly
endorses the increased
and coordinated use
of compatible
economic uses and
other economic
incentives to
encourage landowners
to manage, protect,
restore and enhance
the wetlands resources
that they own."
—The National
Wetlands Policy
Forum
1471
— 12 —
Clean Water Act Funding Is Essential
The success of the efforts to address point source pollution is largely a result of the
right tools coupled with the necessary resources to make it succeed. It is estimated that the
total amount spent by the public and private sector to reduce point source pollution has cost
more than $160 billion over the last 20 years.
In our opinion, a similar and sustained commitment needs to be made if nonpoint
source pollution is the priority that the Congress and the EPA say it is. While the diffuse
nature of the problem requires a different policy approach, a commitment of financial
resources and time are critical. Success will not occur without, in the case of agriculture, a
cooperative approach that emphasizes technical assistance, grants and cost-sharing to the
farm gate. It is a site-specific problem that requires site-specific solutions. All of the program
building notwithstanding, nothing is gained in the form of improved water quality until
something occurs on the ground. In some instances best management practices are simply
too costly and represent an economic impediment to the landowner. Many small communities
and small businesses faced the same kind of economic dilemma in coping with the point
source requirements. As 3uch, it will necessitate the same effort at developing creative and
cooperative solutions.
One approach that we would strongly disagree with is a proposed tax on agricultural
inputs. There is tremendous cost pressure on agriculture already to reduce the use and
maximize the efficiency of agricultural production inputs. Little added benefit would be added
by a so-called "green tax" on pesticides and nutrients. Conversely, the agricultural community
is already financially strapped and it makes little sense to place further economic burdens on
them that would further impede their ability to implement conservation practices.
We would encourage and assist any constructive and cooperative efforts to resolve the
question of financing nonpoint source programs. The concept of extending the revolving loan
fund or a version thereof, grants to local units of government, direct grants and/or cost-
sharing, conservation credits on property or income taxes and market based approaches such
as the trading concept all need to be thoroughly examined and considered. We look fonward
to working with you in this effort.
1472
Attachment #1
IOOt
Percent of 60- •
Planned
Acres 50- -
Fully
Implemented 40. .
Conservation Compliance Plans
Implementation Progress
a Plan Already Fully
KSCS
Rafioftlng Coda
•172)
— Prolactad Rata of
Plan
Imptamantatian
6/30/89 6/30/90
Scuo: USOA SCS
9/30/91 12/31/92 6/30/93
Date
6/30/94
1473
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1474
AFBF's ENVIRONMENTAL EDUCATIONAL PROGRAMS
1983 Conservation Tillage Action Plan
1984 Farm Partners: Have You Hugged Your Soil Lately?
IncludM Laadw'i Qiidt, 10 peg* woiMiaok, t illdtflaps >how tor a 1/2-diy workshop on hII oompacton, and ratldM covar.
1987 Water Quality Setf-Help Checklist
Now In Ha 7»i adlion wHh ovar tOO,000 coplM prknad.
1988 Farmer Idea Exchange
20 top IdaM almicaaad avaiy yaar al annual maatng, many ralala H aol conativallofl, and mora affidant uaa of (artKzar and crop
protacton Gtwmlcala.
1989 USA Tours in IL, IN and OH- (M by Mta Fann Buraaua.)
1989 Cooperative Well Water Testing Program
23 alata FB'a invohad, ovar tOJUOO walls tattad, vidao lapa avallabia datcriblng pro-am.
1990 Cooperative Conservation Tillage Transect Survey lor ua« by county Farm Buraaus
1990 WQ- FB's Computerized Water Quality Self-Help Checklist
1990 FB's Professional Self-Help Education Series
Part I Agricultural Technology- 2spagabookiat
Part 11 Chemical Use- a paga boowat
Part III IPM-33pagabooklal
1991 Crop Residue Placemats
2800 camam raady allcka datflbutad to stata FBs-{ona for asch county FB.)
1991 Pesticide Recordkeeping Booklet
NO, NB a KS 0«valo|Wd Mr own- AFBF dstributad anottrar 4,000 copies as a test
1992 Innovation and Technology Transfer: What County Farm Bureaus Can Do
OlstflbuM 600 copiM 0) Wa 8&iMga booUat outlining InnovaUva conaaivalion aquipmant, coun^ programs and stale laws to
encourage lis use, and public education programs that county FBs could use.
1992 RCWP Lessons Learned, Nonpoint Source Water Quality Prelect Checklist.
Dislribulsd ovar 2,000 copies o( this &inge white paper and checklist to key federal, state, and local water quality affk;ials and
legislators. The paper was cosigned by AFBF, all slate Farm Bureaus and 27 other major agriculturally rslatad organizaltons.
For Further Information Contact: American Farm Bureau Federation
Natural Resources Division
225 Touhy Ave., Park Ridge, IL 60068.
r\fbprog.043
1475
Attachment #4
PRINCIPLES STATEMENT OF THE CLEAN WATER ACT WORKING GROUP
American Farm Bureau Federation
American Feed Industry Association
American Forest and Paper Association
American Nurserymen
American Sheep Industry Association
American Soybean Association
The Fertilizer Institute
Natl*ial Agricultural Chemicals Association
National Association of Conservation Districts
National Association of State Departments of Agriculture
National Association of Wheat Growers
National Broiler Council
National Cattlemen's Association
National Com Growers Association
National Cotton Council
National Council of Farmer Cooperatives
National Farmers Union
National Milk Producers Federation
National Pork Producers Council
National Turkey Federation
National Water Resources Association
U.S. Rice Producers
1476
CLEAN WATER ACT REAUTHORIZATION: NONPQINT SOURCE PROVISIQNS
In the reauthorization of the Clean Water Act, Congress should adhere to the
following principles:
1 . The Clean Water Act (CWA) does not stand alone In protecting America's
waters from nonpolnt source (NPS) pollution. Other ongoing programs at
the federal, state and local level must be funded fully, coordinated with
and not superceded by the CWA. This Includes, in particular, the soil
conservation and water quality provisions of the 1985 and 1990 farm
acts and the state groundwater and surface water protection programs of
the Federal Insecticide. Fungicide and Rodenticlde Act (FIFRA).
2. Recognizing the 20-year commitment our country has had to eliminating
point-source pollution, success in reducing the more complex and
diverse NPS pollution will require similar time and resource
commitments. However, mzinagement of this problem will require a
different approach than that of point source pollution elimination
because, unlike point source pollution. NPS pollution Is primarily a
weather-related phenomenon that can be managed, but not feasibly
eliminated. NPS pollution is caused by the inadvertent discharge of
pollutants from a wide variety of society's most essential activities.
3. The central focus of NPS management solutions should be a reasonaWe
and voluntary approach based on incentives, education and technical
assistance as the primary means of managing NPS pollution.
• NPS pollution management programs should (a) emphasize the
protection of water resources and state-designated water uses.
Including state-designated agricultural uses, and (b) recognize the
importance and needs of individual agricultural producers and
other landowners affected by the CWA.
• This approach emphasizes the use of locally designed and applied,
economically feasible, site-specific best management practices
which do not infringe on private property rights. Implementation
of these farm management options over a realistic time frame will
further the goal of reaching or maintaining designated uses of
water bodies.
• It Is Inappropriate to link USDA commodity, conservation or
disaster program payments to the success or failure of
management programs for NPS pollution authorized under the
CWA.
1477
4. Current CWA language contains valuable provisions for NPS
management embodied in Section 319. Although this >fPS section has
been historically underfunded and has been hampered by bureaucratic
roadblocks, all states now have approved Section 319 assessments and
approved management programs. Within the CWA, it is the preferable
vehicle for management of NPS pollution, and changes which occur
during CWA reauthorization should reinforce these existing NPS
provisions.
• The proper meinagement of NPS pollution lies in state and local
efforts. As such, states should continue to identify and resolve
their priority NPS water problems through administration of
Section 319 funds. With state oversight and approval, local
organizations should continue to carry out these NPS programs.
Agencies at the federal and state levels should harmonize
objectives and coordinate funding for national and regional NPS
management programs.
• State and iocal programs should provide for a mix of research,
development, education and technical and financial assistance for
both planning and implementing actions aimed at achieving state
designated uses.
5. Management efforts funded by Section 319 of the CWA should be
directed to priority areas based on scientific assessments that identify
water bodies with impaired or threatened uses.
• Priority, as determined by states, should be based on the
magnitude of risk to human health, the protection of designated
uses, and likelihood of further significant and unreasonable water
quality degradation if no action is taken.
• Strategies should be developed on a hydrologlc vmlt. watershed-
wide basis using an approach that includes the consideration of
both surface and ground water quality.
• Programs should focus on cost-effective, site-specific practices for
individual operations with flexibility for implementation.
• In order for Section 319 to work effectively for agriculture. USDA
must play a lead role in the delivery of education and technical
assistance at the state and local level.
1478
6. An effective and cost-eflBclent response to water quality problems
requires accurate and reliable Information on (a) the source, extent, and
Impact of NPS pollution, as well as (b) the effectiveness, utility and
economic feasibility of conservation measures and best management
practices.
• Any Clean Water Act reauthorization should include a strong
financial commitment to further research, monitoring and
assessment projects.
• Monitoring shovild include before and after sampling as well as
frequent sampling during storm events and assessment of natural
and historic loadings.
• Scientific research and monitoring projects should follow protocols
developed by the U.S. Geological Service and should be conducted
on a watershed basis with local and state input.
• Representative pilot projects aimed at achieving market based
incentives on a watershed or regional level should be encouraged.
7. The Clean Water Act Reauthorization should not directly or Indirectly
create a federal water quality law or program which supersedes,
abrogates or impairs state water allocation systems and water rights.
8. Section 319 management programs on federal lands should be developed
and implemented by the specific agency statutorily charged with
management of the lands in question, rather than by regulatory
authorities independent of that agency.
9. It Is inappropriate for a reauthorization of the Clean Water Act to provide
the authority for citizens suits against Individuals participating In NPS
maneigement programs.
1479
American ^B^vers
STATEMENT FOR THE RECORD
OF BETH NORCROSS
DIRECTOR OF LEGISLATIVE PROGRAMS
AMERICAN RIVERS, INC.
ON S. 1114
THE WATER POLLUTION PREVENTION
AND CONTROL ACT OF 1993
BEFORE THE SENATE ENVIRONMENT
AND PUBLIC WORKS COMMITTEE
SEPTEMBER 30, 1993
1480
American Rivers appreciates the opportunity to provide
testimony on S. 1114, the Water Pollution Prevention and Control
Act of 1993. American Rivers is a 15, 000-member conservation
organization dedicated to the protection and restoration of our
nation's rivers and streams.
We would like to begin by commending Senators Baucus and
Chafee for the introduction of this far-reaching re-authorization
of the Clean Water Act. While we do have some concerns with the
bill as currently drafted, it goes a long way in addressing many
of the major issues affecting the health of the country's
waterways .
Our testimony will center around our belief that the Clean
Water Act must recognize the most basic tenet of river science -
- a river system is an integrated whole with its health dependent
on all aspects of its associated ecosystem. To meet its goal of
protecting the "chemical, physical, and biological integrity of
the Nation's waters" (emphasis added) , the Act must address not
only the chemical composition of the river system, but also the
vitality of its headwaters and tributaries, its nearside riparian
habitat, its channel structure, its flow regime, and the aquatic
species composition associated with it.
While the chemical health of the nation's waterways has
shown great progress since the passage of the Clean Water Act in
1972, unfortunately the biological health of our rivers and
streams has declined precipitously. In the National Research
Council's National Academy of Sciences' far-reaching report.
Restoration of Aquatic Ecosystems: Science, Technology, and
Public Policy, the authors point out that aquatic species are
declining at a rate far greater than that of terrestrial species.
Still other studies come to similarly bleak conclusions.
Specifically:
• Riparian forests have been reduced by 66 percent. In
Arizona, low-lying riparian habitat is merely 10% of its historic
level.
• Thirty-four percent of North American fish species, 65% of
crayfishes, and 75% percent of unionid mussels are classified as
rare to extinct.
• Twenty percent of the native fishes of the Western United
States are extinct or endangered.
1481
• since 1933, 20 percent of the mollusks (clams and their
relatives) in the Tennessee River system have been lost, and 45
percent of the remaining species are endangered or seriously
depleted.
• Since 1910, salmon runs on the Columbia River have declined
by 75 to 85 percent. Over 200 wild Pacific salmon and steelhead
stocks are currently at risk of extinction.
While the traditional emphasis on chemical criteria within
the Clean Water Act may have improved the chemical quality of the
nation's waters, it has been woefully inadequate in protecting
the biological health of those same waters. Clean, "pure" water
may meet chemical, water quality standards, but still be devoid
of aquatic life. Unfortunately, efforts to "clean" our waters
have not only not protected aquatic life, but in some cases have
actually harmed it.
A specific example in Illinois tells the story best. A
major thrust of the original 1972 Act was to encourage the
expansion and development of wastewater treatment programs. The
assumption built into most of these programs was that reductions
in chemical loading will improve biological integrity as well.
However, a study of the effects of wastewater treatment on three
Illinois streams by Karr, Heidinger and Helmer demonstrated
quite a different result. The biological integrity of the
streams — species composition, predator relationships, food
availability, flow regime, channel morphology, etc. — was the
highest upstream of the point where the "purified" wastewater
treatment waters came in. Biological integrity was at its lowest
at points immediately below the wastewater outfall. Furthermore,
the fish community never fully recovered farther downstream from
these efforts to "clean up" our streams.
In 1990, EPA issued a policy statement encouraging States to
develop narrative biological criteria by 1993, and published a
guidance document for States to use in developing biological
criteria in their water quality programs, yet few States have
complied. The State of Ohio, however, which has developed a
model program for including biological criteria in its water
quality program, is the exception. Some of the State's
preliminary findings offer additional incentives for other
R.; Heidinger, Roy C. ; and Helmer, Eileen H.
"Effects of chlorine and ammonia from wastewater treatment
facilities on biotic integrity," in Journal Water Pollution
Control Federation, September 1985, 57:9, pp. 912-915.
1482
states' to follow Ohio's lead: Studies conducted by the State
concluded that 3 6 percent of recorded biological damage cannot be
detected by traditional chemical criteria. Even more compelling,
50 percent of the impaired waters in Ohio would be misclassif ied
as attaining Clean Water Act standards if biological damage was
not considered.
BIOLOGICAL CRITERIA
Throughout the Clean Water Act, an effort must be made to
broaden the thinking of the public, federal agencies. States, and
Congress toward "pollution" and the protection of "water
quality". While the 1987 amendments to the Act expanded the
definition of pollution to include alteration of chemical,
physical and biological stream features, the perception of
pollution and the orientation of EPA implementation of the Act
still leans heavily toward chemical considerations. Accordingly,
we recommend the following changes:
• The Act could go a long way towards educating the public and
policy makers regarding the biological health of our nation's
waterways by universally changing the word "pollution" to
"degradation" or "adverse activity", and replace "water quality"
with "ecological health of the water resource".
• Section 303/304 water quality standards should be revised to
require States to incorporate criteria related to ecological
health in addition to those more traditional chemical criteria in
state water quality standards. The States should also be
required to meet such standards. Biological criteria should
include the following:
- habitat structure which includes channel morphology, water
depth and velocity, spatial complexity of physical habitat;
- flow regime which includes water volume and distribution;
- energy sources which include type, amount and size of
organic material entering stream, availability of food sources;
and
- biotic interactions which include competition, predation,
disease, and parasitism
"Defining and assessing ecological
integrity: Beyond water quality," in Environmental Toxicology
and Chemistry, September 1993, 12:9, pp. 1-11.
1483
• Section 3 05 relating to water quality monitoring should be
revised to incorporate comprehensive, mandatory monitoring of the
ecological health of a waterway, including the monitoring of the
biological criteria listed above. The Index of Biotic Integrity
(IBI) developed by Dr. James Karr in 1981 and used extensively in
many areas could easily be used as a model biological monitoring
program. The IBI includes 12 measures which compare the
biological values (listed above) of a specific stream with those
expected of a relatively pristine stream.
• Amend new section 402(e)(1)(A) (relating to the consultative
role of the Fish and Wildlife Service and the National Marine
Fisheries Service in the biological assessment of state permits)
to require the consultation of such agencies. The bill is
drafted would allow the Administrator to choose whether to
consult or not.
Additionally, the consultative role of these agencies should
go well beyond sensitive aquatic species and require consultation
on the health of all aquatic species. While it is helpful to
recognize aquatic species which are in trouble, a comprehensive
aquatic gameplan could secure broad, ecological health of streams
and prevent hundreds of future endangered species. Accordingly,
section (a) , which now prohibits permits on those discharges that
affect a "balanced population of shellfish, fish, and wildlife,"
should be broadened to include "healthy populations of aquatic
species" or to "maintain the biological integrity of river
systems. "
SECTION 401-STATE CONDITIONING AUTHORITY
Need for Clarification
In keeping with our belief that the Clean Water Act should
address a broad range of aquatic health issues, we support
section 602 of S. 1114, which reaffirms the States' ability to
deny water quality certification to applicants for federally-
licensed activities which adversely affect state water quality
standards. This provision is particularly important to the
States in controlling or stopping federally-licensed
hydroelectric projects which would jeopardize fisheries, aquatic
health, recreational activities and the like by altering stream
temperature, velocity, turbidity and channel structure. We do,
however, believe that this section should be broadened to clarify
that state water quality certification can be used on a broad
range of federal activities, consistent with new responsibility
given the States in S. 1114.
1484
The language in the bill makes clearer what is already
explicit in section 401(a)(1), that in order to obtain
certification, the applicant must be able to demonstrate that the
permitted or licensed activity will comply with several
provisions of the Clean Water Act, including section 303.
Section 303, in turn, has provided since its inception that water
quality standards "shall consist of the designated uses of the
navigable waters .... Such standards shall be established
taking into consideration their use and value for public water
supplies, propagation of fish and wildlife, recreational
purposes, and . . .other purposes . . . ." EPA's water quality
standards regulations, in turn, require state water quality
standards to be comprised of three separate parts: designated
uses of the waters, which include all the uses set out in section
303 (including fisheries, recreation, etc.); criteria designed to
achieve and maintain the uses; and an antidegradation provision
which prohibits the degradation of any existing uses of the
waters. 40 C.F.R. §131.10 - 131.12.
The reason for this clarification stems from challenges to
the States' authority to condition the grant of certification in
various ways designed to ensure that existing or designated uses
would not be degraded, as required by federal law and regulation.
For instance, the Vermont Supreme Court has held that water
quality certification could be conditioned on the provision of a
certain amount of spill over a FERC licensed dam, both because
without the spill, the State's dissolved oxygen standard would be
violated, and because Vermont's water quality standards require
that the waterway in question be managed for "water of a quality
which consistently exhibits good aesthetic value . . . and
recreation." The applicant, however, has kept the State in
litigation over this condition for several years and has
petitioned the Supreme Court for review of Vermont's highest
court.
In another case from Washington State, although the
waterway in question was designated for salmon spawning, rearing
and migration, and the State's scientists found that a certain
flow of water was necessary below the licensed dam in order to
maintain that use in the river, the applicant has kept the State
in litigation over that condition since 1986. And although
Washington's highest court ruled unanimously that the instream
Georgia Pacific Corp. and Simpson Paper (Vermont) Co.
INC. , Vt. Sup. Ct. No. 91-530, September 14, 1992.
4
Department of Ecology v. PUD No. 1 of Jefferson County.
121 Wash. 2d 179 (1993).
1485
flow condition was not only allowed but necessary under federal
law to prevent degradation of the existing uses of the waterway,
the applicant is now seeking review by the U.S. Supreme Court.
Over 200 stocks of salmon in the Pacific Northwest are at risk of
extinction, including salmon in the river in this case. If the
States cannot protect these designated uses, and have to engage
in litigation for 10 years over each such condition, water
quality certification is an empty shell.
The new provision of section 401 would also clarify that it
is the activity which affects water quality standards that must
be certified, and may be conditioned on state requirements that
will ensure compliance with state water quality standards. The
predecessor to section 401, Section 21(b) of the Water Quality
Act, was clear in this regard. The svibstitute in S. 1112, that
any such activity will so comply, merely clarifies that the
discharge is not to be viewed in isolation from the licensed
activity as a whole, as originally intended in Section 21(b) of
the 1969 Water Quality Improvement Act, the almost verbatim
predecessor to section 401(a).
When Congress amended the statute in establishing the
original Clean Water Act in 1972 to state that "any such
discharge will not violate [water quality standards]," it appears
to have had no intention of altering the effect of the original
provision. Rather, the legislative history makes several
references to the revised section as being substantially the same
as section 21(b), which Congress amended merely to assure
consistency with the bill's changed emphasis from water quality
standards to effluent limitations. Otherwise, the legislative
history acknowledges only "minor" changes in the new provision.
Any other interpretation works absurd results, which
unfortunately have been advocated by applicants for certification
in order to avoid complying with state water quality standards.
For instance, in a case from a trial court in Pennsylvania,
Pennsylvania Department of Environmental Resources v. City of
Harrisburg. 578 A. 2d 563 (Pa. Cmwlth. 1990), the court held that
while Pennsylvania could evaluate the effects of a proposed dam
licensed by the Federal Energy Regulatory Commission on
downstream water quality, it could not evaluate the effects of
the project upstream of the proposed dam. Thus, Pennsylvania was
precluded from taking into account upstream effects of the
proposed dam, even though it might degrade and indeed eliminate
designated and existing uses of the waterway.
See, e.g. . S. Rep. No. 414, 92d Cong., 1st Sess. 69
(1971); H.R. Rep. No. 911, 92d Cong., 2d Sess. 121-14, 165
(1972); 117 Cong. Rec. 38,857 (1971).
1486
Moreover, the court also held that Pennsylvania was
precluded from considering the biological and physical impacts of
the project upon its waters. That result, too, is ludicrous in
light of the States' authority to adopt water quality standards
that protect and maintain state waters' chemical, biological and
physical integrity and their designated and existing uses, and
resulted from the court's cramped interpretation of the term
"discharge" in section 401.
An expanded section 4 01
Section 401 has been a powerful tool for some States in
their efforts to address a wide variety of threats to the
ecological health of their waters. But inconsistent court
rulings have frustrated the States and kept 4 01 from being the
significant ally it should be. Moreover, section 401 is not
explicit in granting authority to the States to control
activities other than those considered point sources. Since S.
1112 gives additional new responsibility to the States in
controlling polluted runoff, it is appropriate to give the States
the wherewithal to limit federal activities which could severely
threaten those objectives.
We, therefore, endorse the following amendment to section
602 revising the first sentence of section 401 as follows:
"Any applicant for a federal license or permit to conduct
any activity, and anv Federal agency proposing to conduct any
activity or allow any activity on Federal land, including, but
not limited to, the construction or operation of facilities,
which may result in any discharge into or other alteration of the
navigable waters, or any activity for which management measures
are required under section 319. shall provide the licensing or
permitting agency a certification from the State in whichj_or
nearest to the point at which, the discharge originates or will
originate, or, if appropriate, from the interstate v;ater
pollution control agency having jurisdiction over the navigable
waters [at the point] where the discharge originates or will
originate, that the activity [any discharge] will comply with the
applicable provisions of sections 301, 302, 303, 306^. [and] 307^.
402 and 319 [of this Act], and that any such activity will comply
with water gualitv standards issued under section 303 and allow
for the protection, achievement, and maintenance of designated
uses included in such standards. "
This expanded section 401 would achieve the following:
• Clarification that the States have the authority to set
conditions on a broad range of federal activities which adversely
1487
affect state water quality standards through both polluted runoff
and point source discharges.
• Clarification that the States have the authority to set
conditions on wetlands and other alteration of the physical
structure of waterways.
• Clarification that the States have the authority to set
conditions on federal activities which are outside their
boundaries.
A memo is enclosed with this testimony which offers a more
thorough description of the proposed section 401 amendment and
the rationale behind it.
OUTSTANDING NATIONAL RESOURCE WATERS fONRW)
We applaud the provisions in S. 1112 which require States to
establish strong programs to protect their most pristine
waterways. The lack of a clear, statutory mandate in the past
has resulted in inconsistent policies and implementation of the
ONRW program by EPA, and a mishmash of state programs, few of
which really do the job. S. 1112 assures the protection of
outstanding waters by directing each State to 1) develop a
program to protect its outstanding waters within two years; 2)
include all waters within certain federal designations, such as
wilderness areas, national parks, and wild and scenic rivers; and
3) include within its antidegradation policy assurance that
outstanding waters will meet water quality standards.
While S. 1112 goes a long way toward reaching the goal of
protecting pristine waters, we do suggest two amendments:
• Paragraph (3) (B) (ii) which provides de facto ONRW protection
for certain federally designated areas, including wild and scenic
rivers, should be amended to include only "wild" and "scenic"
classifications and exclude those rivers classified as
"recreational." Designated wild and scenic rivers are classified
either "wild," "scenic," or "recreational," based primarily on
the amount of development along the stream. While most "wild"
and "scenic" classified rivers enjoy pristine water quality, many
of the "recreational" segments are developed and often run
through urban areas, and may therefore not be suitable candidates
for ONRW status. "Recreational" rivers should, however, retain
the same opportunity to be classified as ONRW as other segments,
but should not be automatically designated without further
analysis and investigation by the State.
1488
• Paragraph (3) (E) should be amended to require the State to
protect the overall "ecological health of all outstanding
national resource waters" not just for the "protection and
propagation of a balanced population of fish, shellfish, and
wildlife, and recreation" as currently in the bill. While we
certainly support the protection of fish and wildlife, the
ecological health of a river system is much broader than
protecting specific uses. As noted earlier, ecological health of
a stream includes not only chemical water quality, but habitat
structure, flow regime, energy sources and biotic interactions.
The nation's most pristine waters clearly should enjoy the
highest and most complete level of protection available.
We appreciate this opportunity to submit testimony for the
record and would be glad to answer any additional questions or
provide clarification as necessary.
1489
M£HORAMDUM
TO: Mike Evans, Steve Schlmberg, Bill Leary, Jeff Peterson,
Jirunie Powell
FROM: Bob Adler, NRDC
Bruce Carpenter, New York Rivers United
Katharine Raneel, Beth Norcross, American Rivers
RE: Section 401 provision of S.1114
DATE: September 28, 1993
Section 602 of S.1114, taken from a bill introduced by Senator
Jeffords, would add to the end of the first sentence of section
401(a) the following: "... and that any such activity will comply
with water quality standards adopted under section 303 and allow
for the protection, attainment, and maintenance of designated
uses included in the standards."
This language clarifies that states have the authority under
section 401 to deny or condition water quality certifications
based on use impairment, not just violations of chemical water
quality parameters. We believe this is consistent with Congress'
intent, and will help in a range of cases in which the authority
of states to condition FERC licenses has been challenged.
We support this language as far as it goes. However, it does not
address all of the problems with the current scope and judicial
interpretation of section 4 01. We propose that the first
sentence of 401 be revised more coBprahensively, as follovst
Any applicant for a federal license or permit to conduct any
Ar-fMvlty. and anv Federal aaencv proposing tO CQTldVlgt any
activitv or allow anv activity on Federal land, including,
but not limited to, the construction or operation of
facilities, which may result in any discharge into gr Pthgg
alteration of the navigable waters, or anv activity for
Vhi^eh management measures are required under sectlOTl 319 1
shall provide the licensing or permitting agency a
certification from the State in whinh, or; nearest to the
point at which, the discharge originates or will originate,
or, if appropriate, from the interstate water pollution
control agency having jurisdiction over the navigable waters
[at the point] where the discharge originates or will
originate, that the activitv (any such discharge] will
comply with the applicable provisions of sections 301, 302,
303, 306j. [and] 307. 402 and 319 [of this Act], ifM that any
pueh activitv will comply with water oualltv Standards
issued under section 303 and nllow for the protection.
achievement, and maintenance of <^Pfi1qnated uses JnclUded in
such standards.
1490
The proposed language would clarify that:
1. Section 4 01 applies to the full range of federal,
activities that mav affect state waters, s. 1114 would impose
appropriate but significant new obligations on states to neat
water quality standards by improving controls on polluted runoff
and other sources. To meet this obligation, states should be
given the legal tools to assure that activities on federal lands,
including runoff from hydro projects, construction, logging,
mining, grazing, etc., are -properly addressed. Inequities could
result if similar activities on state or private lands are
required to impose stricter controls than on federal lands.
2. Section 401 applies to runoff as well as point source
discharges. As noted above, states will be increasing their
focus on land management practices that will reduce runoff
Impacts, in order to restore watersheds and meet water quality
standards. This will clarify that states have the necessary
authority to certify whether runoff impacts from federal
activities will have unacceptable water quality impacts.
3' Section 4 01 is available to states whose waters ar^
affected by a federal activity outside its bnundariea. For
example, Florida tried to certify that a federal offshore oil and
gas lease sale (in federal waters) would cause violations of
water quality standards within state waters. The Ninth Circuit
ruled that Florida lacked the authority to issue a 401
certification with respect to activities occurring in federal
waters, regardless of instate impacts. (This problem was
addressed in a bill introduced by Senator Graham last Congress.)
4. Section 401 applies to wetlands fills and other
Physical alteration of water bodies. This would clarify that
states have the authority to assist in wetlands protection
through 401 certifications even if they choose not to assume
program delegation.
We are seeking support for this proposal from ASIWPCA and NGA.
Section 401 potentially can be an extremely potent tool for
states in protecting the integrity of their waters. It gives
states water quality control over a wide range of activities for
which they otherwise might lack authority. Some states have used
section 401 to admirable effect. For example:
* Maine used section 401 to impose oil spill prevention
as well as other water quality requirements on a
proposed oil refinery and deep water terminal.^
1491
* Massachusetts danied water quality certification for a
Corps of Engineers' nationwide permit under section
404(e) of the Act (discussed below), requiring
individual scrutiny for wetlands fills that otherwise
would have been approved automatically.
* Washington conditioned its certification of a
hydroelectric project on specific requirements designed
to protect salmon.^
* Oregon was allowed to condition water quality
certification on land use restrictions, so long as it
could show that those restrictions were necessary to
ensure compliance with water quality standards.
Unfortunately, there is no central source of information on
the worlcings of this potentially powerful section of the Clean
Mater Act. For example, EPA indicated that no systematic
information is maintained on state 401 programs, and worse yet,
the issue is not even formally, assigned to any single branch in
EPA's Office of Water in Washington, D.c' The only agency
rules on state water quality certification were issued in 1?71,
based on the statutory predecessor to section 401, and provide
little guidance to states on substantive aspects of the program.
Moreover, while some courts have interpreted section 401
with appropriate breadth (examples of which are summarized
above) , others have narrowly constrained the activities states
may review under section 401, and the types of concerns they may
address in water quality certifications. For example:
* A federal court in Pennsylvania ruled that section 401
certification was necessary only for the state in which
the facility is located, not where the actual discharge
is located.*
* A federal appeals court agreed in a case involving
offshore oil and gas drilling that states receiving the
Impacts of federally-licensed activities in federal
waters (in this case Florida) have no authority to deny
or condition water quality certification.
' • A state court in Pennsylvania found that the State
could not base its water quality certification on
physical and biological impacts (such as Impacts to
wetlands and fish migration) , but rather must be
limited to chemical changes related to direct
discharges of pollutants.'
* Courts in New York State repeatedly have limited
certification authority to violations of chemical water
quality standards.^
1492
Theee and other cases pose several serious problems. Hany
of the most serious impacts to aquatic resources are physical and
biological, and not purely chemical in nature. States are just
beginning to address these broader impacts in their water quality
standards and monitoring programs, much less in their water
quality certifications. If these courts are correct that states
may only use section 401 to address chemical impairment, how can
states protect the physical and biological integrity of their
waters, as required by the Act? If fisheries and other aquatic
resources are being destroyed by physical rather than chemical
impacts, is it not artificial to limit states to tools that
address chemical pollution? Since the courts are divided on this
issue, the overall success of the 401 program may turn on
congressional clarification of state authority in this area.
1. Roosevelt Campobello Int'l Park Comm'n. v. EPA. 684 F.2d
1041 (1st Clr. 1982) .
2. United States v. Marathon Development Corp.. 867 F.2d 96
(1st Cir. 1989) .
3. POD Wo. 1 of Jefferson County and the Citv of Tacoma v^
Departments of Ecology. Fteheries and Wildlife. (No. 58272-6, WA
S.Ct.) (April 1, 1993) .
4. Arnold Irrigation District v. Department of Environmental
Quality,, 717 P. 2d 1274 (Or. Ct. App. 1986). A complete review of
judicial decisions interpreting section 401 was conducted
recently by the Congressional Research Service. Memorandum from
American Law Division, CRS to House Committee on Interior and
Insular Affairs, "Scope of State Authority to Condition or Deny
Section 401 Certifications under the Clean Water Act: Review of
State Case Law," December 21, 1992.
5. Personal communication, Geoffrey H. Grubbs, Director,
Assessment and watershed Protection Division, U.S. EPA, October
20, 1992.
6. Lake Erie Alliance for the Protection of the Coastal
Corridor v. Armv Corps of Engineers. 526 F. Supp. 1063, 1074
(W.D. Pa. 1981) .
7. WRDC V. EPA. 863 F.2d 1420, 1434-36 (9th Cir. 1988).
8. Commonwealth of Pennsylvania. Department of Environmental
Resources v. City of Harrisbura. 578 A. 2d 563 (Pa.Cmwlth 1990).
9. E.g. . de Rham v. Diamond. 295 N.E. 2d 763 (N.y. 1973); ^sUStX.
Authority of New York v. Williams. 457 N.E. 2d 726 (N.Y. 1983).
Other cases are discussed in the Congressional Research Service
analysis cited above.
1493
TESTIMONY OF DAVID S. BARON
ASSISTANT DIRECTOR, ARIZONA CENTER FOR LAW IN THE PUBLIC INTEREST
TO THE
SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ON
S. 1114: REAUTHORIZATION OF THE FEDERAL CLEAN WATER ACT
August 31, 1993
This testimony is offered on behalf of the Arizona Center for
Law in the Public Interest, a nonprofit public interest law firm
with offices in Phoenix and Tucson, Arizona. The Center has
conducted litigation and advocacy under the Clean Water Act for
more than a decade, representing environmental groups and
conservationists. We have participated extensively in the adoption
of state water quality standards, the development of NPDES permits
for major dischargers, and the development of pretreatment programs
in our largest cities. We have also filed a number of successful
citizen suits to enforce NPDES permit provisions and other
requirements of the Act.
The Center would like to respond to testimony presented to the
Committee on August 4, 1993 by the Western Coalition of Arid States
(WESTCAS) . In that testimony, WESTCAS urges several radical
changes in existing law and policy on water quality standards.
Among other things, the group argues that the Act should only
require water quality sufficient to protect wildlife that still
survives in a river or lake - not species that would live there if
water quality were restored to pre-pollution levels. In addition,
WESTCAS asks for separate "western" water quality criteria that
1494
would presumably be different (and weaker) than criteria for the
rest of the country. These proposed changes are completely
unjustified, and flatly contrary to the Act's basic goals of
restoring the nation's waters and achieving fishable, swimmable
quality throughout the country.
WESTCAS starts with the premise that many western rivers are
ephemeral in nature, flowing only in response to major storm
events. In a number of these rivers, the only flow for much of the
year comes from municipal sewage effluent. The group then asserts
that national water quality criteria are designed to protect
species "that may not even exist" in such rivers. Finally, WESTCAS
contends that it will cost "billions" of dollars to meet national
water quality criteria in ephemeral streams, and that the benefit
is not worth the cost.
The WESTCAS testimony is fundamentally flawed in a number of
key respects. First of all, it is not correct to say that
ephemeral streams in the West flow only in response to major storm
events. Some of these rivers flow for many months during wet
years, even in the absence of a single major storm event. Examples
include segments of Arizona's Salt, Gila, and Santa Cruz rivers.
Second, the WESTCAS testimony misleadingly implies that
current law requires the same water quality standards for ephemeral
as perennial streams, even if the ephemeral stream has insufficient
flow to support aquatic life. In reality, EPA regulations have
long allowed states to set different standards for rivers with
flows that are too low to support particular species. 40 C.F.R.
1495
§131. 10(g) (2) . EPA also allows states to set water quality
standards reflecting unique characteristics of a river's indigenous
wildlife. Although EPA has adopted national criteria for
protection of aquatic life, a state can vary from those criteria
based on a showing that its native fishes are hardier (or less
hardy) than those relied on by EPA. See 40 C.F.R. §131.11.
Third, there is no support for WESTCAS' doomsday prediction of
billions of dollars in additional costs for municipalities to
comply with existing law on water quality standards in ephemeral
streams. Documentation for this claim does not appear in the
group's testimony, and we believe it to be little more than shrill
rhetoric. Similar claims were made two years ago by the City of
Phoenix, when EPA proposed to adopt more stringent effluent
limitations for the City's wastewater plants. The City asserted
that it would cost $100 million or more to meet new limits designed
to protect wildlife and environmental values in the Salt and Gila
rivers. EPA adopted the tougher limits anyway, and the City has in
fact been able to meet all of them without spending additional
funds beyond those it had intended to spend anyway on treatment
plant improvements.
Typically, toxics are the pollutants of greatest concern with
respect to protection of aquatic life and wildlife in ephemeral
streams. This is because fish and wildlife are often affected by
extremely low levels of toxic pollutants, necessitating strict
standards to protect the ecosystem. But this does not mean that
municipalities must install expensive treatment equipment to remove
69-677 0-94-48
1496
toxics from their effluent. In most cases, toxics in municipal
wastewater come primarily from industrial discharges to the sewer
system. Cities can meet stream standards for toxics by requiring
industries to remove these toxics before discharging to the sewer.
Such pretreatment programs put the cost of cleanup where it belongs
- on the responsible parties. Phoenix has been able to meet its
new permit limits by upgrading its pretreatment program: No new
treatment for toxics was required at the municipal wastewater
plants.
We also oppose WESTCAS' call for separate water quality
criteria for the arid west. EPA's national water quality criteria
are based on representative species, and there is no evidence that
western fish and wildlife are, as a class, markedly different from
those relied on by EPA. Individual species found in the west may
be more or less resistant to different pollutants, but current law
already allows states to adopt standards that vary from the
national criteria based on species-specific information. See U.S.
EPA, Water Quality Standards Handbook at 4-2 (Dec. 1983). Current
law also allows states to adapt national criteria to local
conditions that affect the toxicity of specific pollutants. For
example, the toxicity of metals to aquatic life often varies
depending on the hardness of the water. EPA's national criteria
for metals assume a certain level of hardness, but states can
adjust the criteria based on the hardness of their own surface
waters.
Thus, there is plenty of flexibility built in to the current
1497
law to adopt standards that reflect unique local conditions. For
this reason, we suspect that such concerns are not the true
motivation for WESTCAS' position. Rather, WESTCAS is upset because
effluent must ordinarily meet stream standards at the point of
discharge when there is no other flow in the river. In contrast,
facilities discharging into a flowing stream can usually establish
a "mixing zone" in which their effluent is diluted by stream water
before compliance with stream standards is measured. The nub of
WESTCAS' complaint is that western municipalities that discharge
into normally dry streams cannot claim any dilution credit from the
stream itself, thus requiring them to meet more stringent pollution
limits at the point of discharge than cities discharging into
flowing streams.
The fact that stream standards may be harder for some cities
to meet than others hardly justifies a separate set of water
quality criteria for those cities. The purpose of the Clean Water
Act is to protect the nation's rivers and lakes for wildlife,
recreation, and other uses. The water quality standards necessary
to protect those uses must be based on objective, scientific
criteria - e.g., the level of a given toxic that presents a threat
to fish, or the level of bacteria that threatens human health - not
on how easy or hard it might be for a given discharger to reduce
pollution levels. Carried to its logical conclusion, the WESTCAS
position would require EPA to set different standards for literally
every river and lake in the Country based on differing flow levels,
wastestream composition, and cost of treatment technologies.
1498
Moreover, the situation faced by cities discharging into dry
rivers is neither as unfair or unique as WESTCAS implies. There
are situations where a discharger into a flowing stream may have to
meet limits as stringent or even more stringent than stream
standards. This could happen, for example, where stream standards
are already being violated and no further degradation can be
allowed. Moreover, while some western cities do not have the
"benefit" of perennial streams to dilute their wastewater, some of
these cities have much less industrial waste to deal with than
their eastern counterparts. Congress will find itself on a
slippery slope indeed if it begins to set different water quality
standards for different parts of the Country based on claims that
it is harder for one region than another to reduce pollution.
We also do not agree with WESTCAS' proposal that biomonitoring
be used only as a warning device and not as an enforcement tool.
NPDES permits for large municipalities typically contain monitoring
requirements and effluent limits for only a small fraction of the
toxic pollutants discharged into the wastestream. Although there
are an estimated 50,000 chemicals on the market, NPDES permits
rarely address more than the 126 priority pollutants. Moreover,
water quality criteria for individual pollutants do not ordinarily
account for the synergistic or cumulative affects of multiple
pollutants in a wastestream.
Biomonitoring addresses the above-described gaps in the
current program. It forces municipalities to assess the real-world
impact of complex waste streams on living organisms. But without
1499
enforceable toxicity limits, such monitoring will likely turn into
an empty exercise. A city that finds 0% survival of test organisms
in its effluent will have little incentive to eliminate the cause
if its only mandate is to conduct more testing. If the city is
facing fines and other sanctions for such toxicity, however, it
will have a powerful incentive to track down and eliminate the
cause. It will also have a strong motivation to institute a
serious pollution prevention program to reduce the discharge of all
toxic wastes into the sewer system: clearly a highly desirable
result.
In Arizona, NPDES permits for municipal wastewater plants in
Phoenix, Tucson, and Nogales all have biomonitoring limits and
enforceable toxicity limits. These limits have not produced undue
hardship or difficulty - indeed, the cities are generally meeting
the limits (although we believe the limits to be too lax) . They
have, however, forced the cities to take their pretreatment and
pollution prevention programs far more seriously.
Finally, we fundamentally disagree with WESTCAS' suggestion
that water quality standards should only protect "what is there" -
i.e., species that still survive in an already polluted river. An
original, and still laudable goal of the Clean Water Act is to
restore the nation's waters. Many of the "dry" rivers cited by
WESTCAS were once free flowing streams, rich in aquatic and
riparian life. Their current state of desiccation is the result of
human activity, including diversions to supply the very cities that
now discharge effluent into them. The return of wastewater to
1500
these rivers should not be viewed as a gift of grace from the
discharging municipalities, but rather an obligation on the part of
these cities to revitalize at least some of natural ecosystem that
they have destroyed. In this light, stream standards for ephemeral
and effluent dominated rivers should be sufficiently stringent to
restore these waters, so that they can support a rich array of
indigenous wildlife - not just species that have survived the
onslaught of pollution.
1501
^^^■^* Association of Stale and Interstate
^^^^ Water Pollution Control Administrators
750 First St., NE, Suite 910, Washington, DC 20002
A S I W P C A (202) 898-0905 • Fax (202) 898-0929
Association of State and Interstate
Water Pollution Control Administrators (ASIWPCA)
Testimony Before the Senate Subcommittee on Clean Water, Fisheries and
Wildlife
WATERSHEDS
By
Steve Tedder
Chief, North Carolina Water Quality Section
of the Division of Environmental Management
August 1993
1502
Mr. Chainnan. Monbers of the SuboommiOee, my name is Steve Tedder and I am the Chief of the Water
Quality Section of the Division of Environmental Management for the State of North Carolina. I appear
before you today as a representative of the fifty State Water program officials responsible for the
implementation of the nation's Clean Water program.
As co-chair of the Watershed Work Group for the Association of State and Iiuerstate Water Pollution
Control Administrators (ASIWPCA), I am pleased to present ttiis testimony and to introduce our
Executive Director. Roberta Savage and our Deputy Director, Linda Eichmiller.
I am here today to eixlorse the concept of watershed protection, as a managemem tool to be used by State
and Local governments. Watershed management is not program in ttie traditional bureaucratic sense. It
is a philosophy and it is not new. As you indicated, Mr. Chairman, the creators of the 1972 Qean Water
Act were keenly aware of the need to consider our waters in a holistic manner, to in essence, manage the
water resource as a total system of surface and groutxlwater, point and nonpoint sources, quality and
quantity.
Under Section 303 we were encouraged to plan basin-wide. In Section 208, we were to manage on an
ateawide basis. The conc^ is already embodied in statute and we in North Carolina, along widi my
colleagues in a number of other States, have made watershed management a reality vnA existing
legislative audiority. We do not need, nor will it be productive to initiate, major or extensive statutory
reform to implement th^ "watershed [^os(q>hy." We certainly do not need to create an entirely new
program or a new level of government to manage a philosophy. To be effective, the "watershed
mentality" needs to be incorporated into the State "management mindset" as a way of doing daily
business.
EXISTING CONGRESSIONAL WATERSHED DIRECTIVES
Section 201 (c) - Areawide Treatment/Management
Section 208 (a) - Areawide Waste Treatment Plans
Section 208 (b) - Areawide Waste Treatment Management Planning
Section 303 (d) - Water Quality Standards/Priority Ranking of Waters
Section 303 (e) - Continuing Planning Process
Section 319 (a) - NPS IManagement Program
Section 319 (b) - NPS State Management Plans
At the Federal level we need to have willing counterparts who can be as creative, as we are eager, to
implement this process. States need the latitude to:
Focus on priorUy water problems.
Focus staff and resources on those priorities.
Work with USEPA to eliminate unnecessary barriers and bean counting.
1503
A word of caution is warranted as I begin my description of what we bave detennined to be a successful
watershed process.
1) First watershed management must be coordinated through the State agency. The concept will
surely fail if the State regulatory agency and its many water related programs are not the pivotal
focal point This is not to say that Local governments, members of die public and/or constituent
groups should not play a critical role. On the contrary, their involvement is essential to the
overall success of any watershed approach. The simple fact however, is that the Governor and
the Executive Agency have the constitutional authority and responsibility to protea the health and
welfare of the citizens of their State. Qearly, comprehensive water management falls within this
jurisdiction. We can not have a multitude of entities going off in different directions inconsisteru
with Clean Water mandates.
2) As indicated. Local governments, the public, tiie farmers, the industries, the environmental
communitv and other interested constituent groups have a critical role to play. Timing, however,
is critical to the overall success of the "watershed philosophy." As we learned fiom 208, ttiere
is a major price to be paid if we halt programs and efforts underway to laimch a massive national
plarming or public awareness campaign twenty years into the Qean Water Act A massive "get
involved now" movement orchestrated by the Federal government can serve only to brred
unfiilfilled expectations, public discontent and ultimately a less successful watershed protection
process. This is particulariy the case since there are no additional funds to cany out the water
program.
Citizens will demand, and have every right to expect that their investment of time in any
governmental process, yields substantial and significant results. My point here is this, we do not
want to ask the public to "get all dressed up" and excited about attending a party when what is
needed is a new mindset on carrying out business. In some States the watershed process is well
underway. In this instance, public involvement is critical now. In other States, the concept is just
begitming to be considered and public involvement (outside the extensive existing chatmels) would
be premature.
Having shared some of the generic concerns of the States, let me now focus on the concept of watershed
protection and highlight for you just how North Carolina and other States have integrated programs to
achieve a comprehensive plan.
WATERSHED APPROACH
Basin-wide water management enables States to develop comprehensive, long range management
strategies to protect our nation's waters in an effective and consistent manner.
The watershed philosophy is becoming more popular with the States, because if properly utilized, it can
serve as a cost cutting measure, it can focus limited staff resources on priority water problems and it can
generate public interest in protection while continuing to enhance the waters of the State. Using the
watershed process we have learned that
* States can rationally and cohesively incorporate: 1) chemical-specific monitoring and
regulations; 2) bio-criteria, bio-assessments, and bio-surveys; 3) water quality modeling and
planning; 4) whole effluent toxicity testing; 5) the NPDES program; 6) standards setting and
1504
revision; 7) protection of public health and wel^ue; and 8) protection, restoration and management
of natural resources, including wetlands.
It is the most effective way to integrate point and nonpoint source management
Requirements of the Qean Water Act, USEPA regulation and State mandates can be met
in an efficient and effective manner. We have identified, in essence, a method to assure that
environmental protection activities can be coonlinated and consistent
Innovative management i4>proaches can be more effectively utilized.
Sound economic growth and planning, coupled with equitable distribution of assimilative
capacity, can usually be accommodiOed without degrading water quality.
Assessment and consideration of interactions among envinximental stresses (e.g. cross-
media, population, industrial and agricultural activities, etc.) can be more closely
examined, and contributions firom nonpoint sources can be addressed more explicitly.
The watershed targeting process enables States to realistically identify priorities. The
frameworic facilitates development of water quality management strategies that achieve optimal
environmental results.
Greater Statewide support can be generated when the public and interested constituent groups
are actively involved in a water quality planning and management process that is more
understandable.
BASIN-WHffi/WATERSHED
ADVANTAGES
•
Efficiency
• Resource Management
•
Effectiveness
• Public Involvement
•
Consistency
• AdaptabiUty
•
Predictabili^
• Political Achievability
If dianges are made to the existing statute, the following principles should be incorporated.
1. To be successful, watershed protection must remain a voluntary jnanagemoit philosophy. Viewing
it as another layer of requirements will not woric What States need are incratives to undeitake
what the Act has embodied since 1972.
2. State governments must continue to have full responsibility for managing water quality and
quantity, as it relates to maintaining designated beneficial uses, etc. Regional, geologic and
climatic conditions controlling water quality, availability and volume must be taken into
consideration when developing a watershed approach. The Federal government must not mandate
or restrict delegation of a particular State's water resources management authorities.
1505
Institutional arrangements should be the prerogative of the State based on constitutional
authorities, coupled with the unique legal, economic and social conditions in each State.
Flexibility should be available to accommodate Statewide basin management approaches.
Including, but not limited to. Federal adjustments in:
a. Required outputs (and/or bean counting) including trade-offe or disinvestment firom
traditional requirements.
b. Timing of deadlines and categorical require-Jients in order to realign program operations
to a watershed philosophy.
c. Traditional ("it is the way we've always done it") procedures.
USEPA oversight should be confined to a post audit procedure, which evaluates adiievement of
overall water quality objectives and existing statutory requirements, since their role is already
extensive. USEPA should be encouraged to use existing institutions, States, Interstate Agencies
and Local governments.
States recognize that public participation is essential Irmovative approaches, with emphasis placed
on creating catalyjts for .S;ate basil) management activities, need to be created.
u . . ■■ ■:■
Pollution prevention and resource conservation should be incorporated as essential components
of watershed protectioa
Kieys To Snecess
Consolidmte Giants
Consolidate Reportiiig
Reduce Fngmented Clean Water Act Implementation
Realistic Timetables
mnindae and Consolidate Reporting
Ten-year NFDES Fetmit/Bxtenslon Options
Aroid "One Slse Fits AO"
Allow SUte FleziUttty
Avoid BnreancTBtic Hoops & Widgets
Bnconiage the Concept/Do Not Mandate or Sanction
EUmlnate the Banieis/Do Not Create If ore
SPECIFIC COMMENTS ON S. 1114
The Qean Water Act of 1972 was grounded in the concept of watershed management In developing and
implementing the multitude of policies and funding sources however, that go in different directions, the
national program has lost sight of this fundamental philosophy. States appreciate the Senate's efforts to
identify a mechanism to maximize environmental results. The timing is right to focus on the watershed
approach and States have already taken the lead in doing just that
It must, however, be emphasized that watershed management is not another layer of government
or requirements - it is a way of doing business. States currenfly involved in tiie watershed process
1506
have created a strategic apptoach with no new money. This is possible only if it is indeed a philosophy
and not a "new program." Incentives, however, do need to be addressed and impediments removed to
accomplish the desired objective. In reauthorization, it is impoitant that S. 1 1 14:
Encourage the watershed process of management to be fiilly achieved.
Not undermine State effoits cunently underway.
Recognize Sute authority for water management
Allow, but not mandate, use of existing funding sources.
Recognize ttiat watershed management is an evolutionary or iterative process that will take
years to fully achieve.
Provide the necessary Federal flexibility to allow USEPA and die States to design a
meaningful process to focus on priority water problems.
How Does the Basin-wide Approacii
tiie Existing Act?
Differ From
Previous
Basin-wide
Permitting:
One at a time
Collective
Water Quality Studies:
Scattered
Focused
Nonpoint Source: .,
. Independent firom
Point Source
Integrated TMDL Approach
Basin-wide Plan:
No
Yes
Congolidation
Senate Bill S. 1 1 14 should allow States to consolidate existing requirements so that basins can be managed
as a unit, under which existing programs are coordinated and decisions are made.
□ The Bill needs to allow States to consolidate grants to effectively and efficiently
develop and carry out watershed plans.
Currenflv. S. 1 1 14 does not address such consolidation.
n The Bill needs to consolidate and create a realistic schedule for reporting
requirements (e.^. S years).
Currently. S.1114 addresses this issue and States encourage additional emrtiasis in this
area, with more consolidatioa
G Both the point and nonpoint source programs should be embraced within the
watershed concept
1507
S. 1 1 14. in contrast, views the point and nonpoint source programs as separate command
and control entities.
Requirements
To take a "one size fits all" e^roach will most certainly doom the watershed process to failure. To
mandate "you must do it this way," undermines the integrity of existing State programs and actually
discourages States from undertakitig watershed management Barriers must be eliminated, not created.
O The watershed ii\anageinent process wiU take time to evolve and for this reason
timeframes need ^o be realistic
S. 1114 deadlines and timetables ate tmachievable givai the plethora of requirements
incorporated in die existing statute. A streamlined or iuiifi«l process for watershed
protection is needed under which States have flexibility to achieve the multitude of
mandates.
□ Program stability is essential to an effective Statewide process.
States caimot proceed with watershed management if at the same time, they are forced
to make significant changes in water quality standards, as required by S. 11 14. The
environmental goal posts must be clearly identified at the outset for the concept to work.
n States oppose the creation of a new layer of programs or requirements which would
take away the incentive to proceed.
S. 1114 treats watershed management as yet another program, in a bureaucratic and
expensive exercise. There are no additional Federal funds and States arc already deluged
with too many requirements and deadlines. Hie watershed philosophy needs to be
incorporated into the very fabric of State, Federal and Local government decision making
to make rational use of the many programs already in place.
There is no need for more deadlines, gubernatorial designations, or USEPA approvals.
This will only create new layers of oversight and second guessing. USEPA intrusion into
State water management (e.g. surface and groundwater/quality and quantity) is
inappropriate. Again, in order for States to accomplish what S. 1 1 14 envisions, they need
support encouragement incentives and the elimination of bureaucratic barriers. The
flexibility S. 11 14 provides on permit terms is, for example, a very helpful move in that
direction.
Mr. Chairman, we in the States commend you and yoiu* fine Staff for creating this informal forum for
discussion of the watershed philosophy. We encourage you to remember that our mutual goal is the
creation of a more effective Qean Water Act implementation process. If all we are about is design and
implementation of yet another bureaucratic procedure of Federal command and control, this goal will
remain unmet
Again thank you for iiKluding our Association in this series of Clean Water Act Reauthorization hearings.
1508
IZ^
CHEMICAL
MANUFACTURERS
ASSOCIATION
WRITTEN STATEMENT
OF THE
CHEMICAL MANUFACTURERS ASSOCIATION
BEFORE THE
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
SUBCOMMITTEE ON CLEAN WATER, FISHERIES AND WILDLIFE
UNITED STATES SENATE
REGARDING
S. 1111 - THE WATER POLLUTION PREVENTION AND CONTROL ACT OF 1993
August 16, 1993
2501 M Street. NW 202-887-1100
Washington. DC. 20037 Telex 89617 (CMA WSH)
1509
EXECUTIVE SUMMARY
The Clean Water Act's controls on industrial point source
discharges have been successful and will ensure continuing improvenients
to water quality. The additional requirements in S. 1114 imposed to
control toxic pollutants from industrial point sources, however, will
not produce significant reductions in risk to human health and the
environment. Therefore, CMA does not believe these amendments are
necessary or supportable.
Many of S. 1114's proposed changes in the name of pollution
prevention are misguided. The bill's effluen;t guideline provisions and
toxic pollutant phase-out provisions, in particular, are wrong
approaches to pollution prevention.
Mandating source reduction practices, i.e. changes in production
processes, products and raw materials, through the Clean Water Act s
effluent guidelines, fails to recognize the complex nature of
manufacturing and product development. This requirement would pose a
serious threat to the competitiveness of U.S. manufacturing industries.
Flexibility is key to effective source reduction because these
decisions are extraordinarily site specific. Applying command and
control techniques to achieve it will produce negative results.
Further, requiring EPA to limit releases to other environmental media,
to address "cross media" concerns will produce inconsistent
requirements, not effective pollution prevention.
The toxic pollutant phase-out provision in S.1114 would replace
EPA's current authority (Section 307(a)) to apply more stringent
health-based toxic effluent standards (including prohibitions) for
certain toxic pollutants, with a mandate to prohibit the discharge of
newly listed pollutants. EPA's determination of which pollutants to
list for phase-out would be based solely on a chemical's properties as
highly toxic or toxic and highly bioaccumulative. The provision for
listing these pollutants requires no demonstration of adverse effects
to human health or the environment resulting from the discharge of the
substance. A listing determination, then, would result in discharge
prohibitions in the absence of a finding of unreasonable risk. Because
these, in effect, would result in bans on the use of listed chemicals,
they are extreme measures. Current EPA authority to apply more
stringent controls is adequate and more appropriately balanced.
Voluntary pollution prevention planning is the most effective
approach to achieving pollution prevention. However, the planning
provision in this bill falls short. Its narrow definition of pollution
prevention as reductions in use and byproduct generation and in-process
recycling is overly restrictive. Its single media focus and its tie-in
to NPDES permits are two other deficiencies that require correction.
1510
CHA has a nuMber of other concerns with this bill beyond these
pollution prevention provisions. The bill's permit fee and effluent
guideline fee provisions, for example, are inappropriate. While CHA
supports permit fees to fund administration of the NPDES permit
program, targeting these fees for other purposes is to ask permittees
to pay for more than their fair share of the water program. The
effluent guideline fee provision would give EPA a blank check to spend
industry's money for developing guidelines and standards. There are no
cost control/accountability mechanisms in either fee provision in this
bill.
There is no rational reason for eliminatllig the Best Conventional
Technology standards for conventional pollut^ts and its cost test.
Current removal levels of conventional pollutants approaches 95X or
more in most industries. The cost test correctly recognizes that
pollution control costs steeply increase as pollutant removals reach
these higher levels. The test ensures that/ additional controls be cost
justified. Removing this test will promot/e technology for technology's
sake, without any commensurate benefit to' the environment.
The additional enforcement provisions in this bill are
unnecessary. There is no need to expand /citizen suit enforcement, no
need to add natural resource damage authority to the Clean Water Act,
and no need to impose multiple penalties as a result of single
operational upsets. In addition, the ^ct currently provides for
disqualification from government conti/acts in appropriate
circumstances. To expand the contract bar to facilities that aren't
"bad actors" is grossly unfair. Oth^r unnecessary enforcement
provisions in the bill are the field' citation authority, the increase
to the administrative penalty amounts, and the dictating of
administrative penalty levels for tfie states.
Among CMA's other concerns with this bill are: the proposed
changes to the domestic sewage exclusion; the presumptive applicability
of federal water quality criteria as state water quality standards; the
scheduled promulgation of sediment criteria before the science is fully
developed; the designation of all waters as f ishable/swimmable; the
FIFRA and TSCA data requirements; the equivalence of pretreatment
standards with BAT standards; the prohibition on control measures under
effluent guidelines, NSPS, and pretreatment standards; the definition
of new sources; and the compliance schedule amendment.
IX
1511
I . Introduction
The Chemical Manufacturers Association is pleased to submit this
written statement on S. 1114, the Water Pollution Prevention and
Control Act of 1993. CMA is a nonprofit trade association whose member
companies represent more than 90 percent of the productive capacity of
basic industrial chemicals in the United States. The chemical industry
provides 1.1 million high technology, high wage jobs for American
workers and consistently maintains positive trade balances. CMA's
members are directly and significantly affected by the requirements of
the Clean Water Act.
Two years ago, CMA testified before the Senate Environment and
Public Works Committee on S.1081, the Water Pollution Prevention and
Control Act of 1991. CMA is pleased to note that many of the concerns
that we raised about S.1081 have been addressed in S. 1114. Overall,
CMA believes that S. 1114 represents a more balanced approach for Clean
Water Act reauthorization than S.1081. In particular, we commend the
authors for Including legislation that addresses watershed planning,
nonpolnt source pollution, and municipal pollution. Clearly, these
areas provide the most significant opportunities for improving water
quality and, therefore, shoul^d be the focal point of Clean Water Act
reauthorization. /
Nonetheless, we continue to have significant concerns about many
of the S. 1114 provisions on toxic pollution, permitting and
enforcement. We expressed some of our concerns about the toxic
provisions in testimony we presented to the Senate Clean Water,
Fisheries and Wildlife Subcommittee on July 1, 1993. Additional
concerns about the enforcement provisions were highlighted in the
statement we subultted to the Subcommittee for the record on the July
27, 1993 hearing on enforcement. These concerns, and others, are
described in more detail below.
In general, CMA questions the need for Congress to enact extensive
new requirements for Industry. According to EPA, regulatory controls
1512
on industrial point sources have succeeded in achieving large
reductions in pollutants discharged to waters of the United States.
When the Clean Water Act was first enacted in 1972, industrial
discharges were considered a major cause of water quality impairment.
Two years ago when CMA testified before the Senate Environment and
Public Works Committee, we quoted EPA's National Water Quality
Inventory -- 1988 Report to Congress -- to the eff«ct that less than 15
percent of the remaining water quality problems j^lbuld be attributed to
industrial discharges. In EPA's 1990 Report to/Congress, the data are
even better: less than 10 percent of the rema/ning water quality
problems were attributed to industrial discharges.
While it would be wrong for industry to use these statistics to
claim its work is done, CMA believes it is/ appropriate to cite these
data to support our belief that the Clean/Water Act controls on
industrial discharges have been successful and will ensure continuing
improvements to water quality. The trend revealed by these data do
not suggest that more controls on indus'trial discharges are needed.
Instead, they suggest that existing co/>trols on industry are effecting
continuing improvements.
In light of these data, we question whether the additional
requirements on industry that are proposed in S. 1114 will produce
significant reductions in risk to hiiman health and the environment.
Likewise, we question whether thes^ requirements will produce
environmental benefits worth the qbst or whether they will simply
disrupt the current regulatory scneme. Finally, we strongly question
whether our nation's increasingly/ limited resources could be better
spent on other water quality and/environmental problems where the risks
are more significant.
As this subcommittee considers revisions to S. 1114, CMA urges it
to focus its reauthorization efjforts on the remaining significant water
quality problems. It is our view that layering more regulation on the
industrial community would produce little If any significant
environmental benefit.
1513
Following are CMA's specific comaents and reconmendations on
selected provisions In S. 1114 which are of major concern to our
industry.
1514
II. Effluent Guidelines (Section 201)
A. Mandating Source Reduction Practices Through Effluent Guidelines
Is An Inflexible. Ineffective Approach To Pollution Prevention
Under the current Clean Water Act, EPA develops technology-based
controls that represent the level of pollutant removal, on an industry
by industry basis, that the best technology is capable of achieving. In
identifying what these best technology-based pollutant removal levels
are, EPA considers treatment techniques, process innovations and
operating methods. (See Section 304(b) of the Clean Water Act.)
In contrast to this current authority, Sections 201(a), (b) and
(c) of S. 1114 would mandate EPA, in its development of BAT standards,
New Source Performance Standards, and Pretreatment Standards, to "rely
on, and require, to the maximum extent practicable, source reduction
measures and practices, including changes in production processes,
products and raw materials. . .". This language significantly expands
EPA's current authority in developing BAT standards to consider
process changes, along with treatment techniques, etc.. It expands
EPA's authority by mandating that EPA require process changes, as
well as product changes and raw material changes, in any given
industry effluent guideline. This drastically changes the current
performance-based nature of the effluent guidelines under which EPA can
base end of pipe standards on control techniques and process changes
but EPA cannot require industry to adopt these controls or process
changes to meet these limitations.
This provision is an inefficient, inflexible and inappropriate
approach to pollution prevention. By focusing on source reduction
practices only, it limits EPA's ability to set standards based on
recycling and treatment techniques. Its focus on source reduction also
wholly disregards the complex nature of manufacturing and product
development. There are literally thousands of manufacturing processes
in use in American industry today. The chemical industry alone uses
hundreds of unique operations. End-of-pipe standards that require
raw material substitution or process modifications cannot adequately
1515
reflect these variables. At a minimum, they would inhibit industry's
ongoing development of innovative and cost effective pollution
prevention technologies and techniques.
The focus on products and raw materials through the Clean Water
Act is unprecedented and would pose a serious threat to the
competitiveness of U.S. manufacturing industries. Requiring EPA to
require changes in production processes, products and raw materials
could result In the discontinued use of effective manufacturing
processes, in the phase-out of many beneficial products, and in the
significant Impairment of the quality of other products. The effect
would be minimal environmental protection, but at huge cost and
competitive disadvantage to industry generally, as well as a loss of
jobs throughout the economy.
While EPA may view this provision as supporting its development
of effluent guidelines for establishment of "in-plant" limits, this
provision goes well beyond what authority EPA might need in that
regard. This language creates a mandate for source reduction effluent
guidelines. If EPA doesn't follow this mandate in its development of
effluent guidelines for all industries, EPA will be sued to do so
because EPA does not have discretion to apply this requirement only
"as appropriate".
Attempting to force- fit source reduction into the effluent
guidelines process is a mismatch. Flexibility is crucial to effective
source reduction because source reductions decisions are not, and
cannot be made to be, "one size fits all". The extraordinary variety
and complexity of manufacturing processes and products should suggest
that an across the board attempt to force a single process, product or
raw material change on an industry will have disastrous effects.
Changes to processes, products and raw materials are extraordinarily
site specific.
Industry already recognizes the bottom- line intelligence of
pollution prevention. Industry already analyzes its processes, raw
1516
materials and products to determine how best to prevent pollution in
order to meet CWA effluent limits. It invests much time and money to
do so. In this process, industry also considers the viability of
recycling techniques and upgrades to treatment as a means of preventing
pollution. All of these pollution prevention decisions are constrained
by technological feasibility, economics, and product quality. Decisions
about source reduction practices are particularly site specific. Even
simple changes in the suppliers of raw materials require detailed
evaluations of the material's effects through all the process steps and
downstream markets. Process and product changes also raise the question
of the interrelationship with other product control laws (e.g. , FIFRA
and TSCA). In short, pollution prevention decisions are not simple
determinations that EPA can make effectively for industries through the
Clean Water Act's effluent guidelines.
Further, the EPA resources required to develop these standards
would be considerable. Development of industry-by- industry end-of-pipe
standards that could even moderately reflect, much less require, best
available production processes, products and raw materials within
industries, would be prohibitively resource intensive given the
enormous complexities involved.
Rather than trying to force-fit source reduction concepts into the
effluent guideline process, Congress should develop incentives to
further encourage industry to perform pollution prevention analyses
that include source reduction. Planning for pollution prevention, under
the public eye, is a more effective approach to promoting pollution
prevention than having EPA try to command and control it on a single
media basis. EHiblic pressure would encourage pollution prevention. In
contrast, pollution prevention "standards" would stifle innovation and
thus discourage pollution prevention.
1517
B. Mandating Establlshaent Of Cross-Media Standards Under The Clean
Water Act Will Produce Inconsistent Requlrewents
In developing technology-based controls for direct dischargers
under the CWA , EPA must specify certain factors to be "taken into
account" in determining the best technology for achieving pollutant
removal. Among the factors that EPA must consider are a technology's
non-water quality environmental impact". Under current law,
therefore, EPA can select one technology as BAT on the basis that
another technology creates too much "non water quality environmental
impact. Impacts on other environmental media, therefore, are factored
into EPA's assessment of the best control practices when developing the
technology-based effluent guidelines for an industry.
Section 201(a), (b) and (c) of this bill would require that BAT
standards, new source performance standards and pretreatment standards
"prohibit or limit" the release of pollutants to other environmental
media, including ground water. This provision converts EPA's current
authority to consider cross media impacts into a mandatory
requirement to establish CWA effluent guidelines for releases to air,
land and ground water.
This amendment attempts to force- fit cross-media concerns into the
Clean Water Act's effluent guideline process without any thought about
the effect of such a requirement on other program requirements that
regulate these other media. For example, the Clean Air Act and RCRA
are specifically tailored to address and control releases to air, land
and ground water. The criteria that drive EPA's development of
technology-based standards under these other statutes are not identical
to the criteria that drive EPA's development of CWA effluent
guidelines. The creation of cross-media based effluent guidelines,
therefore, could produce CWA requirements that prove inconsistent with
the requirements of these other single media statutes. The result
would first be confusion about which standard controls, followed by
litigation, followed by a unsatisfactory band-aid solution. Trying to
1518
convert already complex single media statutes into cross media statutes
through this simple legislative "fix" is unworkable.
Further, this amendment is not necessary. EPA is embarking
administratively in the direction of cross media considerations through
its new cluster approach to regulation. EPA is reviewing and revising
in concert the requirements imposed on specific industries by the
single media statutes. It is doing this without creating new,
potentially inconsistent multi-media standards.
In addition, this provision's specific call for effluent
guidelines for ground water (coupled with other provisions in the- bill
for federal ground water criteria and presumptive applicability of
federal criteria as state water quality standards) raises serious
concerns about federal usurpation of states' primary authority to
protect ground water resources. When Congress first considered the
Clean Water Act in the early 1970's, several bills provided authority
to establish federal standards for ground water. Congress rejected
this notion, however, because of the complexity and variety of the
states' jurisdiction regarding ground water. Primary jurisdiction over
ground water quality and quantity has resided with the states and
should continue to reside with the states because ground water
resources vary significantly in quality, quantity, ease of obtaining
and potential for contamination according to hydrogeologic conditions
that vary across the country. State standards can more appropriately
reflect these variations in local conditions and use patterns than
federal standards could do.
C. Prohibitions On Control Measures Would Discourage Innovation
Under the current CWA, industry Is not required to use the control
technology Identified by EPA as best available technology (BAT), as
long as it meets the effluent standard that's based on BAT. Similarly,
industry is not prohibited from using specific control technologies.
The performance based approach of the effluent guidelines encourages
1519
the development of new treatment technologies and innovative, less
costly approaches to pollution prevention.
In response to some claims that certain control technologies have
created cross media problems, Section 201 of this bill would give EPA
authority to prohibit industry's use of certain technologies in meeting.
CWA standards where these technologies are determined to have an
adverse impact on any environmental medium.
While the intention of this provision -- to avoid creation of
cross media problems -- is sound, it is not worth the price that would
have to be paid in terms of industry innovation. This amendment would
have a chilling effect on development of innovative pollution
prevention technologies.
If cross-media transfers are a problem, other environmental
statutes should be used to control these other releases. To this end,
EPA's cluster approach to regulation, again, should be helpful. Other
recent developments in environmental regulation — e.g., reporting
requirements under EPCRA Section 313 -- are also discouraging cross
media transfers. Congress should consider these other factors before
taking this drastic approach to addressing cross-media concerns.
D. Elimination Of BCT And The Cost Test In Development Of Standards
For Conventional Pollutants Will Pro«ote Technology For
Technology's Sake Without Any Rational Relationship To
Environmental Benefits
The current Act applies a "cost reasonableness" test to the
development of Best Conventional Technology (BCT) standards for
conventional pollutants. S. 1114 eliminates the differentiation of
treatment standards between conventional and toxic pollutants --
applying Best Available Technology standards to both — and with this
change, removes the BCT cost reasonableness test. This is inappropriate.
When Congress reviewed the Clean Water Act in 1977, it was
presented with substantial evidence that compliance with BPT limits by
1520
1977 had been very effective in treating conventional pollutants such
as BOD and suspended solids. It was Congress' judgment that, from that
point forward, additional investment in conventional pollutant control
would have to be cost justified. Congress therefore adopted in 1977
the BCT level of pollution control technology which included a cost
test. This cost test was developed in recognition of the fact that
pollution control costs steeply increase as pollutant removals reach
higher levels. Under BCT, additional controls on conventional
pollutants beyond BPT could be imposed only to the extent that the
increased cost of treatment would be reasonable in terms of the degree
of environmental benefits.
Removing the BCT standard, and with it its cost test, makes no
sense when conventional pollutant removal levels in most industries now
approach 95X or above. This amendment promotes technology for
technology's sake, without any rational relationship to the
environmental benefits that will accrue. Therefore, this amendment
should be eliminated.
E. Pretreatment Standards Equivalent To Direct Dischargers' Standards
Ignores Congress' Concerns About Redundant Treataent
Section 201(c) of this bill requires that pretreatment standards
be "no less stringent than any effluent guideline" for the same source
category under Section 304(b) of the CWA. This amendment effectively
imposes the same standards for indirect dischargers as for direct
dischargers. The impact of this amendment is that industrial users of
POTWs would be forced to install unnecessary, redundant treatment in
order to meet pretreatment standards that are as stringent as direct
discharge standards.
This amendment contrasts sharply with Congress' original
intentions with respect to pretreatment standards. Under currently
developed pretreatment standards, pollutants are treated twice, first
by industry and then by a POTW which must comply with its permit. EPA's
pretreatment standards are technology-based requirements based on the
best available technology for specific industry categories. Congress
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1521
never intended these standards to require redundant treatment by
industry. The legislative history of Section 307(b) of the Act makes it
clear that pretreatment was not intended to be required as a substitute
for adequate treatment by municipal waste treatment works. Under
Section 307(b)(1) of the Act, EPA may only require pretreatment "for
those pollutants which are deterained not to be susceptible to
treatment by POTWs or which would interfere with the operation of such
treatment works." EPA makes determinations of whether pollutants are
"incompatible" with POTWs based on criteria of interference, pass
through, sludge contamination or other incompatible effects. In sum,
Congress' intent was that the treatment capability and performance of
the POTW be recognized and taken into account in establishing
pretreatment standards.
This amendment ignores Congress' concerns about redundant
treatment. This amendment is based on the erroneous premise that
POTWs are not capable of effectively treating industrial effluent. In
fact, POTWs use the same treatment technology as industrial wastewater
treatment plants, and in many cases, POTWs were specifically designed
and built to handle industrial wastewater. POTWs can and do provide
effective treatment of conventional, non- conventional and toxic
polltitants in industrial wastewater. Where a POTW is unable to handle
specific industrial wastewaters, the POTW has authority to require
their industrial users to meet local limits to enable the POTW to
effectively treat those wastewaters. Any isolated examples of POTWs
ill-equipped to handle industrial wastewater should not be used to
justify making pretreatment standards for indirect dischargers
equivalent to BAT standards for direct dischargers.
Proponents of this provision also argue that a significant portion
of industrial wastewater that is sent to POTWs is released to the
environment due to losses from leaking sewer lines. This claim is
unsubstantiated. In fact, operators report more problems with
Infiltration into sewer lines than with exflltratlon.
11
1522
It was economies of scale that first brought about the idea of
industries using POTWs to treat some of their wastewaters. In fact,
industry helped fund the construction of many POTWs around the country
and provides a significant source of revenue for POTW operation in many
locations. If indirect dischargers are now required to meet the same
standards that direct dischargers must meet, the advantages of these
economies of scale will be greatly reduced. Additional, costly and
redundant treatment will be required for no environmental benefit. Many
indirect dischargers will seriously question the continuation of any
tie-in to POTWS. Because industries that discharge to POTWs pay large
user fees to these POTWs, another impact of this amendment could be a
significant loss of revenue for the POTWs.
In sum, this amendment is unnecessary and will result in only
significant increased costs for no environmental benefit.
F. S. 1114 Would Give EPA A Blank Check To Spend Industry's Money On
Developwent Of Effluent Guidelines And Standards
Under the current Clean Water Act, EPA is required to develop
effluent guidelines, new source performance standards, and pretreatment
standards for categories of sources. Government funding is used to pay
for these standard setting activities.
Under S. 1114, EPA would be required to determine the cost to the
Agency of developing effluent guidelines, new source performance
standards, and pretreatment standards. EPA would further be required
to collect fees from facilities that are regulated under these
guidelines and standards to offset the full costs of their
development. Waivers would be available for small businesses or
facilities for which fees would pose an unreasonable financial
hardship. Fees may also be modified for facilities that demonstrate
new or innovative technology.
Industry should not have to pay for development of guidelines or
standards. That is properly a government funded function.
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1523
S. 1114 would give EPA a blank check to spend Industry's money for
developing guidelines and standards. There is no cost control
mechanism under this provision. There would be no incentive for the
Agency to be cost-effective in the development of guidelines and
standards since they would be authorized to offset their full cost
through collection of fees from industry. The cost burden would be
particularly high on industrial users of POTWs since their individual
discharges are relatively small while the cost of standard development
is high. For all of these reasons, the effluent guidelines fee
provision should be dropped.
Other Provisions In Section 201 Of S. 1114 Are Unnecessary And
Should Be Dropped
1. New Source Definition
The revision to the effective date of New Source Performance
Standards at Section 201(b)(2) of the bill is unnecessary. Under the
current CWA regulations, a new source is defined as any source the
construction of which begins either after the promulgation of a new
source performance standard, or after proposal of such a standard,
if the standard is subsequently promulgated within 120 days of its
proposal in accordance with Section 306 of the Act. This regulation
is reasonable and was upheld by the D.C. Circuit.
S. 1114's requirement that new source performance standards (NSPS)
become effective on the date of proposal of the standard will create
absurd results. For example, under this language, an organic chemicals
plant which began construction in 1983 would have been subject to the
NSPS under the OCPSF effluent guidelines that weren't promulgated until
November 1987, more than four years later. While the intention of this
amendment is grounded in the fear that industries will run out to build
facilities as soon as NSPS are proposed so as to avoid their
applicability, this has not been common practice. Further, applying
proposed New Source Performance Standards that may be changed in the
final rule (typically proaulgated years later), is simply inequitable.
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Compliance Schedules
The conforming amendment in Section 201(d)(1)(B) appears to
preclude a compliance schedule for new water quality-based pollutant
limitations if the permit already Includes a limitation for those
pollutants. This amendment is unnecessarily restrictive because it
prohibits EPA from allowing reasonable opportunities to attain
compliance where it is appropriate. Requiring newly negotiated water
quality-based permit limits to become effective immediately, without
allowing any time for compliance, is unrealistic. It fails to recognize
that water quality-based permit limits are by definition more stringent
than the technology-based limits that may have previously applied to
these same pollutants. Tf the Clean Water Act's 1977 statutory
deadlines for compliance with more stringent water quality based limits
is what's prompting this amendment, this deadline should be changed to
recognize the need for reasonable compliance schedules for new permit
limits, whether based on new effluent guidelines or water quality
standards.
14
1525
III. Water Quality Criteria and Standards (Section 202)
A. S. 1114 Would Shift Too Huch Authority Away From The States To EPA
For Setting Water Quality Standards
Under Section 303(c) of the current Clean Water Act, States are
required to adopt adopt water quality standards for waters in their
State. These water quality standards consist of two elements: 1) a
designated use or uses for each water body, e.g., public water supply,
recreation, propagation of fish and wildlife; and 2) criteria necessary
to protect the designated uses. State programs also contain
antldegradation policies and specific implementation procedures to
maintain and protect water quality.
States must adopt water quality standards for all priority
pollutants, the discharge or presence of which "could reasonably be
expected to interfere with" designated uses in the State. EPA s role
is to develop water quality criteria for use by the States in
developing their standards and to review State standards to determine
if they meet requirements of the Clean Water Act. Section 303(c)(4) of
the Clean Water Act grants authority to EPA to propose and promulgate
water quality standards for a State If It finds that a standard
developed by the State does not meet the applicable requirements of the
Clean Water Act or at any other time when it determines that a standard
is necessary.
Under the approach proposed in S. 1114, all waters for which a use
has not been designated by a State would automatically be designated as
fishable and swlmmable. Further, S. 1114 provides that any water
quality criterion published by EPA is to apply automatically to a State
unless the State objects within 120 days and subsequently adopts its
own criterion within 3 years. Finally, S. 1114 authorizes EPA to
promulgate and Implement an antldegradation policy and implementation
procedures for States without an approved policy and procedures.
The provisions in S. 1114 would shift too much authority away from
the States to EPA in setting water quality standards. Because States
IS
1526
can take into account local characteristics and uses (existing and
future) of the water body, they are in the best position to determine
appropriate designated uses for water bodies within their boundaries.
Likewise, States are the appropriate government body to determine when
water quality criteria are needed to support designated uses within the
State. And, States should be allowed to adopt antidegradation policies
and implementation procedures that meet the individual needs of that
State.
For these reasons, States should be given ample opportunity to
set all elements of their water quality programs for waters within
their State. EPA should be allowed to set water quality standards for
States only after States have had adequate opportunity to adopt their
own standards. The current Clean Water Act recognizes this need. It
provides EPA authority to impose water quality standards when State
standards do not meet the requirements of the Clean Water Act or at any
other time that a standard is necessary. This authority is sufficient
to allow EPA to set water quality standards for a State, when
necessary.
1. Use designations
S. 1114 provides that "all waters of the United States for which a
use has not been designated shall be deemed to be designated as
fishable and swimmable, unless a State establishes an alternative use
for the waters." This automatic classification would take effect
within 5 years of enactment.
The current Clean Water Act correctly recognizes other beneficial
uses such as agricultural, industrial, and navigation. EPA's own
regulations (40 CFR Part 131) stress the need for States to designate
uses that are attainable. In some cases, a designated use of
flshable/swimmable will simply be unattainable, due to natural
background conditions or other factors. The approach in S. 1114
disregards this fact. In the event that EPA must establish use
designations for a water in a State, it should also consider whether a
16
1527
particular use designation is attainable. The automatic presumption
that all unclassified waters can attain a use designation of
fishable/swimmable in S. 11 14 is therefore inappropriate.
2. Water quality criteria
Under S. 1114, each Federal water quality criterion that is
published will become automatically a State criterion after only 120
days. S. 1114 would allow a State to object to this automatic
application of the Federal criterion only if the State makes this
objection within the 120 days and subsequently adopts its own criterion
within 3 years.
This approach represents a major shift in current policy under
which States have primary authority for adopting water quality
criteria. Under the approach, States would have only limited
discretion in adopting water quality criteria for the waters within its
State. Section 303(c)(2)(B) of the Clean Water Act requires States to
adopt criteria for toxic pollutants, "the discharge or presence of
which . . could reasonably be expected to interfere with designated
uses . . . ." The approach in S. 1114 would skip this determination
altogether, by making Federal criteria the presumptive State criteria
regardless of whether a pollutant can reasonably be expected to
interfere with designated uses in a particular State. States would
have 02 opportunity to determine that a criterion is not needed in its
State and only limited opportunity to determine if a different
criterion than the Federal criterion would be more appropriate for the
waters in its State. Furthermore, once a Federal criterion is
automatically applied to a State (after 120 days), S. 1114 would
provide no iiechanism for a State to adopt its own criterion or modify
the criterion at a later date.
Imposing Federal water quality criteria on States in this way will
significantly restrict the ability of State permit writers to take into
account local, site-specific conditions when developing water quality
based permit limits. This is an important feature of many current
17
1528
State water quality standards programs which should be retained and
encouraged. By taking into account local, site-specific conditions,
water quality based permit limits can be established for NPDES
permittees that are protective of human health and aquatic life for a
given location, without being unnecessarily overly protective.
3. Antidegradation Policy and Implementation Procedures
EPA regulations (40 CFR 131) require States to adopt an
antidegradation policy and implementation procedures as part of its
water quality standards. S. 1114 would codify this requirement.
Further, it would provide EPA authority to promulgate an
antidegradation policy for States without an approved policy within 3
years of enactment of S. 1114.
States should be given ample opportunity to develop and implement
their own antidegradation policies. These policies specify how a State
considers social and economic impacts in decisions to permit new or
expanded manufacturing facilities as well as in decisions for
outstanding natural resource water designations. Clearly, policies for
these important considerations are most appropriately developed and
implemented at the State level. Giving EPA authority to impose these
considerations on States without their participation would be
Inappropriate.
In summary, the provisions In S. 1114 described above are not only
Inappropriate, they are unnecessary. Under the current Clean Water
Act, EPA already has ample authority to establish water quality
standards for States when EPA determines that standards are necessary
In a State. EPA recently exercised this authority under the National
Toxics Rule (57 Fed. Reg. 60848. Dec. 22, 1992).
18
1529
B. Requlreaents In S. 1114 For EPA To Develop A Mlnlmun Of 8 Sediment
Criteria Within 4 Years Is Impractical And Contrary To Sound
Science
Under the current Clean Water Act, EPA has authority to publish
criteria for water quality including information on factors necessary
to restore and maintain the chemical, physical, and biological
integrity of surface waters. EPA has used this authority to begin work
on the development of sediment quality criteria for a limited number of
specific chemical substances. Possible applications of these criteria
are expected to incbided NPDES discharge limits, waste site remediation
projects, and product safety determinations.
S. 1114 would establish a new focus on sediment quality in the
water quality standards section of the Act. It would require EPA to
develop a plan for publishing no fewer than 8 sediment quality criteria
(including PCBs and dioxin). EPA would decide which substances needed
criteria developed on the basis of greatest benefit to human health or
the environment.
S. 1114's focus on enhancement of sediment quality through the
Clean Water Act's water quality standard program is premature.
Sediment contamination is largely a "hot spot" occurence only affecting
certain limited geographical areas due to past spills or discharge
practices. Existing methods of assessing exposure and ecosystem
effects are adequate to assess any needed remediation goals. Because
sediment contamination is only a hotspot problem, not a national
problem, federal sediment quality criteria are not needed.
Further, present methods being developed by EPA for deriving
sediment quality criteria have too much uncertainty associated with
them to be incorporated into State water quality standards, wastewater
discharge permits, or waste site remediation standards. Until methods
for developing sediment criteria can be proven through peer-reviewed
field validation studies, their use should be limited to screening and
19
1530
setting priorities about where additional investigatory efforts are
needed.
While EPA has begun work on developing sediment quality criteria
methodologies for selected non-ionic organic compounds, work on
developing methodologies for other types of compounds is still in the
infancy stage. These methodologies must be developed and proven before
EPA can satisfy a requirement to develop sediment quality criteria for
many compounds, including PCBs and dloxin. This will take much longer
than U years.
In summary, the provision In S. 1114 requiring EPA to develop a
minimum of 8 sediment quality in 4 years is premature and unrealistic
given the localized nature of sediment contamination and the scientific
limitations In the present methodologies for assessing sediment
contamination.
C. S. 1114 Would Impose Costly New Data R«quirea«nts Pursuant to
FIFRA And TSCA
The current Clean Water Act directs EPA to develop water quality
criteria as necessary to restore and maintain the chemical, physical,
and biological integrity of water and to protect and provide for
propagation of fish and wildlife and allow for recreational activities
in water. Consequently, EPA has broad authority to develop water
quality criteria for a wide range of substances.
Under S. 1114, a manufacturer of a pesticide would be required to
provide information sufficient to develop a criterion for that
pesticide as part of the FIFRA registration process. Similarly, a
manufacturer of a chemical substance that is subject to premanufacture
notice pursuant to Section 5 of TSCA would be required to provide
Information sufficient to develop a criterion, unless the substance
fall into one of two limited exclusions.
These additional data requirements are inappropriate for several
reasons. Currently, thousands of new pesticides and chemical
20
1531
substances are subject to FIFRA registration or TSCA premanufacture
notice each year. Many of these chemicals will cause no impact on
water, because of the nature of the compound, e.g., they hydrolyze in
water, are insoluble in water, etc., or because their use will not
result in discharges to water. The exclusions provided in this bill
inadequately address these situations. Further when new substances are
developed, it may not be known whether they fall into one of these
exclusions. Requiring manufacturers of all new pesticides and
chemical substances -- except those substances meeting these limited
exceptions -- to provide Information to develop water quality criteria
will impose a significant burden without any environmental benefit.
Current methods for development of criteria for protection of
human health and aquatic life require considerable data. This is both
necessary and appropriate to ensure that the criteria and resulting
water quality based permit limits are based on sound science.
Requiring manufacturers to conduct these costly studies as part of the
FIFRA registration process or TSCA premanufacture notice regardless of
whether these substances have the potential to result in water quality
impacts is unjustified.
The additional data requirements will add further cost and delay
to the FIFRA registration process and TSCA premanufacture notice
process. Data requirements under the current TSCA premanufacture
notice process, for example, are intentionally streamlined to prevent
unnecessary delays in developing new chemicals.
Requiring manufacturers to develop these data for new pesticides
and for new chemical substances will impose significant new costs. It
will result in the generation of information for thousands of new
chemicals, regardless of whether water quality criteria are needed for
those substances. In addition, it is highly unlikely that EPA and the
States will be able to incorporate this significant increase in
information in their already resource-constrained water quality
programs. As a result, manufacturers will be required to spend
21
1532
millions of dollars to generate information that is not needed or ever
used.
22
1533
IV. Toxic Pollutant Phase-Out (Section 203)
A. The Discharge Prohibition Provision In S. 1114 Will Result In
Bans On Uses Of Beneficial Substances Absent Any Demonstration Of
Unreasonable Risk
CMA believes that controls on pollutants that have an adverse
effect on human health or the environment are warranted. However,
discharge prohibitions are environment management controls that should
be applied judiciously because their impact is so extreme -- they
typically result in bans on the use of the targeted substance, witness
DDT and PCBs.
Under Section 307(a) of the Clean Water Act, EPA already has
authority to prohibit the discharges of toxic pollutants. To assert
this regulatory authority, EPA must take into account a pollutant's
toxicity, persistence, degradability , presence of affected organisms,
effect of toxics on the organisms and the extent to which effective
control is already being achieved through other regulatory authority.
EPA has exercised this authority with respect to six pollutants: DDT,
PCBs, aldrin/dieldrin, endrin, toxaphene and benzidine.
Section 203 of S. 1114 would replace this authority with a
mandate for EPA to list "highly toxic or toxic and highly
bioaccumulative pollutants" and then to ban the discharge of these
listed pollutants by regulation. This provision is misguided for
several reasons.
First, it applies a simplistic listing process to the
determination of which pollutants must be subject to discharge
prohibitions. This listing process includes no discernible criteria by
which EPA identifies which pollutants are "highly toxic" or "toxic and
highly bioaccumulative." This is wholly inappropriate given the
extreme impacts of discharge prohibitions described above. While
Congress should not legislate arbitrary standards for identifying these
pollutants, a description of appropriate factors to take into account
or demonstrations that EPA must make in any identifications would be
23
1534
appropriate. For example, the provision falls to require any
demonstration by EPA of a relationship between the discharge of the
Identified pollutant and unreasonable risk to human
health/environment. It erroneously assumes that a discharged substance
identified as highly toxic or toxic and highly bloaccumulative poses an
unreasonable risk. Merely because a pollutant is toxic and
bloaccumulative does not mean its discharge in any amount poses a
threat to human health and the environment. EPA's determination to
list a substance for discharge prohibitions must be based on a
determination of adverse effect to human health or the environment from
the discharge of the substance.
This provision replaces EPA's current authority to prohibit
discharges with a mandate to prohibit discharges of listed
pollutants. Although the bill includes limited exemptions from the
prohibitions or extensions to compliance periods, these provisions are
insufficient because the listing process is flawed from the outset. It
falls to require EPA to consider either the societal or economic
Impacts of a decision to list a substance for discharge prohibition.
For example, there's no requirement that EPA consider the benefits of
the identified substance, the impact of its prohibition on product
quality, or the availability of effective and safe substitutes.
Given the potentially extreme impacts of discharge prohibitions,
another significant concern is that there is no provision for
scientific peer review of either EPA's methodology for identifying
pollutants for phase-out or of the listed pollutants themselves.
Public review and comment on EPA's methodology for listing and any
lists should also be required.
Citizen petitions for listing pollutants for prohibitions are
inappropriate, particularly in the absence of any criteria by which
pollutants would be identified for prohibition. The expedited listing
process is also misguided because it would allow for snap decisions
that could later prove incorrect. The Clean Water Act's antlbacksllding
provision could prevent correction of these errors. Devastating
24
1535
consequences could result in affected industries, similar to'~those felt
by apple growers as a result of the media scare about Alar in 1989.
Discharge prohibition decisions must be deliberate and well
considered. Citizen petitions and expedited listing processes
associated with these will not promote rational decision-making.
Finally, Congress should consider the appropriateness of risk
management options other than discharge bans for controlling
pollutants, similar to the approach that is authorized under Section 6
of TSCA. There, when EPA determines that a substance presents or will
present an unreasonable risk of injury to health or the environment,
EPA is authorized to take a variety of actions, including
prohibitions. The appropriate risk management action is determined
only after EPA makes a balanced evaluation of the health and
environmental effects and magnitude of human/ environmental exposure to
a chemical, the benefits of the chemical for various uses, the
availability of substitutes for such uses, and the reasonable
ascertainable economic consequences of the Agency s action.
In sum, this provision's mandate for EPA to list and prohibit
discharges of listed pollutants is ill considered. Current EPA
authority is adequate. This provision should be struck from S. 1114.
B. Review Of Priority Pollutant List Is Not Needed (Section 203(b))
Another unnecessary amendment in this bill is the requirement that
EPA review and revise the priority pollutant list every five years.
This requirement imposes an additional resource drain on EPA for little
if any environmental benefit. EPA testified on July 1 that this
authority was not needed, because EPA had no difficulty regulating
pollutants that were not on the priority pollutant list. Mandating an
evergreen listing process would simply take EPA's limited resources
away from water quality problems of more significant concern.
25
1536
V. Pratreataent Prograa (Section 204)
A. The Proposed Changes To The Domestic Sewage Exclusion
(Sec. 204(c)) Will Effect Major Disruptions In Industry At Huge
Costs For Mlnlaal Envlronaental Protection
. Thfi changes to the domestic sewage exclusion of RCRA, outlined in
Section 204(c) of this bill, would severely limit the scope of the
DSE. The impact of this limitation would be devastating -- requiring
industry to spend hundreds of millions of dollars to segregate
wastewaters for offsite treatment or to install redundant treatment.
There is no environmental benefit to be gained by requiring these
changes. There is no substantiated justification for this amendment. It
is contrary to EPA's own conclusion in its 1986 Domestic Sewage Study
that the DSE needed no change and that the Clean Water Act, not RCRA,
provides the best means to control hazardous waste discharges to POTWs.
Since that study was done, EPA promulgated new general pretreatment
requirements (July, 1990) that specifically address discharges of
hazardous wastes to POTWs. This amendment is unnecessary and should be
struck from S. 1114.
Proponents of this amendnent claim that the domestic sewage
exclusion of RCRA Is a loophole through which tons of hazardous waste
are discharged by POTWs into waters of the United States untreated.
This claim is false. It wholly disregards several factors: (1) that
POTWs can and do provide adequate treatment of Industrial wastewaters;
2) that Industrial users of POTWs must meet both general pretreatment
requirements and categorical pretreatment standards before discharging
to POTWs; 3) that POTWs can and do apply local limits to wastes
discharged to POTWs where needed; and (4) that POTWs treat wastes using
the same treatment technology that Industrial wastewater treatment
plants use, to meet their own permit limits before discharging to
waters of the United States. This series of controls provide more than
adequate treatment of wastes discharged by POTWs.
Merely because these are Clean Water Act controls does not
mean that they are less stringent than RCRA controls. In fact, many
26
1537
RCRA BOAT standards were developed based on Clean Water Act standards.
Any perceived differences in stringencies are merely a function of the
different categorization of wastes under the Clean Water Act and RCRA.
The Clean Water Act's technology-based standards represent what the
best technology can achieve when applied to aggregated waste streams,
which may include both hazardous and nonhazardous streams. RCRA's
technology-based standards, on the other hand, represent what the best
technology can achieve when applied to separate, discrete as-generated
hazardous wastestreams. RCRA's BOAT standards were never intended to
apply to industrial wastestreams that are discharged to POTWs and which
generally consist of a wide-ranging mixture of hazardous and
non-hazardous waste. They were designed to force treatment of
segregated wastes that were to be disposed of on land. The change
proposed to the DSE would mean that unless one of three conditions is
met, industry would have to segregate hazardous wastestreams from
non-hazardous wastestreams and send the hazardous wastestreams for
offsite treatment and disposal or apply redundant treatment measures to
these wastestreams. This is contrary to the development of CWA
centralized treatment schemes like the POTWs which have proved both
efficient at removal of pollutants and cost effective.
Other claims that are propelling this amendment to the domestic
sewage exclusion are similarly unsubstantiated. Claims that this
change will stop transfers of hazardous waste to POTW sludge are not
based in fact. Even if they were, Clean Water Act sludge standards are
a more direct way to address any alleged problems that may be present
in POTW sludge. Similarly, claims that hazardous waste is "leaking"
out of sewage pipes even before the wastes reach the POTWs are
unsubstantiated. In fact, in-filtration into sewage pipes is
considered a greater problem than ex-filtration. Even if ex-filtration
were a serious threat, fixing the pipes would seem to be a more direct
and effective solution to the problem. Rather than threatening to
disrupt centralized treatment efficiencies under the Clean Water Act
through this amendment, Congress should first substantiate any real
problems this amendment is supposed to address, and then ask whether
27
1538
these probleMS could be addressed more effectively and directly through
other Means.
Beyond CMA's basic disagreement with the need for these changes to
the domestic sewage exclusion, CHA also finds the amendment language
extremely confusing. Because the Clean Water Act regulates the
discharge of "pollutants", while RCRA regulates "solid wastes,"
concepts from one statute cannot be readily transferred to another. S.
Ill4's effort to do so results in a provision that is so confusing It
cannot readily be interpreted and applied. For example, a major source
of confusion centers around a fundamental question: which of the many
"pollutants" in a "solid waste" must be subject to pretreatment
standard or local limit in order for the waste to be excluded from the
RCRA definition of "solid waste"? Other critical terms in the bill are
left undefined, such as what it means to be "in compliance" with a
pretreatment standard, and what "source" must be subject to a standard.
Several large gaps also exist in this amendment that should raise
some red flags. Specifically, because there is no small-quantity
generator cutoff in the amendment, the amendment apparently prohibits
the discharge to POTWs of household hazardous wastes unless they are
subject to pretreatment standards. Also, there is no provision in the
bill for wastes that are newly identified as hazardous under RCRA and
for which there are no BOAT or pretreatment standards.
Another concern raised by this amendment relates to the EPA and
POTW resources that would be needed to ensure that Industry will be
able to meet one of the three conditions established in the amendment.
This resource problem relates to the fundamental question about which
pollutants In solid waste would require a pretreatment standard/ local
limit under this amendment. While EPA may establish a schedule for
promulgating pretreatment standards, it cannot identify which
pollutants will be subject to a standard because that decision is made
only after EPA studies an industry and determines which pollutants need
to be regulated. If EPA is required to establish a standard for every
pollutant that may be contained in any hazardous waste that may be
28
1539
discharged to a POTW, then the process of establishing pretreatment
standards will be more protracted and fewer, not more, standards will
be set in the near term. The same result would occur with respect to
local limits. Further, requiring local limits to be "equivalent" to
BOAT raises more than just a resource problem for POTWs but also the
question of ability to craft "equivalent" standards.
In sum, this amendment has not been clearly thought out. Neither
the problems it aims to solve nor the manner in which it would solve
them are at all clear. Congress should defer to EPA's expertise in
this matter -- as outlined in the 1986 Domestic Sewage Study -- and
keep the domestic sewage exclusion intact.
B. Removal Credits Should Be Granted For Other Mechanisms Besides
Blodegradatlon (Section 204(b))
Section 204(b) of S. 1114 would restrict the availability of
removal credits under the pretreatment program. Removal credits would
only be allowed for toxic pollutants discharged to POTWs if the
treatment by the POTW results in biodegradatlon of the toxic pollutant.
Biodegradation should not be the only removal mechanism allowed.
Provided that the intended uses of POTW sludge are not impacted,
mechanisms such as precipitation and adsorption should be considered as
well. This amendment, therefore, should be struck from the bill.
29
1540
VI. Pollution Prevention Planning (Section 205)
A. Although Planning Is The Preferred Approach To Pollution
Prevention. This Provision Is Deficient
CMA believes that voluntary planning for pollution prevention is
the best way to achieve pollution prevention because it is inherently
more flexible than any command and control approaches to pollution
prevention. From this perspective, therefore, CMA believes that the
effluent guideline and toxic discharge prohibition provisions of S.
1114 described above are misguided attempts to inject pollution
prevention into the existing Clean Water Act structure.
CMA's endorsement of flexible, voluntary pollution prevention
planning is grounded in the fact that voluntary plans can appropriately
address the pollution prevention priorities of the facility, as opposed
to the priorities established by EPA. Facility-based pollution
prevention plans allow priority setting not only with respect to the
particular pollutants at a facility but also with respect to the
particular environmental exposure of most significance at a facility.
This is why multi-media j>ollution prevention planning is preferable to
single media pollution prevention planning. Facilities can set
priorities among all their environmental releases to allow focus where
the most significant risks lie and where the most significant
reductions can be obtained.
CMA believes that voluntary pollution prevention planning which is
multi-media and risk-based represents a superior approach for
accomplishing S, 1114*s objectives of promoting pollution prevention.
Other pollution prevention provisions in S. 1114, including revisions
to effluent guidelines in Section 201 and prohibitions on toxic
discharges in Section 203, are not only misguided, they are
unnecessary, if facility-based pollution prevention planning is
implemented.
The proposed pollution prevention planning provision in S. 1114
approach is deficient in several ways. First, its single media focus
30
1541
will skew facilities' prioritization of pollution prevention projects
to the water media when this may not be where a facility can obtain the
most risk reduction.
Second, its tie-in to NPDES permits will give EPA great leverage
so that EPA's pollution prevention goals, rather than the facility's,
could be incorporated into the plan.
Third, this provision's focus on use reduction, byproduct
generation and in-process recycling restrict a facility's pollution
prevention practices to the "tip" of the pollution prevention
hierarchy. Pollution prevention should be viewed more broadly as any
act or practice that reduces the amount or toxicity of toxic chemicals
released into the environment or otherwise reduces the hazards to human
health or the environment associated with such releases. Pollution
prevention incorporates the entire hierarchy of environmental
management practices including source reduction, reuse and recycling
and other waste minimization techniques. In short, the goal of
pollution prevention should be risk reduction, not meeting mandates to
do "preferred" environmental management practices. Facilities should
be encouraged to "move up" the environmental management hierarchy, but
not to the point of ignoring risk reduction opportunities that can be
achieved through practices other than source reduction or in-process
recycling. As drafted, S. 1114 focuses on the methods of pollution
prevention rather than risk reduction goals.
Use reduction goals are one of the minimal requirements of the
pollution prevention plans in Section 205. These, in particular, raise
serious concerns about the necessary use of certain raw materials in
the manufacture of beneficial products; the impacts on product quality,
the protection of intellectual property; and the ability of U.S.
companies to compete in world markets. Because of these concerns, the
requirement for use reduction goals should be struck from this bill.
It Is essential that the Subcommittee correct the deficiencies in
Section 205. CMA believes voluntary pollution prevention planning is
31
1542
the appropriate approach to pollution prevention and that Congress
should seek ways to encourage pollution prevention planning rather than
mandating it. However, if Congress insists on mandating pollution
prevention, it should take a flexible planning approach, rather than
the command and control approach outlined in Sections 201 and 203 of
the bill. Improvements to Section 205 to address the concerns raised
above with this planning provision however, are in order.
Further, Congress should consider other incentive-based approaches
to pollution prevention. For example. Congress should consider removal
of some of the existing barriers to pollution prevention in the CWA,
e.g., the restrictive nature of variance provisions like the innovative
technology variance and fundamentally different factor variance; and
the antibacksliding provision.
On its face, the Innovative technology variance provision (Section
301(k)) suggests an approach that would provide an incentive for
pollution prevention. However, as discussed elsewhere in these
comments, its additional two years compliance time is insufficient.
Developing, testing and assuring compliance from innovative production
processes or control techniques requires considerably more time than 2
years. Further, requiring there be a determination that the innovative
system has the potential for industrywide application limits the
usefulness of this provision considerably given the facility specific
nature of pollution prevention techniques.
Another provision which EPA has interpreted so rigidly that it
affords little flexibility in the requirements of the CWA is the
Fundamentally Different Factors (FDF) variance provision. Such a
provision, if interpreted more broadly, could provide incentive for
facilities to undergo pollution prevention projects by allowing them to
obtain a variance from an effluent limitation. However, EPA has granted
so few FDFs over the years that it Is not viewed as providing any real
relief from the technology-based effluent limitations. The result can
be, again, to discourage rather than encourage pollution prevention.
32
1543
Under the Clean Water Act, the antibacksllding provision is
perhaps the most Inflexible provision In the Act. While the objective
of this provision is commendable — to prevent backsliding from limits
that had been achieved and to maintain existing water quality --
arguably this provision can discourage pollution prevention. For
example, for a facility to achieve a significant reduction in the
amount of one pollutant that it discharges, it may be desirable to
substitute a different material in the manufacturing process. U.se of
this material, however, may result in an insignificant increase in the
level of another pollutant in the facility's wastewater. If this
slight Increase will cause the facility to exceed its discharge limit
for that pollutant, then the substitution cannot and will not be made,
despite the environmental benefits that would result from the
significant reduction in the pollutant for the discharge. The
provision that prevents a facility from obtaining a less stringent
permit limit is the antibacksllding provision at Section 402(o) of the
Act.
As Congress looks for ways to promote pollution prevention in the
Clean Water Act, it should address these Inherent Inflexibilities in
the Act that stand in the way of real progress in further reductions of
wastes and releases.
33
1544
VII. Peralt Fees (Section 501)
A. S. 1114 Would Grant EPA Broad Authority To Collect Fees FroM
Industry To Pay For Agency Activities Not Directly Related To
Industrial Discharges
The current Clean Water Act does not require states to collect
permit fees from NPDES permit applicants. However, a number of states
currently have permit fee programs. The amount of fees collected and
the scope of activities for which costs are defrayed by permit fees
vary from state to state.
S. 1114 would add a new provision to Section 402 of the CWA that
would require States to develop a program to collect fees from NPDES
permit holders and industrial users of POTWs. The amount of fees that
a State collects must be sufficient to cover not less that 60 percent
of the costs of developing and administering point source elements of
the State's water quality program as well as the sewage sludge disposal
and pretreatment program. EPA would be authorized to establish a
Federal permit fee program for states that do not have permitting
authority or that do not have EPA-approved permit fee programs.
Permit fees are an appropriate source of revenue for the
administration of the Clean Water Act's NPDES permit program. However,
targeting permit fees for purposes other than the cost of processing
permit applications is unacceptable. To do so is to ask permittees to
pay for more than their fair share of the water program.
Under S. 1114, fees from industrial dischargers would be used to
cover a very broad range of Agency activities, many of which are not
directly related to permitting of industrial discharges or their
impacts. Examples of programs that would be funded through this fee on
industrial dischargers, but which affect and benefit more than
permitted industrial dischargers, include: 1) ambient water quality
monitoring; 2) setting of water quality standards; 3) modeling,
planning, analyses and demonstrations; 4) preparing and maintaining
public information systems; and 5) evaluating the performance of
34
1545
laboratories. Fees should be provided froM general funds for these
types of activities because they are not directly related to industrial
discharge permitting activities.
Industry has already invested large sums of money to comply with
existing regulations and standards. This provision's wording "no less
than 60 percent of the cost" allows government to extract most of its
funding from industry.
Industry should not pay for development of water quality standards
because these standards are based on water bodies and watersheds and
not on discharges. Further, these standards will affect more than
industrial dischargers under the proposed watershed planning and
non-point source requirements of S. 1114.
Any proposed permit fee programs should provide for an audit of
use of the funds collected. As drafted, there is no accountability
mechanism. There is also no cap on the fee collected from a discharger.
35
1546
VII. Perilt Prograa Modifications (Section 502)
A. Proposed Permit Program Modifications In S. 1114 Would Discourage
Industry From Developing Innovative Processes And Technologies
Section 301(k) of the Clean Water Act authorizes F.PA to extend the
compliance date for facilities subject to an effluent guideline for up
to 2 years if the facility proposes to meet effluent standards-- or
achieve significantly greater effluent reduction than is required --
using an innovative production process or an innovative control
technology.
S. 1114 would limit the usefulness of the innovative technology
variance by allowing additional compliance time to cover only the
development and testing of innovative technologies. Section 502(h)
would reduce the additional time period for compliance under the
Section 301(k) variance from 2 years to 90 days.
The current Clean Water Act's innovative process and control
technology variance was intended to provide an incentive to facilities
to develop Innovative, cost-effective compliance approaches involving
process changes or new types of treatment technology. S. 1114 would
create a disincentive to innovation since the time period needed to
develop, test and comply with innovative process and control
technology is significant, particularly when compared to the time
period needed to comply with demonstrated treatment technologies. An
additional 90 days is wholly inadequate. Reducing the additional time
period for compliance from 2 years to 90 days eliminates the usefulness
of this variance and will discourage facilities from developing
innovative processes or technologies.
Instead of creating disincentives, Congress should look for ways
to create incentives to encourage development of innovative compliance
approaches. For example, even the current 2 year compliance extension
is an insufficient incentive to seek and develop innovative
techniques. A five year compliance extension is a more appropriate
incentive. Adding compliance extensions or waivers from CWA
36
1547
linltatlons for Innovative technologies that achieve a net
envlronnental benefit to all media would both encourage innovation
while siMultaneously promoting pollnt'ion prevention.
37
1548
VIII. Enforceaent (Section 503)
A. The Clean Water Act Already Includes Ample Enforcement Authority,
And Amendments To The Statute Are Neither Necessary Nor
Appropriate
According to a recent EPA report, there was more enforcement under
the Clean Water Act than under any other environmental statute during
fiscal year 1992, and penalties assessed during that year reached
record highs. The EPA report dramatically illustrates that effective
enforcement of the Act's requirements is taking place, and that no
additional enforcement authority is needed. In particular, the report
states that:
_ 29% of all the civil and administrative penalties EPA
collected during fiscal year 1992 resulted from Clean
Water Act enforcement;
_ there were also more criminal fines assessed under the
Clean Water Act - $39.7 million - than under any other
environmental statute; and
_ the average judicial penalty under the Clean Water Act
rose to a record high of $456,871.
See Enforcement Accomplishments Report FY 1992 (EPA 230-R-93-001) .
This record-breaking enforcement of the Clean Water Act occurred
In a year in which EPA's enforcement of all environmental statutes
under its jurisdiction also reached record highs. Indeed, in fiscal
year 1992 alone, EPA assessed approximately 28% of all of the civil and
criminal penalties combined that EPA had assessed in its entire
history. These figures, which of course do not reflect any enforcement
by states, belie any claim that EPA's enforcement of the Clean Water
Act is inadequate, or that the Agency lacks adequate enforcement
tools.
Yet, S. 1114 inexplicably proposes significant -- and we believe
counter-productive -- amendments to the Clean Water Act's enforcement
provisions. Put simply, there is no need for additional enforcement
38
1549
tools, or for modifications to the Act's enforcement provisions. CMA's
specific concerns with the proposals in S. 1114 are discussed below.
B. There Is No Need To Expand Citizen Suit Enforcenent
The U.S. Supreme Court held in the landmark Gwaltney decision
that citizens could not bring actions under the Clean Water Act based
wholly upon past violations which had ceased and which were not likely
to recur in the future. S. 1114 would reverse this decision, allowing
citizens to bring suits for such past violations even though the
environment will not benefit at all. For the reasons discussed below,
reversing the Gwaltney decision is both unwarranted and is bad public
po 1 icy .
First, if the objective of citizen groups is to improve compliance
with NPDES permit requirements, rather than simply to fill their own
coffers with the award of substantial attorneys fees, then such groups
should pursue dischargers who are currently violating the Act; they
should not spend time and effort chasing dischargers who have cured any
problems that may have existed. After all, the interests of citizens
are not impaired when a discharger is in compliance with its permit.
Second, whether a discharger who has come into compliance with its
permit should be assessed punitive penalties for wholly past violations
is an issue that should be left solely to the discretion of
governmental enforceMent authorities. Vesting such discretion in
governmental authorities, who are publicly accountable, provides some
assurance that lawsuits for past violations will only be brought when
they involve significant exceedances. Such discretion, which of course
is not unique to the area of environnental enforcement, is also
essential to ensure that United resources are not spent addressing
alleged violations that are of little or no environnental
significance. Similar restraint Is not required of citizen plaintiffs,
however, who can recover their attorneys' fees and costs in enforcement
litigation regardless of the seriousness or significance of the
violations at Issue. Accordingly, there Is no incentive for citizens
39
1550
to pursue "bad actors," as opposed to "deep pockets," and no safeguards
to ensure that citizens suits address truly significant environmental
issues that deserve enforcement and judicial attention. Limiting
citizen suits to ongoing violations provides at least some assurance
that the citizen suit enforcement authority will actually be used to
the benefit of the environment, and not abused for the benefit of the
citizen groups' lawyers.
Enforcement discretion is also important because of the way in
which permit limits are derived. In promulgating technology-based
effluent limitations guidelines and in developing permit limits in the
absence of guidelines, EPA uses a statistical approach that virtually
ensures that some exceedances of permit limits will occur. In
particular, EPA establishes daily maximum and monthly average discharge
limits based upon concentration levels that, on a statistical basis,
the best available technology can achieve 99 and 95 percent of the
time, respectively. This methodology thus virtually ensures that
dischargers will violate their daily maximum limits 1 percent of the
time and their monthly average limits 5 percent of the time. In light
of this, it is almost surprising that the record of compliance with
Clean Water Act requirements is so high. As Senator Graham stated
during a July 1993 hearing on the Act's reauthorization, 87 percent of
dischargers are in significant compliance with their permits.
Another reason why enforcement discretion is needed is the nature
of the analytical tools that facilities must use to measure compliance
with permit limits In the parts-per-blllion range. Even
state-of-the-art analytical techniques are not capable of precisely
measuring pollutant concentrations at these low levels. As a result,
there is a range of error associated with each analytical measurement,
and some reported "exceedances" of permit limits that are within the
range of accuracy of the analytical methods may not be exceedances at
all.
What this means is that not all violations of the Act warrant
enforcement. This is particularly true with respect to past violations
40
1551
that are no longer recurring. Prosecutorial discretion, which can only
be exercised by govemnental enforcement authorities, is therefore
essential to ensure that dollars and judicial resources are not wasted
needlessly on insignificant problems. 1
S. 1114 would also amend the Act to allow citizen suits even when
a state has exacted an administrative penalty for precisely the same
violations. There is simply no justification for this proposal. Under
the existing Act, state administrative proceedings only bar citizen
suits if the proceedings are conducted under a state law that is
comparable to the Clean Water Act. The Act requires public notice of
any administrative penalty assessment. Thus, citizen groups have ample
opportunity to participate in state administrative proceedings; a group
that fails to exercise this right should not be allowed to sit on the
sidelines during the state proceedings and then bring a duplicative
enforcement action later simply because it is dissatisfied with the
penalty that the state imposed.
C. Natural Resource Restoration Should Not Be Part Of Clean Water Act
Enforcement
S. 1114 will allow the courts to order dischargers to take
whatever action may be necessary, including the restoration of the
natural resources damaged or destroyed as a result of the discharger's
violation. Such a broad expansion of the Act's enforcement authority
is wholly unnecessary and will result in costly, protracted
litigation. CMA therefore urges Congress not to adopt this provision,
for two reasons.
First, existing law already provides adequate mechanisms to
address releases of hazardous substances. For example, Superfund
authorizes EPA either to order the remediation of a release or to
perform the remediation itself and recover its costs from responsible
parties. Superfund also provides for the recovery of natural resource
damages caused by such releases. In addition, Section 311 of the Clean
Water Act is particularly designed to address spill remediation.
41
1552
Second, the restoration of natural resources is not a simple or
straightforward process; quite to the contrary, it is still very much
in the developmental stages with no clear track record as to what is
feasible and what is not, what works and what does not. In addition,
there has been extensive litigation concerning natural resource damages
under Superfund, in spite of the fact that the statute contains
detailed provisions concerning the collection of such damages. By
contrast, S. 1114 provides no guidance for either the courts or the
regulated community as to what is meant by natural resource damage
restoration. As a result, it will undoubtedly result in more and more
lengthy litigation, for an uncertain environmental benefit. This in
turn will consume large amounts of the limited resources of
governmental authorities, the judiciary and industry. Accordingly,
natural resource restoration should not be added to the Clean Water
Act. Where a real problem exists, it can be addressed under Superfund.
D. Dischargers Should Not Face Multiple Penalties As A Result Of A
Single Operational Upset
NPDES permits typically contain limits on a dozen or more
individual pollutants. Indeed, chemical industry permits may have
limits on as many as 60 individual pollutants. As a result, if a
treatment plant malfunctions or if there is an upset in the process, a
discharger may simultaneously violate several pollutant limits.
In 1987, Congress realized that it was unfair to impose multiple
penalties on a discharger if an operational upset resulted in the
violation of more than one pollutant limit. Congress therefore
provided that, for purposes of administrative, civil and criminal
penalties, a single operational upset that leads to simultaneous
violations of more than one pollutant parameter shall be treated as a
single violation.
Now, inexplicably, Congress has proposed to remove the 'single
operational upset" provision from the Act. We are aware of no data
assembled during the past six years that would support such a reversal
in policy.
42
1553
Penalties under the Act are already high -- up to $25,000 per day
per violation for civil penalties. If Congress repeals the "single
operational upset" provision, then a facility that has an upset and, as
a result, violates 20 pollutant limits for two days until it can remedy
the problem, will face a penalty of $1 million. This is wholly out of
proportion to the nature and duration of the offense.
Congress should therefore adhere to the policy it adopted in 1987
and retain the "single operational upset" provision for administrative,
civil and criminal penalties.
E. Contract Bars Should Not Apply To Dischargers Found Liable For
Civil Penalties. Or To Other Than The Offending Facility
The existing Clean Water Act prohibits federal agencies from
entering into contracts with any person convicted of a criminal offense
under the Act if the contract is to be performed at any facility which
gave rise to the conviction if the facility is owned by such person.
S. 1114 would greatly expand this contract bar to cover any facility
owned by a person found guilty of a criminal offense, and to cover
persons found liable only for civil penalties. Again, the perceived
need for this radical expansion of the contract bar amendment is a
complete mystery. Moreover, the proposed amendment is so broad that it
unfairly penalizes facilities that have not done anything wrong and
persons who did not willfully violate the Act.
For example, if an employee at one of many facilities owned by a
company violates company policy and submits a false report to F.PA, and
the coMpany pleads guilty to a criminal offense, then none of the other
facilities owned, leased, operated or supervised by that company may
receive any government contract work, even though the other facilities
had absolutely nothing to do with the offense. Similarly, under the
existing Act a discharger is liable for civil penalties for any
violation of its permit, regardless of whether the violation is the
result of the facility's negligence. And, as discussed earlier, such
exceedances of permit limits will occur because of the way in which EPA
and the states derive permit limits. Barring a facility that
43
1554
experiences such exceedances, and pays civil penalties, from government
contracts is wholly unjustified; payment of the civil penalty alone is
more than adequate punishment.
Disqualification from government contracts is a extraordinary
sanction; for some it would spell financial ruin. The existing Act
already provides for disqualification in appropriate circumstances; to
expand the scope of the contract bar to facilities that are not "bad
actors" is grossly unfair.
F. Administrative Penalties Provide An Adequate Tool To Address
Minor Exceedances; There Is No Need For Field Citation Authority
In 1987, Congress authorized EPA to impose administrative
penalties. The administrative penalty authority was intended to
provide EPA a quick, easy way to address relatively minor violations of
the Act that previously could be prosecuted only in the courts. EPA's
recent enforcement report indicates that EPA is making frequent use of
its administrative penalty authority. In particular, during fiscal
year 1992, administrative penalty cases increased by 56 percent over
the 1991 level, and administrative penalties accounted for 22 percent
of the total non-criminal penalties EPA collected under the Act. The
EPA report also states that "(tjhe Office of Enforcement expects that
the trend toward greater use of [Administrative Penalty Order]
authorities will continue . . .." Notwithstanding the success of the
administrative penalty programs, Congress now seeks to add an
additional enforcement tool -- field citations. CMA urges Congress not
to pile on additional enforcement mechanisms.
As discussed earlier, because of the way in which permit limits
are derived, and because of the inability of state-of-the-art
analytical tools to measure pollutant concentrations accurately at low
levels, minor exceedances of permit limits will occur. It is not
appropriate to impose penalties for all of these minor violations.
Yet, the authority to issue field citations will encourage precisely
this, and will significantly reduce the advantages that careful
exercise of enforcement authority brings to enforcement of the Act.
44
1555
CNA also has concerns about the particular language of the field
citation provision. First, S. 1114 provides that field citations nay
not exceed $5,000 per day for "each" violation, and may not exceed a
total of $25,000 for "the" violation. Since each daily exceedance is a
separate violation, the applicability of the $25,000 cap for "the"
violation is unclear. If notwithstanding our views Congress adopts
field citations, then no citation should exceed $25,000 in total,
regardless of how many individual violations are covered. If there are
multiple violations and the $25,000 cap is too low, then use of a field
citation is inappropriate.
Also, S. 1114 provides that payment of a field citation is not a
defense to further enforcement by EPA or a State. This is
unconscionable. A discharger that pays a penalty for a violation
should not be subject to further enforcement by EPA, a state, or a
citizen group. It is not enough that the amount of any field citation
may be taken into account in assessing penalties in a subsequent
enforcement action, as S. 1114 proposes.
G. There Is No Need To Modify The Aaounts That EPA Hay Collect As
Administrative Penalties
S. 1114 would authorize Tier I administrative penalties up to
$10,000 per day for each violation; the existing statute
authorizes a Tier I penalty of up to $10,000 for each violation.
While S. 1114 characterizes this change as a "technical amendment," it
plainly is not. Because there is very little in the way of procedural
protections for a discharger faced with a proposed Tier I penalty, it
is unfair for such penalties to be excessive in amount. The increased
penalty proposed by S. 1114 is simply inappropriate in these
circumstances .
S. 1114 would also increase the cap on Tier II administrative
penalties from $125,000 to $200,000. While there are more procedural
protections associated with a Tier II penalty, the purpose of
administrative penalties was to provide a quick, easy way to address
relatively minor violations. Penalties up to $200,000 are not minor.
45
1556
At that level, dischargers may be inclined to take advantage of the
various opportunities to challenge the penalties, frustrating the very
rationale for such penalties. Accordingly, Congress should not
increase the cap on Tier II administrative penalties.
H. Congress Should Not Dictate Administrative Penalty Levels For The
States
S. 1114 would require states to demonstrate the authority to
recover an administrative penalty in a maximum amount of not less than
$10,000 per day in order for the state to demonstrate adequate
authority to enforce the Act. Unlike federal administrative penalties,
which are currently capped at $25,000 and $125,000 for Tier I and Tier
II penalties, respectively, S. 1114 does not include an overall cap on
the state administrative penalty authority. What this means is that
states must demonstrate that they have more administrative penalty
authority than Congress has seen fit to give to EPA. This will be true
even if Congress increases the Tier II cap from $125,000 to $200,000
since the caps in the Clean Water Act are not maximum daily caps, but
total caps.
Congress should not dictate to the states any particular level of
enforcement authority. If EPA believes that a state is not adequately
enforcing the Act, EPA is always free to bring its own enforcement
action. Alternatively, EPA may withdraw approval of a state program if
the state's enforcement is inadequate. Prescribing penalty levels,
particularly levels that are higher even than EPA is authorized to
impose, is an egregious intrusion in state enforcement prerogatives.
This provision should therefore be deleted from S. 1114.
46
1557
^S
THE COMPOSTING COUNCIL
tnn^l. tnnt ' lUSouthRnSlPM
2U UctOber 1993 AlaandriiVuxinij 22314
WD) 739-2401
Foi (703) 739-24«7
The Honorable Max S. Bancus
Chairman (temoa
ArchitAlbnjiht
Senate Environiiient and Public Wofks Committee intnutioui noons sr^um
706 Senate Halt OfGce Building vjcuteDEni
Washington, DC. 20510-2602 tSS^
^CKTUV/nEJISUKX
Tk n n BniceJooM
Dear aeoator Bauciis: 'nuPmuiGmbkcoovmy
Enclosed please find testimony on and suggested additicHis to S. 1114, the Water Pollution ch^'c<i»
Prevention and Control Act of 1993, an excerpt ftom EPA's Managing Nonpoint Source ""^ """""^ """"^
Pollution, and an excerpt ftom our January 1993 newsletter. Please enter &em in tiie aSSS^ i.d.a™,/i!cs
ofScial record, and consider them as you discuss clean water l^islation. HcnniuraD
Burger Kbw Cofpomkra
Roger Tunt
Canvoa Miugenient Inc
Sinoaely,
Executive Vice President
cc:TheHanonbfeGenyE. Stndds »r««cM^^Ln«.i,
OMiitnan, House SnbujuMuitlee on Environment and Natural Resources
1558
Composting as a Water Pollution Control Strategy
THE Composting Council, IMS. Pitt St., Alexandria, Va 223 14 703 739 2401
20 October 1993
The Benefits of Composting
Composting is a way to make organic matter — like agricultural wastes, sewage sludge, yard trimmings,
and food scr^s — biodegrade under controlled conditions. The result is compost, which conditions and
improves soil. Compost improves soil's ability to retain water, helps plants fight disease, and slowly
releases nutrients to the soil. Plants grown in soil with compost are generally more robust and numerous.
Compost is good for controlling erosion, repairing salt-damaged roadsides, reclaiming mineland and other
disturbed land, and rebuilding wetlands. It's useful in nurseries, cropland, tree farms, parks, and in all kinds
of landscaping.
Composting is Recycling
Composting is a way to recycle a large part of the waste stream not available to conventional recovery. It
recycles agricultural waste, sewage sludge, yard trimmings, and food scr^s into useful products valuable
to agriculture, horticulture, and landsc^ing. Only when organic and conventional recycling are used in
tandem can aggressive recycling targets be met. The US EPA considers composting to be a form of
recycling, and includes it in its recycling numbers when reporting on the waste stream.
Its Role in Water Pollution Control
Composting has strengths well-suited to water pollution control efforts, in particular to nonpoint source
pollution control. The US EPA and the state of Oregon explain some of them in the accompanying
documents. In sum, composting has the following benefits to water pollution control:
> Composting ties up nitrogen and other excess nutrients that would otherwise go into runoff
> Compost is often used as a "biofilter" - air or water are passed through it, as it locks up heavy metals
and other pollutants and lessens odors
> Compost retains water very well, which controls erosion and runoff, and reduces watering needs
> Using compost reduces the need for chemical fertilizers in the first place
We encourage Congress to realize in S. 1114 two important goals at once - to promote recycling and to
curb water pollution - through the use of con:q>osting and compost use.
1559
Suggested Amendments to S. 1 1 14
THE Composting Council, 1 14 S. Pm St., Alexandria, Va 223 14 703 739 2401
20 October 1993
Proposed deletions are in strikethrough, proposed additions are underlined.
Sectim 2 (a) (S) [page 4]
Substantial opportunities exist to improve water pollution control by using new water pollution control
strategies, such as pollution prevention planning, water conservation, composting and compost use, the
development of innovative pollution control technology, comprehensive watershed planning, and programs
that protect the physical and biological properties of aquatic systems.
Sectixm 2 (a) (7) (page 4]
Substantial opportunities exist to improve water pollution control by addressing polluticm from nonpoint
sources, such as construction, forestry, and agriculture, particularly through the use of watershed planning,
targeted control measiu^s, composting and compost use, and financial assistance.
Section 304 (a) "(c)" [page 108]
(1) In general - The Administrator, in consultation with the heads of other Federal agencies, shall publish
guidance that specifies elonoits of nonpoint pollution management programs. The guidance shall consider
composting and the use of compost as elements in nonpoint pollution management programs.
Section 304 (c) "(f) (2) (A) (i)" [page 119]
(i) provide for the implementation of management measures that are ^propriate to the site, economically
achievable by the owner or operator of the source, and will reduce water pollution;, with consideration
givoi to composting and compost use: ...
Section 304 (c) "(f) (3)" [page 120-121]
(3) Handbocrfc- Not later than 18 months after the date of enactment of this paragraph, and as £^)propriate
diereafter, the Administrator, in omsuItaticHi with the Secretary of Agriculture and the heads of other
apprc^riate Federal agencies and the States, shall publish a handbook to assist the developmoit of plans for
agricultural sources pursuant to this subsection. The handbook shall give consideration to composting and
compost use.
Secti<m 304 (d) (3) "0) (1) (A)" (page 126-127]
(A) In general - The President shall direct the heads of appr<^riate Federal agencies that own or manage
land to implement r^ulaticxis that shall take effect not later than the date of enactment of this paragraph, to
ensure the implententation of 24>propriate measures to control nonpoint sources of water pollution,
including CCTnposting and compost use, and, at a minimum ...
Section 304 (e) "(o) (1)" [page 129-130]
(1) In general - Not later than 2 years after the date of enactment of this paragraph, the Administrator, in
consultation wiA the Secretary of Agriculture, shall publish guidelines for the design of anintal waste
management &cilities. The guidelines shall include appropriate composting facility specificatiwis. as well
Section 403 "Section 113 (b) (1) (I)" [page 144]
(I) pranoting water-efficient vegetative cover.-esd landscaping, composting and compost use: and .
CMr
Robert 0. Blake*
l^Tce Chsir
Joan Z. Bernstein*
Secretsry- Tnasunr
Robert Fri*
1560
iEnuirotunental ani Inergg ^tuitf Jnatttute
122 <& &trttt, 5f.»., »utte 700
■aBbingUm. S.Cfl. 20001-2109
(202) 620-1400
Letter R. Brown
Carteton 0. Burtt
John H. Chafee
Gerald Decker
Carol E. Dinkins
S. David Freeman
Jan>es M. Jeffords
C. Pavne Lucas
Paul N. McCtotkey. Jr.
Bemtce K. Mclntyre*
Barbara A. Mikulski
Edmund S. Muskie*
Rictiard L. Ottinger*
Ruth Patrick
Chartes S. Robb
Roger W. Sent*
John F. Seftwrting
John J. Sheehan
Janwa Gustave Speth*
Victoria J. Ttchinkel
Roben B. Wallace
Donna W. Wise
Larry Young
TESTIMONY OF
DON GRAY, WATER PROGRAM DIRECTOR,
ON REAUTHORIZATION OF THE CLEAN WATER ACT
October 1993
Ekecutive Director
Ken Murphy
*Ej»cutiv« CommittM
0% 100%
^1^
1561
TESTIMONY OF DON GRAY, WATER PROGRAM DIRECTOR,
ON REAUTHORIZATION OF THE CLEAN WATER ACT
I am pleased to submit this testimony on reauthorization of the Clean Water Act to the
Subconunittee on Clean Water, Fisheries and Wildlife of the Senate Committee on Environment
and Public Works.
The Environmental and Energy Study Institute (EESI) is a private, non-profit, non-partisan
organization which seeks to promote informed Congressional debate on environmental and energy
issues and to develop iimovative policy responses. Earher this year, we held a series of briefings
entitled "New Policy Directions to Sustain the Nation's Water Resources," which ehcited the
views of a diversity of experts concerning today's most important water issues and policy options
for their solution. A remarkable consensus emerged on the need for a more holistic and
integrated approach to national water policy. There was also general agreement that such a
national water policy should:
(1) conform to the natural hydrologic system by taking into account the
intercoimections between groundwater and surface waters, the interrelationships
between the nature and quantity of water use and water quality and the effects of
both quantity and quality on water-dependent ecosystems;
(2) give preference to pollution prevention as the most effective implementation
strategy; and
(3) utilize watersheds as the basic unit for developing and implementing water policy.
(A report on the briefings is attached.)
In my opinion, adherence to these three principles in the reauthorization of the Clean
Water Act will improve the likelihood of achieving the goals of the act in the most cost-effective
1
1562
manner. Such an approach would involve using pollution prevention and water conservation
measures wherever possible on a watershed basis to address both point and "nonpoint" sources
of surface and groundwater contamination and to protect and restore the ecological integrity of
aquatic ecosystems. It also would allow flexibility to target the most acute problems in a given
area and make maximum use of existing resources at all levels of government
I commend the committee on the fact that S.1114 reflects these principles in many
respects. However, there are two crucial areas which 1 believe are not addressed adequately
under the existing Clean Water Act or other federal law or in S.l 1 14. They are: (1) nonpoint
source contamination of groundwater which may in turn pollute surface waters, and (2) using
water conservation to achieve water quahty goals.
These gaps can be dealt with by incorporating the principles and approach I have outlined
into the Clean Water Act wherever possible.
REFLECTING THE DYNAMIC HYDROLOGIC
INTERRELATIONSHIPS OF WATER
Groundwater
If the Clean Water Act is to meet its water quahty goals, it must take cognizance of the
interconnections between groundwater and surface waters. Groundwater contamination by
pesticides, nutrients and other diffiise or nonpoint sources of pollution is so pervasive, and the
extent of groundwater's contribution to sur&ce water flows is so great, that contaminated
groundwater can be a major pollutant of rivers, streams, lakes and wetiands.
Studies by the U.S. Geological Survey (USGS) indicate that groundwater supplies an
average of 40 percent of streamflows nationwide, and that in some areas the figure may be as
1563
high as 95 percent. By way of comparison, USGS estimates that the volume of groundwater
discharged to the Chesapeake Bay is equal to that discharged by the James River.
Groundwater provides a pathway for the transport of pollutants, and, if high groundwater
contaminant levels coincide with groundwater discharge points to surface waters, the result may
be serious surface water pollution. Conversely, during flood periods, heavily polluted surface
water may leach into and be stored in groundwater until it is discharged back to the stream, thus
creating a continuing source of surface water pollution. Early data from USGS indicate that the
recent flooding in the Midwest may present a graphic illustration of this problem.
There is ample evidence that surface water quality has already been degraded by
contaminated groundwater in many areas. For example, a 1991 study by USGS found high levels
of the herbicide atrazine in the Cedar River in Iowa, even during penods when there was little
surface water runoff. The study concluded that the atrazine came from groundwater contaminated
some distance from the river. Other USGS studies have found that contaminated groundwater
is a persistent source of herbicide pollution in many Midwestern streams and that groundwater
substantially affects the water quality of streams in the Suarmee River Basin in Florida. A non-
USGS study estimated that 50 percent of the pollutant loading to the Niagara River is from
groundwater sources.'
At a recent EESI briefing, scientific experts discxissed numerous examples where confrol
measures which focus only on direct sources of surface water pollution ~ and ignore groundwater
- are ineffective. Paul Jehn of the Water Resources Research Institute at the University of Idaho
presented evidence that groundwater contaminated by nutrients from agriculture, animal feedlots,
septic tanks and other sources not subject to National Pollutant Discharge Elimination System
(NPDESj permitting requirements under the Clean Water Act, or to regulation under the Solid
Waste Disposal Act (SWDA) or other federal law, has contributed significantly to eutrophication
^ Tarlock, Dan, Symposium on the Prevention of Groundwater Contamination in the
Great Lakes Area, Chicago, Kent Law Review, Vol. 65.
1564
of the Snake River in Idaho. According to USGS, four-fifths of this river's flow is derived from
groundwater. Jehn reported that the mats of algal blooms resulting from the eutrophication are
so thick that muskrats have been spotted walking across the river on them, and they ensnared the
governor of Idaho's boat during an inspection tour.
At the same briefing. Professor Jack Stanford, a groundwater ecologist from the
University of Montana, described recent scientific discoveries that many forms of marine life
move back and forth between groundwater and surface waters. These discoveries led him to
conclude that the existing widespread contamination of groundwater may harm or destroy unique
species which provide crucial ecological connections between groundwater and surface waters.
Consequently, he recommended that the Clean Water Act be amended to protect and enhance the
interactions between groundwater and surface waters in order to protect and restore their
biological integrity, a stated goal of the act
Although surface and groundwater quality are clearly linked, groundwater is not accorded
the same level of protection under the Clean Water Act. For example, groundwater protection
is not specifically included in the act's declaration of goals and national policy and is not
regulated as an indirect route of point source discharges under Section 402. Nor are the nonpoint
source assessment and management requirements of Section 319 mandatory for groundwater.
It appears to me to be self-defeating to spend billions of dollars to cleanup surface water
and not take adequate steps to prevent the contamination of groundwater which can repollute it.
I am not advocating the adoption of a new federal regulatory program for groundwater. But there
are provisions currently within the Clean Water Act which can be strengthened or expanded in
order to prevent the pollution of surface waters by contaminated groundwater.
For example, if the Clean Water Act is to achieve its ultimate objective "...to restore and
maintain the chemical, physical, and biological integrity of the nation's waters," I believe the
national policy expressed in Section 101 (a)(7) "that programs for the control of nonpoint sources
1565
of pollution be developed and implemented in an expeditious manner..." must be amended to
make clear that it applies to groundwater as well as sxuface water.
There also is a need to incorporate groundwater into some of the regulatory provisions
of the act. I do not think it is necessary or practical to extend the NPDES permit requirements
to cover point source discharges to groundwater because most such major sources are regulated
under the Resource Conservation and Recovery Act (RCRA) or the Safe Drinking Water Act
(SDWA) or other federal law.
I was pleased to note that the provisions in Section 201 of S.l 1 14 dealing with effluent
guidelines, new source performance standards and pretreatment standards for point source
industrial dischargers, "prohibit or limit the release of pollutants to other environmental media
(including groimd water) to the extent that ... is technologically and economically achievable...."
However, I think that Section 402 of the act also should be amended to require that, as
a condition of receiving a new or renewed NPDES permit, a discharger must demonstrate that
the facility is managing all potential pollutants in a maimer that will not contaminate
groundwater, or that the groundwater is not hydrologically coimected to a surface water body.
Such a requirement would prevent a permittee from meeting NPDES permit discharge limits by
storing pollutants in unlined surface impoundments, or using other methods that could
contaminate groundwater, thereby creating an unpermitted route of point soiurce discharges to
surface water.
Industrial wastewater lagoons containing hazardous wastes are subject to the groundwater
monitoring, liner, land ban and other requirements of RCRA. However, lagoons not subject to
these requirements, because they do not contain hazardous wastes, could still contain pollutants
such as industrial non-hazardous wastes, nitrogen and phosphorous that may adversely affect
water quality and marine life.
1566
Moreover, lagoons at publicly owned treatment woiks containing hazardous or other
wastes mixed with domestic sewage are not subject to the RCRA requirements. Yet a
Congressionally mandated study by the Environmental Protection Agency (EPA)^ identified 5,476
mimicipal wastewater lagoons nationwide, of which 433, or 8 percent, receive significant
quantities of industrial wastewater. Sampling data identified 94 priority pollutants at
concentrations up to 1000 parts per billion (ppb) in lagoons receiving industrial wastes and 35
priority pollutants at concentrations up to 280 ppb in those receiving only domestic wastewater.
Using the sampling data and computer modeling to assess the potential impact of municipal
wastewater lagoons on groundwater quality and human health, the study concluded that, while
the potential for each is low, "some lagoons with industrial discharges may be potential sources
of ground-water contamination [and] lagoons with significant industrial discharges pose a
potential risk to human health."
The report found that state standards for lagoon design and construction and for
groundwater monitoring vary widely and that some may be inadequate for protection of
groundwater where lagoons receive significant industrial wastes. Consequently, it recommended
that states review their standards and monitoring requirements for such lagoons located in highly
vulnerable hydrogeologic settings and outlined a number of steps which could be taken to prevent
their contaminating groundwater. Therefore, it does not seem unreasonable to require in the
Clean Water Act that applicants for NPDES permits which have lagoons demonstrate that they
have taken appropriate steps to prevent the contamination of groundwater which could in turn
contaminate surface waters.
I also recommend that Section 319 be amended to extend the requirements of the nonpoint
source assessment and management provisions to include groundwater that is hydrologically
coimected to surface water. Section 319 currently requires states to identify streams subject to
nonpoint source pollution and develop programs to control the activities responsible for the
Report to Congress: Municipal Wastewater Lagoon Study, 1987
6
1567
pollution. But the state programs are not required to address nonpoint sources of groundwater
contamination and are unlikely to use limited resources to do what they are not required to do.
This narrow perspective ignores the natural hydrologic system and may imdermine the
effectiveness of the act in preventing surface water pollution. For example, efforts to reduce
surface runoff of nonpoint pollutants by retaining water in or on the ground may increase the
likelihood that the pollutants will leach to groundwater and, where the groundwater and surface
water are interconnected, may merely change the route they take to the surface water. The
failure to require state programs to address nonpoint sources of groundwater contamination
creates a serious gap in water quality protection, since nonpoint sources of groundwater
contamination are not addressed adequately under other federal laws.
I am concerned that S.ll 14 strikes paragraph (5) of subsection (h) of Section 319, which
authorizes the Administrator, in making nonpoint source program implementation grants, to give
priority to states which implement certain types of activities. Among the priority activities
eliminated is one to "carry out ground water quality protection activities which ... are part of a
comprehensive nonpoint source pollution control program, including research, planning, ground
water assessments, demonstration programs, enforcement, technical assistance, education, and
training to protect ground water quality from nonpoint sources of pollution."
I believe that this may be the result of a drafting error, which I hope will be corrected.
If not, it would certainly be a step in the wrong direction in view of the great harm which
nonpoint source contamination of groundwater can inflict on surface waters. An approach that
relies on cleaning up groundwater later, if it interferes with achievement of surface water goals,
is short-sighted and likely to fail because groimdwater cleanup is difficult, expensive and time-
consimiing.
1568
Water Quantity
Just as groundwater is a key component of the natural hydrologic system with a clear
impact on surface water quahty, so the quantity of water in the system has significant impacts
on water quality and water-dependent ecosystems. If water is used more efficiently, the quantity
of water in lakes, streams, wetlands and aquifers is likely to be closer to natural levels. As a
result, water quality can be protected more readily, and wetlands can be maintained and aquatic
ecosystems preserved, especially during periods of low rain&ll.
I believe that issues involving watn quantity, maintenance of instream flows and water
use efficiency can be addressed most effectively on a watershed basis. Therefore, I recommend
that the watershed planning and management activities proposed in S. 1 1 1 4 and the state programs
for nonpoint pollution control required by Section 319 of the act specify that these critical issues
be addressed.
Other Clean Water Act provisions also should be amended to conserve water and protect
aquatic ecosystems. For example. Section 303 should be amended to mandate that during the
water quality standard-setting process, each state establish minimum stream flow requirements,
in order to ^ur water efficiency initiatives and protect aquatic life.
Wedands
Wetlands provide a vivid demonstration of the dynamics of the natural hydrologic system
because they are dependent upon the quantity and quality of both ground and surface waters.
Studies by USGS indicate that in many, if not most, cases, wetlands are the visible discharge of
groundwater rather than the recharge area for groundwater. Consequently, wetlands protection
is highly dependent upon protecting both the quantity and quality of groundwater. Similarly,
construction of artificial wetlands to rq>lace diose diat are lost can succeed only if the natural
hydrologic system can supply die quantity and (piality of water necessary to siistain them and die
ecosystems they support
1569
EESI is a member of Water Quality 2000 and supports its recommendations for protecting
wetlands, which have been transmitted to the committee. These include making wetlands
protection an explicit goal of the act, expanding the scope of the Section 404 program to include
more of the activities that destroy wetlands, strengthening the permitting program to address
cumulative and incremental impacts, and adopting tax and other financial incentives to encourage
protection of privately owned wetlands.
I was pleased to see that S.1304, the wetlands bill introduced by the Chairman and
Ranking Minority Member of the committee, and which I understand will be incorporated into
the reauthorization bill, is responsive to many of these recommendations. I was especially
pleased to note that the definition of a wetland in the bill includes areas inundated or saturated
not only by surface water, but by groundwater as well.
I think this is a very good idea, since so much of the water in wetlands comes fix)m
groundwater.
S.1304 requires that the wetlands delineation guidelines be based on the best available
scientific information and take into account regional variations in hydrology, which I assume
would also include groundwater as well as siuface water. However, it may be advisable to
specify that both groundwater and surface water hydrology be taken into accoimt.
POLLUTION PREVENTION IS THE MOST EFFECTIVE IMPLEMENTATION
STRATEGY TO ACHIEVE CLEAN WATER ACT GOALS
The Clean Water Act impUcitly recognizes pollution prevention as the preferred strategy
for restoring the integrity of the nation's waters by adopting as a goal the elimination of all
pollutant discharges. The pollution prevention planning requirements in Section 205 of S.l 1 14
are a positive step towards the achievement of this goal. However, they cover a minimum of
only 20 pollutants, reductions in the discharge of which EPA determines "are likely to result in
1570
a benefit to human health or the environment" Moreover, pollution prevention plans would be
required only of those applicants for new or renewal NPDES permits who are identified by EPA
as being collectively responsible for 80 percent of the discharges of any such pollutant.
These provisions imply that there are at least 20 identifiable pollutants for which
discharge limits are too high. If so, EPA already has the authority to lower them, within the
limits of available technology. But identifying the pollutants and the dischargers to be covered
will place a tremendous additional burden on EPA and is likely to lead to protracted legal
wrangling which may in fact delay pollution prevention efforts.
I believe that a simpler and more effective way to move towards the act's goal of
eliminating pollutant discharges would be to require that all applicants for new or renewal
NPDES permits and indirect dischargers prepare pollution prevention plans as outlined in Section
205 and guidance to be issued by EPA, but allow them some flexibility to suggest which
pollutants are to be reduced, by how much and in what ways. The adequacy of the plans in
terms of localized water quality needs could be determined as part of the permit approval
process.
1 believe that such an approach, along with my proposed NPDES amendment to protect
against indirect discharges through groundwater contamination, would provide an effective,
hydrologically consistent program for fiirther significant reductions in point source pollution of
the nation's waters.
Nonpoint Sources of Pollution
The act's provisions to prevent pollution fix)m nonpoint sources also need to be
strengthened. EPA's most recent water quality inventory report in 1990 found that water quality
has improved in many locations during the last 20 years, but one-third of the assessed U.S.
waters still do not fiilly meet state water quality standards — despite billions of dollars spent to
control discrete point sources of contamination. According to the report, more than half of the
10
1571
remaining pollution entering the nation's waters comes from activities that discharge pollutants
through diffuse, nonpoint sources.
A reauthorized Clean Water Act must do a better job of preventing nonpoint source
pollution both from runoff to surface waters and leaching to groundwater, if the act's water
quality goals are to be realized in a cost-effective manner. The current Section 319 program has
had mixed success in large part because the program lacks teeth. There is little in the sectipn
to require states to alter the activities which cause pollution from nonpoint runoff or leaching.
EPA has limited control over what goes into the state program plans. If a state does not develop
a satisfactory Section 319 plan, EPA's only leverage is to withhold grant monies for plan
implementation. There is no cross-compliance provision where a state would lose funds under
other water-related programs for failure to comply with Section 319.
There are several ways the act should be amended to strengthen Section 319. States
should be required to demonstrate the enforceability of their nonpoint source control programs
and to include implementation milestones. Eligibility fcr state revolving loan fund (SRF) and
other Clean Water Act-related monies should be subject to reduction if a state fails to fiilly
comply with Section 319.
I also recommend amending Section 319 to require that state nonpoint source plans adopt
a pollution prevention-based approach. Such plans should not rely solely on traditional best
management practices (BMPs) that use structural or technology-based methods to control the
volume of nmoff that reaches streams, or that treat it before it reaches streams.
Instead, they should focus on an array of operations and process changes which would
reduce the availability of pollutants for runoff and leaching. For example, preventive BMPs
should include slope and vegetative cover considerations in construction activities. They should
include integrated farm resource management plans which include alternative cropping systems,
crop rotations and soil testing to minimize chemical use and prevent erosion. These plans should
be similar in principle to the point source pollution prevention plans proposed in Section 205 of
11
1572
S.l 1 14. In general, BMPs in Section 319 plans should not result in the equivalent of an end-of-
the-pipe approach for nonpoint sources.
To make the entire program more workable, I endorse the changes recommended by
Water Quality 2000.' While S.l 114 attempts to improve the nonpoint source program, it fails
in the following critical respects:
* Planning and enforceable implementation of preventive actions for potentially
polluting activities should be mandatory for all states.
* Leaching to groundwater as well as runoff should be included in plans and
preventive actions.
* Implementing site-level integrated form resource management plans to prevent
pollution should be required for all farms in watersheds where water quality is
impaired or at risk due to &nn-related pollution. Application of national BMPs,
as proposed in S.l 114, would not provide pollution prevention gains equivalent
to those of individual site-level assessments of operations and process options.
Preventing Pollution by Using Water Effidently
The potential for conservation and increased water use efBciency to help achieve Clean
Water Act goals goes beyond maintaining stream volume and flows. As population increases,
pressure is growing on limited freshwater resources and on wastewater treatment ftmds.
Increased water use efficiency can help to protect and restore our nation's waters by reducing this
pressure and ensuring a cost-effective use of existing water supplies and SRF monies.
^ See pages 17-21 and 51-53 of the report, A National Water Agenda for the 21st
Century, which has previously been provided to the Subcommittee.
12
1573
Water use efficiency also can be a pollution prevention tool. For example, efficient water
use can reduce flows to wastewater treatment plants thus reducing the likelihood and duration
of combined sewer overflows and their resulting water quality impacts. A recent EPA-sponsored
study found that conservation is likely to improve the performance of wastewater treatment to
some extent.* The same study found that water conservation can result in substantial savings
for communities facing the need for significant capacity expansion or additional treatment by
downsizing or delaying new capital investment.
One example of such savings occurred in Goleta, California. During the recent California
drought, the city was faced with serious water supply constraints. In response, the city
implemented an aggressive and extensive water efficiency program that reduced water use 50
percent. An unexpected benefit was significantly reduced loads to their wastewater treatment
facility. Input declined by more than 40 percent. As a result, the city was able to forego
building a multi-million dollar wastewater treatment expansion.
Another example involved San Simeon, a California tourist community with such a severe
drought-related water shortage that the closing of its motels was being considered. Instead, the
community decided to install water conservation devices on all toilets and showers and to
eliminate irrigation. As a result, total water use was reduced by 39 percent; there were no sewer
blockages; wastewater system performance was so improved as a result of decreased flows that
a planned expansion was delayed for 7 years, saving $750,000; and drinking water plant
expansion costs were reduced from $3,500,000 to $600,000.
Water conservation also can decrease the cost of wastewater treatment chemicals and
reduce the energy costs associated with treating and pumping water. The potential for energy
cost savings is significant. A recent study found that in some California cities, energy costs
" The Effects of Water Conservation on Water Utilities: Summary prepared by U.S. EPA
Office of Policy Analysis, June 1992.
13
1574
associated with municipal water supply and wastewater treatment exceed SO percent of total
mimicipal utility expenditures.'
1 am pleased to see that Section 205 of S. 1114 requires some applicants for new or
renewal hfPDES permits to address water use efficiency in flieir poUution prevention plans, but,
as previously noted, I think that such plans should be required for all such applicants.
In view of the potential savings in the estimated $137 billion needed for capital
improvements in wastewater treatment fecilities over the next 20 years, according to EPA's latest
needs survey, and the rapid growth in municipal utility fees, I recommend that the act be
amended to direct EPA to set minimum water efBciency standards for water and sewer utilities
and to condition permits, grants and SRF loans for new or expanded wastewater treatment
facilities upon meeting such standards.
In addition, I recommend that the act explicitly audiorize the use of SRF funds for water
conservation programs, alternative treatment systems which employ less water-intensive
approaches, and the recycling and reuse of wastewatCT v/beK practicable and economical.
Some utilities have undertaken major water efficiency programs, and many odier state and
local entities are interested in opportunities to reduce water use, but lack information and the
technical resources to plan and implement such programs. I therefore oidorse the provisions in
S.1I14 to establish a clearinghouse for information on water conservation and to provide
technical assistance to state and local governments and water utilities to improve water use
efficiency.
Energy Efficiency Report, California Energy C(Hnmissi<Hi, October 1990.
14
1575
THE CLEAN WATER ACT SHOULD INCORPORATE WATERSHED UNITS AS
THE MECHANISM FOR INTEGRATING AND MANAGING SURFACE AND
GROUNDWATER AND WATER QUALITY AND QUANTITY FOR
COMPREHENSIVE PROTECTION OF THE NATION'S WATERS.
Watersheds are the natural routes of surface waters that drain an area and are generally
connected with groundwater aquifers. Interactions between land use, water use, ground and
surface water quality, and aquatic habitat generally occur within a watershed. Also, in a given
watershed there may be thousands of poUution sources ranging from farming operations to
municipal storm sewers.
As a part of Water Quality 2000, EESI joined the growing consensus that watershed areas
should be the basic planning and implementation unit for protecting the nation's water resources.
I believe such an approach offers the opportunity, in a workable geographical area, to develop
comprehensive pollution prevention and integrated water resource plans which reflect the
interconnections between groundwater and surface waters and the interrelationships between water
use and water quality.
A watershed approach allows involvement of the widest array of perspectives in the
planning and management process. It can fecilitate the integration of state water quality
programs into state water allocation decisions. Perhaps most importantly, this approach allows
limited financial resources to be targeted at the worst problems or those for which the greatest
water quality improvement can be expected.
There are a number of reasons why a watershed-based approach may be effective. First,
because watersheds frequently cross political and geographic boundaries they may be the best
scale on which to address noiqraint sources, which also frequently cross poUtical and geographic
boundaries. Second, the watershed approach seeks to maximize the effectiveness of all levels
of govenmient — federal, state, tribal and local — by allowing each to do what it is best equipped
to do on a cooperative basis. Such cooperation is particularly important because many nonpoint
15
1576
sources of contamination result from land use patterns which are traditionally regulated by state,
local or tribal governments. Third, a watershed-based approach can undertake broad-scale water
use efficiency measures which have a greater chance of enhancing instream flows and protecting
aquatic habitat than smaller, isolated efforts.
As a member of Water Quality 2000, EESI endorses its specific recommendations for a
new, nationwide watershed program.' In particular, I urge the Subcommittee to make watershed
planning and management mandatory, not voluntary as proposed in S.l 1 14. In addition, I do not
believe S.l 1 14 is clear as to whether a state electing to designate a watershed management unit
and develop a management plan would be required to include groundwaters hydrologically
connected to the designated surface waters.
As EPA Administrator Carol Browner noted in her testimony on CWA reauthorization
to the House Committee on Public Works and Transportation:
"We are increasingly finding that in certain watersheds ground water recharge to surface
waters can be a critical factor in determining the ecological health of aquatic systems.
We need to ensure incorporation of ground water in our watershed approach where it
significantly influences surface water quality, and we need to guard against the possibility
of transferring a pollution problem from surface water to underground sources of drinking
water."
I believe it is imperative to the success of the watershed approach that consideration of
the potential for pollutants to leach to groundwater and then discharge to surface waters be an
integral part of all plaiming and management activities. I therefore recommend that Section 302
of the bill be amended to clearly require that designated watershed management units and plans
incorporate groundwaters that are hydrologically connected to designated surface waters. And,
where groundwater aquifers transcend watershed boundaries, cooperative arrangements between
* See pages 32-39 of ^ National Water Agenda for the 21st Century.
16
1577
watershed areas should be required so that each watershed plan can effectively protect these
regional aquifers.
As previously stated, I recommend that the comprehensive watershed management
provisions of S.1114 be amended to incorporate water use efficiency and instream flow
requirements. Otherwise, they will not be truly comprehensive. I also recommend that the bill
be amended to require that the Section 319 nonpoint source prevention planning and
implementation activities be incorporated into designated watershed management area plans.
In conclusion, 1 was pleased to see that the bill provides for technical assistance and some
forgiveness of principal on SRF loans for small, economically disadvantaged communities and
increased flmding to Indian tribes for wastewater treatment works, planning and construction, and
nonpoint source pollution management. Studies indicate that such communities are at a distinct
disadvantage in competing for fimds under the current SRF program.
Again, I commend the work of the Subcommittee. I believe its proposed revision of the
Clean Water Act will improve and expand the nation's efforts to protect water quality. 1 hope
the proposed changes I have outlined to recognize the impacts of the natural hydrologic system,
to expand pollution prevention actions, and to plan and manage water quality protection on a
watershed basis will help you to ensure that the act meets its goals.
Thank you for this opportimity to comment on the Clean Water Act reauthorization. We
at EESI look forward to working with you and would welcome the opportunity to discuss our
recommendations more fiilly.
17
1578
^5 gj^ ENVIRONMENTAL HEALTH COALITION
^K^^i^H 1717 Kettner Boulevard, Suite 100 • San Diego, California 92101 • (619) 235^281 Fax (619) 232-3670
August 3, 1993
Senator Bob Grahm, Chairman
Environment and Public Works Committee
U.S. Senate
Washington, D.C. 20510
RE: Comments by San Diego Environmental Health Coalition for
hearing record on S.B. 1114.
Dear Senator and members of the Committee:
The San Diego Environmental Health Coalition is a local, non-
proGt organization that lacks the budget to travel to Washington to
give testimony but we request that our comments be made part of the
hearing record on S.B.1114.
San Diego's reputation as a water recreation tourist destination
is threatened by the pollution of San Diego waters. Lack of
enforcement by our regulatory agencies, most notably the Regional
Water Quality Control Board (enforcers of the current Clean Water
Act) is the cause. In 1991, San Diego County had 382 beach closures
including 3 permanent closures-aknost half of the closures in the State.
The opening of the tourist season was marked with the posting of the
Pt. Loma kelp bed, determining it off-limits to fishermen, surfers, and
divers. San Diego Bay has been posted with a fish consumption health
advisory since a June 1990 County Department of Health Study found
elevated levels of PCB and mercury in some Bay fish. Some species of
bay fish have high rates of physical anomalies and mussels register high
levels of toxics in their tissue.
Environmental Health Coalition (EHC) is urging your support
of a stronger Clean Water Act. We are especially calling for improved
enforcement and mandates for elimination of discharges of toxic
pollutants to our Nation's waters. Some of the examples below may
illuminate the severity of the problem to you.
Discharge of toxic chemicals to waterways are allowed under the
current Clean Water Act. In 1991, California industries reported
Printed on recycled paper i
1579
discharging 10,232,333 pounds of toxics to surface waters and 28,349,693 pounds of toxics
to sewage treatment plants. CMfomia is in the top 10 for both discharges to sewer and
surface waters. Toxic chemicals, even in low concentrations, can bioaccumulate in Qsh
and make them unfit for human consumption, cause deformities in juvenile fish, or cause
total reproductive failure. From 1990 to 1992 there were fishing bans or advisories in
force in over 720 locations in the U.S.
SAN DIEGO BAY TOXIC POLLUTION
Locally, Environmental Health Coalition is calling for action to cleanup waterways
to a fishable and swimmable state. San Diego Bay suffers from toxic hotspots including
the highest levels of PCBs in sediment on the West Coast and significant contamination
from naval facilities located around the bay.
San Diego Bay has been posted with a fish consumption health advisory since a
June 1990 County Department of Health Study found elevated levels of PCB and
mercury in some Bay fish. The study also found evidence of radiation. Follow-up
studies to examine dioxin levels and further characterize extent of contamination of fish
were recommended but have yet to be done.
San Diego Bay has suffered tremendous losses of natural wetland and upland
habitats. We must protect what is left Already one third of the Bay has been filled in,
and San Diego Bay has lost 92% of salt marsh habitat, 81% of intertidal flats, and 72%
of shallow subtidal (0-6 ft MLLW) habitat. Virtually all of the upland habitat around the
Bay has been converted to urbem and industrial uses. How much more are we willing to
lose? The current rate of wetlands loss nationally is 290,000 acres a year. Coastal
wetlands are valuable to fish because they provide spawning and nursery habitat for 60 to
90 percent of the country's commercial fish catch.
THE SAN DIEGO REGION SUFFERS FROM LACK OF ENFORCEMENT OF THE
CLEAN WATER ACT
One strong example of the correlation between the lack of enforcement and
pollution in the waters can be seen in the recent nomination by Governor Pete Wilson of
Mary Jane Forster to the State Water Resources Control Board. Enviroimiental Health
Coalition has monitored the Regional Board meetings for the past 5 years. Mrs. Forster
has been a member of the Regional Board since 1984. During this time she has often
determined the degradation of water quality in the San Diego region as an inevitability.
She has used this rationale for allowing continued pollution of native waters. That she
has been nominated for promotion speaks to the fact that states caimot be solely relied
upon to protect water quality.
Mrs. Forster's overriding concern and greater sensitivity for polluting industries
over the use of native waters by the common citizen is frequently evident. A serious
example of this weis her comments in a July, 1987 hearing on the Van Tol Dairy
Expansion. The dairy was far out of compliance with current waste discharge
requirements and was requesting an expansion of their operations. The dairy was
suspected of polluting drinking wells of residents. Mrs. Forster said, "In agriculture areas,
1580
people should give their children bottled water." This let-them-eat-cake-and-drink-
bottled-water ethic that Mrs. Forster has often proposed, is not what we expect or
deserve from the regulatory officials that are in charge of protecting our State's water
quality. (See attached article)
She has also stated on the record that the goals of "no net loss" are "not good"
and would be "suicidal" for the Regional Board to try to follow. The downward spiral of
water quality and loss of wetlands in the San Diego region should be no surprise given
this hostile attitude toward the environment by our regulators.
The Regional Board regularly makes decisions that are non-protective and
inappropriate and enforcement has been, too often, nonexistent. TTjey have chastised
their staff for trying to bring impending violations to the Board's attention. This
Regional Board has turned a blind eye to City of San Diego violations of their Pt.Loma
sewage treatment NPDES permit for 28 out of the last 60 months. This has resuhed in
tons of illegal sludge disposal in the ocean. For example, in March 1992 651 dry tons of
suspended solids over permit limit were discharged to the ocean at Pt Loma. The
Regional Board ha? known about these violations for over a year and taken no action at
all. (See attached documentation^
A 1991 EHC review of self-monitoring and compliance records of 19 NPDES
permit holders around the Bay revealed significant lack of enforcement. Of 222
violations, only 2 fines were imposed. One percent enforcement is not adequate and will
not result in clean water.
Other disturbing actions follow:
Eastern Municipal Water District NPDES permit-
In 1992, the Regional Board completely abdicated their responsibility to enforce
the law requiring EPA to take over administration of an NPDES permit for
Eastern Municipal Water District. The Board refused to adopt a permit that had
a chronic toxicity standard. This is especially interesting given that the discharge
was to provide a live-stream restoration.
Hazardous Waste Strike Force
In July of 1992 the Regional Board was removed, by the FBI, from the Hazardous
Waste Strike Force for unwillingness to participate. A year later, they have yet to
be reinstated.
Spanjian Inc.
The Regional Board allowed a discharge of TCE to remain in a groundwater
basin designated as drinking water in levels 80 times above Title 22 standards.
Mr. Chairman and members of the committee, we need you help. We need a stronger
Clean Water Act one that will require enforcement, pollution prevention, and result in
clean water!
1581
Thank you for the opportunity to comment on this very important legislation.
Sincerely,
amcerely,
Laura Hunter, Director
Clean Bay Campaign
cc. Senator Max Baucus, Chairman
Senator John Chaffee
Senator Dianne Feinstein
Senator Bart)ara Boxer
1582
SAN DIEGO BAY FACTS
San Diego Bay has lost:
92% of Salt Marsh habitat
81% of intertidal flats
72% of Shallow subtidal (0-6 ft MULW) habitat
Virtually all of the upland habitat around the Bay has been converted to urban and
industrial uses.
Black Skinuner, Caspian Tern, and Least tern eggs have been found to contain DDE and PCBs.
Significant mortality and growth impairment was observed in sand dollars, polychaetes, and surf
smelt when exposed to sediments from 3 sites in San Diego Bay.
Over 11 million cubic yards of dredging is anticipated in the next few years from Navy dredging
projects alone.
The Pt. Loma Kelp bed is facing a quarantine for several months, just as summer begins.
The San Diego Port Master Plan has been amended over 16 times. Environmental and public
interest groups have called for comprehensive planning of the Bay to ensure its ecological viability.
South San Diego Bay appears to be an important nursery area for juvenile California halibut and
possibly for the young of spotted and barred sandbass and other species. Yoimg of the year and
larger juveniles of the white seabass (Atractoscion nobilis^ have been taken in samples from South
San Diego Bay during recent years. This is particularly significant because the population of white
seabass in southern California apparently has been reduced significantly by over fishing or other
causes.
San Diego Bay is the only place on the West Coast where Pacific Green Sea Turtles congregate.
The Bay supports an impressive number of species, including 9 endangered species , over 100
species of waterfowl and shorebirds, and 90 species of fish and shellfish. The mudfiats of the south
Bay are a significant stopover for migrating birds on the Pacific Flyway.
Only South Bay has significant areas of marsh, mudflats, and salt ponds. Freshwater inflow has
been diminished by dam construction, extensive groundwater use, diversion of the San Diego River,
and prolonged drought conditions.
1583
STATEMENT of
FKANK F. FASI, MAYOR
City and County of Honolulu
before
SENATOR ROBERT GRAHAM, CHAIRMAN
and Members of the Subconunittee on
CLEAN WATER, FISHERIES AND WILDLIFE
UNITED STATES SENATE
August 4, 1993
Senator Graham, Senator Chafee and Members of the subcommittee, I am
C. Michael Street, Chief Engineer and Director of the Department of Public Works of the
City and County of Honolulu here on behalf of the City and Mayor Frank F. Fasi. I am
here to testify on Senate Bill 1114, the Water Pollution Prevention and Control Act of
1993, a bill to amend and reauthorize the Federal Water Pollution Control Act.
The reauthorization of this Act is of critical importance to everyone across America
concerned with protecting our precious and fragile environment. In his comments
introducing this legislation. Senator Baucus called it a reauthorization "debate" and
recognized it as a microcosm of the general dd>ate about how best to protect the
environment. He said this legislation will not satisfy those on the extremes of the ddiate,
because it is designed to take a balanced, cooperative approach to solving the Nation's
environmental problems. The City and County of Honolulu is pleased to participate in this
cooperative effort.
Our City is in the center of this great debate because we have been victim to "Clean
Water Act" lawsuits by citizen groups to the tune of $500 million. There is irony in this
because two of the City's wastewater treatment plants won gold and silver awards from the
National Association of Metropolitan Sewer Agencies.
1584
Environmentally, Honolulu ranks highest in the nation by many standards and has
won awards for the outstanding quality of life provided for its residents and visitors.
Honolulu was named the healthiest of America's 100 largest metropolitan areas in the 1992
Livable Cities Almanac, and was also ranked 7th out of 300 American cities with
populations over 500,000 as most livable by Money magazine. World Resources Institute's
Environmental Almanac named Honolulu America's No. 1 Green City in 1992 and No. 1
Green Metro Area in 1993. We must be doing something right!!
The City and County of Honolulu has a resident population of 861,000 and consists
of 620.5 square miles. The deep, blue Pacific Ocean completely surrounds the island, and
is a precious resource, along with pristine waters from our mountain dikes and caprock
aquifers. Some overzealous environmental activists suggest by their actions and statonents,
that we take this God-given gift for granted, and have allowed its d^radation.
They are wrong! Honolulu has taken these priceless treasures under fervent
stewardship and protection for many years.
Since 1972, the City and County of Honolulu has spent $1.7 billion on waste water.
This amounts to $109.77 per year for every man, woman and child in the City. Next year
alone, the City will spend $205 million on wastewater treatment and disposal.
The Clean Water Act's expectations translate into an ever growing financial
commitment on the part of local government. Over $23 billion will be required for cities
to me^ the current requirements of the Clean Water Act to the year 1995. Cities such as
Honolulu pay 80-90 percent of the cost in order to comply with the requirements.
Operation and maintenance costs, which are totally paid by the local taxpayers, are
1585
expected to double every eight years. Historical data show that annual household use fees
will, at a minimum, double every six years.
In Honolulu, sewer rates have increased by more than 40 percent. It has cost a
typical Honolulu family of four neariy $300 for sewer fees and nearly $263 annually for
water, totaling about $563 annually. As of July 1, 1993, sewer fees have increased to
nearly $412 annually per household to comply with federal environmental laws. Water fees
also have been increased to neariy $295 yeariy. Honolulu residents will be paying neariy
$707 for sewer and water - $144 more than last year. Honolulu has beat out Boston
residents, who were paying the nation's highest water and sewer rates. A typical Boston
family of four pays $590 each year for water and sewer. Boston expects its water and
sewer rates to to $1^00 per household by 1999. Honohilu can expect the same unless
something is done.
Increased federal funding for the State Revolving Funds program, as proposed by
S.B. 1114 will greatly assist the City and County of Honolulu. We must complete some
expensive and hnportant projects to meet compliance deadlines, especially in the area of
sewer rehabilitation as it relates to inTdtration and inflow problems.
However, the bill's provisions for fees will cause Honolulu's taxpayers, and probably
those of other municipalities imd cities, additional financial burden. Permittees should not
be requu-ed to pay fees for enforcement, state water quality monitoring, development of
water quality standards, modding, planning, etc, and public information S3rstems. These
should be supported by federal or state general funds.
1586
Senator Baucus' comments for himself and for Senator Chafee in introducing tlie
proposed new Water Pollution Prevention and Control Act stressed a desire to achieve
environmental progress through the use of sound science and sound economics. We agree
with Senator Baucus and ask for legislation arising from real, rather than perceived,
environmental problems.
Public policy decisions driving the Clean Water Act requiranents should be based
on tested, proven scientiflc facts to prevent the type of unsubstantiated fear and
environmental hysteria gripping some citizens of this nation. We ask for funded»
researched, fact-based legislation, responsible to local taxpayers and which can be
translated into practical, reasonable and necessary regulations.
As we look back on 20 years of environmental regulation, we find much that is
well-meaning and that has been effective for the nation. But as with all programs, some
parts can be found to be working better than others. Environmental laws which impose
the same conditions, restrictions, requirements and consequences on all without taking into
account the real and inevitable differences in regions and the d^ree of actual barm caused,
are fatally flawed laws. When the same intensity of scrutiny and consequence is applied
to a one-gallon sewage spill in Honolulu as is applied to a chemical leak from a rail car in
California or a nuclear plant release in Pittsburgh, the intent of the law has clearly been
lost. The Clean Water Act should take into account the wide ecological variations in
different geographic locations. What makes sense for eastern seaboard cities or land-locked
middle western states may not make sense for an island such as ours located in the middle
of the Pacific Ocean. The Clean Water Act should be flexible to accommodate these
■4-
1587
variations if it is to make any sense. Scientists would agree that it currently fails to do this.
The City and County of Honolulu is the only city in the United States completely
surrounded by deep ocean water, which is discharging sewage effluent through a deep
ocean outfall. This is a truly unique regional difference that requires accommodation in
the law. The conditions creating the waiver from secondary treatment provision in the Act
still exist. Accordingly, we request amendment to the Act allowing for reinstatement of the
301 (h) waiver application program.
There are two aspects of the law regarding provision for citizen suits, with which
Honolulu has had experience and recommends amendments. While legislative hlstoiy
indicates that Congress directed EPA to withhold enforcement action against waiver
applicants during the pendenqr of their application^ there was no such prohibition against
citizen groups.
Honolulu has been sued twice, by environmental groups, with the National Sierra
Club Legal Defense F^nd being a principal instigator. Both lawsuits arose due to the fact
that the City's 301 (h) waiver permit application had undergone over 12 years of review by
both EPA and the State of Hawaii, Department of Health. In other words, Honolulu's first
301(h) Permit application submitted to EPA in 1979 took over 12 years!
When the City's permits were finally issued in 1990 and 1991, environmental
activists challenged EPA's decblon to Issue the Chy a 301 (h) waiver. This challenge
prevented the waiver permits from going into effect. These same environmental groups
then sued the City in both cases in federal court based on the argument that there was no
waiver permit in ^ect. Based on its interpretation of the Clean Water Act, the Court
-5,-
1588
found the CHy liable for violations of treatment requirements, although there was no
evidence of any measurable harmful impact to the ocean. Combined, the City's exposure
in the two cases was $500 million. Somrthing is clearly wrong with the laws and
regulations which allow this kind of situation to occur. Even the Court recognized the
illogical consequence for the City.
Similarly, the current Citizen Enforcement provision in the Act as interpreted has
provided a feeding frenzy for citizen groups at great and unnecessary expense. In
Honolulu, the courts have interprrted the Citizen Enforcement provision of the Act to allow
citizen groups to go forward with their lawsuits based on allegations of violation.
Honolulu went to trial in 1993 for a violation that occurred in 11^9 and never
occurred again. The Court determined that allegations of a violation were enough to keep
the case in court, even though the citizen group was never able to prove another violation
of the same nature and that no harm was caused to the ocean or public health.
Tlie Clean Water Act's objective should be to encourage permittees to take
mitigative measures to prevent violations, not to encourage costly litigation.
The City and County of Honolulu has presented to this Subcommittee, a package of
proposed amendments to the Clean Water Act. It contains references to the key points I
have outlined here, but it also appeals for changes in other provisions of the Act including:
1) Criminal prosecution for negligence in operation and maintenance of publicly owned
treatment works and 2) Reestablishment of the timrtable for stormwater and other
municipal discharges.
-6-
1589
The current law suggests that a violation of a permit conditions carries criminal
sanctions. Regulatory requirements imposed on individuals who have the responsibility for
operating and maintaining sewer treatment facilities have become more extensive, strict and
complex. A technical violation of any of those requirements presents exposure to criminal
prosecution. This is a constant threat regardless of whether treatment plant operations
have caused actual harm. The law should be changed to find actual iiyuries to persons or
property damage. Furthermore, the Clean Water Act already contains provisions for
"knowing violations" and "knowing endangerment" which are more than adequate to deal
with polluters in a criminal context.
Also, it needs to be pointed out that cities such as Honolulu are exposed to potential
lawsuits at the risk of millions of dollars recarding compliance with the stonnwater
provisions of the Clean Water Act.
EPA's implementation of its stormwater regulations was not synchronized with the
deadlines established in the Clean Water Act. Although there existed a statutoiy
requirement to regubte stormwater in the dean Water Act, EPA was unable to promulgate
the regulations establldiing the procedure for the stormwater requirements. This has left
dties in an impossible situatmn, without the means to comply with the Clean Water Act and
its deadlines for stormwater requiranents. Ultimatciy, cities are vulnerable to costly
litigation. Vtolations of stormwater requirements carry a high price tag — $25,000 per day
per violation. This situation needs to be corrected.
Inclosing, we stress that we not lose sight of common sense. The current law makes
dealing with life and property threatening emergencies impossible. For example, if
1590
firefighters are to extinguish a burning truck on the road, must they be forced to first get
a permit because liquids may get into the storm system? Or do they do their job and risk
facing jail time because getting a permit would mean losing lives? What about an airline
accident? Should the firefighters wait to process the documents before they save lives? Or
do they go to jail because they've broken the black letter of the law? What about the
common occurrence of dewatering when sewer lines break, which is not unusual. What do
City employees do in these emergency situations, when faced with the choice of having to
obtain a permit or going to jail? If any of you doubt what I am talking about, then I invite
you to talk to any of our people who work daily in the areas affected by the Clean Water
Act.
On behalf of Mayor Frank Fasi and the people of the City and County of Honolulu,
I thank you for your kind attention to our testimony. We hope this Subcommittee will
consider our requests and proposals for amendments to the Clean Water Act.
CWVnSlMONY
■8-
1591
oa
September 17, 1993
The Honorable Max Baucus
Chairman
Senate Committee on Environment & Public Works
SD-456, Dirksen Senate Office Building
Washington, D.C. 20510-6175
Clean Water Act Amendments / Enforcement
Proposal to reinstate provision to impose
retroactive penalties via Citizen Suits
for corrected exceedances of permit hmits
Dear Mr. Chairman:
The Independent Liquid Terminals Association, is an international trade association which represents 87
companies with more than 400 domestic for-hire bulk hquid terminals that operate in 44 states, Puerto
Rico, and the District of Columbia. These mmpflnipj; range in size from as small as 10,000 bbls. of
storage capacity to those with 5 miUion bbls. or more of storage capacity.
ILTA Member for-hire terminals are different than faciUties owned by an oil and chemical companies
which own and market those products. For-hire terminals do not own the products stored at the
faciUties. Instead they lease storage tank space to product owners and earn their total revenue from this
service to product owners.
Issues of Concern
Among the issues ILTA is concerned with are the following major issues:
1. Retroactive law suits are historically revisionist, imposing today's environmental and equipment
standards for regulatory situations which occurred as far back as 10 or more years ago.
2. The huge retroactive financial penalties imposed are unrealistically based on percentages of chemicals
discharged when in fact, the actual volumes discharged are minuscule.
3. The retroactive financial penalties are unrealistic in other ways. Failure to make purely technical and
routine statements in permittees monthly reports have been treated as major environmental violations.
4. These retroactive law suits and financial penalties can bankrupt a company, particularly small and
medium size companies and result in unemployment and loss of a productive business.
5. Since the Clean Water Act stacks the law in favor of those bringing the retroactive law suit, defending
such a suit appears to be futile. Therefore, alleged violators feel that the retroactive law suits
are used as environmental blackmail to force a less-expensive settlement with the plaintiffs.
6. Retroactive law suits brought for past violations which have been abated and corrected do not bring
a company into compliance - that company is aheady in compliance - the suit is brought only
because the law allows those bringing it an easy way to extract money from a business.
(more)
INDEPENDENT LIQUID TERMINAI^ ASSOCIATION
1133 15th STREET, N.W., SUITE 650
WASHINGTON. DC. 20005 • 202-659-2301
69-677 0-94-51
1592
ILTA CommeDts on
the Clean Water Act
Retroactive Penalties/Citizen Suits - 2 - September 17. 1993
Issue 1: RETROACTIVE LAW SUITS ARE UNFAIRLY REVISIONIST
Retroactive citizen law suits represent a revisionist legal approach in that they are a structured effort to
go into the past and redress permitted water discharge violations by measuring them against today's
standards, experience, equipment capability. Today, vast improvements in technology, modernization of
facilities, and better water treatment practices have improved the water discharges to the point where they
meet EPA's requirement that the water discharged be cleaner than drinking water.
Since equipment and devices that measured chemicals in extremely minute quantities as parts per
million or parts per billion were not that accurate, regulatory agencies in the past, including the State
of New Jersey, allowed permittees to a gray area tolerance level — an exceedance slightly above the
permit level. The regulatory agencies sent warnings instead of imposing fmes, and advised permittees
to bring their discharges within permitted levels. Only if the discharge exceeded the grey area limit
would the regulatory agency impose a fine.
Now, revisionists would go back into time and demand that companies be fined and penalized millions of
dollars for yesterday's violations based on today's advances in equipment, improvements in operating
practices, and in changes of regulatory agency philosophy.
Issue 2: RETROACTIVE FINANCIAL PENALTIES SHOULD
NOT BE BASED ON PERCENTAGES OF EXCEEDANCES
For example, if a permit requires that a company discharge no more than 4 parts per miUion of a
particular chemical, and a company's discharge is 6 parts of the chemical per million of parts of water,
this is a 50% violation of the permit limit. If the exceedance is 8 parts per million, then the violation
would be 100% of the permit limit. However, the aaual volumes of chemicals discharged are minuscule.
With a 4 parts per million permit level, a facility would have to discharge 250,000 gallons of water
to yield one (1) "accumulated" gallon of the chemical pollutant being regulated.
Thus, basing a penalty on the exaggerated perspective of "percentage of the permit level exceeded" is
a grossly unfair method of measuring an appropriate penalty. Also, when dealing with parts per
million, or parts per billion, imposing such huge penalties on such small total volumes of chemicals
discharged is equally misleading and unfair.
Issue 3: THE ABSENCE FROM PERMITTEE'S MONTHLY REPORT OF
PURELY ROUTINE STATEMENTS SHOULD NOT BE MAJOR VIOLATIONS
Discharge reporting must comply with all applicable federal, state, and local laws, regulations, and
requirements. For example, a Sanitary Sewage District required that all dischargers report any discharge of
petroleum including any sheen on the water. A permit holder was charged with a major penalty for a
failure to declare in its report on a permitted discharge of a particular chemical (at 5 parts per million
parts of water) which had traces of petroleum in it, that the permitted discharge resulted in "... a sheen
on the water."
In this instance, the person making the report was unaware that the 5 parts per million of chemical
would yield traces of oil. Whether 5 parts per million resulted in a visible sheen upon the water is pure
conjecture although technically the oil may have been present even though not visible. To resort to
imposing high fines for such technical violations undermines the permittees confidence and trust in the
fairness of the regulatory and judicial systems.
(more)
1593
ILTA Commeots oo
tbc Clean Water Act and
Retnxactive Penalties /CItizea Suita • 3 - Sentember 17. 1993
Igsue 4: RETROACTIVE LAW SUITS CAN BANKRUPT A NOW-COMPLYING COMPANY
A company which has invested in pollution control equipment to bring its permitted discharges into line
with its permit levels can be bankrupted by retroactive law suits for past corrected violations. This is
particularly true of the service industries which earn a much lower amount of revenue than do product
manufacturers which earn their revenue from the sale of products.
For example, the costs and penalties associated with defending such a retroactive citizen's suit can result in
a minimum of $5 million and upward to cover attorneys' fees and penalties. Consequently, a formerly
financially healthy company, now in compliance, and providing jobs and paying local, state, and federal
taxes, may be forced into bankruptcy or put on the brink of financial disaster. They may never be able
to recover. Such suits can put small and medium-size companies out of business.
The loss of jobs and taxes seems to be a huge social penalty for society to absorb, particularly for
companies that have subsequently achieved compliance with their permit requirements.
Issue 5: THE NATURE OF 'mE RETROACTIVE LAW SUIT UNDERMINES THE
CONFIDENCE OF THE PERMITTEE IN THE REGULATORY AND JUDICIAL SYSTEM
Generally, the experience yielded from attempting to defend against retroactive citizen law suits under the
Clean Water Act is to settle the suit with the plaintiffs. But industry does not view it as a settlement,
but as an action under the law that allows the plaintiffs to twist the defendant's arm until the defendant
agrees to pay off the plaintiff. These appear to be similar to the shareholder takeover battles -- the
greenmail law suits in the commercial arena ~ and we have seen what a devastating financial impact they
have had on corporations. While proceeds from settlements have been delegated to fund projects of
environmental groups, any benefits from funding such a project as a hiking trail, are more than o0set by
loss of jobs and taxes, and government payouts to people who become unemployed as a result of such suits.
Issue 6; EXPENSIVE RETROACTIVE LAW SUITS FOR PAST BUT CORRECTED VIOLA'nONS
DO NOT BRING INTO COMPLIANCE A COMPANY THAT IS ALREADY COMPLYING
The plaintiff "environmental" groups that bring retroaaive law suits against companies that have abated and
corrected past violations are not performing a useful citizens' service.
Most companies in recent years have come into permit compliance because two parallel forces have
emerged. The states have been doing a better job in urging compUance with permit requirements by
threatening not to renew permits until deficiencies are corrected at a facility, and better water treatment
equipment and practices have enabled the companies to maintain operations within permit limits.
Thus, companies with past corrected violations now ask, "How can a retroactive law suit for a past
violation bring us into compliance? We are already in compliance." They ask, "How can taking money
out of our pockets and placing us in a precarious financial position serve to improve water quality?"
The retroactive law suit against past abated and corrected violations is a dangerous practice and should
not be allowed to creep back into the law. The better approach is to improve state inspection of
facilities and state enforcement of the water laws. All law suits of merit should be prosecuted by the stats.
The state should not have to rely on citizen organizations to prosecute them. It smacks of 'Vigilantism"
and it got out of control in the past. The Gwaltney case decision and other court decisions should not be
overturned to allow retroactive law suits.
Citizen suits should ijs restricted is actions for continuing repeated violations ^^ .not violations
ibat have been abated and the conditions causing them corrected.
(more)
1594
ILTA Conuncols am
the Clean Water Act
totroactlvt Penaldts/CIUxen Suits - 4 - StPttnil>tr t7. IW?
OthCT Issues:
7. ILTA supports the existing 3rd Circuit Court dedsion that require plaintifts to show that the defendants
discharged a pollutant which causes or contributes to the kinds of injuries alleged by the plaintiffs.
8. ILTA believes that plaintiffs in a citizen suit, among other things, should continue to be required to
show in court (a) an actual injury in fact that (b) is directly traceable to defendant's conduct.
Plaintifi's should be required, to show to a sdentiTic certainty that defendant's discharge was a
pollutant that caused the plaintifTs injury.
9. The defmitioD of 'citizen standing' should not be broadened. To broaden it any further would make it
meaningless as a factor a court would have to consider when a citizen's suit is brought.
10. Citizen suits, current or retroactive, should not be allowed for discharges to publicly-owned treatment
works (POTWs). POTWs have their own methods for controlling dischargers of pollutants, for treating
pollutants, for prohibiting improper discharges, for requiring pretreatment of discharges, or and for
charging fees for the treatment of discharges.
CoDClusion:
The Independent Liquid Terminals Association believes that retroactive citizen suits have much potential for
abuse and that their use has been much abused in the past. Permit holders who have abated their past
violating discharges and who have corrected deficiencies leading to these violations should not be subject
to retroactive citizen suits.
£itB£B suits should is limited is continued and repeated violations only. Allegations by proponents that
'all a violator need do is stop exceeding its permit level once it becomes aware that it might be subject
to a citizen's suit defeats the suit,' is incorrect. Further, allegations by proponents that a permit violator
can then continue to discharge in exceedance of the permit limit is also incorrect. Such aaivity would
convince any court that the discharges in excess of the permit limit have not abated, that the deficiencies
causing them have not been corrected, and that the violations are current.
Further, citizen groups that want to act as a watch dog for the state regulatory agencies can provide the
state prosecutor with the information and evidence about current violations. State and federal agencies
have the power through injunctions to halt operations by those who discharge in excess of permit limits.
They can require the discharger to correct the deficiency.
.We should not encourage retroaaive citizen suits. These suits are brought against companies who
voluntarily and honestly reported on a monthly basis their discharge levels to the state regulatory agencies.
Because companies have done much to keep their permitted discharges within permit limits, their are
fewer opportimities to bring citizen suits against permittees today. However, past records of violations sit
in regulatory agency files like ducks in a barrel.
Proponents of retroactive citizen suits, with their proposals to amend the Clean Water Act, are simply
asking the Congress to make it easier to pick off sitting ducks. This should not be allowed. The
amount of money sued for far exceeds any revenue any company may have saved whenever it exceeded
a permit limit. Most of the permit violations were not willfiil. The EPA system is structured so that a
company will be within permit limits about 95% of the time. Companies are usually within permit Umits
more than 9S% of the time. (See Chemical Manufacturer's Association for how the system works.)
(more)
1595
ILTA CommcnU on
the Clean Water Act
BtlfffffYT PfMlttes/Cltlien Suits
September 17. 1993
Only companies with past violations and current assets (money) are sued. Companies with past violations
and no money are not sued. These silting duck suits neither beneCt the environment nor the national
welfare and economy. This abusive and disreputable practice should not be countenanced by the
Congress. It has no place in the Federal Clean Water Act.
RespectfuUi
cc ILTA Board of Directors
1596
/
/
MOAA
Marina Operators Assoaatitm of America
CHICAGO OmCE
150 E. Huron • Suite 802
Chicago, IL 60611
(312) 944-5080 FAX: (312) 944-2716
WASHINGTON OFFICE
695 Americana Drive • Suite 23
Annapolis, MD 21403
Phone/FAX: (301) 858-8301
Statement of
Mr. Bob Glesler
President
Marina Operators Association of America
150 E. Huron, Suite 802
Chicago, Illinois 60611
before the
Subcommittee on Clean Water, Fisheries, and Wildlife
of the
Cooraittee on Environment and Public Works
U.S. Senate
Washington , D . C .
Re: S. 1114, the Federal Water Pollution Control Act of 1993
August 12, 1993
1597
statement of Bob Giesler
President of the
Marina Operators Association of America
before the U.S. Senate
Subcommittee on Clean Water, Fisheries, and Wildlife
on S. 1114, the Federal Water Pollution Control Act of 1993
Thank you and good morning, Mr. Chairman and distinguished
Senators. I am Bob Giesler, President of the Marina Operators
Association of America and a marina owner/operator in South Haven,
Michigan for 14 years. I am also a Board member of the Michigan
Boating Industries Association.
MOAA is the national trade association of small businesses
which provide marina services and waterway access to our nation's
boaters. Our members include large multi-marina owned
conglomerates, concessionaires on Army Corps of Engineers lakes,
small individually or family owned marinas, dry stack storage
facilities, service yards, and support services, such as
manufacturers of boat docks and boat access ramps. However, the
far majority of our members are the small, family owned marinas
with fewer than 100 boat slips.
The strength of our organization is that MOAA members maintain
frequent contact with recreational boaters. We perform service and
maintenance work and sell and install accessories. Boat owners
store their boats on our properties either in dry storage or
docking facilities. Some even use our access ramps. Boaters tell
our members what's on their minds; and, because our members are
market driven, we strive to satisfy their concerns.
We greatly appreciate the opportunity to present testimony for
the record on S. 1114, the Federal Water Pollution Control Act of
1993, more commonly called the Clean Water Act in our industry.
We also commend your leadership and the interest of the
Subcommittee in holding the weekly hearings this summer on Clean
Water Reauthorization.
Under the leadership of the MOAA Board of Directors, our
industry recognized the need for clean water to promote
recreational boating. We believe boaters want to recreate on clean
1598
water and anglers want to fish in clean waters. As such, the MOAA
Board cosponsored a Washington conference called "Boating on Clean
Water" on April 4 and April 5, 1993. The conference was also
sponsored by the Marine Retailers Association of America and the
Northwest Marine Trades Association.
Panelists from key clean water government agencies, such as
the Environmental Protection Agency, the National Oceanic and
Atmospheric Administration, the U.S. Coast Guard, the U.S. Army
Corps of Engineers, and the Department of the Interior joined with
Hill Committee staff, and representatives from the boating
industry, environmental groups, and boating consumer organizations
to review the direction policy makers are going regarding clean
water. It became very clear at the conference that the boating
industry wants to work with environmentalists and policy makers for
the common goal of cleaning our waters.
Subsequent to the successful completion of the "Boating on
Clean Water" conference in Washington, MOAA scheduled other
conferences in Atlanta in August, in Chicago in September, and in
Las Vegas in November. We are attempting to bring the excellent
discussions of the national "Boating on Clean Water" conference to
our membership and to inform key State and Federal government
agencies about who and what our industry is at the local and
regional levels. It is important that our industry and regulatory
agencies understand what it is we can do to comply with
Congressional intent and direction on Clean Water.
MOAA also formed a "Clean Water Reauthorization Committee"
with membership from recreational boat dealers, marina operators,
state boating regulatory agencies, and boat manufacturers to
analyze S. 1114 and other bills introduced in Congress on Clean
Water. Our committee met and drew an immediate consensus that
recreational boating is dependent on clean water for recreational
activities and abundant fish and wildlife resources for continued
strength and economic growth.
Our members strongly support the intent of S. 1114 in its goal
of attaining economically achievable solutions to the clean-up of
our nation's waters. We support S. 1114, but ask consideration be
given to certain questions, concerns, and recommendations very
important to our industry.
The marina industry is a very special industry, because our
members work, live, and recreate on the water. The vast majority
of people in our industry invest in marina businesses because of
a love of our water resources, including boating and fishing.
However, the marina and boat yard industry, which is characterized
by small, family owned and operated businesses, has an acute
sensitivity to economically achievable pollution prevention
measures. Environmental regulations must be subject to cost
benefit analysis and technological feasibility. Our members want
clean water, but there is also a fear of what, as small businesses
they can afford to pay or pass on to boating consumers in increased
1599
fees for services. What will the market bear without going out of
business?
We are pleased with the general intent of S. 1114 regarding
the references to the importance of "sound science and sound
economics" and the acknowledgement of the financial burdens the
Clean Water Acts of 1972, 1977, 1981, and 1987 have imposed on
State and local governments. We ask that the committee also
recognize the difficulties small business may have in complying
with certain far reaching and broad provisions of the rewrite.
In particular, MOAA asks that Title I, Section 101 be amended
to allow private marinas and boat yards to utilize State Revolving
Funds or low interest government backed loans to assist with the
installation of sewage pump-out stations, porta-potty dump
stations, and boat washing wastewater treatment systems.
Specifically, we request that section 603 (33 U.S. Code 1388(c))
be amended to read "(c)fl)(J) Constructing sewage pump-out
stations, porta-potty dump stations, and boat washing wastewater
treatment systems approved pursuant to sections 304, 312, and 319."
Another major concern with S. 1114 is the lack of financial
accountability in section 201 in Title II regarding States
authority to collect fees to administer and finance State water
quality environmental programs. We commend the bill for requiring
funds collected from applicable fees be used only by States to
finance improvements in water quality. However, the bill lacks any
requirement for efficiency and effectiveness in a State managed
program. Without such safeguards, our fear is that programs of run
away fee increases to orbital amounts similar to what has happened
in Florida and Washington state will significantly impact marina
operations. When a State ceases to look at fees as an offset to
the cost of administering a well-managed program and begins to use
fees as a sole funding source then fees become a tax and the cost
of doing business will go unchecked. The boating industry will
suffer with increased unemployment and a reduced capital basis.
We recommend a fee cap of $500.00 to $1,000.00 per permit.
We commend the committee for section 302 of Title III
regarding the creation of a comprehensive watershed management
program. We believe this approach to the prevention of pollution
is sound, because it will bring point and non-point source
reduction together. We have a deep concern a lack of consistency
from marina to marina could result as each watershed management
team drafts individual regulations for each watershed. With
different rules, practices, fees, and requirements, boat yards in
one watershed would not be able to offer services similar to one
in another watershed. These differing marina services would result
from differing fees and more expensive pollution abatement
requirements. Unfair competitive advantages would result, and new
concentrations of boats in areas providing "better" services could
cause safety and congestion problems.
1600
Section 304 of Title III requires the Environmental Protection
Agency to create a National Program Guidance which would be very
similar to the recent Nonpoint Guidance Manual implemented under
the Coastal Zone Management Act. Representatives from our industry
worked closely with the National Oceanic and Atmospheric
Administration to develop a program which would work in waterfront
marine facilities and also meet the intent of Congress. Problems
continue to exist in this regard. With two different and sometimes
conflicting programs for our members to comply with, those problems
will multiply. We strongly prefer a single program. However, if
Congress continues to support two programs in S.1114 with a dual
EPA and NOAA approach, we ask that the interests of our industry
be considered in the rule making process to simplify and clarify
our ability to comply with the Clean Water Act.
Because our industry consists of small businesses, our members
do not have the luxury of employing staff and lawyers to review
regulations and learn how to comply to regulations, even though our
members want to and will be required to under law. Title V
contains a provision which we ask be expanded regarding education.
An industry peer education program is needed to inform and educate
people in the recreational boating industry as to their
environmental responsibilities prior to being subject to the
$5,000.00 field citation in section 503. Section 519, "Clean Water
Education," is ideal for the inclusion of the National CleanMarina
Program. This program is a three year national nongovernment
initiative proposed by a consortium of environmental organizations,
boating consxiraer groups, Sea Grant Colleges, State and Federal
government agencies and Departments, and the boating industry to
help reduce incremental pollutant levels from marinas and
recreational boat operations. It is a pro-active program in every
state to assist through education only the marina industry and
boating public to become more environmentally compatible.
MOAA strongly supports the CleanMarina program and asks that
S. 1114 be amended to authorize this very important and much needed
program to significantly reduce water pollutant levels coming from
boating and marina operations, to accelerate the accomplishments
of the Clean Water Act, to reduce the compliance costs of the
industry, and to educate the boating public regarding sound
environmental practices.
To conclude, MOAA congratulates you on your efforts to clean
the water. We look forward to working with you and staff.
Thank you Mr. Chairman.
1601
/^MRAA
CHICAGO OFnCE
150 E. Huron • Suite 802
/ kg^ IWIIlk^ ^M ^ Chicago, IL 60611
/ Marine fUtailm Association of America (312) 944-5080 FAX: (3U) 944-2716
WASHINGTON OmCE
695 Americana Drive • Suite 23
Annapolis, MD 21403
PhonelFAX: (301) 858-8301
August 11, 1993
The Honorable Max Baucus
Chairman, Committee on Environment and Public Works
SD-456 Dirksen Senate Office Building
Washington, D.C. 20510-6175
Dear Mr. Chairman:
I am writing to ask that this letter be included in the committee record of the hearings
held on S. 1114, the Federal Water Pollution Control Act of 1993, in the past couple of
months in the Subcommittee on Clean Water, Fisheries, and Wildlife.
The 3,500 members of the Marine Retailers Association of America greatly appreciate
this opportunity to submit written comments on S. 1114 and commend your leadership
for reauthorizing this important legislation.
MRAA is the national trade association of small businesses which sell and service
recreational boats and operate marinas. Our members come from virtually every state
in the country, and MRAA is closely aligned with 119 regional, state, and local marine
trades associations.
There may be no other industry so closely associated with the marine and water
environment as we are. Our members wori< on the water, many times live on the
water, and recreate on the water. People usually get into our business because of a
love of water reaeation and the outdoors. It is an industry with small margins and low
profitability, but one that provides a great amount of personal satisfaction.
Our members consider themselves to be environmentalists and environmental
preservationists. We strongly recognize the need for clean water to promote
recreational boating. And, because a large percentage of our customers purchase
and operate recreational boats for fishing, we support programs to protect and
enhance fisheries and wildlife management. We are deeply concerned about the
reducing fish populations in rivers, lakes, and along the coastline. Our members and
customers want to reaeate on dean water and want to fish in dean waters. The
reaeational boating industry is very dependent on dean water for continued strength
and economic growth.
Because of our love of a dean water environment, we strongly support S. 1114. Our
membership, however, is very concerned about the economic cost of uncontrolled
1602
Page 2
Chairman
August 11. 1993
federal and state regulation in this regard. It is important to us that Congress and
regulatory agencies understand our industry and what we can do, both financially and
technologically, to comply with Congressional intent on clean water.
The recreational boating industry, which consists primarily of small, family owned and
operated businesses, is very sensitive to economically achievable pollution prevention
and clean up measures. We commend your leadership in this regard and agree with
the intent of S. 1114 regarding the frequent references of "sound science and sound
economics." Environmental regulations must be subject to cost versus benefit
analysis. With strong Congressional interest to reduce the deficit and reduce
government spending at the same time of increasing expenditures for environmental
preservation, we believe Congress should establish priorities to clean the water.
Secondary polluters, such as the boating industry, certainly need to be addressed, but
emphasis should be on getting the biggest bang for our hard earned tax dollar.
S.1114 was sensitive to the difficulties state and local governments have in complying
with prior versions of the Clean Water Act. We ask that the committee also recognize
the difficulties small businesses may have in complying with the cun-ent rewrite. In
particular, our members need to understand just what it is they need to do to comply
with the Clean Water Act and subsequent regulations.
MRAA has been a participate with environmental organizations, boating consumer
groups, Sea Grant colleges. State and Federal Agencies, and other boating industry
groups in an effort to educate small businesses in our industry and therefore we
cosponsor the CleanMarina program. This is a non-governmental initiative proposed
to reduce incremental pollutant levels from the boating industry and recreational
boaters. We believe this program is a proactive program by a consortium of many
groups which play an important role in developing the technical information so badly
needed and the education programs to accelerate the accomplishment of the Clean
Water Act. It is important to note that this program is an educational program only
and all capital improvements made to boating facilities will be paid for by the industry.
We ask that the rewrite of S. 1114 contain language authorizing this program for the
Environmental Protection Agency to administer.
Again, we thank you for your leadership in reauthorizing the Clean Water Act and ask
that you or your staff contact us for assistance, if needed.
Best Regards,
Jerry Larsen
President
01
1603
MWD
METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA
August 31, 1993
Office of the General Manager
Honorable Bob Graham
Chairman
Subcommittee on Clean Water, Fisheries and Wildlife
Senate Environment and Public Works Committee
456 Dirksen Senate Office Building
Washington, D.C. 20510
Dear Senator Graham:
Submittal of Clean Water Act Testimony
The Metropolitan Water District of Southern California
(Metropolitan) is very interested in the reauthorization of the
Clean Water Act (CWA) , and we have prepared a CWA position
statement which addresses issues of concern to public drinking
water suppliers. The purpose of this letter is to submit to you
Metropolitan's position and recommended CWA amendments for the
reauthorization of the CWA, and to request that they be
incorporated into the CWA reauthorization hearing record for the
Subcommittee on Clean Water, Fisheries and Wildlife, Senate
Committee on Environment and Public Worsts.
Metropolitan is a special district created by the
California State Legislature in 1928 to provide supplemental
water for cities and communities on the coastal plain of Southern
California. Metropolitan's service area includes in excess of
160 cities and has a combined population of over 15 million. To
provide this service. Metropolitan operates an extensive system
of drinking water conveyances, reservoirs, and water treatment
plants.
Metropolitan's traditional supplies are currently
obtained from the Colorado River through the Colorado River
Aqueduct and from Northern California through the State Water
Project's 444-mile-long California Aqueduct. Metropolitan also
has worked with its member agencies for years to develop other
sources of supply through reclamation of wastewater, clean-up of
contaminated groundwater, conservation of agricultural water, and
desalination of brackish water and seawater.
As a prelude, your Subcommittee should be aware of the
dramatic increase in regulatory activity in recent years directed
at the Nation's drinking water providers. Under the Safe
Drinking Water Act (SDWA) Amendments of 1986, drinking water
purveyors have witnessed the number of regulated contaminants
1604
m umomuTAN mm asmicr of souimm CAuromiiA
Honorable Bob Graham -2- August 31, 1993
increase from about 20 to over 80 contaminants which are
currently regulated. Regulations for microbiological
contaminants, filtration and disinfection of surface water,
disinfection of groundwater, disinfection by-products,
radionuclides, and a large number of organic and inorganic
contaminants are in development or have been proposed or
promulgated. In addition, treatment requirements constrain our
operational flexibility to the point where it is no longer
possible to tolerate the continued degradation of our basic
sources of supply. Preventing contamination of source vatera
must be stressed. We believe the opportunity is now at hand to
provide the mechanism by which policy makers can ultimately weigh
pollution prevention costs against the costs of the traditional
"end-of-pipe" treatment approach now in place in our Nation's
water utilities.
The following CWA position statement focuses on
significant drinking water quality problems which exist in the
Nation's surface water bodies, and on suggested amendments to the
CWA which address these drinking water concerns. The three major
issues of concern to Metropolitan are:
1. The need for increased source protection for public drinking
water supplies;
2 . The need for representative monitoring of point source and
agricultural discharges to surface water drinking water
supplies; and
3. The need to facilitate the reuse of wastewater.
I would like to first provide you with background on these issues
and then summarize our suggested CWA amendment language to deal
with these problems. The attached draft provides suggested CWA
amendment language that Metropolitan has developed concerning the
reauthorization.
Statement of the Problem
Despite significant progress in water pollution control
over the past twenty years, serious water quality problems
persist, especially in surface waters which provide drinking
water for 65% of the Nation's population. According to the U. S.
Environmental Protection Agency's (USEPA) 1990 Water Quality
Inventory Report, 56% of assessed lake acres and 37% of assessed
river miles are threatened by sources of water pollution or do
not meet water (juality standards to support designated uses. The
leading causes of impairment for rivers and lakes include
nutrients, organic enrichment, metals, pathogens, and suspended
solids. Agriculture was reported to be the leading source of
pollution in both rivers and lakes. Clearly, point and nonpoint
1605
THf uemomiTA/ii mm ustrict of soumiHN caufobnia
Honorable Bob Graham -3- August 31, 1993
sources of water pollution impact the quality of surface waters
which serve as direct sources of drinking water; however, the
extent of these impacts is not well understood.
Drinking water regulations such as the USEPA's Surface
Water Treatment Rule are prompting water utilities to become
increasingly concerned about pathogen levels in source waters.
In addition, published results from recent pathogen monitoring
studies show that higher pathogenic organism densities are found
in drinking water source waters receiving industrial or sewage
effluents. These results indicate a risk to drinking water
supplies.
The extent of the impact of combined sewer overflows or
even secondary treated wastewater on downstream water suppliers
is largely unknown. Wastewater treatment plants are currently
required to monitor for fecal coliforms in their discharges to
provide some measure of the sanitary quality of the discharge.
However, this measure is clearly inadequate because there is no
relationship between the absence of fecal coliforms and the
absence of pathogens of drinking water concern (e.g., Giardia.
Cryptosporidium) . This encourages a false sense of security on
the part of all. Data from the literature suggest that secondary
treated wastewater effluent may contain from approximately 6,000
to over 100,000 cysts of Giardia per liter. Secondary treated
wastewater is commonly discharged to the Nation's surface waters,
yet no one is monitoring its affect on drinking water supplies,.
The science is clear and so should be the policy. Such pathogen
contaminated discharges from either wastewater treatment plants
or livestock operations could quite easily overwhelm a water
treatment plant. The result will be outbreaks of waterborne
disease.
The recent Cryptosporidium outbreak in the drinking
water supply in Milwaukee, in which thousands of people became
ill, clearly illustrates the importance of this issue. Although
the source of the Cryptosporidium outbreak remains unknown at
this time, this incident illustrates the need for increased
monitoring of drinking water contaminants in potential point and
nonpoint source discharges to surface waters serving as public
water supplies.
The Milwaukee incident is not unique. Other
significant Cryptosporidium outbreaks have been reported during
the past decade in Carrollton, Georgia and Medford, Oregon.
Furthermore, the Centers for Disease Control (CDC) reported 525
microbial disease outbreaks related to public water supplies from
1972 to 1988, affecting over 131,000 people. The CDC estimates
that the actual number of water-borne disease outbreaks is much
1606
THE MCWOPOUTAN mm ttSmiCT OF SamiRN CAUrORNIA
Honorable Bob Graham -4- August 31, 1993
greater than that reported. Despite the documented occurrence of
water-borne disease outbreaks, the fact remains that very little
has been done to understand where water-borne pathogens come from
and whether source control makes more sense than retrofitting the
Nation's drinking water treatment plants with sophisticated and
expensive technology.
An additional water quality concern for drinking water
suppliers is the impact of agricultural discharges on surface
water drinking water supplies. Return flows from irrigated
agriculture and surface runoff from fields and cattle feedlots
can contribute pesticides, nutrients, inorganic contaminants,
pathogens, and suspended solids to the receiving water body. The
results of recent surface water monitoring studies in the
Midwestern United States have indicated widespread contamination
of streams and rivers with commonly used herbicides, and in some
cases the herbicide levels exceed drinking water standards. The
Missouri River Public Water Supplies Association conducted an
intensive monitoring study of the occurrence of pesticides in the
Missouri River during May through July 1991. The herbicide
atrazine was detected in 75% of all the samples, and in 32% of
the samples atrazine occurred at concentrations exceeding the
drinking water standard.
In California, agricultural drainage is a major concern
for public water suppliers whose source of supply is the
Sacramento/San Joaquin River Delta (Delta) . Agricultural
drainage from high organic content soils in the Delta contributes
about half of the total organic carbon which occurs in the Delta.
This organic matter serves as precursor material for the
formation of disinfection by-products in treated drinking water.
These agricultural discharges are currently dismissed as a
drinking water treatment problem.
Metropolitan's source water supplies experience similar
vulnerability to contamination from point and nonpoint sources of
drinking water pollutants as those water bodies discussed in the
previous examples. As a result, the drinking water quality
issues presented are of concern to us and our member agencies in
Southern California.
Public water suppliers must comply with drinking water
standards for a large number of contaminants; however, drinking
water quality problems cannot always be taken care of at the
drinking water treatment plant with the installation of more
advanced treatment technology. The reasons for this are as
follows:
1. No drinking water treatment technology is mistake proof;
1607
m MmomuTAN watir asmcr of soumm cAimmu
Honorable Bob Graham -5- August 31, 1993
2. Some advanced treatment technologies have adverse
environmental consequences associated with their use;
3. For many waters, advanced treatment technologies are not
cost-effective for removing the contaminants; and
4. Removing small amounts of contaminants from large amounts of
water can be more costly than removing large amounts of
contaminants from relatively small amounts of water.
Additionally, dischargers of the drinking water contaminants
discussed above currently bear no responsibility for the public
health effects of their discharge.
Amending the CWA to Protect Drinking Water Sources
Metropolitan believes the CWA should protect drinking
water quality at the source. We believe that the Congressional
Declaration of Goals and Policy of the CWA should be amended to
specifically include protection of public drinking water supplies
as a goal of the Act. The CWA must provide the same status for
human health needs, through drinking water supply protection, as
it does for protection and propagation of fish, shellfish, and
wildlife, and recreation in and on the water. The CWA needs to
send a strong signal to the States that drinking water quality is
important .
Public drinking water supplies require clear and
separate protection under the CWA since there are source water
quality concerns specific to drinking water, and due to the need
for drinking water purveyors to comply with increasingly
stringent Federal drinking water regulations and to provide water
that is safe to drink. While some drinking water regulations
adopted under the SDWA emphasize source water protection, there
is no clear statutory authority to implement this goal.
Monitoring Drinking Water Contaminants in Point-Source and
Agricultural Discharges
Current point source monitoring requirements in the CWA
are not specific enough with respect to public drinking water
supplies. Metropolitan believes that additional monitoring
requirements for unregulated pollutants of human health concern
are necessary in order to better understand the sources of
drinking water contauninants and the impact of point source
discharges on drinking water quality. We recommend that the CWA
be amended to require the USEPA to develop regulations that
require monitoring of such discharges where there is a reasonable
basis to believe the discharge is a source of a contaminant
impacting a downstreeun drinking water supplier. The purpose of
the additional monitoring requirements is to develop a better
1608
THE umoPOUTAN mm DismiCT OF somem California
Honorable Bob Graham -5- August 31, 1993
understanding of the source of specific water pollutants, and to
develop a data base on which to base future reasonable regulatory
efforts.
Agricultural discharges have been exempt from CWA
discharge and monitoring requirements that are part of the NPDES
program, and yet we know agricultural discharges directly impact
the quality of surface waters designated as public drinking water
supplies.
Metropolitan recommends that the CWA be amended to
establish a state implemented monitoring program for agricultural
discharges. A program for agricultural runoff and return flows
should require representative monitoring of such discharges where
there is a reasonable basis to believe the discharge is a source
of a specific contaminant impacting a downstream drinking water
supplier. Such a monitoring program is necessary to identify
pollutants contributed by agricultural discharges, and to assess
the impact of these discharges on public drinking water supplies.
With the information provided by monitoring programs, appropriate
best management practices can be developed to minimize, to the
maximum extent feasible, the discharge of pollutants determined
to impact public water supply source waters. Furthermore,
monitoring data will establish a baseline from which to evaluate
the success of agricultural nonpoint source pollution control
programs .
Beneficial Use of Reclaimed Water
Another issue of great interest to Metropolitan and
other public water suppliers in arid regions of the western U.S.
is the use of reclaimed wastewater for ground water recharge,
agricultural irrigation, landscape irrigation, and various
industrial and commercial uses. In Southern California, the
benefits of wastewater reclamation include a reduced need for
imported water supplies, and a drought-resistant water supply for
those situations where reclaimed water can be used.
The use of natural channels of ephemeral or
intermittent streams is often necessary to transport reclaimed
water to its area of use. Rigid application of strict USEPA
water quality criteria for discharges of reclaimed water to
ephemeral streams or effluent-dominated water bodies is
inappropriate in arid regions and discourages wastewater reuse.
The development of site-specific water quality standards where
reclaimed water is discharged into effluent-dominated water
1609
wf ucwopouTAN mm asmcr of soumem CAUfonu
Honorable Bob Graham -7- August 31, 1993
streams, the requisite treatment may be technically difficult and
prohibitively expensive. This could preclude the discharge of
reclaimed water in the stream entirely in favor of ocean
discharge, causing a reduction in streamflows for environmental
uses as well as a waste of the resource.
In order to maximize the beneficial use of reclaimed
water. Metropolitan recommends that the CWA be amended to:
1. Adopt a policy statement allowing states to encourage the
beneficial use of reclaimed water as a component of managing
water resources and regulating water quality; and
2. Authorize the states to adopt site-specific water quality
standards that facilitate the use of reclaimed water in arid
regions of the U.S. and the discharge of reclaimed water to
effluent-dominated and/or ephemeral streams.
Metropolitan believes that these eunendments to the CWA are
necessary to facilitate the development of water reclamation
projects in our Southern California service area and throughout
the western U.S.
Conclusion
The interrelationships of surface water quality
protections and drinking water needs are critical to the Nation's
public water suppliers, and Metropolitan will continue to focus
efforts on these types of CWA issues. Should additional CWA
hearings be scheduled by your subcommittee. Metropolitan would be
pleased to testify on source water protection issues and other
issues of interest to the Subcommittee. If you have any ques-
tions or require additional information regarding Metropolitan's
views on the reauthorization of the CWA, please contact Mr.
Edward Means, Director of Resources, at (213) 217-6412.
1610
National Association of Home Builders
1201 I5lh Street, N.W., Washington. D.C. 2()()().->-2S()n
(202) 822-0200 (800) 3K8-5242 )-a\ (202) 822-Or)5!)
STATEMENT
OF THE
NATIONAL ASSOCIATION OF HOME BUILDERS
PREPARED FOR THE
SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE
CLEAN WATER, FISHERIES AND WILDLIFE SUBCOMMITTEE
REAUTHORIZATION OF THE CLEAN WATER ACT
SEPTEMBER 29, 1993
1611
REAUTHORIZATION OF THE CLEAN WATER ACT
This statement is filed on behalf of the 165,000 members of the National
Association of Home Builders (NAHB) in response to the ongoing Clean Water Act
Reauthorization efforts, as well as the President's plan, "Protecting America's
Wetlands: A Fair, Flexible and Effective Approach," and the recently introduced
Senate Bill S. 1304, the "Wetlands Conservation and Regulatory Improvements Act."
The President's Federal Wetlands Policy has been touted as fair and balanced,
when, n fact, it does not address the fundamental problems and questions associated
with the regulation of wetiands. Similarly, while Senate Bill S. 1 304 appears to be
an effort to provide a compromise between the Edwards Bill (H.R. 350) and the Hayes
Bill (H.R. 1330) and many have called it a good starting point for discussion, the bill
does not address many of the fundamental problems with the Section 404 program.
This testimony will focus on the basic deficiencies of current wetiands policy,
the shortcomings of both the President's wetiands plan and Senate bill S. 1 304, and
the mandatory provisions that NAHB feels must be addressed within the legislative
reform.
THE NATIONAL ASSOCIATION OF HOME BUILDERS
NAHB and its' 800 state and local affiliate builder associations have been
heavily involved for many years in clean water policy debates at the federal, state and
local levels. Many of our members have been leaders in wetiand restoration and
preservation projects, stormwater discharge control and management, and pollution
prevention for land development across the country.
NAHB is made up of small business people, with over half of our members
building fewer than 10 homes per year and close to 75 percent of our members
building 25 or fewer homes. These are truly small business people. However,
collectively, home building plays a significant role in our nation's economy. The
investment in fixed residential structures, in real dollars, is equal to 4.3 percent of our
nation's GDP. When you include spending on new residential appliances, carpets and
home furnishings, the gross housing output is greater than 7 percent of GDP.
From the outset, let it be very clear that NAHB recognizes the importance and
value of our nation's wetiands, and, we want to protect wetiands and our
environment. However, the current system for protecting wetiands does not work.
It lacks balance between needed protection of wetiands and the environment, the
need for economic development and jobs in our local communities, and the protection
of private property rights. Furthermore, the current system is a bureaucratic
nightmare full of overlapping jurisdictions, costiy delays, burdensome confusion and
inefficient regulations. Although both the White House Policy and S. 1 304 promise
1612
to put an end to these inefficiencies, in fact, they will only serve to perpetuate the
status quo.
MAKING THE CURRENT SYSTEM WORK
To address the failures of the current program, shift away from the status quo,
and balance the needs of wetland protection and economic development in our local
communities, NAHB recommends Congress adopt a comprehensive wetland reform
package that would:
1) Establish a Congressional definition of a Federal jurisdictional wetland for
purposes of Federal regulatory protection under the Clean Water Act and exclude from
regulation all land areas which fail to meet a strict three parameter definition of
wetlands.
2) Focus wetland protection on our nation's most valuable wetlands by classifying
all wetlands into three categories and providing regulatory protection accordingly.
3) Streamline the current reaulatorv oroaram by transferring all wetland permit
authority to a single federal agency, improving efforts for state assumption of the
permit program, establishing enforceable deadlines for permit decisions, implementing
an administrative appeals program, instituting a wetland mapping program and
requiring that all program regulations and guidelines be subject to public notice and
comment.
4) DeveloD an effective wetland mitigation banking system to help achieve the
goal of no-overall-net loss of wetlands and, ultimately, to help increase the nation's
wetlands resources.
5) Protect orivate property rights by providing for compensation for the landowner
who loses the economic viability of his property, as is guaranteed under the Fifth
Amendment of the Constitution.
6) Streamline government, thereby adhering to the principles outlined for
"reinventing government" announced by President Clinton and Vice President Gore.
LEGISLATIVE ACTION IS NEEDED. ..NOW
NAHB believes the time to implement the above suggestions is now! The Final
Report of the National Wetlands Policy Forum, highlighted the needed call to action
by saying, the "current regulatory and nonregulatory programs leave much to be
desired. ..in short, current programs are too cumbersome and the responsibilities too
diffuse to guarantee anyone - landowners, the regulated community,
conservationists, or even the regulators themselves, consistency, predictability.
1613
timeliness, or effectiveness. It is a system that allows hundreds of thousands of
wetland acres to continue to be lost or degraded annually, almost unnoticed, while
substantial resources and time often are devoted to determining the fate of a few
relatively small acres." As remarkable as it may sound, these remarks were made in
1 988 and remain as relevant today as they were then.
CONGRESS NEEDS TO ESTABLISH WETLAND POUCY
NAHB believes Congress needs to reassert itself into this process by
establishing the public policy for the protection of our nation's wetiand resources.
Congress has neglected this responsibility and has left the regulation of wetiands in
the hands of judges, administrators and regulators. Indeed, Congress has never
passed a piece of wetiands legislation. The program has grown on its own under the
authority of the federal govemment to regulate dredge and fill activities in navigable
waters. This has got to end. Only Congress can stop wetiand losses by bringing
under the regulatory umbrella activities that are destructive to wetiands such as
draining, channelization and excavation. Only Congress can end the bureaucratic
nightmare of overlapping permit jurisdiction and vetoes by establishing a single permit
agency. Only Congress can establish fairness to the permit program by granting
applicants appeal rights and reasonable deadlines. Only Congress can put an end to
the regulatory gridlock and establish a balanced program.
PUTTING -WET' BACK IN WETLANDS
NAHB believes that a balanced program for wetiands protection requires
comprehensive legislative reform of Section 404. The first component of a legislative
reform package should be a clear Congressional definition of wetiands.
By defining wetiands, we are not asking Congress to consider every specific
criteria for hydrophytic vegetation, hydric soils and wetiand hydrology. However, we
do believe it is responsible, even necessary, for Congress to establish the definition
of what types of lands should be jurisdictional for purposes of the Clean Water Act.
In this regard, the Congress needs to establish how wet a wetiand should be.
Many argue that the determination of what is considered a jurisdictional
wetiand is not a policy decision. Contrary to that belief, NAHB asserts that the
definition of a wetiand cannot be legitimatized except by Congress. Recentiy,
Congress reaffirmed its policy decision to exempt prior converted croplands from the
federal wetiands regulatory process. This willingness to make policy decisions should
be further carried out with a decision regarding the definition of wetiands.
In 1972, when Congress first passed the Federal Water Pollution Control Act,
now known as the Clean Water Act, the word "wetiand" did not appear because the
1614
regulation of wetlands was not even considered. Congress defined jurisdictional
waters as "waters of the United States." Following lawsuits defining what
constituted navigable waters, in 1977 the House of Representatives proposed to
restrain the reach of Section 404 jurisdiction to navigable waters and adjacent
wetlands, with specific definitions of each term (See Section 16 of HR 3199, as
reported). The Senate, however, favored delegation of dredge and fill activities to the
states without a specific wetland definition. It was thought that by delegating the
Section 404 program to the States, each state could protect its wetlands as it deemed
appropriate, within guidelines set by the U.S. Army Corps of Engineers (The Corps).
The 1977 amendments established that Congress did not intend to use a narrow
"navigability" definition but rather something broader. Congress passed the Clean
Water Act reauthorization in 1977 without a clear definition of "waters of the United
States," no legislative definition of jurisdictional "wetlands," and no explicit
authorization to regulate the protection of wetlands.
Congress first needs to establish explicit policy to regulate and protect
wetlands. Following that it needs to establish a national policy that defines what
types of land should be delineated as jurisdictional under the federal wetlands
program. S. 1 304 seeks to tackle this problem by codifying the definition of wetlands
that has been in use by both EPA and the Corps since 1977. The definition reads,
"those areas that are inundated or saturated by surface water or
groundwater at a frequency and duration to support, and that
under normal circumstances do support, a prevalence of
vegetation typically adapted to life in saturated soil conditions.
Wetlands generally include swamps, marshes, bogs, fens,
potholes, playa lakes, vernal pools and similar areas. "
The inclusion of this definition within the legislation will do no more than to
codify the unbalanced regulatory definition that has been in use for more than 1 5
years. Adoption of this definition will not resolve the debate over what wetlands are
deemed jurisdictional under the Section 404 program. In addition, this definition does
not specify a duration of saturation, require the presence of obligate wetland species,
nor require on site verification of all three parameters. Ignoring these details will
further perpetuate confusion and the reigning status quo. Indeed, under this
definition, land without any standing water, at any time of the year can be considered
wetlands, hence the regulation of millions of acres of "dry" wetlands.
Congress should require that wetlands should actually be wet and accordingly
should have independent verification of all 3 wetland parameters (wetland hydrology,
hydrophytic vegetation and hydric soils). Congress should also require surface water
for 21 or more consecutive days during the growing season. These two changes
1615
would return the regulatory program to regulating the type of land most of us call
swamps, marshes and bogs.
NATIONAL ACADEMY OF SCIENCE STUDY
As Congress works to define the types of land subject to Federal jurisdiction
under Section 404, it is appropriate to comment on the National Academy of Science
(The Academy) study for which Congress appropriated funds in the 1 02nd Congress.
The Academy's Committee on Wetlands Characterization is to produce a report thjt
will review and evaluate the scientific bases of wetlands identification and
characterization for management. The report is expected by September 30, 1 994.
As we have stated, the Clean Water Act is silent on the definition of wetlands.
It was not until the 1 977 amendments that wetlands were even mentioned in the
statute. In the 102nd Congress, a number of groups, including NAHB, urged
Congress to establish in the law the policy criteria for the types of land that should
be regulated under the scope of the Federal jurisdiction. Other groups urged Congress
to avoid addressing this policy issue stating that further science was needed and they
urged a study by the Academy.
The study was proposed, debated and defeated by the House of
Representatives by a vote of 1 81 -241 . Many lawmakers believed that after 20 years
of research and volumes of field data it was unlikely the Academy would discover any
new science during a one year study. After all, the 1987 Manual was written after
10 years of research and field testing at a cost of over $5 million. However, at the
close of the session, such a study was included, without hearings or debate, in the
Environmental Protection Agency (EPA) appropriations bill. The study was to be
completed within one year of enactment and at a cost of $400,000.
The issue of whether additional scientific or policy criteria are needed was
addressed by the Supreme Court in the Avovelles Sportsmen Leaoue v. Alexander
case when the court stated, "It is quite obvious from tiiis history ttiat the term
'waters of the United States' and 'wetlands' are not terms of pure science. They are
not meant to be. "Wetlands" is a jurisdictional term, the product of the legislative
process. . . Thus the 'wetlands' definition does not answer a scientific need, it satisfies
a practical, a social, a political need, the need to define the scope of Section 404
Jurisdiction. "
For over twenty years scientists have collected data regarding what criteria
should be used to determine if land is a "wetland". This has been difficult, however,
since different criteria are used in different regions and resource areas. Moreover,
different types of land are defined in Federal, state, and local statutes, and their
definitions are inconsistent. Further, these laws generally do not define the scientific
components necessary to identify specific lands but instead, establish the policy
1616
criteria that justify the regulation of the land.
The accumulation of knowledge and scientific research on wetland delineation
makes one fact inescapably clear: there is simply no body of information that will
provide easy, certain answers to wetland delineation questions without Congressional
action to define the type of land that should be regulated under the Section 404. The
NAS study is fundamentally flawed since it has been done backwards. Congress
should first make the decision regarding what areas should be deemed jurisdictional
wetlands, then a study should be initiated by NAS to establish a manual that adheres
to that definitional decision.
The determination of a definition of jurisdictional wetlands is a oolicv decision
that must be legitimatized by Congress, not scientists. Congress must decide what
it wants to be the limits of federal regulatory jurisdiction.
SCOPE OF REGULATED ACTIVITIES
Section 404 of the Clean Water Act requires permits for the discharge of
dredged or fill materials into navigable waters, which the statute defines as "waters
of the United States." Following the adoption of a reasonable definition of wetlands,
NAHB believes it is appropriate to expand the regulated activities of Section 404 in
these areas within the framework of a comprehensive wetlands management plan.
Some believe that all activities undertaken within a wetland require a Section
404 permit. This is wrong. Many activities that are specifically harmful to wetlands
are not regulated. A GAG study found that "many activities resulting in substantial
wetland losses are not regulated by the Section 404 program." Section 404 regulates
only the discharge into wetlands of dredged or fill materials from a point source.
Activities associated with home construction generally are included.
The limited scope of the program stems from the fact that Congress intended
the 1 972 Clean Water Act be a pollution control program, not a wetland regulatory
program. Furthermore, it is clear Congress did not mean to regulate activities in
wetlands but rather the sources of pollution. In the legislative history of the Act, the
Congressional Research Service wrote that Congress focused on the fact that the
dredged soil resulting from the creation and maintenance of navigable waterways was
often contaminated and concluded that the common practice of disposing of dredged
spoil in other areas of the navigable waters ought to be regulated. The limited scope
of the Clean Water Act Section 404 program is another reason why Congress should
address this issue through reform.
While judicial decisions and law suits have attempted to increase the scope of
the permit program, the clear statutory language and legislative history have restricted
many such efforts. If our nation's remaining wetland resources are to be managed.
1617
the Clean Water Act needs to be amended to include as regulated activities draining,
channelization and excavation. This additional regulatory authority, however, must
be balanced with meaningful streamlining measures so that agencies can handle their
administrative responsibilities in an efficient and reasonable manner.
Senate bill S. 1304 provides such an expansion, as it redefines the discharge
of dredged or fill material to mean,
"any addition of dredged or fill material into navigable waters and
includes, without limitation, any addition or redeposit of dredged
or fill materials, including excavated materials, into the navigable
waters which is incidental to any activity, including draining,
mechanized landclearing, ditching, channelization, or other
excavation that has or would have the effect of destroying or
degrading any area of navigable waters. "
Unfortunately, this expansion is not coupled with any provisions to address the
bureaucratic red tape and inefficiencies now inherent in the program. Accordingly,
NAHB would strenuously oppose the expansion of the program in this manner.
in the same vein, the Administration has incorporated similar expansion through
the illegal issuance of the Tulloch Rule as a portion of its wetlands reform package.
Although not given the Congressional authority to do so, EPA and the Corps have
usurped Congress' authority and published the final rule incorporating such expansion.
NAHB believes this act to be so egregious that we have filed suit against the federal
government seeking an immediate injunction over the implementation and enforcement
of the Tulloch Rule.
Beyond the illegality of the action, however, the implications of this broadened
definition are significant. Indeed, the activities it addresses would be irrebuttably
presumed to result in the discharge of dredged material, and the discharge would be
presumed to cause destruction or degradation of U.S. waters unless the project
proponent can demonstrate otherwise. The burden of proof, therefore, is on the
landowner to show that no destruction or degradation has taken place. However, it
would be virtually impossible to do so as a proponent must evaluate not only the
immediate impacts of the dredge or fill activity, but also any individual or cumulative
impacts resulting from the entire project, even those activities occurring in non-
wetland areas.
Furthermore, the rule goes on to define "destroy or degrade" as "an identifiable
decrease in the functional values of the water of the United States." This criteria is
unavoidable under virtually any circumstances, making the presumption of destruction
on degradation nearly impossible to refute.
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NAHB is not categorically opposed to the regulation of excavation and similar
activities, in fact, we support it in the context of a more balanced approach. In this
regard, NAHB supports passage of H.R. 1 330, which would expand the scope of the
program, but which also includes initiatives which streamline the process and make
wetlands regulations more predictable. The expanded scope of activities must be part
of a larger, comprehensive reform of Section 404, whereby the program will progress
from solely a pollution control initiative into a wetland resource management act.
SINGLE AGENCY ADMINISTRATION
Congress must address the burdensome, confusing, and inefficient overlapping
jurisdictions of the program by the Corps and the Environmental Protection Agency.
If the Section 404 program is to be efficient and effective and reformed into a wetland
resource management act, then the program must be given to a single Federal agency
to administer. This will not only bring efficiency to the program and reduce costs and
confusion to applicants, but will place total responsibility and accountability with a
single agency. No longer will one administrator be able to point to another and claim
that it wasn't their responsibility to promote wetland protection, research new
restoration techniques or undertake aggressive mitigation banking to increase the
nation's wetland resources.
The problems of bifurcated agency administration go back to the beginning of
the program. The Section 404 permit program originated with the 1972 Clean Water
Act as a program intended to control pollution from point source discharges of
dredged or fill material. During the debate. Congress avoided the decision of who
should be responsible for the program by granting the Corps of Engineers permit
issuance authority and, the newly created EPA a significant parallel authority to set
permit standards and the power to veto specific permits. No agency was charged
with the responsibility to educate the public about the importance of wetlands,
research efforts to reduce losses, develop proposals to restore these valuable
resources, or establish mitigation banks.
As the program evolved, the Corps and EPA too often developed different
interpretations of the Act's permitting requirements which resulted in confusion and
chaos. Furthermore, the Corps, EPA, Fish and Wildlife Service and the Soil
Conservation Service all established different delineation manuals. It became possible
for a landowner to get a permit from one agency and, at the same time, be denied a
permit by another agency. No other Federal regulatory program gives more than one
agency direct authority over the same permit program.
Not only has this bifurcated administrative structure lead to interagency
disputes and costly inefficiencies, the requirements of the two agencies are often
conflicting, and the results are unpredictable. The task of unraveling the conflicting
policies and requirements of the two agencies fall upon the property owner.
8
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It is time for Congress to end this administrative gridlock of conflicting policies,
lengthy permit review delays, unnecessary permit costs and confusion. With no one
in charge, opportunities for public education, research and wetland advocacy are lost
in the bureaucratic chaos.
NAHB believes the wetlands regulatory program would be greatly improved by
Congress giving sole regulatory authority to a single Federal agency. In this regard,
we urge Congress to vest not only the authoritv to regulate wetlands, but also the
mission to protect this nation's wetland resources with the Army Corps of Engineers.
To achieve such a goal, we support H.R. 1330, which would grant the Corps sole
authority to administer the Section 404 program.
We support giving the Corps this mission because of their extensive network
of District Offices and larger field staff, two essential components necessary to run
a regulatory program involved in thousands of local permit actions each year. In
addition, approximately 40 percent of the permits the Corps processes are for Section
404 and Rivers and Harbors Act Section 10 activities. Because Section 10 authority
rests with the Corps it makes additional sense to give sole authority for Section 404
to the Corps.
In stark contrast to single agency administration, both S. 1304 and the White
House Policy have taken the opposite track and attempt to expand the number of
agencies involved in the Section 404 program. Specifically, S. 1 304 allows virtually
all federal agencies to get their hands in the permitting process, while the White
House Policy advocates making the Soil Conservation Service responsible for all
jurisdictional determinations made on agricultural lands. Although both plans seek to
end the duplication and overlap of efforts, inconsistency and permitting delays caused
by the current structure, the proposed revisions will only serve to exacerbate these
problems. The status quo will be maintained.
WETLAND CLASSIFICATION BY FUNCTION AND VALUE
The current regulatory system treats all wetlands equally, even though different
wetlands provide different functions and values. As currently constituted, pristine
coastal wetlands and man-made drainage ditches are afforded equal protection under
Section 404. Although the agencies have not yet agreed on a classification scheme
for assessing the functions and values of wetlands, the permit program currently
requires an evaluation of the environmental value by the District Engineer at the end
of the process. More important, S. 1304 makes no attempt to address wetlands by
function and value.
Classification should be the regulatory connection to wetland functions and
values. Classification would serve to streamline the permitting process, preserve
valuable resource areas and help to legitimatize the 404 program by mandating
1620
sensible, understandable and reasonable compliance standards. Classification would
change the attention from delineation of hydrophytes and hydric soils, to actual
protection of valuable wetlands.
This change in focus can only be achieved, however, if wetlands are considered
a managed resource. Wetlands of exceptionally high functions and value to a
watershed may merit a management strategy of avoidance. A significantly different
watershed management strategy is appropriate for abundant and marginally functional
wetlands. This approach focuses on the net-environmental benefit to water resources
as opposed to no-net loss of wetland permitting. The fact that classification systems
are difficult to establish and administer does not change the fundamental reality that,
from an economic, as well as watershed and environmental protection points-of-view,
it should be done.
We strongly urge Congress to authorize a classification system for Section 404
wetland resource management. This system will increase regulatory efficiency by
providing a framework for decisions and actions. The classification system should
occur during an advance identification effort or early in the permit process. This will
allow the agencies to focus permit, personnel and enforcement allocations on more
critical water resources. It will also reduce uncertainty and inspire new public support
and compliance in the permit program.
We would urge the Committee to consider the classification system envisioned
in H.R. 1330. H.R. 1330 would establish a three-tier classification scheme for
wetlands based on their functions and values. Type A - those with the highest
values - would be those determined to be critically significant to the long term
conservation of the ecosystem in which they are located. Type B wetlands would be
those which provide habitat for a significant population of avian aquatic or wetlands
dependent wildlife, or provide other wetlands functions including significant
enhancement or protection of water quality, or natural flood control. Type C would
be those which serve limited wetlands functions and are of least significant
environmental value.
Classification as envisioned in H.R. 1 330 is a significant environmental benefit
for wetland preservation. Under the existing regulatory system, all wetlands are
treated as if equal and are given regulatory protection against the discharge of
dredged or fill materials. However, under a tiered classification system it would be
possible to provide a higher level of protection to those wetlands of the most
significant value. Less time would be spent issuing permits for activities in wetlands
of marginal value (Type C) and more time spent assuring that the functions and values
of higher quality wetlands are protected. Thus, classification would maximize Federal
efficiency by focusing attention on wetlands most valuable in protecting water quality.
10
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PERMIT DELAYS
Improving the efficiency of the regulatory system through a classification
system is desperately needed as the permitting demands have far exceeded the
Federal agencies' resources. One Corps District Engineer wrote to the Corps
Headquarters, "We are imposing severe time delays on the public and foreclosing
development options on considerable tracts of land. It appears that we have lost our
focus on what we are regulating and why we are regulating it."
Former EPA Administrator Reilly recognized this fact when he stated, "The
second complaint most frequently encountered from owners of wetlands is, if a
person is subject to wetlands permitting regulations, can they expect a decision in a
reasonable time?" Indeed, on average it currently takes over a year for a final decision
to be made. This is not acceptable.
To address this problem, deadlines for permit reviews must be included in
wetland reform legislation. NAHB specifically supports the legislative language as
drafted in H.R. 1330, which mandates permit review within 180 days from the date
the application is filed. The proposed bill also includes a method by which the
mandate will be enforced. Conversely, processing of permits under S. 1304 is
designed to occur within 90 days of the date of public notice. Unfortunately, this
deadline does not take into account the amount of time it takes for a permit to
proceed to the public notice stage, nor the time for a jurisdictional determination to
be made. In addition, this mandate is not enforceable as written. A provision should
be included which states that if a permit decision is not reached within the 90 day
timeframe, the permit is deemed granted.
Concern has been voiced over this "automatic" granting of permits after the
deadline date has passed. The agency may, under the pressure of a deadline, make
the decision to simply deny a greater number of permit applications than may
otherwise occur under a less stringent time frame. This may be the case. However
from the landowner's perspective, it is preferable to receive a decision in a swift
manner, then make the decision to sue if one so chooses. The less palatable
alternative would be to have to wait the average of 367 days to get a decision, then
have to begin the appeals process. Expeditious permit processing is vital to the
economic viability of a development project and can help to promote more affordable
housing.
It should also be noted that the current regulation sets a goal of permit
decisions within 60 days, and since S. 1 304 provides for a number of exceptions to
the 90 day deadline, permit processing could take as long as it does currently. Both
S. 1 304 and the White House Policy fundamentally ignore the procedural delays and
uncertainty that already plague the permitting program.
11
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Firm, enforceable deadlines must be established for both the 404 permit
process and requests for jurisdictional determinations.
MAPPING WETLANDS
One of the greatest frustrations for many land owners is the discovery that land
they have owned for many years, that appears dry, has suddenly been declared a
wetland. It is equally as frustrating to home builders to learn after they acquire land
that even though the land has no signs of water, it is considered a wetland.
In these situations the land is not a swamp, marsh or bog. It is usually land
that is wet for only a short time each year, with no evidence of standing surface
water. The adoption of a more responsible definition of a Federal jurisdictional
wetland should eliminate many of these problems by delineating only "wet" wetlands.
Regardless, it is time this country invest in efforts to map wetlands to help everyone
know where such lands exist.
In most every town, parish or village in America, maps exist showing soil types,
flood plains and elevations. Yet, if you were to consider purchasing a site for a new
housing development there is no map to which you could refer to determine if the site
is a wetland. What better tool to direct development and other regulated activities
away from wetlands than mapping?
Many argue that mapping would be expensive. However, the costs of not
having maps of wetlands is even greater. Without maps activities are going to
accidentally occur in wetland areas. Landowners are collectively going to spend
hundreds of millions of dollars on engineering and consulting fees reviewing and
delineating wetlands. And, the Federal regulatory program will remain in the dark
ages -- struggling to delineate one property at a time, each time an activity is
proposed in an area that could potentially be a wetland.
NAHB supports a mapping provision included in H.R. 1 330 which would require
the identification and classification of wetlands within 1 0 years after enactment. The
mapping project would involve notification to land owners to assure their participation
in the mapping process. Preservationists would also benefit as the identification of
wetlands would, to the fullest extent practicable, become part of property records in
the county, parish or borough in which such wetlands are located, and can be used
to identify sites for the establishment of parks or nature preserves. Consequently, S.
1 304 contains no provisions for the mapping of wetlands.
As home builders, we carefully review town records and available maps. There
is no better form of avoidance for a home builder than knowledge that a site contains
a wetland. Mapping is an important tool which can serve to meet the goals of the
federal wetlands policy. Mapping should be an integral part of comprehensive
12
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wetlands legislation.
REPLACING THE ALTERNATIVE ANALYSIS
Under the current interpretation of the Section 404(b)(1) guidelines, the key
standard in the permitting process is to avoid a regulated activity in a wetland. Permit
applicants must provide evidence to convince the Corps that there are no practicable
alternative sites available to the applicant and that the applicant has avoided impacts
on site to the extent practicable. Unfortunately, neither the Corps nor EPA have
issued regulations on how to conduct and document an alternative analysis. When
builders attempt to show they have considered all the alternatives, they are often
forced to resubmit their applications several times in response to hypothetical
alternatives that EPA and the Corps want them to consider.
For example, EPA has said that home builders are accountable for having to
evaluate all alternatives, including purchasing non-wetlands sites not owned by the
applicant, at the time they "enter the market." Yet, EPA has not defined when an
applicant enters the market. Is it when the home builder first sees a "For Sale" sign
on a tract of land? Is it when the home builder first discusses the purchase price with
the owner, or is it when he/she signs a purchase option agreement? Equal uncertainty
exists over the required geographic scope of the search for alternatives. Is it the
applicant's market region, or the political subdivision? Is an applicant expected to
evaluate alternatives within some region broader than a political subdivision or county?
As a result of this lack of guidance, applicants waste time and money responding to
hypothetical and often unreasonable alternatives.
The alternative analysis is the single most confusing, time consuming, and
problematic aspect of the current 404 regulatory program. Neither S. 1304 nor the
White House Policy has proposed a legislative solution that effectively tackles this
problem. It is time to take a serious look at alternative methods of assuring minimal
effects to wetlands from development activities, as the alternative analysis is clearly
not working.
On August 24, 1 993, EPA and the Corps distributed a Regulatory Guidance
letter pursuant to the White House Policy. This document was intended to clarify the
flexibility inherent in the EPA's (b)(1) guidelines, however, it simply restated the
policies and procedures already in use.
The best replacement for alternative analysis is useful maps ideritifying and
classifying wetlands.
13
fiQ_fi77 n - QA - t:-)
1624
ADMINISTRATIVE APPEAL
As anyone who has applied for a Section 404 pernnit icnows, the costly and
burdensome regulatory permit process is a nightmare of individual decisions, upon
decisions, upon decisions. First is the decision of whether the land in question is a
wetland -- is the land wet, for what duration, what indicators should be used to relate
surface water, should secondary indicators be used, can aerial photographs satisfy the
hydrology criterion, or should the squeeze and shake test confirm surface saturation?
Then the questions regarding vegetation, soils and exceptions to the Delineation
Manual must be answered. Once the land is delineated as a wetland the applicant
faces the 404(b)(1) guidelines which involve questions about practicable alternatives
for the projects. Finally, the questions must be answered of whether the project will
cause or contribute significantly to the degradation of the wetland; whether
appropriate and practicable steps have been taken to minimize potential adverse
impacts and whether mitigation is appropriate and/or required.
The permitting process involves hundreds of decisions and each and every
decision impacts the cost and design of the project. Often these decisions are
reached through consultation and cooperation. However, even with small, relatively
simple projects, disagreements arise. Some times these disagreements can be
resolved. Other times, the applicant is left with few options - withdraw their
application; modify the project and reapply; or, if, and only if the application has been
formally acted upon, you have the right to bring suit against the Corps or EPA. At no
time does Section 404 provide an applicant the right to an administrative appeal.
Furthermore, the Clean Water Act precludes pre-enforcement judicial review.
Applicants are only provided the right to sue the Corps or EPA if their application has
been formally acted upon. Consider this possibility: A land owner attempts to build
a garage or addition on to an existing home. The Corps claims the land is subject to
jurisdiction under Section 404 of the Clean Water Act and requires the home owner
to obtain a permit. The applicant wants to challenge this claim. However, because
there is no administrative appeal process and the law precludes judicial review unless
final permit action has been taken, the applicant must apply for and go through the
entire process, in order to appeal the government's claim that their land is actually a
wetland. For an application to achieve final permit action, the landowner must submit
a request for a permit, agree that the in question is a wetland, complete the 404(b)(1)
guidelines and consider mitigation proposal. Only after completing the entire process
can the applicant seek judicial review to determine if the land is actually a wetland.
On the other hand, however, if the Corps determines that a property is not a
jurisdictional wetland under section 404, a third party may challenge that
determination through judicial review. It is inequitable for property owners to have
less rights than citizens' groups for challenging jurisdictional determinations -
especially on their own property! The appeals process, while intended to protect the
14
1625
applicant, inadvertently exposes applicants to the scrutiny of preservationist groups,
or neighbors, or virtually anyone who might have an interest seeing a project halted.
The outcome of the jurisdictional determination ultimately determines if one
must deal with the Section 404 permitting program. The implications resulting from
this threshold decision mandate jurisdictional determinations to be made in a fair and
efficient manner. Whereas no other federal regulatory program has a comparable
dispute over jurisdiction, NAHB believes that the areas regulated under the Section
404 program must be predictable.
The realization of this flaw within the existing regulation is apparent, as
provisions for administrative appeals of permit decisions appear in both the President's
wetlands policy and S. 1304. Whereas S. 1304 provides for the establishment of
rules under which decisions may be appealed, the provision only applies to final permit
decisions. In addition, the bill lacks specific criteria under which an appeal may be
heard and by whom an appeal may be brought.
The White House Policy is preferable in that it broadens the applicability of the
appeals process to include not only permit denials, but also jurisdictional
determinations and administrative penalties. There is concern, however, in that none
of the details of such a plan have been provided.
The Clean Water Act must allow an affected property owner to obtain judicial
review of an enforcement matter or to question a jurisdictional determination before
final permit action occurs. Furthermore, the citizen suit provision must be amended
so that it is available only for those with site specific interests. Current processes are
not only time consuming for everyone, costly to the applicant and the government,
and inefficient for all parties, they are wrong!
We strongly urge the Congress to correct this inefficient, inappropriate process
by adopting an administrative appeals procedure.
COMPENSATION FOR TAKING
The Fifth Amendment to the United States Constitution prohibits the
government from "taking" private property for public use without just compensation.
In the context of the regulatory arena, the Supreme Court has found a taking where
a regulation deprives a property owner of all economically viable uses of his land and
where the regulation was not substantially related to a legitimate public interest. In
July 1 990, the United States Claims Count issued two rulings that denial of Section
404 permits resulted in takings for which the property owners must be compensated.
In Loveladies Harbor, Inc. v. U.S., No. 243-83C [CI. Ct. July 23, 1990], the court
awarded over $2.7 million in damages, plus interest and attorney fees. In Florida
Rock Industries v. U.S., No. 266-82C [CI. Ct. July 23, 1990], the court awarded the
15
1626
plaintiff $1 million. These appear to be just the beginning of legal taking challenges.
The issue of "taking" is central to the question of wetland regulation since
more than 75 percent of all wetlands are located on private property. Individuals have
a right to expect that if the government is going to severely restrict or prohibit
development opportunities, and thus reduce economic value of their land, they will be
compensated for the fair market value of the land.
Some claim this is an unreasonable request because of the government's
current budget deficit. However, can a price be placed on the principles upon which
this country was founded? The Administration "strongly supports private property
rights," but its stance on the issue of compensation advocates the continuation of the
status quo. Currently, the courts are clogged with suits regarding the regulation of
private property. This system is extremely costly and allows only the wealthy to
question an action or to protect their private property rights. NAHB strongly believes
that if private land owners have their land "taken" from them through Federal
regulatory action, they deserve compensation. The benefits of the government's
regulation of wetlands are benefits that all citizens enjoy and the costs of such
benefits should be equally shared by all Americans.
Additional arguments are raised proclaiming compensation should not be
required because land owners can always take an issue to court. The decision to
provide for compensation, however, is a policy matter, not a procedural one. Private
land owners whose property is regulated to the point of suffering a substantial
diminution of value, should be compensated.
NAHB does not believe that all land owners of jurisdictional wetlands should be
compensated for their property. Assuming a reasonable wetland permitting program,
compensation should only be granted when the economic value of the land has been
severely restricted due to the denial of a wetland permit. These are normally areas
where the public protection of such wetlands is believed to be greater than the
benefits of the proposed project.
H.R. 1 330 achieves this goal by allowing property owners whose land has been
designated as containing the highest quality wetlands to apply for compensation
within two years of their designation as Class A wetlands. Compensation would be
provided at fair market value. NAHB supports this provision.
Finally, it is important to note that regardless of whether a private land owner
is able to prove a successful takings claim against the Federal government the
regulatory program is not without costs to the general public. When new schools,
hospitals, residential neighborhoods or economic development projects are stopped
because of Section 404, jobs are lost, growth is restricted, school and local property
16
1627
tax bases are reduced, and the value of local private property is diminished or totally
lost. Although no funds are expended from the Federal government treasury, many
different people pay the price.
This is not to suggest that all proposed activities in wetlands should be
approved. Instead, we believe the Federal government must recognize that wetland
protection has a price. If private lands are to be taken through the Section 404
regulatory program, private land owners should be compensated. Unreasonable
demands should not restrict responsible activities in and around wetlands. There is
room for wetland protection and economic development to responsibly exist together.
Congress must rethink the impact of wetlands regulations on private property
and decide who should ultimately pay the price. Failure to act will only serve to
sustain the static nature of today's regulatory scheme. S. 1304 fails to address the
subject of compensation, thus will serve to perpetuate the fragmented wetlands
policy.
MITIGATION
Although Section 404(b)(1) guidelines and the Corps regulations have general
sections on mitigation, the most far reaching policy on mitigation was adopted --
without the public notice and comment required of a rulemaking - in a Memorandum
of Agreement (MCA). In the MOA, the agencies adopted a strict sequence for making
wetland decisions: avoidance, minimization, and compensation. Once an applicant
proves that he/she has no alternative to the activities for which they seek a permit
they must minimize the amount of wetlands to be disturbed and compensate for any
damage by mitigating the impacts of any unavoidable activities.
This process, starting with avoidance and allowing compensatory mitigation
only as a last resort, is inefficient and in some cases, counter-productive from an
environmental standpoint. This "policy" forces permit applicants to focus all their
efforts and most of their resources on documenting why they cannot avoid the
wetland. This may involve developing several different site development plans with
varying levels of wetlands disturbance and a breakdown of the cost impacts of each
development plan. This analysis typically results in a Corps' decision that the
wetlands cannot be avoided completely. However, to get to this point the applicant
must spend considerable time and large sums of money preparing worthless, multiple
site plans or searching for alternative sites even though the property may have been
purchased years before the development is planned.
The sequencing requirement can also lead to less than optimum permit
decisions with respect to the environment. By divorcing the evaluation of the
applicant's mitigation proposal from the evaluation of alternatives to activities in a
wetland, applicants are precluded from presenting a comprehensive picture of the net
17
1628
environmental impact of their project. Suppose a developer proposes to build a
subdivision on parcel A, completion of which will impact 5 acres of easily mitigated
wetland. While progressing through the sequencing requirement, the developer
locates Area B, which will similarly serve his needs, but will only impact 4 acres of
wetland. The wetlands impacted at site B, however, have values and functions that
are difficult to mitigate. The inability of the developer to look at mitigation
requirements in the midst of the sequencing mandate will lead him to gain approval
for the development at site B even though the chances of mitigation success are much
higher than at parcel A.
Because there is no formal, comprehensive Federal policy on mitigation,
particularly on the role of compensatory mitigation in the Section 404 program,
mitigation gets decided on an ad hoc basis. As a result, applicants again, waste time
and money arguing over mitigation requirements. The current case-by-case, site-by-
site approach to mitigation also leads to a series of small, unrelated mitigation projects
scattered throughout a region. They are often too small and disjointed to maximize
wetland benefits, and they sometimes suffer from inadequate monitoring and
maintenance.
If this nation is to achieve the goal of no overall net loss of wetlands, or to
reach beyond this goal to increasing the nation's wetland base we must address
mitigation efforts. This Committee needs to provide the leadership for developing an
appropriate mitigation policy that will return this nation to a course of wetland
restoration.
NAHB supports the mitigation policy included in H.R. 1330 which recognizes
that for mitigation efforts to be successful all interest must wori< together.
Furthermore, we believe mitigation banking is an essential component of any
successful mitigation policy.
MITIGATION BANKING
If mitigating the harmful effects of necessary development activities on the
nation's waters is, indeed, a central premise of the Federal wetland regulatory
programs, the programs must embrace mitigation banking.
The concept of a wetlands mitigation bank, similar to an ordinary bank account,
allows the bank owner to create, restore, enhance or preserve wetlands in advance
of the anticipated need for mitigation required under Section 404. The wetlands
values created, restored, enhanced, or preserved in the bank would be quantified, and
the bank owner would be able to sell these mitigation credits to Section 404 permit
applicants. Withdrawals from the bank can be made as long as mitigation credits are
available.
18
1629
The idea of mitigation banking is not new. In fact, the Fish and Wildlife Service
has used mitigation banking since the early 1980s to off-set the environmental
impacts associated with development projects. However, mitigation banking has not
been fully incorporated into the Section 404 program because of the lack of
Congressional leadership and EPA's concerns over the scientific uncertainty of
wetland creation. If a builder creates a 10 acre lake which is stocked with fish,
visited by migratory birds and other wildlife, why is it valid for some preservationists
and scientists to say this isn't a wetland, when the same individuals maintain that
some dry land js valuable wetland. NAHB believes that regardless of whether
wetlands can be created there is significant opportunity for wetland restoration,
enhancement and preservation efforts.
Mitigation banking offers numerous advantages that will increase our wetlands
base and improve the values and functions of those wetlands. The chance that
wetlands mitigation will succeed is increased by mitigation banking since mitigation
must be provided in advance of the loss. Banks. consolidate many small isolated
mitigation projects into one larger parcel, thereby creating an area that is "more
environmentally valuable area that is more efficient and more economical to develop
and manage than several scattered sites." [FWS Mitigation Banking, July 1 988, p. 2].
Mitigation banking provides an economic incentive for the bank to make the project
succeed. In addition, mitigation banks can be strategically located within the local
landscape to satisfy the wetlands needs of the affected region and, unlike on-site
mitigation projects, bank sites can be selected on the basis of the likelihood of
wetlands mitigation efforts actually being successful.
Whereas the President supports the use of mitigation banking in appropriate
circumstances, the provisions included in the "compromise bill" largely stymie the use
of mitigation banks. The discretion given the agencies in that proposal, coupled with
federal oversight and lack of incentives limits the establishment and use of such
banks. In order for mitigation banking to be embraced and workable, flexibility and
discretion must be maintained. In addition, the mechanisms available for mitigation
banking should include not only restoration, but also creation, enhancement, and in
some cases preservation, as stated in the President's plan. Neither S. 1304 nor the
President's plan will fully serve the needs of the development community.
Based on the necessity for these components, as well as a degree of certainty,
NAHB supports the mitigation banking provisions provided in H.R. 1330. The
mandates in the bill would require the Corps to establish mitigation banks in each
state for purposes of compensating the loss and degradation of wetlands functions
and values under Section 404. The development of these banks would be
coordinated with the Fish and Wildlife Service and the Governor of each state, while
private banks would also be encouraged.
19
1630
STATE PERMIT PROGRAM ASSUMPTION
Although Section 404 of the Clean Water Act provides a mechanisnn for states
to apply and assume the Section 404 permit program, NAHB urges the Committee to
take actions to encourage that state assumption. Since wetland characteristics and
functions vary from region to region and water resources deviate from watershed to
watershed, everyone seems to agree the regulatory permit program should be
administered by the states. State assumption could deliver permits faster, offer one
stop for state and Federal permits, provide more intimate knowledge of the resource,
project and local land use planning, and administer greater long-term oversight. These
merits save time, money and confusion. Despite the merits and the broad agreement
on assumption, Michigan is the only state that has assumed the program and it
recently warned in testimony before the Senate, that it may withdraw because the
Federal program has become unworkable.
This breakdown in state assumption is particularly disappointing when one
considers that white the Federal government is focused on regulatory gridlock the
states have lead in wetland planning, restoration and management. All coastal states
provide wetland regulatory protection and management, and 1 8 inland states have
adopted freshwater wetland regulatory statutes. In addition, an estimated 5,000 local
governments have adopted wetland protection regulations. Many additional state and
local governments are poised to take on larger wetland management roles, particularly
if encouraged and provided incentives to do so.
Many suggest states have not assumed the program based on the lack of
Federal financial assistance. While this is a significant problem, a number of factors
actually contribute to the assumption failure. The most often mentioned obstacles are
EPA inflexibility, the lack of clear, consistent program goals, and the failure of the
Clean Water Act to provide a well thought-out partnership role.
High on the list of obstacles is the inflexibility of the EPA. Guidelines issued by
EPA are too rigid to allow states adequate leeway to design a permit program. EPA
believes that the Clean Water Act program requirements for compatibility mean that
states need to change their statutes and regulations to be identical to the rigorous
Federal program. States should be allowed to design programs that are consistent
with Federal program goals even if the program itself is not identical. Indeed one
state testified that were this allowed, it would assume the permit program.
States have also objected to EPA's permit-by-permit review and veto. They
have acknowledged the need for Federal oversight but object to EPA's individual
permit veto. They prefer annual program reviews. States have also objected to the
constant changes in program policy issues and the lack of state involvement in the
regulatory decision-making process. States want a partnership role in consistent,
stable program regulations.
20
1631
NAHB supports the concept of wetlands conservation and management
planning for states provided in S. 1304, but the specifics included in the bill make
such plans virtually impossible for a state to complete. The plan requirements are
extensive, and most must be completed prior to grant application. As stated above,
most states do not have the funding to complete such tasks on their own. The carrot,
provided in the form of possible financial assistance, is not predictable nor guaranteed.
Monies must be made available at the onset of the planning process, not at the end.
The President's plan, on the other hand, seeks to lure states into assuming
responsibility by allowing partial assumption of the Section 404 program.
Unfortunately, this plan does nothing to address the shortcomings of the existing
assumption process, but simply allows a state to issue programmatic general permits,
which are allowed under current law. Neither plan provides the necessary incentives
for state involvement. The incremental changes proposed will simply perpetuate the
current situation.
NAHB supports H.R. 1330, which not only encourages the establishment of
state programs that address wetlands conservation on an ecosystem or watershed
basis, but also establishes more flexible criteria to encourage state assumption and
deference to local planning.
CONCLUSION
The result of our current wetland regulations is that in addition to wetlands
being lost, jobs are also being lost, economic development opportunities missed, tax
assessments are threatened, and housing costs are rising.
The past two administrations have, through the Grace Commission report and
through Vice President Gore's "reinventing government" initiative, embraced the
notion of streamlining government. No area of government cries out for this
reformation more dramatically than our wetlands program.
It is time Congress reform this nation's wetland law, establish national policy,
and put an end to simply maintaining the status quo. Accordingly, NAHB urges
Congress to:
* Transfer all authority for wetland permits to the Army Corps of
Engineers;
* Establish a responsible definition of water of the United States;
* Exclude from regulation under Section 404 all land areas which currently
fail to meet a strict three parameter definition of wetlands;
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1632
* Focus wetland protection on our nation's most valuable wetlands by
classifying all wetlands into three categories and provide regulatory
protection accordingly;
* Improve the regulatory process by establishing a wetland mapping
system, an administrative appeals process and setting permit processing
deadlines;
* Develop a mitigation banking system;
* Compensate property owners who own the highest category of critically
significant wetlands; and
* Require all program regulations and guidelines be subject to public notice
and comment.
In short, we urge adoption of H.R. 1330.
#####
22
1633
National
Association of
Towns and Townships
STATEMENT OF THE
NATIONAL ASSOCIATION OF TOWNS AND TOWNSHIPS
SUBMITTED FOR THE RECORD TO THE
SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE
SEPTEMBER 22. 1993
REGARDING THE FEDERAL WATER POLLUTION PREVENTION
AND CONTROL ACT OF 1993
The National Association of Towns and Townships (NATaT) appreciates the
opportunity to submit testimony for the record on legislation to reauthorize
the Federal Water Pollution Control Act (FWPCA).
NATaT represents more than 13,000 mostly small, mostly naral govern-
ments across the United States. These communities are typical of the na-
tion's 39,000 general purpose local governments: 86 percent of local gov-
ernments serve populations of less than 10,000 people and 67 percent gov-
ern less than 2,500 residents. Consequently, small communities represent
the mcyortty of governments in the United States.
Throughout the reauthorization of the Federal Water Pollution Control Act,
NATaT encourages Congress to consider the ability of small communities to
implement unfunded mandates. Local governments face numerous con-
straints because of limited financial and human resources and technical ex-
pertise. As a result, the resources needed to comply, implement, and pay
for unfunded federal mandates are not readily available.
1522 K Street, N.W.. Suite 600. Washington, D.C. 20005-1202
(202) 737 5200 FAX (202) 289-7996
1634
The Federal Water Pollution Prevention Control Act of 1993 - S. 1114
State Revobrinq Fund
Clean Water Act reauthorization legislation must recognize that small com-
munities face unreallstically high cost Increases in water and sewer bills as a
result of compliance with present Federal Clean Water Act requirements.
Small communities have been placed at a disadvjintage when trying to obtain
funding from state revolving funds (SRFs), particularly because they tend to
lack bond ratings and have limited revenue generating capabilities compared
to large municipalities. Therefore, the SRF funding mechanism should be
structured to assist small communities with compliance, especially where
costs of compliance are disproportionately higher than in large communi-
ties.
The provision In S. 1114, which allows state matching funds to be used at
state discretion for grant programs to disadvantaged comimunities, begins to
address the need to facilitate access by small communities to SRF monies.
Unfortunately, this provision does not ensure that these communities will
receive the funds that they desperately need to maintain safe water systems.
Small communities are projected to experience the greatest increase in an-
nual user costs because of their inability to achieve economies of scale and
their proportionately high operation £ind maintenance costs. As result,
NATaT recommends a small community 20 percent set-aside within the
SRF, to ensure that SRF programs obligate funds to those cormnunitles lack-
ing the revenue base and management capacity to compete with larger mu-
nicipalities for SRF monies. In lieu of the set-aside. NATaT supports more
attractive and affordable loan repayment terms for small communities and
therefore recommends that the current 20 year term be extended to a 30
year term, consistent with the useful lifetime of those plants. Twenty-year
terms create unaffordable repayments for small communities with limited
rate bases.
1635
Although states have Increased flexibility in setting SRF funding priorities
and the provisions in S. 1114 allow funds to be used not only for construc-
tion of sewage treatment plants but also for combined sewer overflows, land
acquisitions and new watershed management. NATaT believes that states
should be required to establish separate categories of priorities for urban
and naral facility needs in order to minimize competition for funding.
NATaT is concerned that increasing the range of acceptable spending for
the SRF without distinguishing rural and urban community needs will pro-
mote the distribution of SRF monies primarily to large urban areas.
Storm Water
NATaT has been concerned with the storm water program, particularly
mandates to control storm water discharges from industrial sources. Al-
though communities smaller than 100.000 in population have been granted
a reprieve until October 1, 1994. many of our small communities will not
know if they need to apply for such permits until the Phase II regulations
are issued. The regtdatlons could force local governments to expend sig-
nificant amounts of money on programs for which they are not currently
budgeting. Cost estimates of an application alune is in the range of
$500,000 to $1 million.
S. 1114 narrows the scope of NPDE^S program applicability to storm water
discharges and eliminates Phase II of the storm water regulations except for
urbanized areas associated with the existing Phase I municipal storm sewer
systems. S. 1 114 specifically relieves towns and townships by allowing a 10
year moratorium on mandates to meet storm water effluent limits for mu-
nicipal storm sewer ssrstems serving populations under 100,000. Given the
inability of EPA and the states to fully implement Phase I requirements,
NATaT supports the provisions in S. 1114 which would eliminate the great
burden of compljong with pending Phase II requirements.
Alternative Technofoqies
The use of low-cost technologies and lower maintenance cost options should
be encouraged to promote the development of affordable management and
3
1636
treatment programs. For example, the use of constructed wetlands or la-
goon systems can help small commimltles. Individual households or rural
subdivisions afford wastewater treatment. Rural areas are ideal for such in-
novative sjrstems because they have available land area and a lower population
density.
NATaT supports amending the Clean Water Act to provide specific incen-
tives to foster the widespread development and research of new technolo-
gies by states and localities. In addition. EPA should be given the lead role
in encouraging states to certify new technologies and approaches as
permissible solutions. NATaT supports such a role for EPA which would
further promote the development and implementation of innovative tech-
nologies.
Annexation and Wastewater Treatment
Small towns and townships particularly in the Midwest, have increasingly
been confi-onted with the threat of annexation by municipalities if they are
to receive wastewater treatment services from those municipalities.
Annexation has been a problem since the days of the EPA construction grant
program, despite EPA regulations that prohibit such actions. Frequently,
municipalities have demanded that commvmitles be annexed in return for
services, even though the municipality included those communities in the
prospective service area of the facility at the time the original grant applica-
tion was generated.
To address this issue. NATaT recommends the inclusion of language in the
Clean Water Act. specifying that municipalities may not threaten to withhold
wastewater treatment services from systems constructed with federal finan-
cial assistance unless a community agrees to be annexed.
Non-Point Sources
Non-point source pollution has been a significant contributor to the re-
maining water quality programs In the U.S. Curbing non-point sources In-
volves changes in land-use practices that traditionally have been the sole
1637
province of local governments. As a result, local governments need flexibil-
ity within the state programs to improve watersheds.
NATaT supports the provisions in S. 1114 which would allow landowners in
designated areas to put in place "best management practices" (BMPs) as
outlined by the states to stem runoff from their property. Further, our
towns and townships would greatly benefit by the option included in S. 1114
which allows landowners to develop site-specific plans for their land rather
than complying with the more general state plans. The greater flexibility will
facUltate local efforts to manage non-point source pollution and undertake
non- point source management programs. This flexibility will also increase
the variety of innovative management practices, institutional arrangements,
and watershed projects.
Concltision
With the decay of existing infrastructure, the diminishing federal role in
public works investment, and the rising costs of meeting emerging envi-
ronmental regulations, the reauthorization of the Clean Water Act should
recognize that more stringent standards should not be imposed unless such
mandates are adequately Junded.
EPA's most recent needs survey places current wastewater treatment re-
qufrements at $65 billion, with an additional $110 billion needed over the
next 20 years. These costs when combined with the costs to local govern-
ments for meeting aU existing environmental mandates, raises legitimate
concerns over the abUity of local governments to provide environmiental
protection and solve envfronmental threats.
In order for our towns and townships to comply with these mandates, fed-
eral fimding and reguLatOTy Jlexibility must be provided. Funding must be set
aside for small communities so that they are not forced to compete with
large municipalities who possess the administrative, technical, and financial
resources needed to access SRF monies.
1638
Regulatory flexibility must be provided so that local governments can solve
environmental threats that they have targeted. The goal is not to roll back
environmental protection but allow for the development and implementa-
tion of alternative and innovative approaches to address environmental
problems. Flexibility would only serve to encourage local governments to
comply rather than violate federal environmental mandates.
NATaT appreciates the opportunity to comment on S. 1114 and is support-
ive of the efforts of Senators Baucus and Chafee in providing legislation to
commence the national debate on the Clean Water Act.
1639
Written Comments of the
National Marine Manufacturers Association (NMMA)
on S. 1114
The Water Pollution Prevention and Control Act of 1993
to the
Senate Environment and Public Works Committee
General Comment
bJMMA agrees that further investment in water quality protection is essential and that
additional resources must be made available to State and municipal governments to further the
goals of the Clean Water Act (CWA). NMMA is also pleased that S. 1114 acknowledges the
central importance of well grounded science as a basis for regulation, coupled with an
acknowledgement that affordability and economic impact issues must also be considered.
However, NMMA is generally concerned that the bill significantly rewrites the CWA, one of
the most successful major environmental laws enacted, and makes the law more prescriptive.
NMMA believes that the flexibility inherent in the CWA must be preserved so that public and
private interests will have the fullest opportunity to eliminate the remaining threats to our
Nations 's waters in the most cost-effective manner.
Specific Comments
1 . Section 304 requires the U.S. Environmental Protection Agency (EPA) to develop
national guidance for nonpoint source control that specifies management measures and program
implementation criteria. This approach sounds very similar to the recently enacted guidance
under Section 6217 of the Coastal Zone Management Act (CZMA) which will apply in the
twenty-nine coastal states where a majority of our members are active. NMMA strongly urges
the Committee to consider creating a single regulatory program for nonpoint sources of
pollution, or conversely to legislate the compliance with the CWA nonpoint sources provisions
will be deemed compliance with the CZMA nonpoint source requirements, or vice versa. The
regulatory burden on our members of having to comply with two essentially identical programs
would be confusing and unnecessary.
1640
2. Section 402 amends the stormwater permit program, primarily as it relates to
municipal discharges. The control of stormwater sources that currently do not require a permit
(Phase II sources) is to be further studied. NMMA believes that Phase II stormwater sources
should be rolled into a single CWA\CZMA nonpoint source control program, as discussed
above.
3 . Section 302 provides new authority for voluntary watershed management programs
at the state level which would comprehensively manage all sources of pollution in a watershed.
NMMA supports the concept of hydrologically-based water pollution control, but is concerned
about the possibility of significant variations in requirements from watershed to watershed, as
well as the potential for dual regulation in interstate watersheds. NMMA believes that some
minimum form of national watershed program guidance to states is necessary. In addition,
NMMA believes that in any allocation of water pollution reductions between point and nonpoint
sources within a watershed, credit should be given to nonpoint sources for any voluntary
nonpoint source reductions that are made in excess of CWA/CZMA requirements. NMMA also
believes that compliance with all sediment and water quality standards cannot be achieved in ten
years, as required by the bill. This requirement should be extended to 15 years or more in order
to avoid unnecessary litigation against watershed planners for failure to meet deadline.
4. NMMA believes that S. 1114 should explicitly support/authorize the use of
economic incentives to reduce water pollution, such as point/nonpoint source trading.
Any questions on these comments may be directed to Mary M. Mann, NMMA Director
of Federal Government Relations [(202) 944-4980].
1641
■MATIONAL UTILITY COIMTHACTORS ASSOCIATION
4301 N FAIRFAX OFltVE
SUITE 360
ARLINGTON. VIRGINIA 22203-1627
[703] 358-9300 FAX: [703) 358-9307
WRITTEN STATEMENT OF GERALD E. DORFMAN
PRESIDENT
NATIONAL UTILITy CONTRACTORS ASSOCIATION
PREPARED FOR THE
SUBCOMMITTEE ON CLEAN WATER. FISHERIES AND WILDLIFE
UNITED STATES SENATE
THE UNSEEN CRISIS:
AMERICA'S CRUMBLING CLEAN WATER INFRASTRUCTURE
SEPTEMBER 1993
CONSTRUCTORS OF WATER. SEWER AND UNDERGROUNO UTILITY SYSTEMS
1642
Mr. Chairman eind members of the Subcommittee, I am Gerry Dor&nan.
President of the National Utility Contractors Association (NUCA). NUCA
represents contractors, suppliers, and manufacturers across the country who
construct the sewer and wastewater treatment facilities financed through the
Environmental Protection Agency's State Revolving Loan Fund (SRF) Program. I
have been In the business of building water supply and wastewater treatment
facilities fcr over thirty years and presently serve as President of Dorftnan
Construction In Woodland Hills. California.
I gmi pleased to provide my Industry's Insights and recommendations
regarding reauthorization of the Federal Water Pollution Prevention and
Control Act and S. 1 1 14 in particular. Foremost, we support the existing Clean
Water Act's general structure and the wastewater treatment construction •
financing mechanism. Capital funding levels, however, have been woefully
inadequate. A minimum $5 billion annually is needed to meet secondary
sewage treatment needs alone. To close the gap between water infrastructure
needs and projected federal, state, and local Investment. NUCA recommends
the study of dedicated revenue sources. We support the elimination of the SRF
funding restriction on sewer collectors and combined sewer overflow
corrections, but strongly oppose eliminating the restriction on funding land
acquisition. Furthermore, NUCA seeks to require that all federally assisted
clean water projects be publicly bid and awarded to the lowest responsive
bidder. Finally, and perhaps most importantly, the wetlands reform debate
must not hold the clean water construction program hostage.
1643
I. THE SITUATION AT HAND
The various scientific studies and statistical assessments that document
water pollution problems are Important but sterile. They fall to convey the
nature of the harm In every day terms. I want to tell you first-hand that the
water Infrastructure needs In the United States are tremendous. In terms of
the Investment required for construction and rehabllltaUon and In terms of the
devastating social, environmental, and economic opportunity costs that result
from our reluctance to devote sufilclent resources to the problem.
A renewed federal commitment to clean water construction should not
be a tough choice. I don't need to tell you the Importance of maintaining fresh
water supplies. Clean Water Act construction programs have improved the
quality of the nation's water resources immensely to the benefit of all.
Nevertheless, clean water construction funding remains a top national priority.
A. Deteriorating Sewer Systems
Not long ago. my company replaced a sepUc system that served a rural
neighborhood in Northern California. Financing for the Job was provided by the
federal government. While I was prospecting the site before preparing my
ultimately successful bid, I was absolutely dumbfovinded to discover that the
famiUes' backyards were saturated with raw sewage that had overflowed from
failed leaching systems. These families were literally trapped in their homes.
The children could not play outside. The entire neighborhood was a public
health hazard. The Impact on the quality of life was Immeasurable. The federal
investment in this community was necessary and sound, and it is important
1644
for me to teU you that the neighborhood Is thriving since the completion of the
job.
The sewer problem is urban as well as rural. On a project for a major
city in Southern California, we recently replaced a sewer pipeline that had
failed earlier than expected due to unstable ground conditions. When we
uncovered the pipe, we found gaping holes where raw sewage had been
escaping into the surrounding ground for an unknown period of time. The
devastating part of the story Is that the collapsed system was located less than
100 yards from a fresh waterway. Whenever the tide rose, the pipe carried
fresh water to the treatment plant. When the tide went out, so went the
sewage. We had uncovered a daily exchange of raw sewage and fresh water.
B. Combined Sewer Overflows
A second problem occxu-s with combined sewage overflows. On a project
in the Northwest, ovu- firm replaced a large-diameter brick sewer built in the
early 1900s. There were numerous delays when work was suspended due to
heavy rainfall. On more than one occasion, 1 stood with my superintendent
watching raw sewage and rainwater discharge into a river because the
Infrastructure could not process the influx added by the storm. This was not
an Isolated event. AU 1.100 of the nation's combined sewer systems need to be
augmented so they function as a storm system or a sewer system, not both.
1645
C. Leaking Drinking Water
Thousands of miles of old and decaying drinking water lines also
contribute to water pollution. My son recently replaced a 10,000-foot water
line for a conununlty In Southern California. He was continually plagued with
suspension of work because the adjacent line, which his work Wets to replace,
leadced like a sieve. As you can imagine, this situation entailed £in incredible
loss of water to the community as well as enormous construction costs, but
that Is not my point. The leaking clean water contributed to water con-
tamination when it merged with sewage from leaking sewers beneath. The
increased volume of contaminated water flowed to the closest aquifer or
waterway. In addition, some of the leaking clean water entered the sewer and
returned to the treatment plant. The water pollution ramifications of a drinking
water system failure are extensive. The people who suffer the consequences are
unsuspecting, downstream.
D. Lessons From Experience
I have drawn a number of observations from these and other experiences
in the field since the Clean Water Act was last amended In 1987. Ffrst. I find it
partictdarly poignant that all of my fellow NUCA members, from any state in
the land, could tell similar stories. That is the appalling reality of the situation,
despite great progress under the Clean Water Act. Second, the most Important
needs are not new or particulau-ly complex. It is simply a matter of core
infrastructure — plp>es In the ground — falling apeul because they have not
been replaced in half a century. Too often, we try to construct bigger and
1646
better treatment plant facQlties. while ignoring the source of the problem. An
Incisive and rigorous attack at the source, the ancient pipes, will effectively
stop contamination of water supplies. In addition to these important
traditional needs, we must simultaneously address new threats to water
quality.
Third, and despite the frequent occurrence of water quality emergencies
such as those I have described. Americans continue to ignore the water
infrastructure crisis because collection, delivery, and treatment facilities are
generally out of site and out of mind in the absence of crisis. Unlike a pothole
in the highway, you cannot preempt a water catastrophe unless you look for It.
Forth, the problem itself has become so egregious that even Individuals
familiar with the issue are repulsed by the massive remedy that is so clearly
necessary. Too often, a listener's eyes glaze over when I mention a growing
$200 billion clean water infrastructure deficit. The cynic in me wonders how
many deaths, such as those caused by the recent water contamination crisis in
Milwaukee or the sink hole in Atlanta must occur before we get serious.
Fifth, correcting these problems will generate Immediate and lasting
economic benefits. Functioning clean water Infrastructure is an obvious and
absolute precondition for Industry, agricultiu-e. retail commerce, professional
services, government, schools, hospitals, emergency services, recreation,
affordable housing, and everything else. Furthermore, the people who work for
me do not consider their careers make-work. They are educated, make good
wages, pay plenty of taxes, save a little, and plow the rest right back into the
private sector.
1647
n. S. 11 14 AND NUCA RECOMMENDATIONS
A. Funding
1. 65 Billion Annually
For the eight-year period 1993 to 2000. NUCA recommends
annual authorized funding of at least $5 billion for the wastewater SRF
Program. This recommendation corresponds to the most conservative
assessment of investment needs — Investment needs above and beyond
what the states are likely to spend themselves. We have not inflated our
estimates. Eind we cannot in good conscience recognize lower funding
levels as adequate. We applaud the authors of S. 1114 for their attempt
to reach the $5 billion level.
2. Dedicated Revenue
NUCA strongly supports the creation of a new revenue generating
program targeted directly and exclusively to clean water infrastructure.
This revenue raising program should Incorporate a user-fee principal,
such as a sewer hookup fee or a fee on water use. We encourage the
Subcommittee to explore new sources of dedicated revenue for needed
clean water infrastructure and recommend that S. 11 14 be amended to
require a study of revenue raising alternatives.
1648
structure Of The Program
1. Ix^ans. Not Grants
NUCA does not play a direct role In the administration of federal
clean water funds. Companies In our Industry bid on funded projects
when bids are solicited by project owners. Nevertheless, the utility
construction Industry has a direct stake In the efilcient use of limited
federal resoiu-ces. NUCA favors the continuation of the State Revolving
Loan Fund Program (SRF). While the SRF can be Implemented more
effectively with minor legislative adjustments, its fundamental
characteristics are preferable to direct grants.
First, we embrace the intent of the program, which Is to provide
states with a revolving, permanent pool of capital. Of equal Importance is
the fact that SRFs can be leveraged to create bigger lending pools.
Extended amortization periods beyond the current 20-year maximum
loan term and loan principal subsidies are some of the adjustments that
should be made to make the SRF more attractive source of financing to
small or hardship communities that have not been able to participate.
NUCA opposes funding for project-specific grants because they
encourage communities to postpone projects in the hope of receiving a
grant and tarnish the reputation of the construction program by calling
into question the fair distribution of federal resources. Moreover, the
Rural Development Administration already administers a growing
wastewater treatment grants program for small communities that cannot
afford loans.
1649
2. Eliminate The Restriction On Sewer Corrections
NUCA strongly favors the elimination of restrictions on funding
sewer collectors and combined sewer overflows as proposed by S. 1114.
The experiences described earlier demonstrate the necessity of removing
the current restriction In Section 201(g)(1) of the Federal Water
Pollution and Control Act. In addition. NUCA opposes the inclusion of
special earmarks or set-asides designed to address singular water
pollution problems. Each state should be given the flexibility necessary
to address its unique blend of needs.
3. Land Acquisition
NUCA supports the current restriction on the use of SRF funds for
the purchase of land. We recognize that this restriction may make the
SRF a less attractive sovirce of financing in some communities, especially
rural commvmlties that require land for collectors and interceptors.
Nonetheless, we believe that the SRF funds must not be diluted at this
time for this pvupose.
4. Private Sector Design And Construction
We recomjnend that S. 1114 include the requirement that all clean
water Infrastructure projects funded by the federal government must be
publicly bid. This stipulation will ensure that public works projects are
designed and constructed only by private sector firms, which must pay
federal taxes and comply with federeil OSHA requirements.
1650
R. Administrative Costs
The amount of money In sui SRF that may be used for
administrative costs Is presently limited to four percent of the federal
capitalization grant received by the fund. It has been suggested that the
four percent limit can prevent efficient SRF administration — especially
in states that leverage their fund. NUCA encourages the Subcommittee
to explore ways to Increase the administrative efficiency of the SRF that
do not require the use of precious appropriated capital funds to cover
operating costs. A small percentage of each state's total fund for
administrative purposes is one such alternative.
C. Wetlands Regulatory Reform
The United States is in vu-gent need of a comprehensive and coherent
national wetlands program that protects vital wetlands from destruction,
allows for the delivery of essential public services, minimizes burdens on the
small business community, and enhances the overall quality of life. NUCA
believes that federal decision-making power regarding wetlands management
should be consolidated under the auspices of a single agency — preferably the
U.S. Army Corps of Engineers. Wetlands should be clearly defined, classified,
mapped, and indexed. The level of protection for each classification should
correspond to its ecological value. Lands of marginal ecological value should
not be regulated. Permit application procedures should be streamlined and
include a reasonable deadline for permit decisions. An administrative appeals
process should be established to handle permit denials, administrative
1651
penalties, and Jurisdictional disputes. While NUCA supf>orts reform of federal
wetlands manstgement. we are very concerned that congressional consideration
of the wetlands issue will substantially delay or even preclude reauthorization
of the Clean Water Act during the 103rd Congress. The wetlcinds reform debate
must not hold the cleein water construction program hostage.
m. CLOSING
At NUCA, we suspect that federal funding for clean water facilities is
more important to the families of this country and the future of this country
than much of the domestic discretionary budget. The need for Increased
capital funding and new sources of funding cannot be emphasized enough.
We commend this Subcommittee's determination to reauthorize the
Clean Water Act by the end of this year. S. 1 1 14 is a good starting point for
discussion, and we appreciate the opportunity to present the views of the
underground utility construction Industry.
# # #
1652
TESTDOff
OF
WILLIAM B. SCHATZ
General Counsel
Northeast (Siio Regional Sewer District
Cleveland, (ftiio
BEFORE
THE
SENATE ENVIRONMENT AND PUBLIC WORKS CGMaiTEE,
SUB-C0M4ITTEE OH CLEAN WATER, FI91ERIES AND WILDLIFE
August 4, 1993
1653
Mr. Chairman and members of the Committee, I appreciate the
opportunity to present testimony to you today. My name is William B.
Schatz, and I am the General Counsel of the Northeast Ohio Regional Sewer
District. Our wastewater treatment agency collects and treats the
wastewater for the residents and industries of the City of Cleveland and
some 50 other communities in the northeast Ohio area. We were created by
an Order of the Cuyahoga County Common Pleas Court in 1972. Since that
time, the District has spent over $1 billion on construction projects to
upgrade and improve water quality in the greater Cleveland area. One of
the results of these efforts has been the tremendous improvement of water
quality in Lake Erie and the Cuyahoga River.
The District owns and operates three major facilities within its
service area. The Westerly Wastewater Treatment Plant, vhich is on the
Lake Erie shoreline west of Cleveland, was rehabilitated and converted to
a physical chemical treatment process commencing in 1974. The District's
overall expenditure exceeded $120 million for the iq>grade of this 50
million gallon per day facility. Much of the facility was financed in
part by the use of USEPA construction grant funds.
The process selected by the District was one ^ich was touted by
USEPA during the late 1960s and early 1970s as the technology of the
future, particularly for facilities vdiich treated high cmcentrations of
industrial wastes. Rather than utilize conventional biological
treatment, the process relied on removal of the solids through sand
filters and carbon adsorption. During the course of construction, a
number of problems were encountered both with the various {biases of the
1654
Page 2
process and with certain equipment.
Through the early and mid 1980s, the District diligently dealt with
construction and equipment problems and committed to the successful
operation of the facility. After spending additional funds to change
components of the system and process, a study of the facility was
undertaken in 1989 to ascertain if the process would work. The study
concluded that the process was fundamentally flawed and would not enable
the District to meet its NPDES permit limits for the Westerly treatment
works. The District then decided to abandon and remove portions of the
plant related to the physical chemical process and install a conventional
biological facility with aeration and trickling filters.
A consulting engineer was retained by the District. After two
years of design effort, construction commenced with a contract for site
preparation. Three new contracts were let this year to upgrade the
facility, and construction is now underway to convert the plant into a
biological treatment operation. The cost of the actual conversion to a
biological process is approximately $35 million, although with
engineering and other costs incurred by the District, the overall cost
will be several million dollars.
In addition, USEPA has brought an enforcement case against the
District because the plant does not meet its effluent limits. The
District has asserted a defense in this litigation with USEPA, claiming
that it relied on the technology then touted and urged upon the District
by USEPA. Also, auditors of the Office of the Inspector General during
the construction grant close-out audit have set aside those portions of
1655
Page 3
the total cost funded with USEPA construction grants that are related to
the flawed technology. This set aside means that the funds might be
declared as eligible after the plant has been converted to a biological
process and then meets its permit limits.
I appear before you today to request your assistance in obtaining
recognition of this problem, and acknowledging the need for an
authorization of an amount not less than $35 million to assist the
District in the reconstruction of this facility. This request is made
with the caveat that there should be some fundamental fairness in the
manner in which the users of the District's system are treated when they
rely on representations made by the Federal government.
The rationale is that the District did rely on technology at this
facility that was recommended and approved by USEPA. Without exception,
other facilities constructed using this technology have all been
converted to another process or otherwise rehabilitated. Several have
received assistance through additional USEPA construction grants, which
are, however, no longer available to our District or other agencies.
Arguably, had this facility been funded at the time when innovative or
alternative construction grant funding was available, the facility would
have qualified for such funding. Thus, the result of the failure of the
process would provide that USEPA participate with funding at a level of
loot to rebuild the flawed technological portion of the treatment works.
The Westerly Wastewater Treatment Plant was the largest application
of the physical chemical treatment technology in this country, and of
course the largest facility \Aiich was unable to meet permit limits. The
1656
Page 4
District spent several years and millions of dollars of its own
additional funds to try to make this facility achieve its permit
requirements. Now, the District must not only face the burden of the
reconstruction of this facility, but must defend the lawsuit brought by
USEPA. While we recognize that funding of specific projects in today's
legislative environment is difficult because there are fewer
discretionary funds available, we believe that this situation is so
unique that it cries for the relief we request. We also seek through
legislation an acknowledgement that the District's problem of permit
noncompliance is not of its making, and given the fact that USEPA
participated in the selection of and urged the flawed process, no civil
penalties should be assessed against the District.
In closing, I again would like to thank the Chairman and members of
the Committee for your time. I would be pleased to provide any
additional information for your consideration. I once more urge that the
citizens of northeast Ohio receive the fair treatment to vAiich they are
entitled caused by this mistake, and that they not have to shoulder alone
the burden of the cost of the change of this process.
1657
NORTHWEST
MARINE TRADE
ASSOCIATION
^^P^^l Mariner's Square
■L 4^H Suite 233, 1900 N. Northlake Way, Seattle. Washington. 98103-9087
■ mYtB (206)6340911
^J^^ (206) 632-0078 Fax
^^^H (503) 283-1719 (Portland)
Augusts, 1993
Comments of the Northwest Marine Trade Association
onS. 1114
The Water Pollution Prevention and Control Act of 1993
Provided to the Subcommittee on Water Resources
Committee on Environment and Public Works
United States Senate
Thank you for the opportunity to submit this writtoi testimony for the record.
Our Association, r^resenting over 1,000 member firms in the Pacific Northwest,
supports the goals of this reauthorization of the Federal Water Pollution Control Act.
The recreational boating industry is dependent on clean water for boating, fishing,
sailing, diving, and other activities engaged in by boaters throughout our nation.
Boatyards, marinas, and boatbuilders in the Northwest have made a strong
commitmoit to achieving compliance with the current provisions of the Clean Water
Act. This compliance effort has been expensive to implement, necessitating an increase
in costs to the end users, and the boaters thenudves. Unfortunately, the price being
paid by boaters, and the efforts of our industry along with other point source pemat
1658
holders, have not resulted in an acceptable level of water quality. Nonpoint pollution
has now been identified as the major contributor to water quality degradation and S.
1 1 14 begins to address this source of pollution.
NMTA concerns with the bill include the following:
Section 501 permit fees. Our concern is not with the fees but the lack of fiscal
accountability levied upon the states in regard to collecting and administering the fees
collected. The bill requires funds be spent only on water quality programs, but does not
provide methods of insuring a state's program is run efficiently or that funds are spent
wisely. Also lacking is some form of permit fee relief for reducing or eliminating all
pollutants from a permit holder's discharge. Washington State's entire water quality
program is fiinder 100% by fees paid by businesses. This current biennium, Washington
will be assessing over 20.7 million dollars in permit fees on approximately 2,300 permit
holders. Some small companies may see fees for a general storm water NPDES permit
run from $900 per year to a high of over $100,000 per year. Industrial or process
NPDES permit fees may begin at $500 and run to well over $100,000 per year. When
a state or state agency ceases looking at fees as an offset to the cost of administering the
water quality program and begin to look to fees as their sole funding source, then fees
have ceased being fees and become in fact taxes for operating a business that utilizes
and discharges water for producing a product or service. If section 501 does not
provide for a level of fiscal accountability in an agency, then the cost to businesses all
over our country will continue to climb unchecked. Fiscal responsibility must be
included in this section of S. 1114.
1659
Section 304 requires the Environmental Protection Agency to create a National
Program Guidance which sounds identical in nature to the recently implemented 6217
nonpoint guidance manual implemented under the Coastal Zone Management Act.
Representatives of our industry spent significant effort working with EPA and NOAA in
attempting to create a program within 6217 which would work in our waterfront marine
facilities. The final guidance under 6217 is still flawed in its limited approach to
addressing nonpoint pollution in our marinas and boatyards. The new program
envisioned within S. 1114 appears to provide the needed flexibility lacking in 6217 and
would make compliance easier for our industry. What must be done is to provide
within the law a manner for the States to select which program they wish to administer.
Applying two separate but similar programs through two different federal agencies will
only lead to confusion and poor implementation of both programs.
Section 502(f) requires the Administrator of EPA to draft regulations which
would require a permit applicant to characterize the nature of their effluent discharge
and the contribution of that effluent to the receiving waters. We can support the
requirement to identify all the constituents within an effluent discharge, but many small
business operators lack sophistication in the permitting process and will be unable to
relate their discharge to the makeup of the receiving waters. To contract with a
consulting engineering firm to accomplish this requirement will be quite expensive. A
manner of achieving the desired goal of the bill within the level of knowledge and skill
of small dischargers needs to be found.
1660
Finally, section 302 would create a comprehensive watershed management
program for the nation. We support this approach to pollution prevention because it
appears to bring both point and nonpoint source reduction into proper focus. There is
concern though that the watershed planning process would result in different rules,
practices, fees, and requirements for each watershed. A boatyard in one watershed
would not be able to provide services available on other watersheds or the service
charges would differ due to higher fees or more expensive pollution abatement
requirements. For marinas (moorage facilities), the regulations and practices could vary
from marina to marina based on which watershed the facility is located upon. This
would offer unfair competitive advantages to one over the other. In many cases this
problem already exists between states with differing regulations. Because boats may
sail easily from place to place, the regulations governing their use, moorage, and repair
must be similar if everyone is to understand their responsibilities and to prevent flight
from watershed to watershed and provide equity among businesses in different
watersheds.
An important component of the bill is education. As pollution prevention is
applied to smaller and smaller businesses, the ability to comply becomes much more
difficult. First and foremost is the total lack of knowledge of a law to be complied
with. Secondly when a business learns of a requirement's existence, it has little or no
idea of what it should do. But because small business people are closer and more
involved in their respective communities than most large corporations, they have a
greater sense of responsibility to their communities' s well-being. Awareness of
1661
environmental responsibility and the sense of duty to protect our environment is created
by education and information not by laws in a book.
The recreational boating industry, its service providers, and boaters, along with
representatives of the Sea Grant program and the environmental community, created a
plan for a national education program for marina and boatyard operators throughout the
country. The "CleanMarina Program," administered by the International Marina
Institute and directed by an industry committee would provide a comprehensive water
quality peer group educational program. The "CleanMarina Program" would fit the
spirit of the educational efforts prescribed in S. 1114 and would provide workshops and
pollution prevention materials within two years of funding. We urge the Committee to
include a provision in the bill for the support of the boating industry's "CleanMarina
Program" and to support its passage. A "CleanMarina Program" proposal is attached.
Northwest Marine Trade Association supports the effort of the Environment and
Public Works Committee in attempting to fmd solutions to our nations water quality
problems. We hope these comments will assist the Committee in making this
reauthorization process one that is truly effective and economically achievable.
Thank you for considering our comments. Questions may be addressed to Hal
Schlomann (206) 634-0911.
1662
^^C## \n>^= c/o National Association of PhotograpUc Manufacturers, Inc.
^CCAUTtCNM
550 Mamaroneck Avenue, Harrison , New York 10528
Telephone (914) 698-7603
Fax (914) 698-7609
Amcfican HoipiUl AstodaUon
Amcricaii Sodcty for Phatogrammctiy
and Remote Sensing
AModatkM <rf anema
and Video Labontorie*
Astodalion of Professional
Coior Laboralorie*
Assodatioa for Information and
Image Management
City of Albuquen|ue
Gnphic Alts Assodation
Graphic Arts Technical Foundation
International MbiNab Assodation
International Predous Metals
Institute
Manufacturing Jewelers and
SHversoiiUis of Amcsio, Inc.
National Assodation tt Photo
Equipment Technicians
National Assodation of
Photographic Manufacturers
New Mexico SUvcr Users Association
Photo Marfcetbig Assodation
International
Photographic Manufadurers and
Distributors Assodation
PrInthig Industries of America
Professional Photographers of America
Professional School Photographers
of America
SSver Institute
Silver User* Assodation
Sodcty of Photo Hnishfaig toghiecfs
Society of Photographic Counsctor*
Tea* Enviranmcnial AMiary Conndl
The Sadety for Inughig Sdence
and Tedinology
September 27, 1993
Senator Bob Graham, Chairman
Subcommittee on Clean Water,
Fisheries and Wildlife
United States Senate
Washington, DC. 20510
Re: Clean Water Act Reauthorization
Dear Mr. Chairman:
Forwarded for inclusion in the record of the proceedings of your
subcommittee is my statement on behalf of the Silver Coalition,
an ad hoc group of trade associations, technical societies and
governmental agencies that are vitally affected by environmental
regulations on silver.
Unnecessary and biu'densome silver regulations are adversely
affecting photofinishing, medical, dental and mdustrial motion
picture developing, pnnted circuits, manufacturing, surveying,
land use planning and other systems that utilize silver as the image-
capturing ingredient.
We look forward to working with your staff and appreciate the
cooperation and willingness to listen that has ah-eady been
demonstrated.
Sincerely,
Thoma^'J. DufiScy '^
Executive Vice President
TJD:jb
Enclosure
1663
WRITTEN STATEMENT OF
THOMAS J. DUFFICY
NATIONAL ASSOCIATION OF PHOTOGRAPHIC MANUFACTURERS
ON BEHALF OF
THE SILVER COALITION
BEFORE THE
U.S. SENATE COMMITTEE ON ENVIRONMENT AND PUBUC WORKS
SUBCOMMITTEE ON CLEAN WATER, FISHERIES & WILDLIFE
SEPTEMBER 15, 1993
Mr. Chainnan, thank you for the opportunity to present this testimony for the
record of your hearings on the reauthorization of the Clean Water Act. I also want to thank the
Conunittee staff for their attention in meeting with representatives of the Silver Coalition about
our interest in the Clean Water Act and our suggestions for legislation.
The Silver Coalition is an ad hoc group of trade associations, technical societies
and governmental agencies that are vitally affected by environmental regulations on silver. In
particular, the Silver Coalition is interested in the water quality standards for silver that result in
efQuent limitations and pretreatment requirements based on those standards.
The Silver Coalition has been working for some time with the Environmental
Protection Agency on these questions, including extensive technical and policy discussions of the
appropriate water quality criteria for silver. The Coalition seeks to have the criteria and State-
adopted standards reflect the latest scientific information on the potential toxicity of various forms
of silver, rather than base such standards on total recoverable silver. The Agency has been
responsive in these discussions, and appears to be moving in a positive direction in recent
guidance documents. In order to support this movement, and to provide appropriate relief to
silver users while these changes are being implemented, the Silver Coalition has identified some
areas for possible legislative action.
Background
Currently, over fifty percent of the silver used for industrial purposes in the United
States is used in the manu&cture of photographic materials. Electrical and electronic product
manufacturing accounts for approximately twenty-five percent; sterling ware, electroplated ware
and jewelry manufacturing accounts for approximately twelve percent; and brazing alloys and
solders manufacturing accounts for about five percent.
The ability to communicate rapidly - "a picture is worth a thousand words" -
makes photographic ima^g a vital part of people's daily lives, and has greatly enhanced our
ability to study the Earth through aerial photography and to assess the need for medical treatment
1664
of injuries and disease through x-ray technology. Photoprocessing activities occur at a variety of
industries including photofinishing, medical, dental and industrial radiography, graphic arts and
printing, motion picture developing, high-tech printed circuit manufacturing, surveying and land
use planning, and a variety of specialized imaging applications, as well as at government agencies..
It is estimated that these processes are conducted at more than 550,000 facilities in the United
States. These include over 320,000 health care facilities such as hospitals, dental ofiBces, and
veterinary clinics. Also included are ahnost 50,000 non-commercial facilities including
photofinishing labs, graphic arts shops, and motion picture studios.
Exposed photographic films or papers must be processed through an on-site
photoprocessing facility or use an outside commercial processing laboratory to produce an image
for subsequent viewing or printing. After processing, photographic films or papers are then rinsed
in cascading water washes to remove the remaining photographic developers. Over the past
twenty years, research & development eflForts have greatly reduced the chemicals usage needed to
proce images, in some cases by over 90%.
The remaining processing solutions containing silver can be treated in silver
recovery equipment to remove 99% of the silver for later refining and reuse. Silver reclamation is
profitable for photoprocessors and is supported by a competitive marketplace which purchases
reclaimed silver. Normally, after the removal of silver by recovery units, the processing solutions
and spent wash waters are discharged to municipal wastewater treatment systems.
All conventional photoprocessing methods will generate silver-bearing wastes.
The silver in the films and papers is removed during processing and will primarily be present in the
photographic fixer solutions. These silver-bearing solutions are normally treated on-site with
silver recovery techniques, typically electrolytic, metallic replacement, ion exchange, chemical
precipitation or combinations of these. The treated fixer is then combined with the other
processing wastewater and sent to a publicly owned treatment works (POTW) for further
treatment. EPA data show that over 97% of the photographic films and papers used in the United
States are processed in facilities utilizing silver recovery. Over 99% of the silver in spent silver-
removal processing solutions is easily and economically recoverable. Any trace quantities of
unrecovered silver remain in process wastewaters which are sent to POTWs for additional
treatment. Silver is not typically recovered fi'om wastewater treatment sludges fi'om POTWs
because of relatively low concentrations in the sludge material.
Because silver is a precious metal, photoprocessors and other silver users have a
powerful incentive to minimize the discharge of silver. EPA first studied silver discharges fi'om
photoprocessing facilities as part of its responsibility to establish industry-wide efiQuent guidelines
and categorical pretreatment standards. Their data showed that over 99% of their discharges
were to POTWs, with few direct dischargers to rivers or streams. As a result of these studies,
EPA concluded that the economic benefits of silver recovery drove most dischargers to install in-
process control equipment; and therefore. Best Available Technology (BAT) levels are being
achieved in this industrial category. In 1981, EPA decided against establishing a categorical
pretreatment standard for photoprocessors as unnecessary. Since then, a number of process
improvements have been implemented in the photoprocessing industry to conserve water and
improve efiQuent quality further.
1665
Improved Water Quality Science: Limited Toxicity for Silver
In laboratoiy toxicity tests, free silver ions can result in aquatic toxicity. In fact,
silver is used in some water supply systems as a disinfectant because of the toxicity of the free
silver ions. Some weakly-bound silver complexes may exhibit aquatic toxicity in the laboratory.
In the real world, however, the toxicity of silver is &r less than can be created in the laboratory.
EflBuent streams from photoprocessors and most other silver users do not contain toxic forms of
silver. Under conditions in the natural environment, dissolved silver in a waste stream quickly
reacts with naturally occurring substances or sediments to form silver compounds with
substantially reduced toxicity - in some cases, almost 1 million times less toxic than the free silver
ion. Silver is also known to cause no human health effects. This &ct was recognized by EPA's
Office of Drinking Water in the deletion of the primary maximum contaminant level (MCL) for
silver in January, 1991.
EPA's current water quality criteria for silver are based on data collected over 15
years ago and were first published in 1980. These criteria were later incorporated into the
Agency's "Gold Book". The acute criteria were hardness based, about 4.3 ug/1 for a 100 mg/1
hardness water. EPA decided against establishing chronic criteria because the long-term exposure
data were difficult to interpret and the acute criteria appeared to be fully protective of long-term
exposures. In 1990, EPA published a new draft Silver Criteria Document that proposed chronic
water quality criteria. However, the issues cited in the 1980 document remained unresolved, and
as a result of public comment, the 1986 "Gold Book" criteria for silver (acute only) were retained.
As required by the 1987 amendments to the Clean Water Act, States were moving
to set water quality criteria for listed toxic pollutants, including criteria for silver. Unfortunately,
many States adopted, in some form, the 1990 draft silver criteria, although they were never made
final. To prevent fiirther confiision, in June 1992, EPA cleariy stated that there was no Federal
chronic criteria for silver and the Agency did not encourage States to establish their own chronic
standard (this was communicated by a letter from Mr. Tudor Davies to EPA Regional offices and
State Water Directors). In the final National Toxics Rule (December 1992), EPA formally
retained the 1986 "Gold Book" acute criteria for silver, deleted the human health criteria, and
again declined to establish chronic criteria.
Over the same time fiwne, the scientific community has been actively advancing its
knowledge of the fate and effect of silver in the environment. Scientists have studied both the
impact of water chemistry on silver's toxicity Oe., chemical speciation), as wdl as alver
interactions with particles, such as silts and clays (i c, particle adsorption). Silver's intrinsic
reactivity makes it quickly combine with natural organics or sulfides or strongly bind with
particles to form far less toxic (non-biologically available) chemical forms.
In addition, new "clean sampling" and analytical methods and improved filtration
techniques are revolutioniziiyg water chemists' understanding of the actual bdiavior of metals in
the environment, including that of silver. Almost all of the past daU collected on metals is now
suspect and may provide little, if any, help in determining appropriate discharge rates for metals.
Some scientists refer to this as a renaissance era for the study of metals. Unfortunately, as a 1992
report by EPA's Science Advisory Board (SAB) states, "... the importance of chemical
1666
speciation and biological activity is being ignored ..." in the determination of water quality
criteria and standards. The diflBculty lies in translating the laboratory-derived silver water quality
standards into the real world. Presently, the use of the Total Recoverable Metals (TRM)
analytical method means that all forms of silver are treated as equally toxic. This results in over-
regulation.
EPA's conference on metals in the environment in Annapolis, Kfaryland (January
1993) reached a similar conclusion to that of the SAB, where the great majority of scientists
recommended that dissolved metals be used as one tool in setting water quality standards, rather
than total recoverable metals. An EPA summary of the conference, published in the Federal
Register on June 8, 1993, said "the dissolved metal concentration better approximates the
bioavailable frartion of waterbome metals than the total recoverable concentration of metals.
On balance, the assembled experts at the workshop reconunend that the existing water quality
criteria values be applied as a dissolved metal concentration as the dissolved metal concentration
is currently the better estimate for bioavailable metal fractions." EPA will soon publish a guidance
document advising Regional Offices and State Water Directors that water quality standards and
criteria for metals such as silver can be interpreted to be measured in terms of dissolved metals
Problem Statement
The impact of the States' premature adoption of these very low sDver water quality
standards, resulting from an outdated view of silver's toxicity, is now being felt as POTW permits
are established and overly restrictive pretreatment limits are being enforced. Stringent water
quality standards resulting from EPA's proposed (but never promulgated) criteria have caused
municipal wastewater treatment systems, in turn, to establish strict pretreatment standards for
total silver - not just the toxic free silver ion forms - in order to comply with their newly revised
discharge permit limits. (See the attached diagram.) Many pretreatment limits have been set at
0.1 mg/l (or 100 ppb) or below (or at the limit of detection for the POTW), which cannot be
consistently met with current silver recovery technology or other treatment equipment available
for most photoprocessing facilities. Using state-of-the-art electrolytic and metallic replacement
equipment, silver concentrations can be reduced by 99%. However, to achieve a 0. 1 mg/l or
lower pretreatment standard, all of the used photochemicals and wash waters must be
containerized and transported off site for further treatment. The Silver Coalition is aware of many
cities where this is occurring or has been threatened, including Atlanta, Reading and other
communities in Pennsylvania, and cities in Florida, Texas and New Mexico.
It is estimated that over 550,000 photoprocessing facilities in the United States will
be affected by the stringent regulation of silver. These facilities employ nearly 3 million people to
operate and maintain photoprocessing equipment, and support millions of additional jobs
associated with the conduct of their primary business.
To establish a general understanding of the potential costs associated with varying
degrees of control for silver, the Silver Coalition estimated the monthly discharge volumes by type
of facility and calculated the cost of achieving four different pretreatment standards. The analysis
of these case studies shows the potential capital costs facing the photoprocessors in the U.S. runs
from a low of $65 million to a high of $25 billion if the most stringent standards are imposed.
1667
Increased annual operating costs could reach SIO billion. As standards are tightened, the rapidly
escalating costs have a profound effect on the photoprocessing industry. Smaller photoprocesstng
businesses will be forced to drop-out and the industry will become centralized, controlled by a
fewer number of large players. The larger, surviving fiunlities have a greater potential to afford
the costly treatment equipment (both from a capital cost and operating/labor cost perspective), to
achieve the low pretreatment levels, or to deal with hazardous waste management standards.
Proposed Discharge
Limits (mg/1)
Projected Capital
Costs
(S million)
Projected Annual
Costs
($ million/year)
Facilities
Consolidated
due to Standards
No lower than S
65
45
negligible
Between 1 and S
11,300
3,200
60,000
Between 0.1 and 1
11,300
6,200
200,000
Less than 0.1
25,400
9,800
360,000
These costs are substantial and significant in financial and employment terms.
Implementation of the most stringent requirements could lead to the loss of more than 800,000
jobs. While some jobs would be created in the larger photoprocessing centers induced by the
regulation, the transportation sector, or treatment equipment &bricators, these jobs will not offset
job losses in the small business sector.
The consequences of these changes will be great. Photoprocessing &cilities in
small hospital x-ray departments (or dental offices) might close and require shipping of the
exposed film to centralized &cilities for processing. The increased turn-around time would
reduce the doctor's diagnostic capabilities and add to the total cost of health care in this country.
Many police department actions could be slowed as identification laboratories are centralized.
Newspapers and advertisers might require much longer lead times and deadlines. These trends
are in the wrong direction.
Many regulatory agencies and the public at large will be adversely affected, as
well. The availability of tax dollars is limited. The inappropriate regulation ofsilver means that
Federal, State, and local regulatory agencies are spending time and resources controlling tk-
minimis risks from silver-bearing discharges and wastes which could be devoted to more
important problems.
1668
Recommended Changes to the Clean Water Act
The underlying water quality science for silver has been evolving rapidly over the
last five years. Researchers now know that silver rapidly combines with naturally-occurring
substances and sediments to form far less toxic complexes. They also have shown that laboratory
tests using the most toxic form of a metal do not provide realistic estimates of field conditions.
Various studies have shown that silver's toxicity is greatly moderated after use in
photoprocessing, reduced even more after biological treatment at POTWs, and any remaining
impact is quickly eliminated upon discharge into the environment.
Unfortunately, EPA's and the States' current regulatory structures are not well
equipped to respond to this new scientific knowledge. If left unchecked, compliance with ever
tightening POTW pretreatment limits driven by over-protective silver water quality standards wall
result in billions of dollars in expenditures and affect thousands of jobs with little, if any,
environmental benefit.
During the reauthorization of the Clean Water Act, the Congress has the
opportunity to make changes to the Act's statutory fi-amework to assist EPA in improving its
water quality and pretreatment program for silver. The Silver Coalition recommends that
Congress consider the following changes to the Clean Water Act:
1. EPA, with support from the Science Advisory Board, should expeditiously update
the water quality criteria for silver to reflect its bioavailability and toxic species.
2. States need to receive EPA's assessment, including the SAB findings, and carefiiUy
consider this information during their update for silver water quality standards
during the normal triennial review cycle.
3. An interim extension provision is needed in the Clean Water Act to prevent out-
dated water quality standards from imposing large costs on hospitals, dental
ofiBces, printers, photographic laboratories and other silver users which will result
in little, or no, environmental benefit.
Further Explanation of Recommendation #1
EXPLICITLY RECOGNIZE THE SPECIATION OF SILVER - Section 304 should be
modified to allow EPA to explicitly recognize the speciation of silver in the development of its
water quality criteria. The scientific underpinnings are now available for EPA to establish
targeted criteria using bioavailability information rather than today's total metals methodology
which considers all forms of silver to be equally toxic.
The water quality criteria for silver need to be comprehensively revised, based on
input from EPA's own scientists as well as review by the SAB. Current silver water quality
criteria are based on test results undertaken over 15 years ago, conducted in pure, laboratory
water conditions with a silver compound, silver nitrate, that readily dissolves to free silver ions.
As expected from this type of testing protocol, the observed toxicity was very high since fi-ee
silver species were present. Other scientific studies simulating realistic field conditions have
1669
shown that silver nearly instantaneously combines with other naturally-occurring substances to
form much less toxic compounds, which are not bioavailable to fish and other aquatic organisms.
One commonly found compound, silver sulfide, was approximately one million times less toxic
than fi-ee silver ions.
To make matters worse, water quality criteria and standards are derived firom
testing of fi'ee silver ion while compliance monitoring tests regulate all forms of silver through
total silver measurements, as if all silver species are equivalent in toxicity to fi'ee silver species.
Most States have followed EPA and taken this approach. Only New York and Texas have
adopted water quality standards based on the fi'ee, ionic form of silver. EPA's National Toxics
Rule (required by the 1987 Clean Water Act amendments) has now implemented EPA's
"guidance" silver criteria in 1 1 states and 2 territories. Extensive comments have been filed by the
Silver Coalition and its members documenting concerns with EPA's water quality criteria for
silver and aspects of the National Toxics Rule, urging recognition of the lack of bioavailability of
silver compounds.
EPA's own experts support the Silver Coalition's point-of-view, as noted above.
EPA is moving in the right direction, but a well-defined schedule is needed to fiunlitate the
involvement of both the States and the regulated conununity in this revision of alver water quality
criteria and related requirements. This schedule is important, as these revisions are very time-
critical to a£fected health care &cilities and other sectors of the photoprocessing industry, because
existing regulatory processes are moving forward in many States without having this new
scientific information taken into account.
The Silver Coalition legislative proposal calls for the Science Advisory Board to
summarize the current science of metal speciation and bioavailability, including that for silver,
within a specified time. At the conclusion of this evaluation, EPA would then be required to
propose any appropriate changes in their water quality criteria within a second specified period.
Further Explanation of Reconunendation #2
REQUIRE STATES TO CONSIDER ADVANCEMENTS IN WATER QUALITY SCIENCE -
Section 303 should be amended to require States to consider advancements in water quality
science during their triennial water quality standards review.
Upon completion of the SAB report and EPA's water criteria modifications. State
environmental agencies would then review both actions to determine appropriate changes in their
water quality standards during the normal triennial review process required by Section 303 of the
Clean Water Act. Following review and comment. State water quality standards for silver could
then be updated to reflect the substantial advancements in water quality science.
The Silver Coalition legislative proposal, however, reserves the authority of the
Administrator to issue guidance at any time that makes current water quality criteria and
standards more reflective of good science, by allowing the use of a dissolved metal concentratioa
in determining compliance with a water quality standard or establishing effluent limitations.
1670
Further Explanation of Recommendation #3
PROVIDE INTERIM DELAY IN "BEYOND BAT" REQUIREMENTS FOR WELL-
CONTROLLED SILVER SOURCES - Section 307 should be modified to specifically allow
EPA or the States to postpone water quality standard-driven permit requirements, beyond Best
Available Technology Economically Achievable (BATEA), for silver for a period up to five (5)
years. This allowance will enable Federal and State agencies to fully consider the state-of-the-
art on silver's fate and effects in the environment In those instances where postponement
occurs, it will be conditioned on a Code of Management Practices developed and approved by
the POTW and State agency to assure the maximum recovery and minimum release of silver by
photoprocessors or other silver users.
Stringent water quality limits based on total silver require POTWs to impose
pretreatment standards well beyond the capability of the BATEA used in the photoprocessing
industry segment. While removal of small amounts of additional silver can be accomplished by
imposing such low pretreatment levels, the costs incurred bear no reasonable relationship to the
resulting environmental benefits. In fact, it appears that any benefits are outweighed by new
environmental concerns raised by alternative treatment. Wash water treatment facilities require
the use of corrosive acids and bases in small business settings, and haul-away results in additional
diesel air emissions to transport solutions to regional treatment sites. These approaches are also
very expensive.
To allow the advances in water quality science to be properly incorporated into
silver water quality criteria and standards, a temporary relief mechanism is needed. This will
prevent the current standards and unachievable pretreatment requirements based on them fi-om
driving out small businesses, increasing the cost of health care, and adversely affecting many local
economies. As part of the Clean Water Act reauthorization, the Silver Coalition is recommending
that EPA and delegated States be authorized to temporarily suspend "beyond BAT" water quality
based permit limits for POTWs and the related requirements for indirect dischargers, for a period
up to 5 years.
The Silver Coalition recognizes, however, the importance of maximizing the
recovery of silver and minimizing its release to the environment. Working with representatives of
POTWs, States, and EPA, the members of the Silver Coalition will prepare a model Code of
Management Practices to clearly define:
1. The Best Available Technology Economically Available methods and practices that
should be used in each segment of the photoprocessing industry, fi-om hospitals,
dental offices, and photographic laboratories, all the way to 1-hour mini-labs in
shopping centers.
2. Water conservation measures that should be employed to reduce wastewater
discharges to POTWs.
3. Installation and use of recovery equipment to maximize the recovery of silver.
1671
4. Operating and maintenance practices that will assure the most consistent
performance of this equipment.
This generic model can then be used in individual permits as necessary where
water quality standards will otherwise cause individual POTWs to impose pretreatment limits
where the costs to be incurred will bear no reasonable relationship to the projected environmental
benefits.
After 5 years, a complete cycle of the States' triennial water quality standards
review will have occurred. Once State water quality standards are re-considered and
appropriately updated, this interim provision will then lapse.
The Silver Coalition recommends that these changes be incorporated into any
legislation reauthorizing the Clean Water Act. These proposals will allow adjustments to the
water quality and pretreatment program for silver, reflecting our latest scientific knowledge about
silver in the environment and its relative toxicity. They will allow us to avoid billions of dollars in
unneeded expenditures, without any risk to the environment.
69-677 0-94-54
1672
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1673
Recommended Changes to the Oean Water Act
Proposed by the Silver Coalition
1) Statutory recognition ofspeciation and SAB study (amendments to section 304(a)):
Sec. . Section 304(a)of the Clean Water Aa is amended by adding the following
new paragraph:
"(9XA) The Science Advisory Board shall conduct a review of the latest scientific
knowledge as to the relationship between the species of metal, its bioavailability and the potential
for toxicity, and the desirability of modifying water quality criteria to reflect that knowledge by
using measurements of dissolved metal concentration or of toxic species of metal rather than
measurements of total recoverable metal. Such review shall be completed, and the results of such
review submitted to the Administrator and the Congress, as expeditiously as practicable but not
later than December 31, 1994, or six months after the date of enactment of the Clean Water Act
Amendments of 1994, whichever first occurs.
"(B) Not later than six months after the date of receipt of such results, the
Administrator shall take such action as may be appropriate to incorporate the results of such
review into water quality criteria published under this subsection. In particular, the Administrator
shall modify such water quality criteria for silver, if necessary, or publish information as to the
interpretation of such criteria for silver, to reflect the latest scientific knowledge as to the
relationship between the species of silver and the potential for toxicity, using measurements of
dissolved silver or of toxic species of silver rather than measurements of total recoverable silver.".
2) Incorporate advances in knowledge on metab toxicity into triennial review process
(amendments to section 303(cX2)):
Sec. . Section 303(cX2) of the Clean Water Act is amended by add'mg the
following new subparagraph:
"(C) Whenever a State reviews water quality standards pursuant to paragraph (1)
of this subsection, or revises or adopts new standards pursuant to this paragraph, such State shall
adopt criteria for silver that reflect the latest scientific knowledge as to the relationship between
the species of silver and the potential for toxicity, using measurements of dissolved silver or of
toxic species of silver rather than measurements of total recoverable silver, in accordance with
guidance published by the Administrator under section 304(aX9). As part of such review, such
State shall identify any substantial and widespread economic and social impact that is likely to
resuk fi-om a decision not to adopt, or fi-om a decision to adopt, such revised criteria or
measurements, and shall provide an opportunity for public comment on such information. Such
identification and opportunity for comment shall be deemed to satisfy subsection (dX4), and any
modification of any effluent limitation resulting fi-om the adoption of criteria under this
subparagraph shall not be subject to section 402(o). Nothing in this paragraph shall be construed
to limit or delay the use of any guidance of the Administrator interpreting water quality criteria to
allow the use of a dissolved metals concentration measurement or similar adjustment in
determining compliance with a water quality standard or establishing effluent limitations.".
1674
3) Provide relief to indirect disdimi^gen complying with a Code of Management
Practices as weO as a BATEA-based pretreatment standard, and on a temporary
basu to the POTW with water quality-based effluent limiutions
(amendments to section 307(b)):
Sec. . Section 307(b) of the Clean Water Act is amended by adding the
following new paragraphs:
"(S) The Administrator, or the State in the case of a State with an approved permit
program under section 402(b), may modify the permit conditions and effluent limitations for any
publicly owned treatment works to defer for a period not to exceed five years compliance with
any effluent limitation derived fi'om a water quality standard for silver beyond that required by
section 301(bX2), notwithstanding the provisions of sections 303(dX4) and 402(o). Any such
modification and deferral shall be contingent on compliance with the applicable requirements of
paragraph (6) by all affected indirect dischargers into such publicly owned treatment works, and a
program of enforcement by such publicly owned treatment works and the State to assure such
compliance.
"(6) Any indirect discharger that b in a class of fiunlities for which a code of
management practices has been developed in accordance with subparagraph (B) shall not be
subject to any pretreatmem requirement for silver (including any local limit) based on an effluent
limitation for the publicly owned treatment works derived from a water quality standard for silver,
prior to the expiration of the period provided in paragraph (S), if such £acility—
"(A) is in compliance with a mass limitation or concentration level for silver
attainable with the application of the best available technology economically achievable for
such fiunlities, as established by the Administrator after a review of the treatment and
management practices of such class of facilities; and
"(B) is implementing a code of management practices for silver recovery,
operation, and waste management appropriate for the class of facilities of which such
fiidlity is a member, developed and adopted by representatives of such industry and the
publicly owned treatment works of major urban areas, in cooperation with the
Administrator and the States. Such code of management praaices shall reflect acceptable
industry practices to minimize the amount of silver introduced into publicly owned
treatment works or otherwise entering the environment fi'om such facilities. At a
minimum, such code of management practices shall address—
"(i) the use of the best available technology economically achievable, based
on a review of the current state of such technology for such class of fiicilities, and
of the effluent guiddines for such facilities;
"(ii) water conservation measures available to reduce the total quantity of
discharge from such &cilities to any publicly owned treatment worlcs;
"(iii) opportunities to recover silver (and other pollutants) from the waste
stream prior to introduction into any publicly owned treatment works;
"Ov) operating and maintenance practices for the process at such fiicilities
that minimize the amoum of silver introduced into public^ owned treatment works
and assure consistent performance of the management practices and treatment
technology specified under this paragraph.'.
1675
[Note: An example of how proposed section 307(bX6) is intended to work would
be a code of management practices for silver recovery and waste management, developed
and adopted by representatives ofthephotoprocessing industry and the publicly owned
treatment works of major urban areas, in cooperation with the Administrator and the
States. Such a code of management practices would reflect acceptable industry practices
in the photoprocessing industry to minimize the amount of silver introduced into POTWs
or otherwise entering the environment. Among other examples of appropriate
requirements, a code of management practices for the photoprocessing industry may
require—
CO all silver-bearing wastes, including fixers, bleach-fix solutions and
superstabilizers, to be treated in a silver recovery system;
(ii) management practices to assure acceptable loading rates fi-om the silver
recovery system and that no untreated solutions are discharged to the POTW;
(iii) the use of a wash water limiter or control system to limit water use to
the period when film is being processed, and to reduce water use to the minimum
levels sufficient for adequate washing;
Ov) adequate record-keeping as to the quantity of silver-bearing waste
generated, testing of the silver recovery system, and the quantity and destination of
any silver-bearing waste removed fi-om the premises other than by introduction
into the publicly owned treatment works;
(v) installation and use of any equipment or processing chemicals which
permit recycling or regeneration of spent solutions that become commercially
available, and for which the costs of installation and use bear a reasonable
relationship to the effluent reduction benefits.
For the purposes of this example, the term "photoprocessing facility" includes any health
care &cility, commercial photoprocessing or photofinishing facility, school or government
photoprocessing Eacility, printing fiuality, or graphic arts fecility, with respect to its
processing of photographic film or paper.]
1676
WRITTEN STATEMENT
OF THE
SYNTHETIC ORGANIC CHEMICAL MANUFACTURERS ASSOCIATION
TO THE
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
SUBCOMMITTEE ON CLEAN WATER. FISHERIES AND WILDLIFE
UNITED STATES SENATE
REGARDING
S. 1114 - THE WATER POLLUTION PREVENTION AND CONTROL ACT OF 1993
SEPTEMBER 30, 1993
1677
Synthetic Organic Chemical Manufacturers Association
Written Statement on
S. 1114 -- The Water Pollution Prevention and Control Act of 1993
I. INTRODUCTION
The Synthetic Organic Chemical Manufacturers Association (SOCMA) is
pleased to have the opportunity to submit this written statement to the July 1
hearing record on S. 1114, the Water Pollution Prevention and Control Act of
1993. Clean water is a goal that is strongly supported by SOCMA and its
members. However, S. 1114 is of particular concern to SOCMA because it
includes several provisions that SOCMA believes will impose costly burdens on
its members without improving water quality or public health. SOCMA is a
trade association serving more than 220 companies that have a common interest
in the manufacture, distribution and marketing of organic chemical products.
The majority of SOCMA' s members are indirect dischargers with annual sales of
under $40 million. SOCMA's member company operations are representative of a
much larger number of organic chemical manufacturers throughout the United
States.
SOCMA's members are typically batch chemical manufacturers which
produce organic chemicals used in thousands of products vital to
consumers and U.S. industry. More than 2,000 batch processing facilities
produce over 95 percent of our nation's 50,000 chemicals and polymers. This
unique niche in the chemical industry is innovative, entrepreneurial and
customer-driven. Batch manufacturers make smaller quantities of chemicals
which have specific performance applications. Batch processing is also used
for research and development projects. The chemicals and polymers produced
yearly in batch processes have a value in excess of $60 billion.
II. BACKGROUND
Much has been done in the past 25 years to improve the quality of the
nation's surface waters. The greatest improvement, by far, has resulted from
1678
SOCHA Statement
Page 2
the pretreatment of industrial wastewaters prior to their introduction to
publicly owned treatment works (POTWs) and from reduction and control of point
sources of pollution from industry and municipalities. EPA and others have
reported that point source discharges account for only about 25 percent (nine
percent from industry and 16 percent from municipalities) of today's pollution
of surface waters. SOCMA strongly urges Congress to enact laws that recognize
these accomplishments and that will bring all remaining sources of surface
water, including nonpoint sources, under equally adequate control.
III. THEMES TO BE INCORPORATED IN A CWA REAUTHORIZATION BILL
SOCMA believes that a reauthorization of the Clean Water Act (CWA)
without substantive changes in the law is the best course at this time.
Congress should allow the current law more time to be fully implemented before
mandating substantive changes to the existing program. However, since
S. 1114 has been introduced in the Senate and is the subject of hearings,
SOCMA would like to submit comments on this bill to the July 1 hearing
record, the subject of which was "toxics".
There are certain themes that SOCMA believes should be incorporated in a
CWA reauthorization bill, including: a focus on nonpoint source pollution; a
watershed management approach; voluntary pollution prevention programs;
national policy on mixing zones; and, permit fees for administering the
National Pollutant Discharge Elimination System (NPDES) permit program. Each
of these issues is explained in more detail below.
A. Focus on Nonpoint Source Pollution
SOCMA believes that a CWA reauthorization bill should focus on nonpoint
sources of pollution, since they are a significant cause of the nation's water
1679
SOCHA Statement
Page 3
quality problems. If EPA focuses attention and resources on nonpoint source
pollution, significant improvements in water quality can be achieved. Instead
of continuing to focus on point source control, Congress should use CWA
reauthorization as a meaningful vehicle to begin to substantially reduce the
nonpoint source problems.
B. Watershed Management Approach
SOCMA supports a watershed management approach to achieving water
quality. As EPA has testified, it can no longer be assumed that a national
approach will solve all local water quality problems. Problems differ from
watershed to watershed and proper solutions will also differ from place to
place. SOCMA suggests that a watershed management program be developed that
incorporates site-specific concerns.
C. Pollution Prevention
SOCMA strongly supports the concept of pollution prevention, and
embraces a philosophy of environmental risk reduction. There are methods for
achieving pollution prevention goals, including source reduction, in-process
recycling, recycling and energy recovery. SOCMA believes that an effective
pollution prevention program must provide companies with flexibility to meet
regulatory requirements and must recognize the large differences in product
mix, individual facility size and production among chemical manufacturers.
While SOCMA supports the concept of pollution prevention, it is important
to note that, given the nature of batch manufacturing operations,
quantification goals are inappropriate for this type of operation. A mandated
pollution prevention target may not be achievable for these operations which,
due to process changes and varying consumer demands, cannot forecast the
1680
SOCMA Statement
Page 4
feedstocks and processes which will be used to formulate their products.
Thus, SOCMA believes that any legislation addressing pollution prevention
should encourage development of site-specific multi-media pollution
prevention programs with progress being measured on a site-specific basis.
D. A National Policy on Mixing Zones
SOCMA believes that it would be beneficial to develop a national policy
that provides consistency in mixing zones between and among all states. The
policy should be developed in a way that includes sound science, peer review,
and widespread public comment. While SOCMA supports the development of a
national policy on mixing zones, we oppose a policy that would require
rigid standard approaches. Rather, SOCMA suggests that a national mixing
zone policy allow for site-specific flexibility based on risk.
E. Pemit Fees
SOCMA supports the concept of a permit fee and believes that fees are an
appropriate source of revenue for administration of the NPDES permit program.
However, levying a permit fee for purposes other than processing permit
applications is inappropriate. Additionally, SOCMA believes that any permit
fee should be proportional to the pounds of chemicals and other parameters
discharged by the facility, such as biochemical oxygen demand (BOD).
IV. PROVISIOHS OF S. 1114 THAT SOCHA OPPOSES
A. Process Changes and Product Substitution
SOCMA strongly opposes section 201 of S. 1114 which would require EPA,
in the development of Best Available Technology (BAT) standards, New Source
1681
SOCHA Statement
Page 5
Performance Standards, and Pretreatment Standards, to "rely on and require, to
the maximum extent practicable, source reduction measures and practices,
including changes in production, products, or raw materials". This language
imposes overly intrusive and unnecessary requirements on SOCMA's members, many
of which are batch processors.
Much of the U.S. chemical industry is shifting from large scale
manufacturing of chemical commodities to the manufacture of specialty products
specifically taylored to a particular customer or market niche. To be
successful, specialty product manufacturers must be able to respond rapidly to
customer demands. Sometimes only one batch of a product is ever made, or
there may be a brief or seasonal production campaign to meet a multi-batch
order. Because of the specialized nature of this segment of the industry,
batch chemical facilities are typically small, averaging fewer than 100
employees. It would be disastrous for the batch processing industry, which
produces over 95 percent of our nation's 50,000 chemicals, to be subject to an
EPA mandate that requires process changes and raw material changes. Section
201 is inflexible and inappropriate and would pose a serious threat to the
competitiveness of the batch processing industry.
B. Domestic Sewage Exclusion
SOCMA opposes the provision in S. 1114 that eliminates the domestic
sewage exclusion (DSE). Because this provision requires discharges of
chemicals that are not subject to an effluent guideline to meet Resource
Conservation and Recovery Act (RCRA) Best Demonstrated Available Technology
(BOAT) standards, many of SOCMA's members will be subject to standards that
their existing pretreatment facilities may not be able to meet. One reason
that these indirect dischargers may not be able to meet the RCRA BOAT
standards is because existing pretreatment facilities are designed to meet
1682
SOCHA Statewnt
Page 6
Clean Water Act Best Available Technology (BAT) limits, not RCRA BOAT
standards. Additionally, BAT limits take into account matrix interferences
that may occur as a result of the combined waste stream which are prevalent
in the batch processing industry. BOAT wastewater standards are based, in
contrast, on the treatability of individual hazardous waste streams, not the
combined waste stream.
Elimination of the DSE would be particularly disruptive to batch
processors which use biodegradable solvents such as acetone and methanol to
synthesize many complex and beneficial products. Despite the employment of
numerous pollution prevention techniques, it is virtually impossible to
guarantee that small releases of spent acetone and methanol solvents will not
enter a municipal sewer system. Small releases of water soluble solvents can
occur during water washing and other product purification steps.
The Clean Water Act provides the appropriate forum for the regulation of
hazardous waste in wastewater. SOCMA believes that most POTWs can properly
treat most of the waste streams which they now receive. The existing
mechanism for establishment of local limits will deal effectively with those
waste streams that a particular POTW can not handle properly.
C. Ban on Toxic Chealcals
SOCMA opposes the provision in S. 1114 that requires EPA to list "highly
toxic or toxic and highly bioaccumulative pollutants" and then to ban the
discharge of these pollutants. Because a "toxic" chemical is present, it does
not mean that the chemical is toxic to human health and the environment. The
presence of a chemical does not determine its toxicity. Rather, it is the
amount of the chemical that determines toxicity. Any restriction on the
presence of chemicals should be based on risk assessment and other sound
1683
SOCHA Statement
Page 7
scientific approaches, rather than on an arbitrary listing of a specific
number of chemicals.
D. Removal Credits
SOCMA opposes the provision in S. 1114 that would restrict the
availability of removal credits. SOCMA believes that removal credits allow
for cost effective, non-redundant capital and operating expenses. S. 1114
removes the existing provision for removal credits and, in section 204 (b),
adds replacement language. The replacement language retains the language
requiring that the removal credit "....not prevent sludge use or disposal
in accordance with section 405,". This language would eliminate removal
credits for compounds not provided with sludge limits or a determination that
limits are not needed. It also adds a new restriction by requiring "the
treatment results in the biodegradation of the toxic pollutant, as
determined by the Administrator." The current CWA and regulations allow POTW
removal by physical, chemical or biological means. The proposed provision
would prevent removal credits for all the metals and perhaps some of the
organics. It would also delay the issuance of removal credits until the
Administrator makes a determination.
E. Fees for Effluent Guidelines
SOCMA opposes the section of S. 1114 that would require fees for the
development of effluent guidelines for two reasons. First, SOCMA opposes the
section because it does not set forth a mechanism to control the use of the
money collected. Second, we believe that this section does not allow for
representation of facilities that are regulated under these guidelines. There
is no incentive for EPA to act in a cost effective manner. SOCMA
believes that industry should not be responsible for funding the development
1684
SOCNA Statement
Page 8
of effluent guidelines. However, if a fee is to be imposed, SOCMA believes it
should be proportional to the pounds of chemicals and other parameters
discharged. We strongly believe that the development of effluent guidelines
should be financed through general funding.
F. Mational Pollutant Discharge Elimination System (NPDES) Permits for
Pretreaters
SOCMA believes that reauthorization of the CWA should not expand the
scope of the National Pretreatment Program to include indirect dischargers in
the NPDES program. The regulation of indirect dischargers currently resides
with the states and POTWs. SOCMA believes that it is appropriate for the
regulation of indirect dischargers to remain the responsibility of the
states and POTWs. Further, the pretreatment section of S. 1114 fails to
recognize that indirect dischargers are already subject to EPA's pretreatment
regulations.
V. CONCLUSION
In conclusion, SOCMA believes that in reauthorizing the CWA, Congress
should focus on the following concepts: focus on nonpoint source pollution;
a watershed management approach; national policy on mixing zones; and permit
fees limited to administering the NPDES permit program. If S. 1114 is to be
the CWA reauthorization vehicle. Congress should revise the sections dealing
with product substitution, DSE, the ban on toxics and removal credits.
1685
Water Environment
Federation
Formerly Water Pollution Control Federation
August 4, 1993
PRE5IDEKT
ChoHes A. Sortiei
Deon, School of Engineenn^
Univenitv of Prffsburgfi
240 Beiwlinn ftdl
Iteliursh, PA 15261
(412) 624-9809
FAX: (412) 624-1 108
PRESIDENT-aEa
fli/Jp f . Ceiweit
Asst. Dit., Ptatif Enwwimmt Dept.
Geficfol Molon Keseoith ond
EnviTQnni«ntaJ Sroff
30500 Mount Rood. Boi90SS
WonKi, Ml 48090-9055
(313)94718;5
FAX: (313) 947-1422
VICEPRBIOENT
MkMH.Polh
Presiioii
Noftfwn Testuig Lot>oraton«$, Iih-
3330 Industmf Avenue
Fonlioniu. At 99701
(907)456-3116
FAX: (907) 456-3125
TREASURER
SobeitfJoskopf
Fteidem
Itelie CanoH Mullei Assoootes, Inc.
10901 l!ed(jide Dim. Sute 200
Miinennlui. MX 55343
(612)93«901
FAX:(612)93S-88)4
PAST PRESIDENT
Kogei I. Dolan
Genefol Monoger, Cluef Engmeef
Ceffinl Cooln Costo Sondoy Oisttid
50)9linliof)naa
Motiw.U 945534392
(510) 689-3890
FAX. (510) 676-7211
EXEOnWEDIREGOl
OmcaleeSmm
601 Wyifw Street
Alesnina.VA 22314-1994
(703) 684-2429
FAX (703) 684-2492
The Honorable Bob Graham, Chairman
Clean Water, Fisheries and Wildlife Subcommittee
Senate Committee on Environment and Public Works
SH-456 Dirksen Senate Office Building
Washington, DC 2 0510
Dear Senator Graham:
The Water Environment Federation submits the following
comments on S. 1114, the Water Pollution Prevention and
Control Act of 1993, and requests their inclusion as part of
the record of the recent Clean Water Act reauthorization
hearings held by the Clean Water, Fisheries, and Wildlife
Subcommittee. These comments summarize WEF's views on a
number of provisions contained in S. 1114. More detailed
comments on specific provisions will be submitted in the
near future.
The Water Environment Federation (WEF) is a not-for-
profit technical, educational and professional organization
devoted to providing leadership and guidance in the
preservation and enhancement of the global water
environment. Founded in 1928, our more than 40,000 members
include engineers, scientists, wastewater treatment plant
operators and managers, and others working in state and
local government, federal agencies, academia, industry, and
private practice. In short, our members are the
professionals involved directly in restoring and protecting
the nation's water quality.
WEF supports reauthorization of the Clean Water Act and
the overall direction of S. 1114. We believe it will help
ensure continued progress under the Clean Water Act in
maintaining and enhancing water quality. A number of
concerns and suggested improvements which we raised to
Senator Baucus in comments submitted on S. 1081 in the 102nd
Congress have been addressed in this toriri. We appreciate
greatly the attention that was paid to WEF's previous
comments, as well as your willingness to receive our input
on S. 1114.
Our comments are divided into three sections:
provisions supported by the Federation; provisions with
which we are concerned, and; additional issues which WEF
believes should be addressed in the forthcoming legislation.
Ml Wylhi Slrwl • Alnondrio. VA 22314-1 994 • (703) 614-2400 • FAX (703) 684-2492
1686
Letter to Sen. Bob Graham
August 4, 1993
Page 2
1. PROVISIONS IH S. 1114 SUPPORTED BY THE WATER EHVIRONMEHT
FEDERATION
Funding
* WEE supports the baseline $2.5 billion reauthorization
of State Revolving Fund (SRF) capitalization grants through
FY 2000. Funding far above this level will be needed,
however, to meet currently identified, as well as previously
unforseen, needs. [SECTION 101]
* WEF supports allowance for more types of projects to be
eligible for SRF assistance. States should have the
flexibility to address problems which are of greatest water
quality significance. [SECTION 101]
* HEF supports allowing states to use matching grants to
assist small communities. Small communities face unique
financial, technical and compliance problems which need
special attention. [SECTION 101]
* WEF supports continued funding for Section 106 state
management grants. This funding is an important part of
enabling states to manage the national water quality
program. [SECTION 102]
* WEF supports an appropriate level of funding for
federal water quality programs. EPA in general, and the
Office of Water in particular, is being squeezed by ever-
increasing responsibilities and mandates while their
financial resources are being reduced. [SECTION 103]
Watershed Management/Nonpoint Source Pollution
* WEF supports using a watershed management approach to
water quality. Many water quality professionals believe
this is the best approach to water quality management
because it takes into account multiple sources of
pollutants, environmental benefits, attainability, cross-
media impacts, and naturally-occurring conditions. [SECTION
302]
* WEF believes nonpoint sources of pollution should be
controlled through pollution prevention and use of Best
Management Practices. These sources, by their nature, are
diffuse and have site-specific, highly variable impacts on
water quality which can better be addressed through
practices which recognize these factors. [SECTION 303]
1687
Letter to Sen. Bob Graham
August 4, 1993
Page 3
PomhiYied Sewer Overflows
* WEF is in general agreement with the current draft EPA
policy, but remains concerned about the lack of
prioritization, flexibility, phased compliance, and other
issues. [SECTION 401]
Stonewater
* WEF believes management measures should be the initial
basis of regulation. Water quality limits should be used
only if discharges are having a quantifiable adverse impact
on receiving waters. A better understanding of wet weather
impacts is needed in order to regulate stormwater discharges
properly. [SECTION 402]
Water Conservation
* WEF supports, in general, provisions encouraging water
conservation. Provisions which encourage water reuse
specifically should be added. [SECTION 403]
Permit Fees
* WEF supports requiring states to collect fees to offset
costs of water quality programs. WEF supports the principle
of having dischargers and users pay the cost of water
quality protection. [SECTION 501]
Technology Demonstration
* WEF supports encouragement of innovative and
alternative technology. These technologies hold the promise
of greater water quality protection and clean-up at lower
costs. [SECTION 601]
Education
* WEF supports a national water quality education
program. Ultimate responsibility for ensuring the
protection of water resources begins at the individual
level. [SECTION 606]
1688
Letter to Sen. Bob Graham
August 4, 1993
Page 4
2. PROVISIONS IN S. 1114 OF CONCERN TO THE WATER
ENVIRONMENT FEDERATION
Water Quality Criteria
* WEE believes federally set criteria should not
automatically become enforceable standards. States need
flexibility to implement numeric limits which recognize
local and regional variables. [SECTION 202]
Sediment Quality Criteria
* WEF believes the current state of scientific knowledge
and understanding is insufficient to set sediment quality
standards with confidence. More resources are needed for
data collection and research. [SECTION 202]
Pollution Prevention
* WEF believes the focus should be on stimulating and
encouraging pollution prevention through economic and
regulatory incentives using a voluntary approach. WEF
supports requiring site-specific pollution prevention
planning, but does not believe that specific methodologies
or uniform reduction levels, such as those outlined in S.
1114, should be mandated. [SECTION 205]
Monitoring
* WEF believes the proposed Water Quality Monitoring
Council should include representatives from the professional
environmental science/engineering community. Many of those
directly responsible for monitoring water quality are
engineers and other environmental professionals who work
for, and with, municipal agencies and the private sector.
[SECTION 301]
3. ADDITIONAL ISSUES WHICH THE WATER ENVIRONMENT FEDERATIOW
BELIEVES NEED TO BE ADDRESSED;
CWA Goals
* WEF believes environmental priority setting and
management, consideration of cross-media impacts, pollution
prevention, and beneficial use of sludge (biosolids) should
be added explicitly to the goals of the Act.
1689
Letter to Sen. Bob Graham
August 4, 1993
Page 5
Water Quality Research
* WEF believes specific authorization for basic (non-
regulatory) water quality research is needed. Research is
critical to better understanding water quality problems and
developing improved clean-up and protection technologies and
policies.
Peer Review
* WEF believes all new and revised water quality
criteria, effluent guidelines, and pretreatment guidelines
should be subject to peer review. Peer review is needed to
ensure the technical and scientific soundness, as well as
the credibility, of proposed criteria and guidelines.
Privatization
* WEF believes statutory and regulatory impediments under
the Clean Water Act which discourage private sector
investment in wastewater facilities should be addressed in
reauthorization. All available sources of financing must
accessed in order to meet water quality needs and goals.
Small Comnunities
* In addition to giving states authority to provide
targeted technical and financial assistance to small
communities, WEF believes states should be given authority
to allow alternative technologies to be used when doing so
would provide an equivalent level of protection.
Sludge (Biosolids)
* Sludge (otherwise known as biosolids when it can be
beneficially utilized) should be regulated solely under the
CWA, and not as a hazardous waste under RCRA. Biosolids is
a by-product of the wastewater treatment process, and
overlapping or conflicting regulation should be avoided in
order to promote beneficial uses.
The Water Environment Federation appreciates this
opportunity to provide input into the Clean Water Act
reauthorization process. We are preparing additional
comments on provisions of this legislation which are still
under review by our membership. We support continuance of a
1690
Letter to Sen. Bob Graham
August 4, 1993
Page 6
strong and viable national water quality program, and would
be happy to provide you with any additional comments or
technical assistance on proposed amendments to the Act. Any
questions should be directed to John Thorner, Director of
Public Affairs, at (703) 684-2416.
We look forward to working with you to continue
improving our nation's water quality.
Sincerely,
QHJiO
Charles A. Sorber
President
1691
REQUEST FOR AUTHORIZATION FOR FUNDING
FOR
WATER ENVIRONMENT RESEARCH FOUNDATION
PRESENTED
TO
SENATE SUBCOMMITTEE ON
CLEAN WATER, FISHERIES, AND WILDLIFE
BY
GEORGE D. BARNES, P.E., DIRECTOR
BUREAU OF POLLUTION CONTROL
DEPARTMENT OF PUBLIC WORKS
CITY OF ATLANTA, GEORGIA
AND
CHAIRMAN, BOARD OF DIRECTORS
WATER ENVIRONMENT RESEARCH FOUNDATION
AUGUST 4, 1993
1692
Qiainnan Graham and members of the Clean Water, Fisheries, and Wildlife Subcommittee.
My name is George D. Bames and I am Director of the Bureau of Pollution Control for the
City of Atlanta. I am here today on behalf of the Water Environment Research Foundation in
my role as Chairman of the Board of Directors to ask for your support of our request for
authorization at the level of $S million.
The Research Foundation is an organization that is very important to my city and to its other
Subscribers. The Foundation was organized in 1989 and has grown steadily to its current
level of membership of more than 160 Subscribers. These Subscribers represent more than 70
million people and include municipal wastewater utilities, industry, consultants and equipment
manufacturers. Over the past three years our Subscribers have invested approximately $3
million in the Foundation. During this same period, an added investment of $2.7 million has
been made by the federal government
These dollars have been committed to fund more than 33 specific research projects that have
been identified and prioritized by the Foundation's Subscribers, in the areas of Human Health
and Environmental Effects, Integrated Resource Management, Collection and Treatment
Systems, and Residuals Management These projects will provide iit^ortant information that
will directly benefit environmental protection and the communities that we serve. By
combining the municipal/federal investment with doUar-for-dollar nutches from other sources,
the Foundation has leveraged its investments to fund more than $11 million worth of active
research.
I would like to provide the committee with a brief overview of the organization and operating
policies of the Research Foundation to illustrate how research projects are identified and
managed and how our funds are used.
The Research Foundation is a not for profit corporation that is governed by a Board of
Directors representing the general makeup of its Subscribers. In addition, the Board has
established a Research Council, composed of nationally recognized experts from the
municipal, academic, consultant industrial and regulatory areas, to develop and oversee the
Foundation's Research Program. The Board of Directors and the Research Council are
composed of volunteers who serve with no compensation from the Foundation. The day to
day activities of the Foundation are carried out by a full time staff of 8 professionals.
Approximately 84% percent of our annual revenues are expended for research and
approximately 16% percent for administration.
A Five- Year Research and Development Plan is developed annually, widi full input from the
Research Council and Subscribers, to cover specific areas of concern that have been identified
and prioritized. A list of the current research projects and areas proposed for 1994 research is
attached.
I will focus my remaining remarks by giving you some general background on several of the
key projects that are underway in the areas that were previously mentioned.
1693
RESIDUALS MANAGEMENT
The Foundation is concerned with both facilities which incinerate, and those which use a form
of land disposal. Information derived firom current and future studies will allow utilities more
freedom in selecting the most suitable technologies for biosolids treatment and disposal, and
will provide tools to pronwte public acceptance.
Our project on the Evaluation and Quantification of Biosolids Incinerator Hydrocarbon
Emissions is looking at the extent to which incinerators represent a health risk. Recent health
risk assessments are based upon total hydrocarbon measurements. This THC measurement is
used for all organic compounds that might be emitted from a biosolids incinerator. However,
cancer potency and risk factors vary, and are most often established on a compound by
compound basis. Regulatory agencies have been forced to lump these compounds together
forming a composite unit risk factor, while there is little data to verify the assumptions that
underlie this grouping and the subsequent health risk assessments for biosolids incinerators.
The first phase of this project has been completed and the information that was obtained was
extremely useful to EPA and the municipalities that utilize incineration, for the establishment
of scientifically sound and acceptable criteria for the disposal of biosolids. The data provided
by the Research Foundation will result in savings to municipalities of millions of dollars in
fuel costs and will provide for an acceptable level of protection for human health and the
environment
In the area of land iq>plication we are conducting research that will Docmnent Long-Term
Experience of Biosolids Application Programs. This project will undertake the documentation
of experiences at land implication sites that have operated for more than ten years to provide
the public and responsible officials with credible information on which to base policy
decisions. This report will be available this year.
We are expanding our land application research through a cooperative project with the New
York State Energy Resources Development Agency. This $250,000 cooperative project will
gather new data on the e£fect5 of thennal processing and natural elements on long term
iq>plication of biosolids.
Again in the area of biosolids, the Foundation is participating in a project sponsored by the
National Research Council which will study the Use of Treated Municipal Wastewater
Effluent and Biosolids in the Production of Crops for Human Consumption.
Future biosolids research is addressing the Demonstration of Soil Remediation with Sewage
Biosolids to Reduce Bioavailability of Metals. This will be of interest to municipalities and
EPA in that it focuses on a beneficial use of wastewater biosolids and information on the
relative bioavailability to mediate soU-bom metals. The results of this study could help to
clarify the issue of whedier a new and inexpensive resource is readily available for
remediating urban soils contaminated with lead form auto exhausts and other sources.
1694
INTEGRATED RESOURCES MANAGEMENT
Integrated Resource Management is gaining popularity and looms on the horizon as a
challenge to water quality professionals. Changes in current regulations are requiring utilities
to look at the future responsibility for the entire watershed. The Foundation's Nonpoint
Source research and Aquatic Ecological Risk research begins to put the watershed
management puzzle together while providing information that will be of immediate use.
Federal NFS initiatives are forcing state governments to implement regulations before the
resulting needs can be fully identified and researched. Many of the current point source
regulations are based on dry weather standards. Because the loading of NFS primarily occurs
during wet weather there is cause to question whether current standards should apply.
While there is no question that we are in support of reducing the environmental impact from
nonpoint source pollution, there is a question as to the required level of treatment By
understanding the impact of NFS, it is possible that wet weather standards could be developed
to fully protect the environment and at the same time reduce the costs associated with overly
conservative controls.
One of the research projects underway looks at the Identification and Evaluation of Use-
Attainability Methodologies for Aquatic Ecosystems. This research will provide a
comprehensive and valid technical resource to conduct use-attainability analysis to accurately
establish present uses and prediction of potential uses to develop the most appropriate
management techniques to optimize the net environmental benefit Also included will be a
detailed discussion and support analysis of recommended methodologies and their
applications.
We have also funded a project which Identifies Effective Sampling Frotocols for Nonpoint
Source Follutants. The main premise for this research is that most monitoring systems are
limited to a relatively small number of samples collected during storm events and lack
continuous stream discharge measurements. This, in turn, produces inaccurate NFS load
estimates and limits the development, calibration and testing of storm-loaded predicting
models.
As one of the goals of the Research Foundation is to eliminate duplication of effort, this
study will expand on data sets already under study and includes on-going sampling services
provided by the U.S. Geological Survey. This research will determine the amount of
suspended sediments, nutrients and pesticides transported by surface and subsurface waters
draining from agricultural basins. The result will be the organization of sampling strategies
for assessing the impact of nonpoint source pollutants in receiving streams and efficacy of
agricultural best management practices. A final report will be prepared representing a
systematic evaluation of storm event sampling requirements to estimate pollutant loading.
1695
Other projects will provide research dollars for studies in the Use of Rq>arian Buffer Zones
and Constructed Wetlands in Water Quality Management Programs and also research on
Particulate and Particulate-Pollutants Interaction in Water Bodies and Wetlands Receiving
Point and Nonpoint Discharges.
HUMAN HEALTH AND ENVIRONMENTAL EFFECTS
Closely lelated to the study of NPS is that of Aquatic Ecological Risk. In this instance we
look at the magnitude and probability of human activities and natural phenomena on the
watershed's ecosystem.
Because all hazardous materials cannot be tested in-dq>th, risk assessment protocols should be
able to screen substances for environmental risks using minimal testing and evaluation efforts.
Such protocols should be capable of delineating high risk situations that require immediate
action, firom those that have a potential but ambiguous risk, and those which have negligible
risk.
We are currently funding a project which will Develop, Test, Validate and Refine Protocols
for Assessing Aquatic Ecological Risk. While a large numbCT of risk assessment protocols
have been proposed or applied, none of these are currently con^rehensive and flexible
enough to be directly applicable to water quality criteria, standards and NPDES permit
limitations. As more risdc-based regulations are imposed it becomes increasingly important for
research of this type which will produce a comprehensive methodology for using Aquatic
Ecological Risk assessments to derive both numerical and narrative quali^ criteria and
standjurds.
The Research Foundation has started anodier project in diis area which will study the Time-
Scale Effects of Chemically Toxic Events in Freshwater and/or Marine Ecosystems. This
study will address the need to asses the time-scale impacts associated with point and NPS
toxicity for pollutant loadings in different aquatic ecosystems. Understanding this issue is
important in developing toxics discharge regulations for Combined Sewer Overflows (CSOs)
and other stormwater events.
As an extension to this research, the last area I want to mention is the Foundation's
involvement in the Great Lakes Initiatives. The Water Environment Federation's work group
in this area has approached the Research Foundation to consider playing a role in the need for
scientifically sound water quality criteria. The Foundation is in die process of developing an
independent research plan to improve the database and science used to establish water quality
criteria. The Foundation would then solicit and accept donations fit>m municipalities,
consultants, and industry, to contract for indqjendent research.
As you have heard, the Water Environment Research Foundation is addressing die needs and
concerns of the cities and utility agencies that are faced with making major financial
commitments that have a direct impact on the citizens they serve.
1696
The municipal subscribers to the Foundation are supporting the Foundation through annual
subscription rates that are based on $250 per million gaUons of daily average treated How.
The minimum rate is $250 for the smallest facilities and it caps at $75,000 for the largest
facilities. To give you an idea, Atlanta is a 148 million gallon facility and our yeariy
subscription rate is $37,000. Our elected officials have supported this investment because
they realize that a return of many times this amount is obtained from the research woric that is
being done. For example, the amount of money Atlanta is saving on the incinerator
hydrocarbon emissions study alone will pay our subscription rate for the next 10 years.
In addition to the financial contribution tiiat is made annually by our Subscribers, many
utilities are contributing direct support through die participation of staff members on the
Board of Directors and the Research council. This includes Subscribers such as Envin Odeal
from the Northeast Ohio Regional Sewer District, Edward Wagner from the City of New
York, Department of Environmental Protection, Terry Rolan from die Qty of Durham and Joe
Stowe from Charlotte-Mecklenburg Utility in North Carolina, Gordon Voss from Metropolitan
Waste Control Commission Minnesota, Kumar Kishinchan from the City of Philadelphia
Pennsylvania, and John Lampc from the East Bay Municipal Utility District in Oakland,
California.
Federal Funding previously received by the Research Foundation includes $1.5 million in
FY'91, $.5 million in FY '92 and $.7 million in FY '93, bringing die total to $2.7 million of
Fedend Funding. The EPA is actively participating with the Foundation in the identification
of research projects and in the selection of projects for which the federal funds will be
allocated.
Through it's collaborative funding efforts, the Research Foundation has made an admirable
start in addressing some of the nation's most pressing water quality research needs, however,
there is much more that still needs to be done.
When utility directors such as myself go in front of our elected officials and rate payers to
request support and funding for state and federally mandated environmental programs, we
must have confidence diat the mandates are based on sound and documented scientific
information. In our view, it is essential that the federal partnership with die Research
Foundation be continued so that we and die citizens diat we all serve will be able to
confidentiy support die programs diat are required to protect and enhance die environment
I again urge for you to support of our request for funding audiority at die level of $5 million.
I sincerely appreciate die opportunity to appear before you today and I would be pleased to
answer any questions.
WATER ENVIRONMENT RESEARCH FOUNDATION
CURRENITLY FUNDED RESEARCH
Biodegradadon of Organic Pollutants in Anaerobic Digestion
Conqiarative Efficiency of Chlorination-Dechlorination and UV Irradiation
Evaluation of Biodegradation Rates of Toxic Organic Chemicals
Assessment of Research Needs for Nutrient Removal firom Wastewater
On-Line Monitoring to Control Transients in Wastewater Treatment
Low Emissions Sewer Systems for Industry
Optimization of Vortex Separator Removal Efficiencies
Identification and Evaluation of Use-Attainability Methodologies for Aquatic Ecosystems
Stripping and Volatilization in Wastewater Facilities
Sampling and Analytical Methods for Air Emissions Measurements
Control and Production of Toxic Air Emissions by POTW Odor Control Equipment
Vapor-Phase Biological Control of POTW Air Emissions
Use of Riparian Buffer Zones and Constructed Wetlands in Water Quality Management Programs
Transport and Fate of Pollutants in Sediments
Water Reuse Assessment
Document Long Term Experience of Sludge Land Application Programs
Evaluate and Quantify Sludge Incinoator Hydrocarbon Emissions
Polymer Characterization & Control in Sludge Management
Demonstration of the Soil Remediation with Sewage Sludge to Reduce Bioavailability of Metals
Long Term Fate of Land Applied Wastewater Materials
The Use of Treated Municipal Wastewater Effluents and Sludge in Production of Crops for Human Consunption
Survival and Regrowth of Disinfected Indicator Bacteria
Develop, Test, Validate and Refine Protocols for Assessing Aquatic Ecological Risks
Time-Scale Effects of Chemically Toxic Events in Freshwater and/or Marine Ecosystems
Collaborative National Study Using Molecular Techniques to Detect Hepatitis A Virus and Virulence factor
Genes in E. coli
1698
WATER ENVIRONMENT RESEARCH FOUNDATION
PROPOSED RESEARCH FOR 1994
Prediction of the Equilibrium and Rate Expressions that Describe the Dissolved and
Particulate States of Metals in Wastewater
Secondary Qarification Assessment
Understanding the Impacts of NPS Snowmelt on Urban Receiving Waters
Particulates and Particulate-Pollutant Interactions in Water Bodies and Wetiands Receiving
Point and Nonpoint Discharges
Small Wastewater Systems Research
Watershed Management Protocol
Establishing Sludge Stability Criteria
Influence of Polymer Chemistry on Sludge Products and the Environment
Bioassays and Measures of Toxicity Workshop
Risk Management Workshop
Water Quality Indicators Workshop
Improved Enumeration Techniques for Indicator Bacteria and Patiiogens
Effects of Residual Disinfectants and By-Products in Aquatic Ecosystems
1699
1993 1994 1995
19% 1997
Biodegradation of Organic Pollutants
in Anaerobic Digestion 121
Evaluation of Biodegradation Rates of Toxic
Organic Oiemicals ISO ISO
Prediction of the Equilibrium and Rate Expressions
that Describe the Dissolved and
Particulate States of Metals in Wastewater 90 75 7S
Secondary QariRcation Assessment 60
Nutrient Removal Research 75 lOQ
200 200
Instrumentation and Monitoring Research 100 SO
200
Sewer Systems Research 75 lOO
100
Source Control Workshop 30
Development of a Con^nehensive Fate and
Transport Model for Treatment and
Collection Systems ISO
2S0
Advanced Wastewater Treatment Systems ISO
200 300
Source Control Research
200
1700
INTEGRATED RESOURCE MANAGEMENT
1996
1997
1993
1994
1995
Stripping and Volatilization in
Wastewater Facilities 125
Control and Production of Toxic Air Emissions by
POTW Odor Control Equipment 143
Use of Riparian Buffer Zones and Constructed
Wetlands in Water Quality Management Programs 100
Understanding the Impacts of NPS Snowmelt on
Receiving Waters 90
Particulates and Particulate-Pollutant Interactions
in Water Bodies and Wetlands Receiving Point and
Nonpoint Discharges
Small Wastewater Systems Research
Watershed Management Protocol
Water Reuse Research
300 300
Stormwater Management Assessment
Nonpoint Source Pollution Research
150
Watershed Management Research
250 300
Stormwater Management Research
200 200
Nonpoint Source Model Selection, Application,
Calibration, and Validation
100 200
135
45
100
200
60
75
150
100
70
100
150
300
200
125
10
1701
RESroUALS MANAGEMENT
1993 1994 1995
1996 1997
Evaluate and Quantify Sludge IncineraUHr
Hydrocarbon Emissions 100
Demonstration of the Soil Ronediation with
Sewage Sludge to Reduce Bioavailability of Metals 75
Establishing Sludge Stability Criteria 65
Influence of Polymer Chemistry on Sludge
Products and the Environment 135 75
Measures of Metals Bioavailability 125 100
200 250
Innovative Systems for Odor Control 100 200
200
£>emonstrating Sludge Stability 100
100 100
Control of Air Emissions from Thermal Processing
100 250
11
BOSTON PUBLIC LIBRARY
1702
3 9999 05982 863 0
HUMAN HEALTH AND ENVIRONMENTAL EFFECTS
1993
1994
1995
1996
1997
Time-Scale Effects of Chemically Toxic Events in
Freshwater and/or Marine Ecosystems
Bioassays and Measures of Toxicity Workshop
Risk Management Workshop
Water Quality Indicators Workshop 30
Improved Enumeration Techniques for Indicator
Bacteria and Pathogens 90
Effects of Residual Disinfectants and By-Products
in Aquatic Ecosystems
Bioassays and Toxicity Research
300 300
Risk Management Research
300 400
Survival and Reestablishment of Ultraviolet
Irradiated Indicator Bacteria
Water Quality Indicators Research
200 300
o
200
20
30
90
75
100
100
50
100
200
75
200
75
150
150
50
150
75
12
ISBN 0-16-043358-4
780160"433580'
90000
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