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

                                                            S. Hrg. 106-590

                             CLEAN WATER ACT ISSUES

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

                                    HEARING

                                   BEFORE THE

                                  COMMITTEE ON
                          ENVIRONMENT AND PUBLIC WORKS
                              UNITED STATES SENATE

                           ONE HUNDRED SIXTH CONGRESS

                                 FIRST SESSION

                                       ON

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

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

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

                                   __________

                                OCTOBER 13, 1999

                                   __________

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

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

                   COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

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

                                      (ii)

                                C O N T E N T S

                                  ----------
                                                                       Page

                                OCTOBER 13, 1999
                               OPENING STATEMENTS

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

                                   WITNESSES

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

                              ADDITIONAL MATERIAL

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

                             CLEAN WATER ACT ISSUES

                                  ----------

                          WEDNESDAY, OCTOBER 13, 1999

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

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

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

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

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

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

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

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

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

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

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

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

        Mr. deGrazia. Thank you, Mr. Chairman.
        Good morning. My name is Bruce DeGrazia. I am the Assistant
    Deputy Under Secretary of Defense for Environmental Quality in
    the Office of the Secretary of Defense.
        I would like to thank you for the opportunity to speak
    before this committee on the proposed bill Senate 669, the
    Federal Facilities Clean Water Compliance Act of 1999.
        The Department of Defense already complies with the Clean
    Water Act. Our installations have permits, comply with
    discharge standards, and submit regular monitoring reports,
    just like any other entity subject to the Clean Water Act.
        In addition, we are subject to enforcement actions and
    compliance agreements, just like any other entity subject to
    the Clean Water Act.
        The Department has almost 1,900 clean water permits
    throughout the United States. These permits cover domestic
    waste water industrial waste water, and storm water. In fiscal
    year 2000, the Department will invest $215 million in upgrading
    and replacing waste water treatment infrastructure.
        On top of these investments, the Department spends millions
    of dollars each year, complying with the day-to-day
    requirements of these permits, operating treatment plants,
    sampling of water, repairing and maintaining of the plants, and
    submitting regular monitoring reports to the regulators.
        Our compliance record in the area of clean water is
    excellent. In 1998, the Department received only 46 enforcement
    actions. Ninety-eight percent of our almost 1,900 permits were
    in compliance.
        Still, we can do better. The military departments are
    making great strides to reduce enforcement actions to reach a
    state of full and sustained compliance.
        The Department of Defense has supported a limited expansion
    of the waiver of sovereign immunity that would subject us to
    penalties for all Clean Water Act violations for which a
    private person would be liable. Whenever possible and
    consistent with our other statutory obligations, we should be
    held to the same standards as other private or public entities.
        The proposed bill tracks closely the language used in
    recent years to amend the Resource Conservation and Recovery
    Act and the Safe Drinking Water Act to expand the waiver of
    sovereign immunity. The Administration, including the
    Department of Defense, has supported both of these efforts.
        Although the Administration supports the goals of Senate
    669, we are concerned with one of the provisions in the bill.
    This provision, in rare circumstances, could interfere with our
    ability to carry out critically important responsibilities in a
    manner protective of national security.
        The proposed bill would eliminate the Presidential
    exemption provision currently included in Section 313 of the
    Federal Water Pollution Control Act. This provision is
    carefully circumscribed, and allows the President to exercise
    his authority only in the paramount interest of the United
    States.
        Similar provisions are in the Clean Air Act, the Safe
    Drinking Water Act, the Resource Conservation and Recovery Act,
    and the Comprehensive Environmental Response Compensation and
    Liability Act. Historically, Presidents have used these
    provisions infrequently, and the standard required is difficult
    to meet.
        These exemptions are essential tools to ensure that the
    President has the flexibility he needs to act quickly and
    decisively to protect the national interests when strict
    compliance with these environmental laws could jeopardize the
    overall interests of the United States.
        I would like now to turn to the implications of the
    sovereign immunity waiver in the Comprehensive Environmental
    Response, Compensation and Liability Act.
        The Department of Defense, with the support of the
    Administration, has consistently opposed efforts to change the
    waiver of sovereign immunity in CERCLA. Given that strong
    opposition, the question arises why the Department can support
    the changes in the waiver proposed in Senate 669.
        I would like to take this opportunity to clarify before
    this committee the differences in our positions, and explain
    the rationale for opposing the waiver under CERCLA.
        The Department of Defense already complies with
    environmental laws to the same extent as private parties
    conducing a cleanup under CERCLA. We follow the procedural
    requirements of CERCLA, and comply with the substantive
    requirements of State and Federal environmental laws and
    regulations.
        CERCLA exempts all parties from many purely procedural
    requirements of other State and Federal laws, such as the
    requirement to obtain permits, so the cleanups can be
    implemented as quickly as possible.
        There already is a waiver of sovereign immunity in CERCLA,
    which we believe works very well. The current waiver encourages
    the Department of Defense and States to reach consensus on
    disputed issues at the negotiating table, rather than resorting
    to litigation.
        Also, CERCLA addresses a different type of situation than
    the other laws, where the Department supports waivers of
    sovereign immunity. The Clean Water Act is prospective and
    seeks to control or limit pollution from occurring. Waiting for
    approval of a new water permit discharge permit should not
    impact public health or the environment, because a discharge
    can not occur until the proven permit is approved.
        However, at CERCLA sites, the contamination already at the
    site can spread during the wait, with the potential for
    impacting public health and the environment, and increasing
    costs significantly.
        In summary, the Department supports most of the entire
    bill. However, we believe the bill should be amended to retain
    the President exemption provision in the present law.
        I would be happy to answer any questions from the
    committee. Thank you.
        Senator Chafee. Thank you very much, Mr. Secretary.
        I must say, I am a little bit confused here. As I
    understand what you are saying, you are opposed to changes to
    the Superfund waiver of sovereign immunity.
        Mr. deGrazia. That is correct, Senator.
        Senator Chafee. You state that the Clean Water Act is
    different from Superfund, and you say Superfund's existing
    waiver is working well. Now the people who are in charge with
    enforcing this, namely, the Attorneys General in the various
    States, do not agree with you.
        I have got a copy of a letter here that was signed by 41
    State Attorneys General that refutes the argument that DOD
    makes that changing CERCLA's sovereign immunity provision will
    result in delays and excessive costs for the Department of
    Defense. In other words, they argue that that is not so.
        I would like to make that letter part of the record.
        [The material from the State Attorneys General follows:]

        Senator Chafee. Now how come there is such a difference of
    opinion here on the consequences in the change in Superfund's
    sovereign immunity waiver?
        Mr. deGrazia. Well, Mr. Chairman, the Department of Defense
    believes that the waiver of sovereign immunity currently in
    CERCLA worked very well because it happens to encourage
    negotiation, rather than litigation.
        We believe that our paramount interest is protecting the
    health of the people and the public and the environment. If
    litigation is allowed to occur under a new waiver, under an
    expanded waiver, we believe that this could cause delays that
    could, in fact, impact the health of the public, or damage the
    environment further. We think that negotiation here, rather
    than litigation, is really the important way to go.
        Now the States may feel differently. The States have
    particular ideas of how they think a cleanup should proceed. We
    think that under the current system, the Department of Defense
    can sit down with the State regulators and work something out.
    We think that, by and large, that ultimately what we ended up
    with is something that is amenable to both parties.
        Senator Chafee. Well, I have trouble understanding how the
    Federal Government can hold private parties to certain
    standards. But, I mean, why should not the Federal Government
    be held to the same standards as private parties? You know, you
    talk about negotiations and so forth.
        Mr. deGrazia. Well, Mr. Chairman, we already must meet the
    State substances requirements through the ARAR process. We just
    believe that to impose a State's procedural process on top of
    the CERCLA scheme that we are already required to follow could
    result in delay and confusion and possible litigation, and just
    generally believe it would not contribute to the protection of
    human health and the environment.
        Senator Chafee. Well, currently, as I understand it, the
    States have no legal resource, if DOD does not conform. In
    other words, States can not seek judicial relief. They can only
    negotiate, because DOD has the final say.
        I must say, if I were in your position, I would have the
    same position you have got. You have got a pretty strong hand
    here. But I am not sure that looking at it objectively here, I
    can totally agree with you.
        Mr. Fox, you note in your testimony, you are prepared to
    work with this committee to strengthen the Clean Water Act.
    What is your top priority?
        Mr. Fox. Given the changes that I have seen around the
    country in wetlands protection programs, as a result of that
    recent court case, that would have to be tops on my list.
        We are still trying to get good data on this, Mr. Chairman.
    But as a result of this court case, we are now estimating that
    probably in excess of 30,000 acres of wetlands have been lost
    since the court ruling a little bit over a year ago.
        Basically, the effect of the court ruling is to take a
    whole range of activities that would otherwise be permitted out
    of the program, so that not only do they not get permits, we do
    not have the mitigation requirements and such.
        This is the result of the so-called Tulloch decision. That
    would have to be tops on my list of priorities. I can give you
    a list of some others.
        Senator Chafee. Yes, I must say, the Tulloch decision was a
    body blow. Where does it stand? Was it appealed, or what
    happened?
        Mr. Fox. This was an appellate court, as is my
    understanding, if my memory serves me right. The Government has
    decided at this point not to appeal it. We will be doing
    additional rulemaking, trying to limit the impact of the court
    case. But, fundamentally, we are going to need a statutory
    change to be able to protect these wetlands.
        It has to do with the way the Clean Water Act is
    structured. It regulates only the discharge of materials to
    waters of the United States, as opposed to activities that
    result in impacting waters of the United States
        The fundamental problem here is some of these wetlands are
    being drained without discharging significant amounts of
    pollutants. So we would have to start approaching this from
    regulating the activity, like draining wetlands. That is the
    fundamental challenge.
        Senator Chafee. Senator Voinovich?
        Senator Voinovich. In terms of waiver of immunity for
    CERCLA, obviously, the States Attorneys General have got a
    difference of opinion with the Department of Defense.
        I only can conclude that one of the reasons why the Defense
    Department is opposed to this is because of the cost involved
    in cleaning up these facilities throughout the country.
        I know I have had some experience recently in terms of the
    appropriations. Basically, the answer I got when we wanted some
    money to clean-up the problem we had in our State was, we can
    not give you the money for that, because we need the money for
    readiness and for other priorities of the Defense Department.
        I think that that is of real concern to all of us. We are
    all interested in readiness and doing an adequate or more than
    adequate job in that area. But I think that incumbent with that
    responsibility is the past activity of the Department of
    Defense, and the environmental problems that it has created
    throughout this country.
        It seems to me that the Department ought to go forward with
    a major initiative to do an inventory of all of these sites
    throughout the country.
        I mean, I would be interested in knowing, for example, do
    you have an inventory of the various defense facilities in this
    country, and the condition of those facilities, or are we going
    to continue to have these things popping up like we have in
    Marion, Ohio?
        Mr. deGrazia. Well, Senator, I would like to take that
    particular question, for the record, if I may.
        Senator Voinovich. Yes.
        Mr. deGrazia. But I would like to respond, if I may, to
    your comment on cost. Certainly, cost is an issue. But it is
    not the only issue with regard to the expansion of the waiver
    of sovereign immunity.
        The Department of Defense conducts cleanups by working with
    the communities to decide what the cleanup remedy should be.
    The States are part of that dialog. In fact, local communities,
    including the public, are part of our restoration advisory
    boards, at the various cleanup sites that the Defense
    Department has.
        What we would like to do is keep everyone working together.
    We believe that under the current system, this is a way by
    which everybody gets an opportunity to be heard, and we get to
    work out something that results in having everyone have a
    result that is satisfactory.
        Senator Voinovich. Well, I suspect, and I have been on this
    committee and I am new to the Senate, but I will bet you that
    the Chairman of this committee has heard that, the same
    statement, made by one business organization after another,
    saying, if we did not have this, we could work it out, and so
    on.
        The issue is, why should you be different than everyone
    else? If we are going to grant you the waiver, why should not
    we do it with the private sector? Why are you different than
    private sector people that would be sitting at the table,
    asking for the same thing that you want?
        Mr. deGrazia. Senator, unlike private partners, the
    Department of Defense is required by law to follow the CERCLA
    process at all sites, regardless of whether they are on the
    National Priorities List or not. In that regard, we are
    different, in any event.
        But you are right, Senator, in that the Department of
    Defense has a large number of cleanup sites. We are trying to
    get them cleaned up as quickly as possible. Also, many of our
    sites tend to be fairly large sites, and have a great impact on
    the community.
        What we are trying to do is, we are trying to work with a
    system that enables the community and the public to have more
    of a voice. We simply believe that if we were treated in such a
    way that we would have to deal with and have to comply with a
    number of the procedural requirements, that we would not be
    able to serve the public the way that we feel that we are
    doing.
        Senator Voinovich. I would like to ask another question to
    Mr. deGrazia and to Mr. Fox. To your knowledge, do we have an
    inventory of compliance with the Clean Water Act at Federal
    facilities in this country?
        Mr. deGrazia. Mr. Senator, every year, the Defense
    Department facilities send to the Environmental Security
    Department in the Department of Defense a list and rendition of
    all of the compliance actions that have been brought against
    the Department of the Defense. So the short answer to your
    question is, absolutely, yes.
        Mr. Fox. I would confirm that, Senator.
        Senator Voinovich. This is a list of the ones where actions
    have been brought, or an overall list of all of the facilities
    and the status of their compliance?
        Mr. deGrazia. It is both.
        Mr. Fox. Right.
        Senator Voinovich. The latter?
        Mr. deGrazia. All of the above.
        Senator Voinovich. So if I asked for a list of all of the
    Federal facilities that are under your jurisdiction in terms of
    their compliance with the Clean Water Act, you would have that
    information available?
        Mr. deGrazia. Yes, sir, and we would be happy to provide
    that to you.
        Senator Voinovich. OK, thank you.
        Senator Chafee. Are you all set?
        Senator Voinovich. Yes.
        Senator Chafee. All right, thank you very much, gentlemen.
        Mr. deGrazia. Thank you, Mr. Chairman.
        Senator Chafee. Now the next panel has the Honorable Helen
    Walker, Mr. Doug Harrison, Mr. Steve Fleischli, Ms. Sweeney,
    and Ms. Lee. If you could all come forward.
        We will take you in the order that we called them off,
    starting with the Honorable Helen Walker, County Judge,
    Victoria County, Texas. You can proceed, please.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

      Responses by Charles Fox to Additional Questions from Senator Wyden
        Question 1. The Administration's Clean Water Action Plan identifies
    polluted runoff as the leading water quality problem today. Yet, in
    your testimony, you stated that ``The Administration intends that the
    primary focus of clean water SRF's remains infrastructure investments
    to help municipalities meet water quality goals. Aren't you essentially
    saying that the SRF program, which is EPA's largest water quality
    program, is not going to be used primarily to address the biggest
    current water quality problem? Shouldn't Clean Water SRF funds be
    available to meet the biggest water quality needs and hasn't it been
    the case that 5 percent or less of SRF funds have gone toward runoff
    projects?
        Response. The fiscal year 2001 President's budget proposes
    appropriations language that will allow States discretion to use up to
    19 percent of their annual capitalization grants for the Clean Water
    State Revolving Fund for grants, rather than loans, to finance projects
    to reduce nonpoint source pollution and protect estuaries. This new
    authority would give States much needed flexibility in designing
    financing packages for nonpoint source control projects that are
    viable. This proposal was also included in the fiscal year 2000
    proposal. Congress did not pass an appropriations bill that included
    this new authority for fiscal year 2000.
        States began issuing loans from their Clean Water SRF's in 1988,
    and in the first 2 years, the loans went exclusively toward
    construction, expansion, and/or upgrading of publicly owned treatment
    works. SRF loans for treatment works have greatly assisted
    municipalities in meeting human health and water quality goals, and we
    are very proud of the success of the SRF's and what they have
    contributed toward improved water quality across the nation.
        The SRF's began to issue nonpoint source (i.e., runoff) loans in
    1990, and since then, there have been significant increases in the
    number of states funding nonpoint source projects (25 states to date
    with another 6 expected in 2000) and in the variety of nonpoint source
    projects being funded (agricultural cropland and animal best management
    practices, silviculture, urban runoff, ground water protection,
    brownfields remediation, underground storage tank remediation, landfill
    remediation, septic tank replacement, hydromodification, and estuary
    improvement). The amount of money going to nonpoint source projects is
    still relatively small compared to the amount going toward publicly
    owned treatment works, because nonpoint source projects tend to be much
    smaller and less expensive than traditional wastewater treatment plant
    construction projects. To illustrate, 6 percent of funds loaned in 1999
    went to nonpoint source projects, corresponding to 36 percent of all
    loan agreements for nonpoint source projects.
        EPA encourages states to identify their water quality concerns
    across the state, both point source and nonpoint source, and to direct
    the funds in their SRF's toward the highest-priority water quality
    projects, whether they be point source or nonpoint source.

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

                   NATIONAL ASSOCIATION OF ATTORNEYS GENERAL
            adopted--spring meeting march 28-30, 1993 washington, dc
        resolution urging the congress to clarify the wager of federal
                  sovereign immunity under the clean water act
        WHEREAS, a significant number of the most dangerous sources of
    water pollution in the United States that pose a significant threat to
    public health and the environment are located at Federal facilities;
    and
        WHEREAS, Federal facilities are among the worst violators of
    Federal and state water pollution laws; and
        WHEREAS, Executive Order 12088 requires all Federal agencies to
    comply with all applicable pollution control standards; and
        WHEREAS, the states have experienced significant problems in
    bringing Federal facilities into compliance with Federal and state
    water pollution laws because the Federal facilities refuse to
    acknowledge state regulatory authority over their facilities; and
        WHEREAS, disputes over state environmental authority at Federal
    facilities has caused costly, time-consuming and acrimonious litigation
    between the states and the Federal agencies; and
        WHEREAS, the U.S. Environmental Protection Agency's and the states'
    lack of clear enforcement authority has eroded the public confidence in
    the Federal Government's willingness and ability to address the serious
    water pollution problems at the Federal facilities; and
        WHEREAS, the states' role in enforcing Federal and state water
    pollution laws against recalcitrant Federal agencies has become more
    important because of the U.S. Department of Justice contention that the
    Constitution prohibits EPA from enforcing water pollution laws at
    Federal facilities and from imposing sanctions against Federal
    agencies; and
        WHEREAS, Federal agencies must be subject to the same sanctions as
    private industry, states, and local governments for violations of
    Federal and state water pollution laws to deter violations of and
    ensure compliance with these laws; and
        WHEREAS, the U.S. House of Representatives is considering H.R. 340,
    which would clarify the Federal sovereign immunity waiver under the
    Clean Water Act;
        NOW, THEREFORE, BE IT RESOLVED THAT THE NATIONAL ASSOCIATION OF
    ATTORNEYS GENERAL:
        1) urges Congress to adopt H.R. 340 or similar legislation which
    would:
        a) provide clear authority to Federal, state and local officials,
    to enforce water pollution programs at Federal facilities;
        b) subject Federal agencies and Federal facilities to the same
    accountability, procedural, and substantive enforcement provisions and
    reasonable service charges that apply to state and local governments
    and private industry; and
        c) enhance proper water pollution control practices at Federal
    facilities in the future by ensuring that Federal agencies comply with
    Federal, state and local water pollution laws; and
        2) authorizes the NAAG Environment Legislative Subcommittee to
    represent the views of the Association on this matter before the
    Congress and Federal agencies.
        3) authorizes the Executive Director and General Counsel to
    transmit this resolution to the President and EPA Administrator Carol
    Browner and appropriate members of her staff; Secretary Les Aspin of
    the Department of Defense; Secretary Hazel O'Leary of the Department of
    Energy; Congress; and other interested associations.
                                   __________
       Statement of Jan Lee, Executive Director, Oregon Water Resources
                                    Congress
             s. 188, water conservation and quality incentives act
    Introduction
        Thank you for the opportunity to testify today. I am Jan Lee,
    Executive Director of the Oregon Water Resources Congress. OWRC
    represents water suppliers in Oregon, those who operator reservoirs and
    delivery systems for non-potable water. The majority of the water is
    for agricultural supply, but we also represent some cities, counties
    and ports who supply water for other than domestic or human
    consumption. Our association has represented water interests in Oregon
    since its formation in 1912. I am also Vice President of the Western
    Coalition of Arid States (WESTCAS).
    Need for S. 188
        We strongly support S. 188 as an additional tool for enhancing
    water quality in Oregon. There are over 1300 Oregon stream segments
    listed on the 303(d) TMDL (total maximum daily load) exceedance list
    approved by EPA. The majority of these streams are listed based on the
    need to meet a lower temperature standard (64 degrees statewide) to
    protect cold-water fish habitat. A significant portion of Oregon
    streams are either listed under the Endangered Species Act (ESA) or are
    being considered for listing in the near future. With the convergence
    of the ESA and the CWA (Clean Water Act), the need to reduce water
    temperatures for habitat protection will be the focus of challenge to
    water suppliers and water users and to Oregon's future growth and
    economy.
        Oregon's 303(d) TMDL list for the year 1998:

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

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

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

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