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

                                                            S. Hrg. 106-971

          PROPOSED RULE CHANGES TO THE TMDL AND NPDES PERMIT PROGRAMS

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

                                    HEARINGS

                                   BEFORE THE

                          SUBCOMMITTEE ON FISHERIES,
                              WILDLIFE, AND WATER

                                    AND THE

                                  COMMITTEE ON
                          ENVIRONMENT AND PUBLIC WORKS
                              UNITED STATES SENATE

                           ONE HUNDRED SIXTH CONGRESS

                                 SECOND SESSION

                                   __________

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

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

                                   __________

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

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

    _______________________________________________________________________
     For sale by the Superintendent of Documents, U.S. Government Printing
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                   COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

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

            Subcommittee on Fisheries, Wildlife, and Drinking Water

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

                                      (ii)

                                C O N T E N T S

                                  ----------
                                                                       Page

                                 MARCH 1, 2000
                       FEDERAL REVIEW OF TMDL REGULATIONS
                               OPENING STATEMENTS

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

                                   WITNESSES

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

                              ADDITIONAL MATERIAL

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

                                 MARCH 23, 2000
                              IMPACT ON THE STATES
                               OPENING STATEMENTS

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

                                   WITNESSES

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

                              ADDITIONAL MATERIAL

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

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

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

                                   WITNESSES

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

                              ADDITIONAL MATERIAL

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

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

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

                              ADDITIONAL MATERIAL

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

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

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

                                   WITNESSES

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

                              ADDITIONAL MATERIAL

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

          PROPOSED RULE CHANGES TO THE TMDL AND NPDES PERMIT PROGRAMS

                                  ----------

                            WEDNESDAY, MARCH 1, 2000

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

                       FEDERAL REVIEW OF TMDL REGULATIONS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

      STATEMENT OF RICHARD A. PARRISH, SOUTHERN ENVIRONMENTAL LAW
                                 CENTER

        Mr. Parrish. Good afternoon, Mr. Chairman. My name is Rick
    Parrish, I'm an attorney at the Southern Environmental Law
    Center, a non-profit environmental group that works throughout
    the south. I too served on EPA's TMDL Advisory Committee and
    have been working for about 10 years to strengthen the TMDL
    program. And I want to make sure we keep one thing in mind as
    we discuss these proposed rules, proposals that would serve to
    strengthen and clarify the program. We're here because the
    current rules do not work.
        The TMDL program was included in the 1972 Clean Water Act.
    It has been virtually ignored by States across the country for
    25 years. Rules have been in place since 1985, guidance has
    supplemented the rules throughout the 1990's, and though there
    has been a considerable amount of effort in the last year or
    two at different States across the country, which we certainly
    applaud and appreciate, my question is where have we been for
    the last 25 years?
        Now clearly, there's been a lot of progress under the Clean
    Water Act in other programs, in particular the point source
    technology based NPDES permitting program, over the past 25
    years. There's been increased attention to non-point sources
    since section 319 was adopted, in particular over the past 10
    years. But, I would submit that the results of that section 319
    funding really don't measure up to the commitment that was made
    by Congress and the desire among the American public that
    waters be cleaned up.
        Currently close to 40 percent of the Nation's waters that
    are assessed are found to be impaired. Too polluted to be used
    for whatever purpose the States have designated. The largest
    component, the largest source or contribution to that
    impairment States
    indicate comes from non-point sources. It simply makes no sense
    whatsoever to talk about a comprehensive cleanup program that
    doesn't include non-point sources in the package.
        But, that doesn't mean you're talking about a regulatory
    program. Some States have chosen to go that route, most States
    have not. EPA has sanctioned that choice, whichever it may be.
    For the most part EPA is telling States, you figure out
    initially how to solve these problems and as long as what you
    propose will do the job, then there is no limit to your
    discretion and your flexibility. Now thankfully EPA is also
    saying, if what you propose isn't likely to succeed though,
    we're going to need to go back to the drawing board. Because
    that's where we've been for 25 years. We've been talking about
    our joint and mutual and collective commitment to clean water
    and we haven't been doing it.
        We haven't been restoring the worst polluted waters in the
    country through the TMDL program. A program of emminent sense
    and logic. Now there can be debate about legal authorities, and
    there will be. Courts will resolve them this year hopefully,
    next perhaps. I happen to believe EPA has the authority to
    include non-point sources in this program because the law
    simply states, identify waters where technology-based permits,
    point-source permits, aren't sufficient to keep them clean. And
    by definition that includes waters impaired by non-point
    sources. Because the best point source permit isn't going to
    keep them clean.
        There's further debate about whether silviculture belongs
    in this package as a point source operation. Well silviculture
    has never been exempted from the point source program of the
    Clean Water Act. And in fact, since the early 1980's a number
    of silvicultural types of activities have been included in the
    NPDES point source permitting program. Log landings and the
    like, a very small number of operations given the potential
    impact that other activities within the silvicultural arena
    have on water quality.
        Now, what EPA is proposing here with the silvicultural
    component of this rule has received an inordinate amount of
    attention which I would attribute to a highly irresponsible and
    inaccurate portrayal of that rule by the forest products
    industry. We've seen publicity about how EPA is asserting
    Federal land-use authority, Federal regulatory authority,
    Federal permits to every forestry operation in the country and
    nothing could be further from the truth. As its been explained
    over and over and over again, EPA won't even consider
    designating additional silvicultural operations as in need of a
    permit and even then a general permit, unless that operation is
    causing a serious water pollution problem, and unless the State
    has thrown up its hands and walked away from that problem
    saying, ``We can't deal with it,'' and there is in fact, a
    point source--a pipe, a culvert, a ditch--and there's no other
    way to fix the problem. Only in that rare, extremely rare
    combination of instances will EPA consider stepping forward and
    assuming the burden of imposing additional permits or imposing
    general permits on that operation.
        And frankly, if you're not going to do it then, we might as
    well all throw up our hands and walk away and say we don't mean
    it when we talk about our collective commitment to clean water.
        So I recognize, Mr. Chairman, that these rules will impose
    additional burdens on States, on local governments, on the
    public, on point source and non-point source operations when
    those added burdens are necessary to clean up the water in this
    country. The people spoke almost 30 years ago through Congress
    about how important that was, that hasn't changed. And I
    believe these rules are the first big step toward actually
    achieving that goal set almost 30 years ago.
        Thank you.
        Senator Crapo. Thank you, Mr. Parrish. Members of the
    panel, I have been writing down questions for each of you as
    we've been going along here, but I think that I may come back
    and wrap up with some of those questions, but I think what I
    would like to do is to get into some of these issues with the
    whole panel and have some give and take on them. And I'd like
    to start out with one that has been sort of a common thread
    throughout much of the testimony and which frankly Mr. Parrish
    just spent some time talking about as well.
        And that is this question of, have the States and the local
    communities been getting the job done over the last 25 years?
    Mr. Parrish, you've indicated that in your opinion they have
    not in a lot of ways. I think you said there were some
    successes in some areas.
        Mr. Parrish. I'll clarify, if I may.
        Senator Crapo. Sure.
        Mr. Parrish. There's been tremendous success in the
    reduction of point source discharges through the technology-
    based NPDES permitting program. There's been certainly some
    improvement in the non-point source sector through section 319
    funded demonstration projects, studies and research and the
    like.
        There has been abysmally little success in restoring
    impaired waters through the TMDL program or otherwise.
        Senator Crapo. Are you referring to waters impaired because
    of non-point source pollution or has the failure also been on
    the part of point source solution efforts?
        Mr. Parrish. Well I think the failure has been widespread.
    And that certainly there are many waters on the 303(d) lists
    that the States develop that are there because of point source
    discharges. I believe common wisdom among the States is that
    non-point sources have become over the past 20 to 30 years a
    larger component of the problem.
        Senator Crapo. Because of the successes in the point
    source?
        Mr. Parrish. Exactly.
        Senator Crapo. OK. I see several aspects of this issue, but
    what I would like to ask the panel to focus its remarks on
    right now is--I will get to the jurisdictional aspects and BMPs
    versus TMDLs and all that, but the question I'd like to focus
    on right now for a minute is, is it correct, have we had an
    abysmal lack of success, Mr. Nielsen?
        Mr. Nielsen. Mr. Chairman, I think Rick hit it on the head
    when he mentioned--I call him that because we served together
    on the TMDL FACA so we are somewhat familiar with each other--
    hit it on the head when he said that we've made great strides
    using the best technical practices on the point sources. And
    that's my concern. When Mr. Fox was here and he made a comment
    that he said, ``Well we don't really care how the States solve
    this problem, they can do it at non-point sources, they can do
    it at point sources.'' My concern is that the onus of
    compliance will fall primarily on the point sources because
    those are the sources that the States and the Federal
    Government have statutory control over.
        Whereas the problem now exists really with non-point
    sources. So if you came to me and said, ``Well, we need you to
    clean up a pound of phosphorous,'' I'd much rather do that from
    my storm water than I would down at my sewage treatment plant.
    And the most cost-effective way, especially particularly in
    regard to nutrients would be to deal with that at the non-point
    source level from a cost-effective standpoint. So what we've
    been doing over the last 30 years is building and improving our
    sewage treatment plants and now we do need to take that next
    step and deal with the non-point sources.
        Senator Crapo. OK, Mr. Holm.
        Mr. Holm. I do agree that the way the program is currently
    structured the onus will continue to be on point sources to
    achieve the gains and that's because there is not yet a climate
    of pervasive regulatory requirements upon non-point sources to
    improve water quality. So therefore non-point sources may well
    be in the catbird seat waiting for point sources to come to
    them and offer to pay for management practices in order for
    them to accomplish needed expansions in their infrastructure.
        So, that's a problem, but I also wanted to respond to the
    earlier issue about have we succeeded? Have we succeeded in
    dealing with these water quality impairment problems and I
    would say that we have some very noteworthy successes and we
    have some very important lessons learned. And one of the
    lessons learned is that when you take a watershed approach and
    you try to deal with all of the water quality problems in a
    basin, it takes a long time to bring people together, have them
    understand that there's a problem, have them understand what it
    will take to get better information, then to make decisions on
    how to use that information. The commitment is there, but it's
    a long process and in the end it's a very successful and solid
    process. We have a lot of successes, not in proportion to the
    scale of the national problems that we're dealing with, but I
    frankly don't think that that commanding kind of approach in
    the end will get us there any faster. I think the slow way is
    the fast way in dealing with these water body-wide problems.
        Senator Crapo. Ms. Adams.
        Ms. Adams. I would just point out that when I did review
    the Kansas EPA brief for this hearing, the EPA also pointed out
    in Senator Muskie's comments on the floor when the Clean Water
    Act was passed, folks were told to focus on the biggest
    problems which at that time were the point sources. So I think
    it's a little misleading to say that we've been sitting around
    doing nothing for 25 years when we focused our limited
    resources on point sources.
        I can say too for the people in the agricultural community
    they understand they are under the gun and if they don't
    perform we will get regulation. In our State at least we have a
    very good working relationship with the cities. Pollutant
    trading isn't a real option in western Kansas, there aren't big
    enough cities to trade with so they're going to have to take
    care of their problems themselves. But I agree with Mr. Holm
    that this is a long process, you have to bring farmers and
    ranchers to the table, help them understand why they are part
    of the problem and how they can be a part of the solution and
    the 80/20 rule applies, 80 percent of them will do the right
    thing if they know what the right thing is to do.
        Senator Crapo. Help me understand--did you want to say
    something, Mr. Archey?
        Mr. Archey. Yes, sir. As we look to silvicultural
    activities for example, I see great progress in that area. And
    States I'm most familiar with--the northeast and New England,
    and I'll go back to my own State--we've had two, three
    different versions of a Forest Cutting Practices Act. And we've
    gone from voluntary to required. And we've had two different
    versions of BMPs and we'll have more. And it's a narrative
    process, one that builds on experience, one that builds on
    evolving science and one that we can continually make better.
    There's no question. We've got a distance to go and we'll never
    be totally there. But again I would go back to that notion of
    coordination and communication, working together through maybe
    non-nuclear means, conventional means rather than TMDLs and get
    that Act together, give it a better chance, support it through
    section 319 and other programs.
        Senator Crapo. Did you say conventional BMPs through
    section 319, is that what you're referring to?
        Mr. Archey. Right.
        Senator Crapo. And section 319, help me a--help me
    understand a little bit about--well, let me ask this question
    this way.
        It's my understanding that basically we've dealt with non-
    point source, excuse me, point source solution pollution
    problems through 303 and TMDLs, and we've been trying to deal
    with non-point source solution through section 319 and BMPs. Is
    that, does anybody want to clarify that?
        Mr. Parrish. I would just say we have not yet dealt with
    point sources through TMDLs.
        Senator Crapo. OK.
        Mr. Parrish. We have dealt with point sources almost
    exclusively through the permitting program, the NPDES point
    source permitting program.
        Senator Crapo. But that is what we are trying to do, am I
    correct in that?
        Mr. Parrish. Well, we're trying to get the TMDL program off
    the ground. The rules have been in place for a good many years.
        Senator Crapo. OK. Let me say it this way then. The TMDL
    program is directed at the point source solution issue, the BMP
    and section 319 is directed at the non-point sources, is it not
    that simple?
        Mr. Parrish. I don't think so. I'm afraid that's really
    where the hub of the debate is. EPA's feeling with which I
    strongly agree, is that the TMDL program is directed at the
    intersection of point source and non-point source activities.
    It is the big picture. It's the one which really supports this
    whole watershed approach, where you don't look at just this
    point source or even just these point sources. You look at
    everything that's contributing to the problem and you decide
    which combination of reductions would best, most efficiently
    fix that problem.
        Senator Crapo. And that issue is what's been litigated in
    California, am I right about that?
        Mr. Parrish. Whether the non-point source component of that
    picture belongs in----
        Senator Crapo. In the TMDL programs.
        Mr. Parrish. Exactly.
        Senator Crapo. So as you said, hopefully this year we'll
    get an answer to that question.
        That being the case and I appreciate that this is not only
    debatable, but litigatable issue, where are we with regard to
    what the FACA Committee, how many of this panel were on the
    FACA Committee? The two of you.
        Mr. Nielsen. Notice that they put us opposite each other--
    --
        Senator Crapo. The question I have is did the FACA
    Committee recognize or take a position or approach this issue
    from either of these perspectives in terms of how they
    perceived non-point sources to be dealt with by the statute?
        Mr. Nielsen. There was disagreement on the committee and it
    came primarily from the agriculture and silviculture
    representatives and it was their contention that those
    practices did not fall under section 303(d) of the Clean Water
    Act.
        Senator Crapo. And so was there a--there was no
    recommendation in that context from the committee?
        Mr. Nielsen. There was no consensus.
        Mr. Parrish. There was no consensus, because in fact, there
    was this disagreement, a minority opinion if you will. To their
    credit though, those representing non-point source interests
    continued to work with the rest of us to shape what they felt
    would be a better more effective TMDL program, whether it
    included non-point sources or not.
        But the legalities--we just had to put that issue aside
    because it wasn't for us to resolve.
        Mr. Nielsen. Senator, if I could jump back to your previous
    question. I just wanted to make a brief comment on that. On
    whether there is some problem with including non-point sources
    in a TMDL. The problem as I see it in 1972, they included both
    the load allocations from point sources and non-point sources
    in the definition. The problem we ran into and I think Mr. Fox
    alluded to this is the difficulty of quantifying the load
    allocations and identifying the load allocations for those non-
    point sources.
        In the equation for TMDL they're laid out there. But, there
    is really no good scientific way to quantify and identify where
    they're coming from.
        Senator Crapo. Mr. Holm.
        Mr. Holm. The way that in Colorado for example we have used
    TMDLs and we've done close to 300 of them, most of them really
    related to supporting protective limits for point source
    permits. The non-point source component becomes a background.
    It becomes the fixed background against which protective limits
    for point sources have to be put into permits.
        Senator Crapo. Right.
        Mr. Holm. And I think most States have used TMDLs that way
    that have done TMDLs.
        Senator Crapo. Let me--this is really for my edification,
    but I'd like to try to go back to the example I was using with
    regard to Coeur d'Alene, ID and the basin up there. And I
    realize none of you are probably aware with much detail there
    so you'll have to just use this as an example and trust my
    recitation of the facts. But, that is an ecosystem, if you
    will, or a basin which has had a tremendous amount of historic
    hard rock mining for hundreds, for a hundred years or more and
    so there have been some point source issues, but there has been
    so much mining throughout the upper reaches of the basin that
    now there's runoff questions and things like that where you
    really--I think there's a lot of non-point source issues as
    well.
        And it seems to me as we focus on the question of whether
    this really is something which the local community has control
    over that I saw an interesting dynamic because the Agency
    officials in all sincerity believed as they testified that this
    is something where the States can figure out what to do and if
    they can do it, they can do it.
        The problem was as I have come to evaluate it and the
    testimony of this panel is helping me to see this even in more
    clarity, that the definition of the standard pretty much
    establishes what must be done for the implementation. And so
    you can control the implementation decisions by the standards
    that you set. And I'd just like your comment on that. Am I
    correct in that assumption or in that conclusion?
        Ms. Adams.
        Ms. Adams. That's exactly right. In Kansas we made that
    mistake and that's my own personal opinion in setting our water
    quality standards about 10 years ago with the idea that they
    were goals and now they're not goals anymore. And we set them
    at very, very protective levels. Once you do that there is an
    extreme burden to change them. We have a natural salt intrusion
    problem in the center part of our State and at the time that
    those regulations were passed they didn't take that into
    consideration. We have 20 years' worth of the data to show that
    it's a natural intrusion and if you think we can get region 7
    to change their mind on that issue, it won't happen.
        Senator Crapo. And as long as the region, is region 7
    doesn't change its mind the only way to achieve that standard
    if it's achievable is very narrowly limited.
        Ms. Adams. To nail the point sources down till they can't--
    they're putting cleaner water back in the river than what
    they're getting out.
        Senator Crapo. Any other comments on this aspect, Mr. Holm?
        Mr. Holm. I can relate very directly to the problem of
    Coeur d'Alene. In Colorado our most difficult water quality
    problems are related to past mining and we've been working on a
    number of basins that have very similar problems to Coeur
    d'Alene and I'm quite familiar with Coeur d'Alene, as well.
        There are a couple of points that I wanted to make and
    maybe these are things that would be of value.
        First of all, it's true that the Gold Book standards, the
    table value standards will rarely be achievable in watersheds
    that have been heavily altered both geothermally by the
    mineralization process and then by man's activities in mining.
    So therefore, it's a given fact that site specific standards
    are going to be needed. The other thing though is that with
    abandoned mines there's a unique problem, there are no
    operators. You have a succession of landownership where there's
    no activity any longer taking place that would warrant some
    sort of treatment.
        Senator Crapo. Right.
        Mr. Holm. Being imposed. And one of the problems in the
    Clean Water Act is that even if people who don't have
    responsibility for those problems enter in and try to do
    something that would make good sense to improve water quality,
    they could become responsible for the problem and get tagged
    with the costs of cleaning up to the water quality standards.
        There has been discussion of a Good Samaritan provision
    under the Clean Water Act and I would really urge you to take a
    look at that and consider supporting it. And what that would do
    is allow people to come forward with projects that would make
    the most sense to abate the pollution problems that are there
    short of installing chemical and physical treatment plants at
    every old abandoned mine site.
        Senator Crapo. Without picking up liability.
        Mr. Holm. Without picking up liability, but a permitting
    process where there would be some rigor. It's just that it
    would be based on practical management practices, the best
    management practices for a given type of problem. When that
    kind of a program was put into place in a basin that was
    impacted like Coeur d'Alene is, there would be a result in
    water quality. The water quality would be improved to some
    degree and at that point I think there would be a very solid
    case to be made that the residual water quality problems are
    really part of the background. They are--in other words, a
    higher level of water quality is just simply not attainable.
        That would provide a basis for site specific standards.
        Senator Crapo. Thank you. Mr. Parrish.
        Mr. Parrish. If I may add, you're right that the standards
    set the goal for the TMDL process. If that goal is deemed
    unreasonably high in specific instances, there is a process in
    place for changing it. Now frankly, my experience is exactly
    the opposite with EPA. I have seen EPA only too willing to
    consider changing a standard to reflect a natural dissolved
    oxygen level in swamp water for instance that is unattainable
    given the routine standard for most surface waters in the
    Commonwealth of Virginia.
        That's perfectly reasonable. I suspect there's a serious
    miscommunication problem if they're--if EPA is seemingly
    demanding higher than natural standards in Kansas or elsewhere.
    That is not national policy.
        Senator Crapo. I don't.
        Mr. Parrish. And I will tell you that the first TMDL
    produced by the State of Tennessee and approved by EPA just
    last year included a site specific standard because it was
    deemed that cleaning up that small waterway to fit the State
    and national standard otherwise applicable was simply not worth
    the investment to society. A different standard was proposed,
    EPA accepted it, and the public can live with it. That process
    is in place.
        Senator Crapo. Good, Mr. Parrish, that is actually very
    good news for me to hear you say because I only have the one
    experience I've described here today in Idaho where the process
    was technically in place, but I'll tell you it's been like
    pulling teeth to get it to work.
        In fact, the standards that they were imposing and still
    are imposing, are such that if you were to go up into the
    highest parts of the watershed above any manmade activity and
    take the purest water you could get it would be out of
    compliance.
        And in fact, I can go on with the stories about this. And
    it's simply because of the regional circumstances of the
    geography or whatever the word is that I should be using there.
    And everybody agrees, but for some reason in our case it
    doesn't seem to be working. And so I'm hopeful that we are an
    aberration that is not the norm and that what you described is
    accurate. That it works that way most of the time.
        Mr. Parrish. But it even sounded as if it was working that
    way in Coeur d'Alene. It's just taking a while.
        Senator Crapo. It's taking a while, but it shouldn't have
    to take a U.S. Senator 8 months to make it work is what I'm
    saying.
        Yes, Mr. Nielsen.
        Mr. Nielsen. Your example you brought up though was
    something that we wrestled with on the Advisory Committee, the
    historical or legacy problems that really pre-dated any of the
    Clean Water Act. And I think the current regulations make
    exceptions for sites similar to this. We have a situation in
    Wisconsin of PCB deposits in the Fox River, that's an example
    of that. There are other cases that we talked about and they're
    scattered throughout the entire country so it's not an isolated
    example. There will be such situations.
        And I think the regulations or the recommendations if I
    recall from the EPA are to deal with it in a manner that Mr.
    Holm suggested that there would be exceptions for backgrounds
    that would be contributed by these sources and there would be a
    longer time period beyond the 15 years to deal with that.
        Mr. Parrish, is that your recollection on how we decided?
        Mr. Parrish. More or less. I don't think there is actually
    an exemption in the current regulations, but there's an
    understanding that these much more difficult problems are going
    to take longer and are not going to lend themselves to the same
    kinds of point source or non-point source reductions that
    hopefully will fix most of the problems.
        Senator Crapo. Mr. Parrish, I have one question specific to
    you and I do want to say that as we've all said here that clean
    water is extremely important to us and we want to see it solved
    and that we have work to do. And I'll be the first to
    acknowledge that.
        You know I'm often asked, being from Idaho, by my
    constituents why would you leave here and go live in
    Washington, DC., why do you want to go do that, because we have
    beautiful clean water and clean air and wonderful environment
    and we want to make it cleaner and keep it that way, so it's
    something we can all identify with.
        And I appreciate your perspective as a FACA member having
    gone through the process. And in your written testimony you
    focused on the implementation plan as an area of agreement and
    it's my understanding that there was disagreement as to whether
    the implementation plan should be included in Sec. 303 or
    303(e), which basically comes down to whether the EPA has the
    authority to approve or disapprove and to rewrite a State
    implementation plan. And to me that seems to be pretty
    critical. What's your opinion on that issue?
        Mr. Parrish. Your understanding is correct. There was
    agreement, complete consensus on the Advisory Committee that
    TMDLs were worthless if they were not implemented.
        Senator Crapo. Right.
        Mr. Parrish. And that implementation plans should be part
    of a TMDL-based watershed recovery plan.
        There was a difference of opinion about whether it should
    be part of that plan formally and submitted to EPA for review
    and approval under section 303(d), or developed concurrently or
    perhaps afterwards, but separately, and submitted as part of
    the watershed management plan under section 303(e). And the
    difference is largely whether it will be subject to EPA review
    and approval.
        From a practical standpoint I have firm belief that if
    implementation plans aren't done with TMDLs and reviewed as
    part of the TMDLs they are not going to be done.
        And if implementation plans are prepared but not subjected
    to review and approval, well we've seen 20 years of that and I
    frankly don't think it's worth anything.
        Senator Crapo. If there were not--is there any enforcement
    mechanism if the EPA doesn't have oversight? I mean what
    happens under section 303(e)?
        Mr. Parrish. No enforcement mechanism whatsoever. The
    fallback position for those who work to clean up waters really
    is asking EPA to step in and take over State programs because
    States aren't doing the job. That's something nobody wants as a
    practical matter.
        Senator Crapo. Mr. Holm.
        Mr. Holm. If the TMDL is established and approved by EPA
    under the current rules, the TMDL must be implemented through
    NPDES permits that are issued. So clearly there is an
    enforceable mechanism for the point source component of a TMDL
    right now, today. With regard to the non-point sources it's
    true that if implementation plan was done under section 319 or
    as part of the continuing planning process section 303(e) that
    that would not separately be approvable by EPA and frankly, I
    think the States feel that that is a plus. We think that
    there's an orderly sequence that needs to take place when
    you're involving real people in this process.
        And the first part of that is to develop standards. The
    second part is to translate those standards into a water body,
    a very specific water body. That's the TMDL. After that,
    allocating responsibilities, developing an implementation plan
    can follow. If you try to force that at the same time you are
    establishing a water body specific goal everybody just runs
    away. It stifles the process and you just don't get there.
        Senator Crapo. Ms. Adams, I just wanted to ask you, you
    mentioned a State voluntary incentive-based program to reduce
    runoff. Can you elaborate on that or maybe share your thoughts
    on how such a program might formulate a basis for an
    alternative solution to the current proposal or a supplement to
    it?
        Ms. Adams. That specifically was part of the Governors
    Water Quality Initiative and what we did we went into the
    Kansas lower republican basin, it's our most populous basin. It
    has a mixture of industrial, agricultural and it has a lot of
    surface waters so it was a good test area for us. We also grow
    row crops in that area that use a lot of atrazine to keep the
    weeds down. We identified that Perry Lake, which is a drinking
    source, had an atrazine problem. We offered a $5-per-acre
    incentive payment from State funds to producers in the sub-
    basin if they would apply the atrazine when Kansas State
    University had determined was the best time to put atrazine on
    so it wouldn't run off with the spring rains. We bought half
    time of the county extension agent. He went out door-to-door to
    every farmer and talked to them about the program, why they
    needed to do it and why it was economically feasible for them
    to participate. He got them to enroll in the program and they
    applied the atrazine at the appropriate time. They then got
    their $5-an-acre payment. The levels of atrazine in the lake
    have dropped to below the drinking water standard.
        We have used the Buffer Initiative. We provide a State
    incentive payment on top of the CRP payment to enroll buffer
    strips, again in targeted areas to reduce runoff. We've had
    very good luck getting people to enroll. We're doing the
    monitoring now to see what kind of results that we've had. The
    city of Wichita in the Cheney Lake project put a million
    dollars in of their own money with some Federal moneys and some
    State moneys to work with producers to reduce non-point
    loadings so that they wouldn't have to build an addition on to
    their drinking water plant.
        So, we've had a lot of good luck with providing the
    payments. But, you have to provide the understanding of how it
    helps them economically. I mean it doesn't help a producer to
    put on atrazine and have it all run in the river because it
    doesn't do it's job. And help them do the kinds of things that
    need to be done. But it was very successful. And now that
    incentive program is over and all of the landowners in that
    basin are continuing to apply the atrazine in the best
    management practice manner even without the incentive.
        Senator Crapo. I just have a couple of more questions. But
    Mr. Parrish, I'd like to ask your observation on this and
    anybody else who wants to pitch in on this. There's a voluntary
    approach there, sort of an incentive-based approach that a
    State has come up with. How does the EPA or how should the EPA
    evaluate this in terms of determining whether the States plan
    is going to achieve the objective? It seems to me that you
    don't know whether a States proposal is going to work until
    you've been out experiencing it for 5 or 10 or 15 years or
    whatever the time period is. And yet the State or the EPA has
    to approve this up front, doesn't it? How does that all work?
        Mr. Parrish. The EPA has to approve non-point source
    reduction components of a proposed TMDL in advance of the
    implementation. These are the types of programs EPA has said
    would likely be approved. And the types of factors are whether
    there is, in fact, some funding to support them. Whether there
    is a track record. Whether there are educational materials and
    a program for getting them out to the landowners. These are the
    types of programs that distinguish a reasonably likely success
    from a wing and a prayer.
        But if you propose a non-point source reduction from
    agriculture, forestry or anything else and you don't really
    have any solid reason for predicting that it will succeed, then
    that's the type of program I would expect EPA to say, ``No, we
    need better than this.''
        Senator Crapo. OK. The last issue or question I want to get
    at is one that we've talked about a little already, but I want
    to just explore it a little bit one more time with the panel.
        I'm a very big proponent of collaborative decisionmaking
    and in my opening statement I referred to a book by Dan Kemmis
    from Montana that talks about that issue in some context. To me
    collaborative decisionmaking just by definition means that
    people from all the perspectives that we can get, as broad a
    base as we can get, come together and sit down and try to
    understand each others concerns, define objectives and figure
    out solutions and try to do so in a way that is a win/win for
    everybody.
        In fact, Dan Kemmis puts a chart in his book which he got
    from somebody else. Which is an X/Y axis, with say the X axis
    being the economy and the Y axis being the environment. And he
    makes the argument which I agree with, that the current
    environmental decisionmaking process that we often find
    ourselves in results in solutions on that X/Y axis graft that
    are close to the intersection of the two axis, namely they're
    low for the environment and low for the economy. And they're
    really high on conflict, but they're low in terms of results
    from whichever perspective of those two parameters that you
    choose to view it.
        He also contends and which I agree with, that there are
    solutions that are further up on the X and further out on the
    Y, or further out on the Y and out on the X axis, that are
    higher for the economy, better for the economy and better for
    the environment. And that those solutions are best achieved by
    people who are closest to the particular issue that is being
    discussed.
        With that in mind as a kind of perspective that I come
    from, it seems to me that true collaborative decisionmaking
    means that the--must mean that the people who are sitting at
    the table doing the collaborating have to have the ability to
    make the decision. And that if there is someone at the table or
    someone who's not at the table who is ultimately going to make
    the decision then it's not really collaboration. It might be
    advice or consultation and it might be a good discussion, but
    it's not really a circumstance in which people from competing
    perspectives, competing interests and competing jurisdictions
    are sitting down and if you will, I don't think it's exactly
    this way, but negotiating about how to achieve these results
    which hopefully are better on both the economy and the
    environmental axis. And I would just like your comment on that.
        What I'm really getting at is this question of whether we
    will be able to have effective collaboration if, in this case,
    the EPA is the one who holds all the cards on being able to
    make the decision or said another way, perhaps this FACA
    Committee with all the different perspectives at the table
    should have been able to make the decision and it would be
    binding and would we have had a better solution had something
    like that worked? Mr. Nielsen.
        Mr. Nielsen. Mr. Chairman, my experience with this comes
    from some demonstration projects that we did throughout the
    State of Wisconsin. I don't think even at the FACA level these
    decisions can be made. You have to actually have the landowners
    and the people in that actual watershed that are sitting at the
    table making the decisions.
        Ms. Adams brought up the trading program. The trading
    program that is prescribed by the EPA and the offset program is
    fatally flawed. Trading programs do work, but they only work on
    a local level where there's joint and mutual benefit.
        I need to trade copper, there's nobody in the agriculture
    community that's going to trade copper with me. I need to trade
    zinc, I can't find anybody even--no one in the manufacturing
    community is going to trade copper or zinc with me either. So
    we're in a bind. We're faced with a couple million dollars
    improvement to our sewage treatment plant.
        So, those are the kind of--the solutions and you've said
    this and other people throughout the hearing, the solutions
    really rest at the local level. And they're going to have to be
    hammered out watershed by watershed. I've seen some problems
    with that. You run into problems of political jurisdiction. In
    the State of Wisconsin we can't even get our neighboring
    township to cooperate with us, so I think you're going to have
    to set up governmental units that deal with it on a watershed
    basis.
        California has done this, they're way ahead of the curve on
    those.
        The other problem you run into and Mrs. Adams alluded to
    this, when you're dealing with farmers and the price of milk.
    I'm not here to talk about milk even though I'm from Eau
    Claire. The price of milk goes below $10 per hundred weight,
    the farmers are saying, ``I'd love to do this, but I'm just
    trying to survive.''
        Senator Crapo. ``I can't.'' Right.
        Mr. Holm.
        Mr. Holm. This brings up an issue that I'd hope to touch on
    earlier and that is that what you're talking about in the way
    of collaborative decisionmaking takes time and it costs money.
    And that's not been built-in to this proposal at all. Not in
    any way, shape or form. You have to host these kinds of
    watershed conversations. It takes gifted people to do that so
    that it does become a collaboration. It takes creative people
    that are going to persist until they really do find that point
    that you're describing where it's win/win, it's least cost, and
    most benefit. It takes trust building. It takes a lot to
    achieve that goal. And it's exactly what we ought to have
    before us as the goal, the next goal for water quality
    management.
        It's not a quick hit. But the point I wanted to make is
    that it's not going to be free either at the community process.
        Senator Crapo. Good point. Mr. Parrish.
        Mr. Parrish. I would say this program presents an enormous
    opportunity for collaboration, but it is not going to be
    completely unbound. There is nationwide interest in clean
    water, and there are national standards in place that can only
    be departed from with a specific demonstration that it's in a
    very strong local interest to depart from those standards.
        But in terms of choosing how to meet that goal, there's
    almost complete discretion built into this program as long as
    what the State and local efforts decide upon has a reasonably
    good chance of succeeding.
        Now as far as time, we've got 15 years built into the
    regulations as is, and this is on top of almost 30 years of
    experience or perhaps not so much experience, after the
    requirement first was adopted by Congress. I think we've taken
    more than enough time already, and we have an awful lot of
    additional time built into the regulations as is. Resources and
    money, I agree, we're going to need more across the board. EPA
    is proposing almost $100 million more this year. I think that's
    going to get us well down the road. Some States are already
    proposing or rather appropriating additional moneys of their
    own because they're not willing to wait on the Federal funding.
        You're going to see a mixed bag across the country. We've
    got a lot to learn, but we're not going to learn any of it just
    talking about our commitment to clean water.
        Senator Crapo. Mr. Archey.
        Mr. Archey. I think if we're trying to achieve that farther
    out X and higher Y it's possible certainly in the context of
    collaboration. The thing that comes to mind to me, for
    instance, is if we're going to require people to do more things
    at greater costs because of public benefits for instance, clean
    water off their property because of their activities, then we
    better be able to somehow reward that good work. And I think
    that kind of thing will push that intersection point up there
    where we realize that we want both. But if we want both, let's
    pay for the one that may be suffering the most.
        Mr. Nielsen. Mr. Chairman, I think you mentioned you were--
    you've been a Senator for 7 years.
        Senator Crapo. No, I've been in Congress for 7 years. I was
    in the House for 6 and this is going on 8 years.
        Mr. Nielsen. If you look at what was achieved in the early
    years of the Clean Water Act through dealing with point
    sources, most of that funding came from the Federal Government.
    This is a nationwide problem. And I would concur with the rest
    of the panelists that I think we need to look at Federal
    funding sources to deal with this nationwide issue.
        I would mention that Dan Kemmis, when he was the Mayor,
    served on our National League of Cities Board of Directors.
        Senator Crapo. Yes, he was the Mayor of Missoula, wasn't
    he?
        Mr. Nielsen. Was he in Missoula? I don't know; it was
    before my time. Missoula is a great town.
        Senator Crapo. All right, anybody else want to get in their
    last hit?
        [No response.]
        Senator Crapo. OK, let me thank you. I know that it's been
    a long afternoon for all of you, but these are very critical
    issues and I can assure you that this committee is going to pay
    very close attention to them. We want to find the right
    solutions and we're going to be paying as close attention as we
    can and perhaps finding some bipartisan solutions at this level
    or if possible driving it as far out as we can into the local
    regions with that flexibility we've talked about. But thank you
    all for your attendance here.
        The hearing is adjourned.
        [Whereupon, at 4:40 p.m., the subcommittee was adjourned,
    to reconvene at the call of the chair.]
        [Additional statements submitted for the record follow:]
      Statement of Hon. Max Baucus, U.S. Senator from the State of Montana
        Thank you, Mr. Chairman.
        This is an important hearing. The new Clean Water Act ``TMDL''
    regulations cut right to the heart of the matter.
        That is, how do we keep making progress toward the goal,
    established in 1972, of ``restoring and maintaining the chemical,
    physical, and biological integrity of the nation's waters'' so that,
    wherever possible, those waters are fishable and swimmable (section 101
    of the Act).
        As we all know, we've made a lot of progress. But we're not there
    yet, by a long shot. More than 25 years after the original Clean Water
    Act was enacted, almost 40 percent of our waters still do not meet
    water quality goals.
        TMDLs can be an important part of the solution. But establishing a
    good TMDL program won't be easy.
        It's like it is with other pollution control laws. Imposing
    technology standards is the easy part, at least relatively speaking.
    Achieving ambient standards, in this case clean water, is the hard
    part.
        I think of a TMDL as a pollution budget for a watershed. Kind of
    like the Clean Water Act version of a Clean Air Act State
    implementation plan.
        Like with a SIP, establishing a pollution budget for a watershed is
    complex. What's the target? Who bears the burden? How do you monitor,
    and measure progress? How much authority rests with the States, rather
    than EPA?
        I think that, with some prodding from the courts, EPA is basically
    on the right track with these proposed new rules.
        But I have two general concerns.
        The first is with the proposal to repeal the regulation that treats
    most silviculture practices as nonpoint sources rather than point
    sources. I've written Administrator Browner about this, and Assistant
    Administrator Fox has made a partial reply, which I ask be included in
    the hearing record.
        I appreciate the progress that this exchange of letters represents.
    But I'm still not convinced that, as a matter of law or policy, EPA's
    silviculture proposal makes sense.
        My second concern is with the level of prescription in the new
    rules. Governor Racicot and others will address this.
        We need to make sure that, as the courts have insisted, EPA and
    States get on with the job of developing TMDLs.
        But we need to do so in a way that enhances, rather than detracts
    from, the operation of good State programs.
        I look forward to continuing to work with EPA, the States, and
    others to help strike the right balance.
                                     ______

          Statement of Marc Racicot, Governor of the State of Montana
        Mr. Chairman, Senator Reid, and members of the committee, I am Marc
    Racicot and I have the pleasure of serving as Governor of the State of
    Montana.
        I greatly appreciate the invitation to share my thoughts regarding
    the Clean Water Act and specifically Total Maximum Daily Load (TMDL).
    This is of great importance to our State, both to our people and the
    resources we cherish.
        We are pleased this committee is taking an active role in reviewing
    the Environmental Protection Agency's (EPA) proposed revisions to the
    agency's water quality regulations, 40 CFR Part 130, published in the
    Federal Register on August 23, 1999.
        Before I begin, I want to mention to the subcommittee members that
    I have attached to my testimony the formal comments I submitted on
    behalf of the State of Montana to EPA on this proposed rule. Our
    State's natural resource agencies worked together to analyze the
    proposed rule and to develop the consensus comments attached.
        The State of Montana is very committed to achieving the clean water
    goals set forth in Section 303(d) of the Clean Water Act (CWA). This is
    especially demonstrated through our 1997 passage of State legislation
    pertaining to the Total Maximum Daily Load (TMDL) process.
        Our TMDL amendments to the Montana Water Quality Act successfully
    address many of the same issues that are now the focus of EPA's
    proposed rules. Our comprehensive State law establishes 303(d) listing
    methodologies and criteria, specifies a public involvement plan, sets a
    10-year schedule for statewide TMDL development, addresses TMDL
    implementation and monitoring, and authorizes pollution offsets.
        As well, our State TMDL program funding appropriation provides new
    State revenues for accelerated water quality problem solving. Indeed,
    we are currently achieving at the State level what EPA hopes to
    accomplish nationally with the proposed rules.
        EPA's presumption that solutions to long-standing national TMDL
    issues must be prescribed within the context of new Federal regulations
    is at the core of Montana's concerns over the proposals. We fear that
    the program changes envisioned by EPA will add unnecessary and
    inappropriate specificity that will ultimately hinder the success of
    our current program.
        The proposed changes could seriously compromise our State program
    goals and strategy, undermine recent intensive implementation efforts
    and public trust, and reduce our overall progress in achieving the
    water quality restoration goals of the Federal Clean Water Act.
        Mr. Chairman, I would like to mention briefly the process which
    lead up to enactment of our State law. And, I must confess, we are very
    proud of the work we have accomplished to date.
        A dialog was begun late in 1996 between Montana natural resource
    agencies, businesses and industries, and conservation groups to gage
    interest in developing State TMDL legislation which would address these
    concerns. A briefing paper was developed and distributed and a broad
    range of interests were invited to participate on a work group to draft
    legislation.
        Over several weeks, the group met regularly to revise drafts of a
    bill and to try to achieve consensus on bill content. While complete
    agreement was not achieved prior to the deadline for submitting the
    bill, remarkable progress was made in coming together on many of the
    issues. This effort paid off in strong support for passage of the bill
    in both houses of Montana's legislation and few amendments in the
    legislative process. House Bill 546 was passed into law in the State of
    Montana and became immediately effective with my signature on May 5,
    1997. Funding totaling nearly $1.4 million for the biennium was also
    provided by the Montana legislature.
        At the heart of Montana's program is the TMDL Advisory Council. The
    Council is made up of representatives from agriculture, industry,
    environmental groups, State and Federal agencies, and recreationists.
    The group provides input and advice to State decisionmakers and
    professional staff, and helps insure that the development and
    implementation of measures to improve water quality are truly grass
    roots approaches. We believe that those landowners and users who are
    asked to host and support on-the-ground measures should have a say in
    their development.
        Although EPA's stated objective in developing the proposed rules
    was to strengthen the efficiency and effectiveness of the Clean Water
    Act's TMDL program, the rules do little to accomplish this objective.
    Instead, the new regulations would add unnecessary complexity to
    Montana's ability to develop TMDLs in a timely fashion. The new
    regulations appear to focus on listkeeping and technical reporting to
    EPA, rather than effective assessment, implementation, and resolution
    of water quality problems. The rules also create a regulatory framework
    that is inherently inconsistent with section 303(d) of the CWA.
        Specifically, the rules create a presumption that a State's entire
    TMDL program, including its process and methodology of identifying
    impaired waters, prioritizing those waters, developing TMDLs for those
    waters, and addressing nonpoint sources in its TMDL process, are all
    subject to EPA's approval. In effect, the rules provide EPA with a
    ``veto'' power over a State's entire TMDL program. This is not a power
    envisioned by Congress when it granted EPA a limited oversight role to
    review a State's submission of lists and TMDLs under section 303(d).
    The State of Montana objects to the imposition of regulations
    establishing regulatory requirements over every component of a State's
    TMDL program when Congress has not sanctioned that approach.
        One of the primary drawbacks of EPA's proposed regulations is that
    they impose numerous regulatory details to address prior inefficiencies
    in TMDL development that have already been addressed by many States.
    Montana has already accomplished what EPA is attempting to achieve
    through the proposed rules. Montana is already more than 2 years into
    the process of making comprehensive changes to its 303(d) listing
    methodology and creating a publicly supported approach to development
    of TMDLs. We have a TMDL development schedule, new listing methods and
    decision criteria, a new publicly accessible data base to support
    listing decisions, a new TMDL prioritization process, and we have been
    working with local groups to ensure that TMDLs will be implemented over
    the long term with reasonable assurance.
        Also, Montana's monitoring provisions require that after 5 years,
    TMDL plans will be evaluated to determine if implementing organizations
    are making satisfactory progress. While we recognize the need for
    consistent guidance to States and the public regarding TMDLs, the new
    regulations do not give those States already implementing programs of
    their own enough latitude to determine appropriate management measures,
    especially for land use-related nonpoint source problems.
        In its finalization of the rules, EPA must acknowledge that Montana
    and many other States have already developed processes, methods and
    approaches to meet court, legislative or stakeholder demands for their
    existing TMDL programs. In many cases, EPA's proposed new substantive
    rules might be disruptive and expensive to States that have already
    developed effective TMDL programs endorsed by stakeholders and elected
    officials. This issue is at the forefront of Montana's concerns with
    the rules as currently proposed.
        Existing processes and approaches that meet court decrees and/or
    provide positive and beneficial results should not be compromised or
    superseded by these new rules. At the same time, States should be
    encouraged to be innovative in developing new processes and approaches
    that achieve the results envisioned by these rules in a more efficient
    manner.
        With this in mind, the State of Montana encourages EPA to apply a
    ``functional equivalency'' test to State TMDL programs prior to the
    imposition of any new program requirements. The test would provide a
    demonstration that a State process, method or approach achieves the
    same desired results intended to be achieved by the proposed rules.
    There are numerous examples of these cases, including how States
    prioritize their lists, incentives that States have built into their
    programs to achieve correction of impaired conditions in lieu of a
    TMDL, and recognition of various approaches to implementing TMDLs.
        Frankly, Mr. Chairman, we strongly believe EPA must recognize that
    ``one size does not fit all'' and the TMDL rules must remain open to
    alternative methods of doing business that achieve comparable results.
        We are also seriously concerned about the fiscal implications of
    the proposed changes. By all indications, the proposed program and its
    increased scientific rigor and reporting burden would cost
    substantially more to administer while achieving fewer water quality
    improvement results. The State of Montana operates its current TMDL
    program on a limited budget but achieves a high degree of efficiency
    through local leadership and volunteerism and by minimizing
    administrative overhead costs. Increasing program administrative costs
    would translate directly to less money available for local, on-the-
    ground implementation of water quality improvement measures.
        The State of Montana is very concerned that the new TMDL rules
    would result in significant additional costs to States over current
    law. According to EPA's Water Quality Workload Model, Montana currently
    has minimal resources to run a TMDL program under the rules as they now
    stand. Currently, the Montana Department of Environmental Quality (DEQ)
    has about 13 FTE (full time employees) committed to water quality
    standards activities, including monitoring, reporting and TMDL
    activities, with a budget of about $1.35 million. EPA's Water Quality
    Workload Model: Draft Module 2, when calibrated to Montana's
    parameters, suggests that 58 FTE and a total budget of about $4.9
    million would be needed to implement TMDLs on time under the rules as
    they now stand.
        It follows then that the new and more complicated rules proposed by
    EPA would set back the staff and unduly slow the TMDL process unless
    additional resources were obtained. In addition, the new rules undo
    much of the work and fiscal investments already put into Montana's
    current TMDL program. By our most conservative estimate, DEQ would need
    at least twice the current resources to comply with the proposed rules
    in a timely fashion. Our best guess is that between 22 and 24
    additional FTE over the 13.5 currently employed would be needed to
    comply with the new TMDL rules, along with several tens of thousand of
    dollars in new equipment.
        Again, Mr. Chairman, for the new regulations to be successful in
    achieving national clean water goals, they must accommodate a degree of
    flexibility on the part of the States that are charged with primary
    responsibility to implement the TMDL program. The rules must
    acknowledge that individual States are in the best position to
    formulate the most effective and efficient water quality improvement
    strategies for their regions.
        The rules must also recognize that States have primary
    responsibility for achieving water quality improvements through State
    authorized and funded programs. EPA also needs to carefully consider
    the water quality consequences of proposed program changes toward more
    intensive agency list keeping, administrative oversight and analytical
    rigor, and less focus on community based water quality problem solving.
        The top-down, prescriptive complexion of the proposed rule is
    contrary to the Clean Water Act and contrary to Montana's grassroots
    approach to TMDL development. Last, but no less importantly, EPA must
    remain sensitive to the need for additional State resources if national
    clean water goals are to be further expedited. In accordance with these
    basic tenants, the State of Montana recommends the following changes to
    the proposed rule:
        1. We support the need for a consistent, technically sound and
    well-documented listing methodology as the foundation for State TMDL
    programs. EPA should provide non-regulatory guidance to aid States in
    developing sound methods, should accommodate flexibility in adopting
    these methods, and should accept methods documentation on the same
    schedule as the 303(d) List submittal.
        2. EPA should require the submittal of a one-part 303(d) List of
    water quality-limited segments and should retain an optional provision
    for listing threatened waters and those impacted solely by
    ``pollution''. A tracking mechanism is needed for water quality-limited
    segments with approved TMDLs, but decisions to retain or de-list water
    bodies following TMDL approval and pending water quality standards
    attainment are best left to the States.
        3. We support changes that would require less frequent mandatory
    reporting. EPA should adopt a 5-year 303(d) reporting cycle and retain
    current provisions for interim list modifications.
        4. The State of Montana supports the proposed 8- to 15-year TMDL
    scheduling requirement, but recommends the inclusion of provisions for
    periodic adjustments during subsequent listing cycles. We urge EPA to
    continue to accommodate State flexibility in establishing TMDL
    prioritization criteria and in targeting water bodies for TMDL
    development. Specifically, endangered species and drinking water issues
    should be considered in State TMDL priority setting, but should not
    necessarily take precedence over all other possible State concerns and
    priorities.
        5. We support the need for timely implementation of TMDLs,
    including the need for accountability and reasonable assurance of water
    quality improvement. These concepts are an important part of Montana's
    program and implementation plans are a standard component. However, we
    propose that EPA's minimum required TMDL elements be provided in the
    form of guidance to States, not regulations. Allowances for future
    growth, however, are a local issue that should not be addressed within
    the guidance.
        6. We encourage EPA to retain States' discretion to use alternative
    expressions of TMDL water quality improvement targets in lieu of actual
    load reductions, in cases where this is appropriate. This is consistent
    with EPA's current TMDL development guidance and would ensure the
    needed State flexibility to select the most appropriate and cost-
    effective units of TMDL expression for each water quality improvement
    project.
        7. We fully endorse the need for public involvement in all phases
    of the TMDL process and this is at the cornerstone of Montana's
    program. However, additional EPA specificity in this regard, achieved
    through rule revisions, is unnecessary and unwarranted.
        8. EPA should recognize the States' primary role in implementing
    Section 303(d) and should not create a petition process that encourages
    EPA intervention in State TMDL programs. If this concept is to be
    retained in the rule, specific requirements should be added which
    require petitioners to demonstrate a good faith effort to resolve their
    issues with the State and to submit relevant supporting information.
    States should also be granted an opportunity within the rule to respond
    to petitions prior to any intervention on the part of EPA.
        9. EPA should approve any State TMDL submitted within 12 months of
    the final rule changes as long as it meets pre-amendment or post-
    amendment requirements.
        10. The required inclusion of atmospheric deposition in non-point
    source pollution load allocations is premature, given the State of the
    available science. States should be delegated the authority to decide
    how and when, on a case-by-case basis, State air quality management
    issues should be coupled with the TMDL process.
        11. Montana supports the concept of giving special consideration to
    threatened and endangered species during the TMDL process. Montana does
    not agree, however, that the rules should require States to engage in
    the consultation procedures applicable to Federal agencies under
    Section 7 of the Endangered Species Act. Instead, the rules should
    simply require States to informally involve the assistance of the U.S.
    Fish and Wildlife Service during TMDL development.
        12. Considering that the new TMDL rule would result in significant
    additional costs to the State of Montana, we recommend that EPA more
    accurately quantify these costs and address solutions to the
    anticipated State fiscal shortfalls before finalizing the rule package.
        Finally, Mr. Chairman, we are concerned that, despite receiving
    several tens of thousands of comments on the proposed rulemaking, EPA
    intends to ``fast track'' the proposed rules into adoption this summer.
    We ask that the agency consider carefully the concerns expressed by
    various States and stakeholders, and reserve to those States the
    discretion to continue to administer the TMDL programs in which we have
    invested so much effort and are receiving such good results.
        Again, Mr. Chairman and Senator Reid, thank you for the invitation
    to join you today and for considering our thoughts on this important
    issue.
                                        Office of the Governor,
                                          Helena, MT, January 19, 2000.
    Hon. Carol M. Browner, Administrator,
    U.S. Environmental Protection Agency,
    Washington, DC.

    Attn: Water Docket (W-98-31)

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

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

    Detailed Comments by the State of Montana on Proposed Revisions to the
         Water Quality Planning and Management Regulations, 40 CFR 130

                                  INTRODUCTION

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

                            303(D) LIST DEVELOPMENT

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

                               303(D) LIST FORMAT

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

                        303(D) LIST FREQUENCY AND TIMING

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

                   TMDL SCHEDULES, PRIORITIZATION AND TIMING

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

                                 TMDL ELEMENTS

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

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

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

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

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

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

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

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

                            HOW TMDLS ARE EXPRESSED

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

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

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

                              PUBLIC PARTICIPATION

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

                                PETITION PROCESS

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

                               TRANSITIONAL TMDLS

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

                             ATMOSPHERIC DEPOSITION

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

              LEGAL ISSUES CONCERNING ENDANGERED SPECIES ACT (ESA)

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

                        FISCAL IMPACTS OF PROPOSED RULES

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

    Attn: Water Docket (W-99-04)

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

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

    Detailed Comments by the State of Montana on Proposed Revisions to the
      National Pollutant Discharge Elimination System (NPDES) Program and
     Federal Antidegradation Policy--Water Quality Planning and Management
                       Regulation, 40 CFR 122-124 and 131

                                  INTRODUCTION

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

          ANTIDEGRADATION CHANGES--OFFSETS FOR NEW OR EXPANDED SOURCES

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

                POINT SOURCE DESIGNATION FOR CERTAIN OPERATIONS

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

                       ECONOMIC IMPACT OF PROPOSED RULES

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

        Statement of J. Charles Fox, Assistant Administrator for Water,
                        Environmental Protection Agency

                                  INTRODUCTION

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

                      RESTORING AMERICA'S POLLUTED WATERS

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

                                   CONCLUSION

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

      STATEMENT OF WILLIAM NIELSEN, COUNCIL PRESIDENT, EAU CLAIRE, WI, ON
                    BEHALF OF THE NATIONAL LEAGUE OF CITIES

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

                AFFECTS ON URBAN GROWTH AND ECONOMIC DEVELOPMENT

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

             SHIFTING FINANCIAL BURDEN TO LOCAL TAX AND RATEPAYERS

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

                  WET WEATHER ISSUES (STORMWATER, CSOS, SSOS)

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

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

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

                                LISTING DECISION

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

                              NLC RECOMMENDATIONS

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

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

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

               A. THE TMDL RULE EXCEEDS EPA'S STATUTORY AUTHORITY

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

     B. THE RULE JEOPARDIZES SUCCESSFUL PROGRAMS ALREADY BEING IMPLEMENTED

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

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

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

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

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

                               SUMMARY OF REMARKS

        Proper management of nonpoint source pollution lies in State and
    local efforts. It is important to note that the Clean Water Act gives
    States the lead responsibility to prevent, eliminate, and reduce
    pollution. EPA's proposed regulations do not reflect this leadership
    role for the States. We need that partnership to jointly tackle the
    challenges of further reducing nonpoint source pollution. We hope the
    subcommittee will review our concerns closely.
        1. The TMDL rule exceeds EPA's authority. It is a rigid, top-down
    program that will not improve water quality.
        2. It fails to recognize the substantial costs associated with its
    implementation. Without adequate funding, States will not be able to
    move forward in addressing agricultural nonpoint source pollution.
        3. It is important to remember that this is NOT about pushing paper
    and process, it is about people. It's about farmers and ranchers, their
    livelihoods, their businesses and their families.
        We stand ready to work with Congress, EPA, and USDA on constructive
    solutions to improve water quality. On behalf of my State colleagues, I
    thank you for this opportunity to speak before the subcommittee.
                                     ______

    Statement of David Holm, President, Association of State and Interstate
                     Water Pollution Control Administrators
        Mr. Chairman, members of the committee and subcommittee. My name is
    David Holm. I am the President of the Association of State and
    Interstate Water Pollution Control Administrators (ASIWPCA) and the
    Director of the Colorado Water Quality Control Division. ASIWPCA is the
    national, professional organization of State officials who are
    responsible for implementation of the Clean Water Act. As those on the
    front line, the Association's membership has a unique perspective on
    the issues before this committee.
        In the 1972 Clean Water Act, Congress gave the States the lead role
    to develop and implement the water quality program. States support the
    Act's goal to restore and maintain the nation's water quality and we
    believe the establishment of total maximum daily loads (TMDLs) is one
    of many important mechanisms to be used to achieve cleaner water.
        The States have been in a continuing dialog with USEPA concerning
    the proposed regulation. As co-regulators, we met to address State
    issues and consider options for addressing those concerns. In addition,
    ASIWPCA has sponsored a series of State/EPA conference calls on the
    regulations and has been a co-sponsor with the Western Governors
    Association of a series of workshops. These forums have allowed
    significant discussion that, we are hopeful, will ultimately bear
    fruit. USEPA appears to be receptive to a number of State
    recommendations to modify and streamline the current proposal and build
    upon existing program authorities.
        Because of constraints placed on USEPA in the rulemaking process,
    the Agency has not been able to make any commitments to the States. For
    this reason, Mr. Chairman, my comments will address the regulation as
    proposed.
        States have invested significant staff resources in analyzing the
    proposed rule and have spent many hours in joint consideration of the
    anticipated impacts on our existing programs. What we see here is an
    effort by USEPA to move the water quality programs forward, which is of
    course laudable. We are concerned however, that the rule, as proposed,
    will have serious, if perhaps unintended, consequences on State
    programs. For details, we refer you to the attached written comments
    developed jointly by ASIWPCA, the Environmental Council of the States
    (ECOS) and the Coastal States Organization (CSO) which were shared with
    USEPA in the spirit of partnership as co-regulators.
        States are mindful that the proposed wholesale modification to the
    TMDL regulation is being put forth in the context of existing statutory
    authorities and current funding levels. We caution that State program
    budgets and staffing levels are not sufficient to implement the current
    regulation. Those levels will not likely to grow to meet an ambitious
    waterbody restoration agenda merely because an arcane Federal
    regulation is changed.

                                 SECTION 303(D)

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

                             HISTORICAL PERSPECTIVE

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

                               GUIDING PRINCIPLES

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

                 CONCERNS REGARDING USEPA'S PROPOSED REGULATION

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

                                  BOTTOM LINE

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

                       MONITORING, LISTING AND DELISTING

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

        CHANGES TO THE NPDES PERMIT AND WATER QUALITY STANDARDS PROGRAMS

         USEPA Actions in Delegated States: Problems with State
    permit programs should be addressed under NPDES delegation agreements
    and current regulations. USEPA has no authority under the Act to issue
    an expired permit or to permit NPSs. Based on USEPA's track record, it
    does not seem realistic to assume that their proposal would ever work.
         Interim Period Before TMDL Development and Approval/
    Offsets: States should develop site-specific and/or watershed
    approaches that are consistent with current anti-degradation
    regulations and continued progress toward water quality goals. USEPA
    should delete the proposed offset provision.
         General Permits: Alternative sets of requirements should
    be allowable, depending on whether the discharge would be to a
    waterbody that is meeting WQS or impaired, with the goal of no-net
    increase in impaired waters. The TMDL program should not make the
    general permit process as resource intensive as issuing individual
    permits.
        Summary: The Association, in conjunction with the Environmental
    Council of the States and the Coastal States Organization, has
    commented to USEPA that existing statutory authorities do not provide
    for the level and kind of requirements outlined in the proposed
    regulation. This is particularly true for the nonpoint sources of
    pollution. We have serious concerns that the proposed regulation
    inherently limits the policymaking discretion of the States.
        We are convinced that this proposal is a significant rulemaking
    under Unfunded Mandates Reform Act which requires USEPA to hold the
    cost to States of new mandates as low as possible and to seek funds
    from Congress in the next fiscal year to offset those costs. It is also
    subject to the President's Executive Order 13132, issued in August 1999
    which states: ``Where there are significant uncertainties as to whether
    national action is authorized or appropriate, agencies shall consult
    with appropriate State and local officials to determine whether Federal
    objectives can be attained by other means.''
        Congress has a critically important role in clarifying its intent
    and in contributing to the creation of an appropriate framework under
    which we all may proceed. We asked that the committee support State
    efforts to identify and further explore with the USEPA, other means to
    attain our collective water quality objectives, as envisioned in the
    above referenced authorities.
        Congress will also have a significant role in determining the
    amount and kind of funding resources to be made available to the
    States, to local governments and to the USEPA and USDA for
    implementation of the overall TMDL program. We would like to enter into
    discussions with you and with the appropriating committees to secure
    the funds necessary to create, develop and implement a successful TMDL
    program.
        The States would also like to enter into discussions with the
    Congress and the USEPA relative to the reauthorization of the Clean
    Water Act. Because several of the issues addressed in the proposed rule
    can be considered as statutory in nature, we ask that the Congress be a
    leader in future dialogs relating to Clean Water Act authorities and
    any necessary amendments to achieve our overall water quality goals.
        Mr. Chairman, we thank you for the opportunity to present the
    perspectives and recommendations of the State Environmental, Water
    Quality and Coastal program officials. We appreciate the leadership
    role the committee is demonstrating on TMDLS and the work of your
    staffs to assure that Congressional intent and interests are being
    incorporated into USEPA's rulemaking. We look forward to having the
    opportunity to continue to work together toward the achievement of
    cleaner water for all Americans.
        Attachments: Comments on the USEPA proposed regulations, (Joint
    letter by the ASIWPCA/ECOS/CSO); Fact Sheet: State TMDL Resource Needs,
    Summary USEPA Cost Estimates; Excerpts of State Comments
                                     ______

     Statement of the Association of State and Interstate Water Pollution
                             Control Administrators
                                                      January 19, 2000.
    Hon. Carol M. Browner, Administrator,
    U.S. Environmental Protection Agency
    Washington, DC.
        Dear Ms. Browner: We write on behalf of the undersigned
    organizations concerning USEPA's proposed revisions to the agency's
    water quality regulations, 40 CFR parts 122, 123, 124, 130, and 131,
    published in the Federal Register on August 23, 1999.
        These State organizations have worked together to develop the
    attached comments and may also submit individual comments reflecting
    media specific perspectives. We appreciate the opportunity to comment
    on the proposal, which represents one of the most important and
    sweeping initiatives in the nation's effort to protect its waters.
        There are several points of overarching importance that we wish
    USEPA to keep in mind as it evaluates the detailed comments that
    follow.
        (1) Congress provided in the Clean Water Act that the States should
    have ``the primary responsibility and rights . . . to prevent,
    eliminate and reduce pollution, (Section 101(b)).
        (2) States, having this authority, should be full partners with
    USEPA in the management, protection and restoration of water resources.
        (3) States support the goal of the Clean Water Act and are
    empathetic as to the position in which the USEPA has been placed by the
    series of TMDL court cases.
        (4) The Federal executive branch, through the President's Budget
    Request and its negotiations with the Congress, needs to secure
    significant additional Federal funding for the Clean Water Programs.
        The Federal Water Pollution Control Act clearly identifies the
    States' lead role in developing and implementing water quality
    management programs. The States accept the responsibility to address
    important water quality problems and to be accountable for progress.
        States should be considered by USEPA as full partners in the
    management, protection and restoration of water resources. USEPA may
    not as a matter of law or policy consider that States are merely an
    interest group or stakeholder in the implementation of the Clean Water
    Act.
        The undersigned organizations represent those public servants on
    the front line in the efforts to protect our nation's water quality. It
    is the State and local governments that will be called upon to
    implement, substantially pay for, and defend the USEPA's final
    regulations in court. As USEPA has stated publicly . . . for USEPA to
    be successful its mission, the States must be successful in attaining
    their environmental goals.
        States have from the outset, supported and worked toward the
    accomplishment of the goals of the Clean Water Act to restore and
    maintain water quality. The States understand the implications of the
    numerous court cases on this subject. Translating and transforming
    those court actions and different opinions into an operating program
    and regulations applicable throughout the country is a formidable task.
        The proposed regulations are premised on a major and significant
    shift away from the historic point source focus toward a watershed
    based restoration approach. Yet, the proposed regulations reflect a
    pervasive top-down, command-and-control approach to water quality
    protection, which is unworkable where nonpoint source management is the
    primary challenge. While States support this shift to the watershed
    approach, the available scientific, financial and management tools are
    inadequate to assure successful implementation.
        It is critical that the Federal executive branch commits to and
    works aggressively for significant Federal funding increases to address
    water quality problems and support State environmental agencies. In our
    judgment, the infusion of sufficient funding to existing programs and
    supporting mechanisms could greatly enhance State efforts to accomplish
    the majority of the Federal objectives underlying the proposed
    revisions. Moreover, the imposition of unfunded mandates on States, or
    mandates that are paid for at the expense of other State programs, is
    unacceptable.
        In 1995 the Congress recognized this principle in the adoption of
    the Unfunded Mandates Reform Act. We believe this principle requires
    the USEPA to hold the cost to States of new mandates under the proposed
    regulations as low as possible, and also firmly commit to seek funds
    from Congress in the next fiscal year to offset these costs. We can
    document through the implementation of established TMDL's that the
    costs associated with the proposed regulations will far exceed the
    expenditures anticipated by USEPA.
        Finally, there are significant uncertainties as to congressional
    intent in the Federal Water Pollution Control Act and the legal basis
    for several of the proposed new requirements. For example, the State
    organizations are not convinced that there is a statutory basis for (1)
    requiring the inclusion in 303(d) lists and TMDL development for waters
    impaired solely by nonpoint sources; (2) requiring that implementation
    plans be submitted as part of TMDL's; or (3) providing the USEPA with
    the authority to intervene in a State's development of a TMDL.
        These concerns are raised in light of the President's Executive
    Order on federalism (August 1999).

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

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

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

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

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

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

                                    FOREWORD

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

                           I. GENERAL RECOMMENDATIONS

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

                                 II. RESOURCES

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

                     III. MONITORING, LISTING AND DELISTING

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

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

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

                             V. ESTABLISHING TMDLS

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

                             VI. PUBLIC INVOLVEMENT

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

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

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

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

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

         IX. CHANGES TO THE NPDES AND WATER QUALITY STANDARDS PROGRAMS

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

       STATEMENT OF ASSOCIATION OF STATE AND INTERSTATE WATER POLLUTION
                        CONTROL ADMINISTRATORS (ASIWPCA)
                           TMDLS AND RESOURCES NEEDS

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

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

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

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

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

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

                                     ______

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

                                    OVERVIEW

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

                            POLLUTION VS. POLLUTANT

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

                                    LISTING

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

                                  DATA QUALITY

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

                         PRIORITIZATION AND SCHEDULING

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

                          COVERAGE OF NONPOINT SOURCES

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

                  IMPLEMENTATION PLANS AS A COMPONENT OF TMDLS

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

                          REQUIRED ELEMENTS OF A TMDL

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

                             REASONABLE ASSURANCES

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

                            USEPA PERMITTING OF NPS

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

                         ANTIDEGRADATION POLICY/OFFSETS

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

                                EXPIRED PERMITS

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

                                  MIXING ZONES

        ``The draft regulations eliminate the use of mixing zones in
    impaired waters. This shifts a disproportionate amount of
    responsibility to the permitted discharges to improve the water quality
    of the receiving stream. The policy of utilizing mixing zones should be
    a State decision based on the totality of circumstances.'' [MS]
                                     ______

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

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

                      SHIFT FROM HISTORICAL INTERPRETATION

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

                         BENEFITS OF FOREST MANAGEMENT

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

           IMPLEMENTATION: MORE COSTLY AND CUMBERSOME THAN EPA THINKS

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

    ------------------------------------------------------------------------
                                        Annualized Cost     No. of Entities
           Proposed Provision             ($ Million)     Affected  Annually
    ------------------------------------------------------------------------
    Designating Silvicultural
     Operations Under NPDES:.
    Cost for the silviculture         3.45--12.93.......  ..................
     industry.
    Administrative costs to Federal   0.27-0.28.........  ..................
     and State governments.
                                     ---------------------------------------
        Subtotal....................  3.72--13.22.......  613-1,225
    Annualized compliance costs for   0.36 percent to     368-735
     small logging firms.              0.67 percent of
                                       their annual
                                       revenues.
    Annualized compliance costs for   0.27-0.50 percent   <18,000
     small entity timber owners.       of their timber
                                       revenues.
    ------------------------------------------------------------------------

        State Foresters believe the above estimates are far too low and the
    proposed NPDES rule will affect a far greater number of entities than
    the EPA has envisioned.
        First and foremost, the authors of the cost analysis admit the
    final reported costs are vague, misleading and uncertain. In their
    proposal, EPA states: ``This paper presents some rather uncertain
    estimates of how often the proposed designation authority might be
    invoked, and, if so, the costs that will likely ensue'' (p. 52,
    Environomics, 1999, emphasis added). This analysis must then be assumed
    to represent a low end-cost estimate. We believe it would be more
    appropriate to include a high-end estimate to better prepare
    potentially affected entities. We believe such a high-end estimate is
    justified by the fact that EPA will likely be pressured, through
    additional litigation, to expand their use of regulatory authority
    under NPDES if the proposed rules are implemented. The final result
    will be significantly greater costs than anticipated by the
    Environomics report.
        Reinforcing our belief that EPA cost estimates are far too low, the
    authors utilize ownership and business data that is seriously out-of-
    date. The 1978 data source quoted by the authors indicate only 7.8
    million ownership units holding 333.1 million acres of private forest
    land in the U.S. That same survey was updated in 1994. The 1978 data
    source underestimates the number of private forest landowners by 2.1
    million, and the number of acres owned by these landowners by 60
    million acres (National Research Council, 1998). Furthermore, the
    estimated number of affected logging entities is underestimated nearly
    three-fold. While the authors report only 14,278 logging entities
    nationwide, that number is closer to 37,000 according to the Forest
    Resources Association (formerly the American Pulpwood Association).
    These numbers will substantially raise the estimated costs of the
    proposed NPDES rule.
        Even if we assume, however, that the Environomics report is
    accurate, we would be forced to question the need for the rule if the
    number of effected landowners and forest management operations that
    would be impacted is so small. Their cumulative impact on water quality
    would be nearly immeasurable.
        Again, we believe the EPA's cost estimates for the proposed NPDES
    rule are far too low and the true cost impacts will greatly outweigh
    any potential benefits, especially when considering the small amount of
    sediment pollution silviculture contributes to the NPS water pollution
    problem. The proposed NPDES rule is simply another disincentive for
    landowners to actively engage in forest management. We believe that the
    higher costs associated with these rules raises the question of an
    unfunded mandate which would be well above the $100 million threshold.
    This question should be revisited.

                                   CONCLUSION

        On October 22, 1999, USDA Undersecretary for Natural Resources and
    Environment sent a letter addressed to EPA Administrator Carol Browner
    on the proposed revisions to the Total Maximum Daily Load and NPDES
    systems. This commentary provides a very telling and accurate story of
    the affects the proposed rules would have. From the letter, ``In
    general, we (USDA) feel that if the proposed rules are implemented they
    will likely cause disruption to existing NPS control programs that have
    proven to be effective and will unnecessary divert scarce resources to
    a top-down, process oriented approach that may not work for NPS
    pollution control.'' We could not agree more.
        The fact is forest management is dispersed in both space and time.
    State Foresters believe that (1) nonpoint source pollution from
    forestry activities are usually a result of extreme weather or
    operational malfeasance; (2) pollution can best be controlled through
    prevention; and (3) forest management has the least impact of land-use
    alternatives. Therefore, the EPA should retain its current NPS
    treatment of silvicultural practices. The idea that a tracking,
    permitting and monitoring system for nonpoint sources, let alone
    forestry, could be established to pinpoint offenders in a timely manner
    is simply illusory. If anything, we feel that other land uses should be
    brought up to the level of protection evident on forest lands,
    particularly when taking into account their relative contributions to
    the NPS pollution problem.
        For these reasons, NASF recommends that the EPA retract the
    proposed NPDES and TMDL rules. We would encourage the agency to
    seriously revisit the NPS pollution issue to determine what is needed
    to further improve the quality of water coming off of our forested
    landscapes; already considered to be the source of the cleanest waters
    in the United States (USDA Forest Service, 2000). If the EPA is simply
    looking for reasonable assurances that silviculture does not
    significantly contribute to water pollution, the answer does not lie in
    Federal regulation. We suggest the answer lies in stronger commitments
    to BMP implementation at all levels of government within a voluntary
    and incentive-based context that prevent water quality problems before
    they happen. The Federal Government has a vested interest in this
    public good which justifies boosting Federal resources and investments
    that will be needed to see such commitments through.

                                   REFERENCES

        Environomics, 1999. Analysis of the Incremental Cost of Proposed
    Revisions to the EPA NPDES Permit and Water Quality Standards Rules.
    Environomics, Inc.
        EPA, 1996. National Water Quality Inventory [305(b) reports].
    Environmental Protection Agency.
        Ice, George, and Shepard, Jim, 1999. Silviculture and Water
    Quality: A Quarter Century of Clean Water Act Progress. National Center
    for Air & Stream Improvement (NCASI).
        National Research Council, 1998. Forested Landscapes in
    Perspective: Prospects and Opportunities for Sustainable Management of
    America's Non-Federal Forests. Committee on Prospects and Opportunities
    for Sustainable Management of America's Non-Federal Forests, Board of
    Agriculture, National Research Council.
        Olszewski, Robert, 1999. Testimony before the House Agriculture
    Subcommittee on Department Operations, Oversight, Nutrition, and
    Forestry. October 28, 1999.
        Stuart, Gordon W., 1996. The National Association of State
    Foresters 1996 Progress Report, State Nonpoint Source Pollution Control
    Programs for Silviculture. National Association of State Foresters.
        USDA Forest Service, 2000. Water & the Forest Service. FS-660.
                                     ______

                 Attachment--NASF Watershed Forestry Initiative

      WATERSHED FORESTRY INITIATIVE (USDA FOREST SERVICE--STATE & PRIVATE
                        FORESTRY--COOPERATIVE FORESTRY)

    Background
        Forests are essential to clean water our most precious resource.
    Well managed forests absorb rainfall, filter pollutants from air and
    water, and recharge underground water supplies. They protect streams
    and wetlands and reduce flooding--keeping our environment healthy.
    Forests provide critical habitat for fish, wildlife and rare plants.
    Many communities rely on their forests to support the local economy and
    improve the quality of their everyday lives. Clearly an investment in
    trees and forests is an investment in clean water, clean air, and clean
    communities.

    Issues Facing Our Watershed Forests
        Non-point source pollution on private forestlands has been
    addressed primarily through State Forestry Agencies in cooperation with
    the USDA Forest Service. Nationwide, nearly 70 percent of our
    forestlands are privately owned. In the Eastern US, that figure rises
    to over 90 percent. These forests produce \2/3\ of the clean water we
    need for recreation and support of fish and wildlife habitats as well
    as the drinking water supply for millions of Americans. In addition to
    environmental benefits, these private forestlands also produce over 50
    percent of the nation's wood and paper products.
        Forests are increasingly being removed and fragmented by land-use
    changes, placing stress on forests and their watersheds. These losses
    of forest affect more than our quality of life. In the Baltimore-
    Washington region alone, tree loss over the last 25 years has increased
    runoff nearly 20 percent, causing flooding and eroding streams and
    costing local governments over $1 billion in treatment costs.
    Increasingly, the conservation, restoration and stewardship of private
    forestlands is viewed as crucial to securing watershed health and
    sustaining it in the future.

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

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

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

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

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

                                     ______

            STATEMENT OF RICHARD A. PARRISH, SOUTHERN ENVIRONMENTAL
                                   LAW CENTER

                                  INTRODUCTION

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

                         EARLY FAILURE OF TMDL PROGRAM

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

                       ADVISORY COMMITTEE RECOMMENDATIONS

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

                 SOME COSTS AND BENEFITS OF THE PROPOSED RULES

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

                                   CONCLUSION

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

                STATEMENT OF AMERICAN SOCIETY OF CIVIL ENGINEERS

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

                     A. STATUTORY AND REGULATORY BACKGROUND

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

                              U.S. EPA, BASINS 2.0

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

               B. PROPOSED REVISIONS TO THE PART 130 REGULATIONS

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

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

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

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

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

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

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

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

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

              STATEMENT OF THE INTERSTATE COUNCIL ON WATER POLICY

      On behalf of the Interstate Council on Water Policy (ICWP), an
    organization representing States and interstate water resource
    management organizations across the country, we would like to submit
    the following testimony for the record for the March 1, 2000 Fisheries,
    Wildlife and Water Subcommittee hearing on the Total Maximum Daily Load
    regulations proposed on August 23, 1999.
        ICWP is committed to seeking more comprehensive and coordinated
    approaches to water management that integrate quality and quantity
    concerns, ground as well as surface water management, and economic and
    environmental values. It is within this context that the following
    testimony and comments on the rulemaking have been developed.

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

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

             CURRENT FUNDING IS INADEQUATE TO CARRY OUT THE PROGRAM

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

         STATEMENT OF THE NATIONAL ASSOCIATION OF FLOOD AND STORMWATER
                              MANAGEMENT AGENCIES

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

       NEED FOR INCLUSION OF APPROPRIATE LOCAL GOVERNMENTS IN THE PROCESS

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

       LACK OF RECOGNITION OF THE UNIQUE NATURE OF STORMWATER DISCHARGES

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

                    TMDLS NEED TO BE BASED ON SOUND SCIENCE

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

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

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

                          LOCAL DISPROPORTIONATE SHARE

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

                  STATUTORY INCONSISTENCY WITH TMDL DEFINITION

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

                   LISTING OF THREATENED AND IMPAIRED WATERS

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

           NPDES PROGRAM AND FEDERAL ANTIDEGRADATION POLICY--OFFSETS

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

      STATEMENT OF HON. BOB GRAHAM, U.S. SENATOR FROM THE STATE OF FLORIDA

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

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

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

          PROPOSED RULE CHANGES TO THE TMDL AND NPDES PERMIT PROGRAMS

                                  ----------

                            THURSDAY, MARCH 23, 2000

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

                              IMPACT ON THE STATES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                                                   U.S. Senate,
                           Office of Hon. Judd Gregg, January 18, 2000.

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

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

                                                 U.S. Congress,
                         Office of Hon. Charles Bass, January 20, 2000.

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

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

    State of New Hampshire Department of Resources and Economic
                                                   Development,
                       Division of Forests and Lands, January 20, 2000.

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

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

                                        State of New Hampshire,
                Department of Environmental Services, January 20, 2000.

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

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

                                            Thomas D. LaPointe,
                                             51 Sherwood Drive,
                                  Hooksett, NH 03106, January 17, 2000.

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

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

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

                                                   John O'Neil,
                                          129 Groveland Avenue,
                                Manchester, NH 03104, January 17, 2000.

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

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

                                            Nicholas C. Brunet,
                                               8 Matthew Drive,
                                    Auburn, NH 03032, January 17, 2000.

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

    Re: New Hampshire Forestry Rules.

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

                                       58 Branch TnPk, Unit 52,
                                    Concord NH 03301, January 17, 2000.

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

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

                                              Michael D. Sulas,
                                                  P.O. Box 293,
                                   Andover, NH 03216, January 17, 2000.

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

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

                                               Rodman R. Black,
                                                 134 Hurd Road,
                                                      Newport NH 03773.

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

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

                                            Hunters Hill Trust,
                                               99 State Street,
                          Saratoga Springs, NY 12866, January 14, 2000.

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

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

                                           Charles W. Thompson,
                                        233 Brickett Hill Road,
                                  Pembroke, NH 03275, January 28, 2000.

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

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

                                             Hoag Island Trust,
                                             98 High Rock Lane,
                                   Westwood MA 02090, January 20, 2000.

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

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

           Society for the Protection of New Hampshire Forests,
                                         Concord, NH, January 19, 2000.

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

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

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

    From: Paul A. Doscher.
    To: ow-docket@epa.gov
    Cc: Carl DeLoi
    Date: Thursday, January 20, 2000 4:47 PM.
    Subject: Comments on Water Docket (w-98-31)
    To: Comment Clerk USEPA 401 M. Street, SW Washington, DC 20460
    Re: TMDL Program Rule, Water Docket (W-98-31)

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

                                                Pine Knob Farm,
                                                 RR 1, Box 614,
                     Whitefield, New Hampshire 03598, January 17, 2000.

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

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

                                                 Judith E. Fry,
                                                 RFD No. 1 Box,
                                  73 Alton, NH 03809, January 17, 2000.

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

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

                                    Brookdale Fruit Farm, Inc.,
                                     38 Broad St. P.O. Box 389,
                               Hollis, New Hampshire, January 17, 2000.

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

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

                                  Frederick and Virginia Hatch,
                                                 27 Pease Road,
                                   Meredith NH 03253, January 18, 2000.

    Re: EPA TMDL Program Rule Comments.

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

                       Society for Protection of New Hampshire Forests.
                                     ______

                                           Bruce M. Schwaegler,
                                  P.O. Box A, Indian Pond Road,
                                      Orford, NH 03777, March 20, 2000.

    Thomas Thomson,
    Bridge Street,
    Orford, NH 03777.

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

                                   Schwaegler Family Tree Farm,
                                                      January 17, 2000.

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

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

                                                  W.M. Dannehy,
                                                6 Maple Street,
                                  Woodsville, NH 03785, March 10, 2000.

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

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

                                                  W.M. Dannehy,
                                                6 Maple Street,
                                Woodsville, NH 03785, January 18, 2000.

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

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

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

                                          High Ridge Tree Farm,
                   1999 New Hampshire Outstanding Tree Farmers.

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

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

                                   Schwaegler Family Tree Farm,
                                  P.O. Box A, Indian Pond Road,
                                    Orford, NH 03777, January 17, 2000.

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

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

                                       Phillips Exeter Academy,
                                                20 Main Street,
                                    Exeter, NH 03833, January 14, 2000,

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

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

                                                   Tomapo Farm,
                                             Bruce C. Townsend,
                                        11110 Storrs Hill Road,
                              Lebanon, NH 03766-2312, January 15, 2000.

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

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

                                   Mr. & Mrs. Leslie C. Briggs,
                                                157 South Road,
                            Kensington NH 03833-5807, January 10, 2000.

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

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

                                            Bill & Nancy Yates,
                                  RR2 392A1 Chestnut Hill Road,
                                Farmington, NH 03835, January 11, 2000.

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

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

                                      Kathryn Donovan Kachavos,
                                                  New Boston, NH 03070.

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

    Dear Sir: I am writing to you regarding the proposed rules because of
    my concern that the implementation of such regulation may have a
    serious adverse effect on the stewardship of New Hampshire forest
    lands. The land that I own is an undivided parcel of 50 acres that has
    been cared for by only four families since it was settled in the
    1760's. Most of the acreage is second growth forest, primarily white
    pine. Forest management began in the 1960's under the previous owner to
    maximize sustainable yields.
        The land has been a certified Tree Farm since 1986. A stewardship
    plan was developed in 1996 to guide continuing management. Besides the
    forest, the land has water courses and two ponds which are in the
    watershed of the Piscataquog River. The forest supports a rich and
    varied wildlife, including deer, black bear, coyote, fox, weasel,
    snowshoe hare, mink, fisher cat, porcupine and raccoon. Herons and
    hawks nest as well as numerous smaller birds. Moles, mice and voles are
    well-represented. Because of forest diversity, ample resources are
    available to the entire food chain.
        This result has been achieved through the guidance and support of
    several groups and individuals. However, it would not have been
    possible to accomplish this without these resources being accessible
    and easily utilized by the small landowner. Most of the timber in New
    Hampshire is owned and managed by small landowners like myself. Current
    programs have made it convenient for us to develop sound forestry
    practices and management skills.
        While I appreciate the goal of clean water and protecting the
    watershed, I would note that sound forestry practices already add a
    great deal to any watershed, by acting as active filters and drawing
    pollutants out of the air and soil. Increasing regulation is likely to
    drive the small landowner out of sound management because of the burden
    of forms and bureaucracy. I would also note that the time consumed by
    regulatory procedures may prevent the owner from selling at prime
    market price. As small landowners, most of us harvest only
    sporadically, and missing the market may cause real hardship.
        Finally, I would observe that Tree Farmers are already interested
    in, and active in protecting watershed quality. The conservation
    easement on my land is held, not by the Forest Society but by the local
    watershed association (Piscataqoug Watershed Association). I currently
    allow access to my land for hiking, fishing and hunting, but I am
    concerned that under the proposed regulations, liability issues would
    force me to reconsider the question of access.
        In conclusion, let me share with you what I consider a far more
    serious threat to watersheds than forestry activities. As a very young
    child, I listened to my grandfather berate the paving of a road near
    his truck farm. ``In a hundred years, you will not be able to grow corn
    on this black top,'' he said. But then he turned to me and explained
    that the real damage was that the paving prevented the rain from
    soaking into the ground and replenishing the springs and wells and that
    most of it would end up wasted, returning to the ocean unused. The
    amount of land sacrificed to road paving within watersheds constitutes
    much more of a problem for water quality than forestry activities.
        Please let forestry activities remain a ``non-point source'' for
    regulatory purposes.
                Sincerely,
                                      Kathryn Donovan Kachavos.
                                     ______

                                              Peter C. Rhoades,
                        New Hampshire Licensed Forester No. 69,
                       South Acworth, NH 037607-7703, January 11, 2000.

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

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

                                     Jackson, Jackson & Wagner,
                                                      January 10, 2000.

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

                                                Milton L. Page,
                                                  P.O. Box 171,
                             Melvin Village NH 03850, January 12, 2000.

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

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

                                        Greenleaf Products Inc.
                                            Post Office Box 228
                              West Ossipee, NH 03890, January 10, 2000.

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

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

    To: Comment Clerk for the TMDL Program Rule,
    From: George W. Chase (497 Putney Hill Road, Hopkinton, NH 03229)

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

                                        Roger S. Leighton, Sr.,
                                 Stratford, NH 03884, January 10, 2000.

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

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

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

                                              David D Skidmore,
                                               Emery Holt Road,
                                                  P.O. Box 127,
                               Lyndeborough, NH 03082, January 9, 2000.

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

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

                                          John C. Calhoun, Jr.,
                                Gilsum, NH 03448-0008, January 8, 2000.

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

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

                                      Thomson Family Tree Farm,
                                     Orford, NH 03777 January 12, 2000.

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

    Dear Ms. Browner: I am wearing two hats as I write this letter in
    opposition to EPA's rule change (TMDL) in regard to changing forestry
    from non-point source to a point source.
        First I represent myself as a private non-industrial woodland owner
    and certified tree farmer and second as the Vice Chair of the National
    Tree Farm Operating Committee representing nearly 70,000 members across
    the United States who are managing 85 million acres in a sustainable
    manner.
        We are opposed to this rule change and strongly urge you to leave
    forestry as is: a non-point source. Enclosed is a recent article that
    outlines our concerns.
        This rule change will only encourage and in some cases force
    landowners to sell and convert their woodlands to development. I ask
    you, which is more environmentally beneficial to society, the forest as
    we know it today or housing developments, shopping malls and pavement?
    I think we would both agree on the forest. Please use common sense on
    this important issue and leave forestry as a non-point source.
        I would invite you to tour a healthy forest (tree farm) and see for
    yourself the many benefits we provide to society which include timber
    for our nation, enhance wildlife habitat, create recreational
    opportunities and provide clean air and clean water.
                Sincerely yours,
        Thomas N. Thomson, Tree Farmer.
                                     ______

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

          STATEMENT OF HON. SLADE GORTON, U.S. SENATOR FROM THE STATE
                                 OF WASHINGTON

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

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

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

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

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

                                   BACKGROUND

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

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

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

                     STATES LACK DATA FOR TMDL DEVELOPMENT

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

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

            EPA ACTIVITIES UNDER WAY COULD ADDRESS SOME STATE NEEDS

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

                                    SUMMARY

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

                                  INTRODUCTION

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

    STATEMENT OF ROBERT J. WITTMAN, ON BEHALF OF THE VIRGINIA AND MARYLAND
      ASSOCIATIONS OF MUNICIPAL WASTEWATER AGENCIES AND THE RAPPAHANNOCK
                             RIVER BASIN COMMISSION

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

    COMMENTS OF THE VIRGINIA ASSOCIATION OF MUNICIPAL WASTEWATER AGENCIES,
      INC. AND THE MARYLAND ASSOCIATION OF MUNICIPAL WASTEWATER AGENCIES,
                                      INC.

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

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

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

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

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

        Again, thank you for the opportunity to submit these comments. If
    you have any questions, please do not hesitate to contact James T.
    Canaday (VAMWA) at 703-549-3381 or email jcanaday@alexsan.com or Cy
    Jones (MAMWA) at 301-206-8831 or email cjones1@wssc.dst.md.us.
                                     ______

      STATEMENT OF DAVID SKOLASINSKI, ON BEHALF OF MINNESOTA IRON MINING
                ASSOCIATION AND THE NATIONAL MINING ASSOCIATION

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

                                  INTRODUCTION

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

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

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

                                    OFFSETS

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

                                   CONCLUSION

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

             STATEMENT OF NINA BELL, EXECUTIVE DIRECTOR, NORTHWEST
                            ENVIRONMENTAL ADVOCATES

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

                                  INTRODUCTION

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

                            POINT SOURCE REGULATION

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

                           BENEFITS OF A TMDL PROGRAM

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

                              EPA'S PROPOSED RULES

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

                           HABITAT CONSERVATION PLANS

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

                                  DATA ISSUES

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

                    TECHNOLOGY-BASED POINT SOURCE REGULATION

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

                            SOLUTIONS AND NEXT STEPS

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

                                   CONCLUSION

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

      STATEMENT OF W. JEFFREY PARDUE, DIRECTOR OF ENVIRONMENTAL SERVICES,
                           FLORIDA POWER CORPORATION

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

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

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

                                     TIMING

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

                                    LISTING

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

                              REDEFINITION OF TMDL

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

                          INTERIM RESTRICTIONS/OFFSETS

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

                            WATER QUALITY STANDARDS

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

                                   RESOURCES

        Mr. Chairman, Florida has over 700 listed streams for which it must
    complete TMDLs. With 20,000 waters currently listed nationwide,
    requiring 40,000 TMDLs, the States will have to develop one TMDL a week
    for the next 15 years to get the job done, all of which EPA must
    approve. The proposed rules will increase the workload by expanding the
    basis for listing waters under 303(d) and redefining the TMDL to
    include an implementation plan. The rulemaking is also likely to
    increase the need for individual permits by making general permits much
    more difficult to obtain on an impaired water. EPA already admits to a
    substantial backlog in NPDES permit reissuance, which they expect will
    increase over the next 2 years.
        Yet, Congress and the subcommittee have no good idea about how much
    this will cost the Federal Government, State and local governments, or
    the private sector. EPA has decided that either their proposals do not
    require these analyses, an interpretation that has been disputed by the
    States and various stakeholders, or has performed an analysis of cost
    impacts to the States that cannot bear scrutiny. The proposed revisions
    are substantial enough to warrant a detailed analysis of the costs of
    the entire program and the revisions, an analysis that should be peer-
    reviewed and available for public comment prior to the rules being
    finalized. Under any scenario, increased Federal funding will be needed
    for States and local governments. We believe, however, that it is
    possible to craft a rule that improves the TMDL program and does so
    cost-effectively.
        In conclusion, Mr. Chairman, our lawyers strongly believe that EPA
    lacks the statutory authority to do much of what they are proposing.
    Beyond the legal arguments, we hope the subcommittee will consider
    whether EPA's proposal really makes good policy and whether it can work
    in practice. Part of working in practice is whether it will achieve
    real and genuine environmental benefits. The other part of ``in
    practice'' is will it achieve those benefits in a way that allows the
    continuing power of our economy to be harnessed and used to support the
    education, employment, and welfare of all Americans. We value the
    environmental progress that we've made and want to protect it. We think
    the way to go about that is a through a flexible, stakeholder-based,
    watershed approach, which is not achieved by these proposed rules. We
    believe the proposals fail to achieve the twin elements above.
        We thank you for your oversight efforts and hope the subcommittee
    will take the following important steps. First, we hope the
    subcommittee will undertake to prevail upon EPA to take the time to get
    the rule done well and right, and to not let political exigencies drive
    the timetable. Getting it done right means taking a more focused
    approach to the listing of waters under Section 303(d) and ensuring
    that high quality, monitored data is used for both listing and TMDL
    development. That begins with establishing objective, numeric water
    quality standards. It means ensuring that flexible, bottom-up watershed
    approaches continue to develop by not using the TMDL process to
    override the Section 303(e) continuous planning provisions of the Clean
    Water Act. It means assuring that due process is accorded stakeholders,
    that States retain full authority to equitably apportion responsibility
    for pollutant reductions, and that EPA does not prescriptively prejudge
    the outcome of a TMDL.
        Second, we would encourage the subcommittee to consider stepping in
    to ensure adequate funding for monitoring and data collection by the
    States and to require that the data used for listing and TMDL
    development be high quality monitored data. A serious improvement in
    our knowledge in this area can go a long way to improve on the ground
    decisionmaking. This effort should not be left entirely in the hands of
    the Agency, but should be developed jointly with the States or, better
    yet, with States in the lead, after input by stakeholders.
        Third, I believe it was Senator Wyden during the last hearing that
    raised the issue of State flexibility and one-stop shopping. We believe
    it would be helpful if the subcommittee would clarify that States have
    the authority to evaluate and conclude that current watershed
    strategies, habitat conservation plans, and environmental decisions
    made under other environmental statutes are adequate to meet water
    quality standards and therefore do not have to be reopened under the
    TMDL program.
        Fourth, we would encourage the subcommittee to seriously review the
    resource needs of State and local governments and the costs likely to
    be imposed as a result of the TMDL program on them and on the private
    sector. You will then be better able to evaluate the merits of the
    Agency's proposals and appropriately address funding needs.
        Thank you Mr. Chairman.
                                     ______

                        Department of Environmental Protection,
                                     Tallahassee, FL, January 19, 2000.
    Ms. Carol M. Browner, Administrator,
    U.S. Environmental Protection Agency,
    Washington, DC.
        Dear Ms. Browner: This letter is in response to the U.S.
    Environmental Protection Agency's proposed revisions to the Federal
    Total Maximum Daily Load Regulations (40 CFR Part 130), the National
    Pollutant Discharge Elimination System Program (40 CFR 122, 123, and
    124), and the Antidegradation Policy (40 CFR 131), as published in the
    Federal Register on August 23, 1999. We appreciate the opportunity to
    review the proposed regulations and have endorsed a wide range of
    specific comments. Given the scope of our comments and serious concerns
    about the proposal, I will summarize the key points in this cover
    letter.
        First, we fully support the principle that more can and should be
    done to control nonpoint sources of pollution. However, the proposed
    revisions represent a significant, unwarranted expansion of the
    regulatory approach to this problem. A plain reading of the Clean Water
    Act, supported by numerous Federal court decisions, makes clear that
    section 303(d) is applicable to waters where point source controls are
    not adequate to maintain water quality standards. Indeed, section 319
    of the Act specifically gives the responsibility for development of
    nonpoint source controls, including determining the need for regulatory
    programs, to the States.
        EPA should reconsider the expanded regulatory approach if only for
    practical reasons. There are simply too many potential nonpoint sources
    of pollution (silviculture alone represents more than nine million
    private landowners) to address using traditional regulatory techniques.
    Furthermore, there is too much uncertainty in the relation between
    individual nonpoint sources and their specific impact on downstream
    receiving water quality to support a water quality-based approach.
    States certainly will not be able to allocate loading to individual
    nonpoint source discharges or monitor the effectiveness of individual
    pollution control activities.
        For these reasons, Florida is a strong proponent of a voluntary,
    technology-based approach to nonpoint source control. In fact, we have
    formally adopted this approach in landmark State TMDL legislation (the
    Florida Watershed Restoration Act, Section 403.067, Florida Statutes),
    which prescribes a comprehensive voluntary strategy for implementing
    the nonpoint source component of TMDLs. The law acknowledges that many
    nonpoint sources are outside of our regulatory authority and
    establishes a viable alternative that includes incentives for nonpoint
    sources implementing best management practices. We currently are
    working with various industries and the Florida Department of
    Agriculture and Consumer Services to implement these alternatives.
    Securing industry cooperation is not easy but is the only way we will
    be able to deal effectively with nonpoint source pollution--and it is
    bearing fruit. In the Suwannee River basin, around Lake Okeechobee, and
    elsewhere we are arriving at cooperative strategies to clean up
    Florida's waterways.
        Clearly, the TMDL program has a crucial role to play in point
    source and nonpoint source pollution control by providing water quality
    targets that both sources must work to achieve. However, implementing
    the nonpoint source components of TMDLs is best achieved through a
    combination of regulatory and non-regulatory efforts. Water quality
    objectives are most rapidly brought about by consensus, with regulators
    cooperating closely with stakeholders to develop best management
    practices and other water quality protection measures while accounting
    for the practical and financial limitations of these stakeholders. We
    believe the prescriptive approach outlined in the proposed revisions
    would prove ineffective and serve only to discourage partnerships and
    cooperation. In addition, the revisions seriously undermine the roles
    of State and local governments in watershed management. While we
    understand EPA's concerns about the various lawsuits that have plagued
    the TMDL program, the proposals aimed at backstopping State permitting
    and TMDL development efforts are counterproductive.
        A second key concern is that EPA has not adequately accounted for
    the costs associated with implementing the proposed revisions. As
    required by the Regulatory Flexibility Act, as amended by the Small
    Business Regulatory Enforcement Fairness Act, the Federal Unfunded
    Mandates Reform Act, and Executive Order No. 12866; EPA should conduct
    a full accounting of the costs to implement the proposed revisions,
    including costs to the private sector and State and Federal
    Governments. We recognize that EPA need only address the incremental
    costs of these revisions rather than the costs of the TMDL program as a
    whole. However, the proposed requirement to develop implementation
    plans alone will cost States and local governments tens of millions of
    dollars and the proposed expansion of regulatory authority to
    silvicultural activities will increase costs to the private sector by
    even more. If the incremental costs for Federal agencies (both the USDA
    and EPA) also are included, costs would easily exceed $100 million
    annually. Both Congress and the States deserve a thorough, accurate
    evaluation of the costs of the proposed revisions before final
    decisions on these regulations are made. EPA must recognize States as
    full partners in water quality protection and focus on funding
    strategies to support State programs.
        Federal funds have been critical to controlling point source
    pollution in the past and will be even more critical to nonpoint source
    pollution control. We urge the development of a substantive funding
    program to underwrite the planning, design, and construction of
    nonpoint source projects and the development and implementation of
    effective management practices. We agree with the State of Georgia that
    it is time to place the financial resources along with responsibilities
    for water resource protection in the hands of local government.
        Our third fundamental concern is that the proposed revisions add
    many unrealistic expectations to the TMDL program, the rationale for
    which is not clear. The State of Florida fully understands its
    responsibilities to develop and implement TMDLs in a timely manner.
    However, the proposed revisions create a process-laden TMDL program
    that is not workable, goes well beyond the requirements of Section
    303(d), and will impede ours and other States' efforts to improve water
    quality. A prime example of these unreasonable expectations Is the
    inclusion of implementation plans as a required element of TMDLs.
    States simply cannot develop Implementation plans with each TMDL in the
    proposed 15-year timeframe. Furthermore, the required scope of
    reasonable assurance for nonpoint source control is not possible given
    the limited funding for nonpoint source activities and projects. While
    we agree that implementation plans are important, they should be
    developed separately from, and subsequent to, TMDL development.
    Considerable additional time and creative effort will be needed to
    reach consensus on the most effective set of options to achieve water
    quality standards in a basin. EPA should give the States at least 18
    months after TMDL approval to develop an implementation plan. This time
    also would give local governments and private entities the time needed
    to secure funds for restoration activities.
        In closing, the State of Florida Department of Environmental
    Protection opposes the regulations as drafted. They are needlessly
    bureaucratic, trapped in an archaic regulatory framework, loaded with
    unrealistic demands, and completely unfunded. EPA needs to reconsider
    the entire proposal and initiate renewed efforts to work with the
    States to create a viable approach, especially to address nonpoint
    source pollution. Florida has developed and adopted in statute a
    program to restore impaired waters that parallels the best elements in
    the proposed regulations. EPA should modify the regulations based on
    our comments and those of our partner States in order to strengthen
    State programs rather than compromise them. As written now, the
    regulations cannot be implemented and will hinder the restoration of
    our nation's waters.
                Sincerely,
                                               David B. Struhs,
                                                             Secretary.
                                     ______

      Statement of Norman E. LeBlanc, Chief, Technical Services, Hampton
     Roads Sanitation District, Virginia Beach, VA, Presented on Behalf of
               the Association of Metropolitan Sewerage Agencies
                                  introduction
        Mr. Chairman, Senator Reid, and members of the subcommittee, my
    name is Norm LeBlanc. I am Chairman of the Water Quality Committee of
    the Association of Metropolitan Sewerage Agencies (AMSA). I also have
    served on the front lines of the campaign to clean up our nation's
    waters for nearly 30 years, the last 20 years managing the
    environmental and Clean Water Act permitting and compliance programs
    for the Hampton Roads Sanitation District in Southeastern Virginia.
        I greatly appreciate the opportunity to share with you today the
    experiences of the wastewater treatment community with regard to the
    Clean Water Act and, more specifically, the Total Maximum Daily Load
    (TMDL) program. AMSA represents the interests of more than 240 publicly
    owned treatment works (POTWs). AMSA's members treat 18 billion gallons
    of wastewater every day and provide service to the majority of the
    United States' sewered population. In addition to their primary
    responsibility for treating the Nation's domestic and industrial
    wastewater, member agencies play a major role in their local
    communities, often leading watershed management efforts, promoting
    industrial/household pollution prevention and water conservation, as
    well as developing urban stormwater management programs.
        AMSA's members hold National Pollutant Discharge Elimination System
    (NPDES) point source discharge permits under the Clean Water Act. Many
    of AMSA's members throughout the country are located on water bodies
    that have been listed as ``water quality limited segments'' under
    Section 303(d) of the Clean Water Act. As major point source
    dischargers, AMSA members have been active participants in EPA's
    process to develop and implement the TMDL program. An AMSA member
    served on EPA's Federal Advisory Committee on TMDLs. In fact, this
    issue is so important to us, that AMSA is now an intervenor/defendant
    in an important TMDL court case in California Pronsolino v. Marcus.
        AMSA supports a revised TMDL program that would encompass both
    point and nonpoint sources of impairments to our country's water
    bodies. We also support requirements for implementation plans and for
    an open public participation process, as they are essential components
    of a successful TMDL program.
        During the past 30 years, point sources of water pollution--
    wastewater treatment plants, industry, and others--have been meeting
    the challenges of the Clean Water Act to achieve our national clean
    water goals. The investment in wastewater treatment has revived our
    rivers and streams, and the Nation has experienced a dramatic
    resurgence in water quality. Point sources are strictly controlled by
    the Clean Water Act. Discharges without permits are punishable by fines
    or imprisonment, and wastewater quality is continually monitored and
    reported to State and Federal regulators. A combination of tough laws
    and regulations along with Federal, State and local dollars has
    resulted in the water quality gains of the past 30 years. However,
    according to the U.S. Environmental Protection Agency (EPA) 40 percent
    of our waters still do not meet water quality standards--due largely to
    nonpoint sources of pollution.
        While point sources of water pollution are easily identified and
    highly regulated facilities, nonpoint sources are subject to only
    limited accountability and controls. Agriculture, according to EPA, is
    responsible for degrading 70 percent of the country's impaired river
    miles and half the impaired lake acreage. Nonpoint source pollution
    closes beaches, contaminates or kills fish, destroys wildlife habitat
    and pollutes drinking water. The current systems to control nonpoint
    sources include a wide variety of State and Federal regulations that
    are largely incentive-based, voluntary programs. For the environment
    and the economy, we must stop the flow of nonpoint source pollution
    into our nation's rivers and streams by making these sources
    accountable for their fair share of pollution.
        As veterans in the water pollution field, we are sympathetic to
    gaps in our economic and scientific data, lack of funding and the
    absence of a consistent, comprehensive mechanism for monitoring and
    regulating those responsible for nonpoint source pollution. However,
    point sources in Virginia, or Idaho or New Hampshire--and around the
    country--can no longer carry the burden alone. POTWs must be joined by
    others in their communities--the farmers and ranchers, foresters and
    miners--in a renewed commitment to clean up impaired waterbodies. This
    effort to achieve water quality goals must include fair share
    allocation of pollution reduction and enforceable regulations. Let me
    reiterate, AMSA recognizes the concerns of the nonpoint source
    community with respect to implementing TMDLs and we fully support the
    need for flexible, cost-effective and reliable management practices. We
    also know additional data is needed, as is increased funding to support
    these watershed efforts. However, true water quality gains can only be
    realized if nonpoint sources are held accountable for their share of
    water pollution. Remember that the pollutant load from each nonpoint
    source that is not controlled must be reallocated to every other source
    within the watershed.
        The inclusion of nonpoint sources of pollution is even more
    critical considering the amount of money local governments continue to
    expend in order to meet tough new Clean Water Act requirements. In
    addition to specifying treatment requirements for domestic, commercial
    and industrial wastewater, the Act requires cities, towns and counties
    to reduce the impact of wet weather storm flows and to bring impaired
    waters into compliance with State and Federal water quality standards.
    As POTWs endeavor to finance and meet the latest water quality goals
    aimed at reducing impairments caused by combined sewer overflows,
    sanitary sewer overflows and storm water events, they also face the
    enormous costs associated with maintaining our current wastewater
    infrastructure.
        Although it is hoped that responsibility for attaining water
    quality standards and requisite pollutant loads will be equitably
    allocated among point and nonpoint sources of pollutants, POTWs are
    concerned that a revised TMDL program's additional restrictions on
    point source discharges are likely to be the most heavily weighted part
    of the TMDL equation. Failure of a waterbody to meet water quality
    standards, for any reason, will inhibit the ability of municipal or
    industrial point sources to expand and grow. If States ultimately are
    not authorized to develop TMDLs that require load reductions from
    nonpoint sources, EPA and the States will be forced to rely exclusively
    upon point sources to secure the pollutant load reductions necessary to
    meet water quality standards. Such load reductions would be achieved
    through the imposition of stricter effluent limitations on NPDES permit
    holders, including POTWs. Cities, towns, counties, and AMSA members
    would then be forced to find and spend enormous sums of money on
    additional controls that will not, in many cases, attain water quality
    standards.
                  positive aspects of epa's proposed tmdl rule
        AMSA has identified some positive aspects of the TMDL proposal that
    should be retained in the final rule. These provisions include the
    imposition of equitable controls on both point and nonpoint sources,
    the requirement to include implementation plans as part of a TMDL, and
    the requirement for States to develop methodologies for listing and
    priority ranking.
        The proposed TMDL rule makes it clear that the control and
    reduction of loadings from nonpoint sources is a critical component of
    the TMDL program. Specifically, AMSA recommends that proportionate
    share responsibilities be adopted in the allocation of pollutant
    loading reductions. AMSA also recommends that the TMDLs for blended
    waters (those waterbodies impaired by both point and nonpoint sources)
    make clear that compliance schedules for both point and nonpoint
    sources are implemented in parallel.
        AMSA supports EPA's proposed requirement that States publicly
    develop a methodology for evaluating all existing and readily available
    data and information in the listing and priority ranking process.
    Dischargers have often questioned the reasons for listing waterbodies
    and the proposal will allow local stakeholders, who typically are in a
    good position to provide data and input into the process, to assist in
    the proper application of data and scientifically valid methodologies.
        AMSA also supports requiring implementation plans for TMDLs.
    However, we believe that States should first be required to review and
    assess the attainability of the water quality standards for an impaired
    waterbody prior to developing a TMDL. Once TMDLs are established,
    implementation plans are critical if the TMDLs are to accomplish their
    objectives. Without such plans, TMDLs become mere exercises in
    mathematical modeling, ending up as part of the water quality planning
    process, and never reaching the administration and enforcement stage.
    If States fail to implement the plans, EPA should have the authority to
    enforce TMDL implementation plans on all sources.
        It is also critical that sufficient data of appropriate quality and
    coverage be available as a basis for TMDL listing and development.
    Considering the implications, it is imperative that TMDLs be developed
    in a rigorous and scientifically sound manner. The proposed regulations
    do not specify minimum standards for the quality and quantity of data
    that is necessary to list waters or establish TMDLs, wasteload
    allocations (WLAs) and load allocations (LAs). We believe EPA should
    require that data used in the TMDL process meet certain standards.
    Neither EPA's current nor proposed regulations and guidance specify
    minimum data quality or quantity requirements for listing waterbodies
    as impaired or for establishing TMDLs. Currently, this lack of guidance
    has led to the listing of many impaired waters based upon outdated and
    limited data (e.g., one data point) or very poorly developed TMDLs.
    Minimum data requirements for the listing of impaired waterbodies and
    the development of TMDLs must be established.
        AMSA fully supports all of the Proposed Regulation's public
    participation provisions, found at Sec. 130.37. The public
    participation provisions will open up the TMDL process to the benefit
    of all of the stakeholders. It will allow the public and dischargers to
    understand the details of how the TMDL was developed.

                       CONCERNS WITH EPA'S TMDL PROPOSAL

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

                             VIRGINIA'S EXPERIENCE

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

                       WATER QUALITY IN THE 21ST CENTURY

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

                                   CONCLUSION

        As we look ahead to future revisions in the water quality standards
    programs, our focus must shift to a more comprehensive approach to
    clean water goals. Addressing the control of costly, more complex and
    diverse sources of pollution will require both creativity and
    flexibility. Many of those involved in water policy issues believe that
    continued water quality improvements can only be met by changing the
    way water programs are managed. Comprehensive watershed management has
    been identified as the most cost-effective, environmentally sound
    approach to address the remaining sources of water quality impairment
    without breaking the bank. Its consistent national application will
    allow stakeholders to work together to tailor solutions to the problems
    at each site. Simply put, watershed management targets resources to the
    highest priorities.
        In conclusion, AMSA's member wastewater treatment agencies have
    consistently and persistently worked to achieve full compliance with
    the goals of the Clean Water Act. We have learned from experience that
    the only way to continue to improve water quality is to address the
    needs of the watershed as a whole, make all sources of pollution
    accountable for their loadings, and to fully fund the activities
    necessary to achieve our latest clean water goals.
        As a further resource on POTWs and TMDLs, I invite you to contact
    AMSA's Washington office to get a copy of AMSA's TMDL ``survival
    guide'' for wastewater agencies, entitled: Evaluating TMDLs . . .
    Protecting the Rights of POTWs. On behalf of my municipal wastewater
    treatment colleagues, I thank you for the opportunity to speak before
    this subcommittee.
                                     ______

    Statement of Joan M. Cloonan, PhD., J.D., Vice President, Environment &
              Regulatory Affairs, J.R. Simplot Company Food Group
        Good morning, Mr. Chairman and members of the committee. I am Joan
    Cloonan, Vice President for Environment and Regulatory Affairs of the
    J.R. Simplot Company Food Group. The J.R. Simplot Company is a
    privately held agribusiness corporation based in Boise, Idaho. It
    employs more than 12,000 people in the United States, Canada, Mexico,
    Australia and China. Simplot is one of the world's largest processors
    of frozen potatoes, turning out more than 2 billion pounds of French
    fries and other potato products annually. It is one of the nation's
    largest producers of beef cattle and a major manufacturer of
    agricultural fertilizers with markets in the United States, Canada and
    Mexico.
        I am speaking today on behalf of the Northwest Food Processors
    Association, a regional trade association representing the fruit,
    vegetable and specialty processing food industry in Idaho, Washington
    and Oregon. Food processing is the largest manufacturing employment
    sector in the State of Idaho and the second largest manufacturing
    employment sector in both Washington and Oregon. Food processors in the
    region operate 247 processing plants, employ over 50,000 individuals
    and realize over $6 billion in annual sales.
        As part of my written testimony I have provided copies of the
    comments on the TMDL rule submitted by the Northwest Food Processors
    Association as well as those submitted by FIEC, the Food Industry
    Environmental Council, a coalition of more than 50 food processors and
    food industry trade associations. I am not addressing all of the issues
    raised in those comments, but would be happy to answer questions
    regarding them.
        Food processors fully support the goals of the Clean Water Act to
    restore and maintain the quality of the nations waters. We are
    supportive of the general concepts that we believe motivated the
    proposed regulations.
        The proposed regulation states: ``The Water Quality Management
    (WQM) process described in the Act and in this regulation provides the
    authority for a consistent national approach for maintaining, improving
    and protecting water quality while allowing States to implement the
    most effective individual programs.'' This is an admirable goal, but we
    believe that the proposal unreasonably limits the States' discretion in
    how they would achieve the overall goals of the program.
        The Pacific Northwest States have assumed a strong leadership role
    in the establishing and funding programs to meet Clean Water Act
    requirements, including preparation and implementation of TMDL
    programs. All three States are committed to preparing TMDLs for all
    State water bodies listed as water quality impaired within timeframes
    dictated by litigated agreement. It is important to recognize that
    although some Federal funding has been provided to States for the TMDL
    programs, the current programs are primarily funded by State moneys.
        We believe that the TMDL should be a State-managed program. State
    control fosters efficient management by recognizing that the States are
    best equipped to provide the day-to-day oversight and monitoring needed
    to identify and correct water quality problems. We are concerned that
    the proposed rules would significantly change the program from its
    current focus on State management by imposing strong new Federal
    oversight provisions that do not serve us well in achieving clean water
    goals.
        In the State of Idaho program, stakeholder groups work with our
    Division of Environmental Quality to help them develop TMDLs. The
    stakeholder group is charged with development of the implementation
    plan within 18 months of approval of the TMDL. The implementation plan
    is not now subject to EPA approval. The proposed system would include
    the implementation plan as part of the TMDL and add significantly to
    the time for development of the TMDL. In addition, EPA can refuse to
    approve an implementation plan until it is satisfied that the State has
    sufficiently strong authority to achieve water quality standards. Under
    this proposal EPA expands its authorized authority over nonpoint
    sources by its ability to withhold TMDL approval, holding the State and
    point sources hostage to the TMDL process.
        Under the proposed offset provision, listed water bodies cannot
    accept new or significantly increased discharges of the water quality
    limited constituent unless mandatory effluent trading or ``offsets''
    occur. The offset requirement precedes and may even replace the
    preparation of a TMDL. Effluent trading may potentially place a
    disproportionate burden on point sources inconsistent with the equity
    considerations of the TMDL process. We support voluntary effluent
    trading and oppose any water clean-up program that mandates or coerces
    private parties into effluent trading.
        The State of Idaho is in the forefront working with EPA on the
    development of a voluntary effluent trading program. The process has
    proven to be complicated but this voluntary pilot program could provide
    a model for the rest of the country. The first model trades will
    involve a point source and a nonpoint source. Key concepts are: local
    control, market-based pricing, appropriate ratios. This process will
    encourage and finance nonpoint source projects such as constructed
    wetlands, which otherwise might never happen. Quantification can be
    broad and based on the type of project, with a conservative reduction
    credit, or monitored, with liberal reduction credit. The trade ratios
    will be dependent on the relative locations of the trading partners. We
    believe this will provide a flexible and economic mechanism to meet
    environmental responsibilities.
        We agree with the conclusion reflected in section 130.34 that daily
    loads are inappropriate for certain pollutants such as nutrients,
    sediment, and temperature.
        We concur with the distinction between pollution and pollutant. It
    appropriately narrows the scope of TMDLs by recognizing the
    impracticability of dealing with pollution via the quantitative
    analysis of a TMDL. The background provided by EPA makes it clear that
    this change is specifically designed to exclude flow and habitat
    alteration from the scope of TMDL. Pollution should be addressed by a
    process or processes separate from TMDLs. Listing water bodies for
    pollution under this process, however, diverts States' resources from
    the task Congress clearly intended: listing of water bodies impaired by
    pollutants.
        The prioritization requirements in section 130.28 are highly
    prescriptive and could result in a meaningless priority list, with most
    of the waterways of the State being designated high priority because of
    the presence of any of several listed species. The section also
    requires a fairly substantial written justification for each decision
    to start a TMDL.
        Should threatened water bodies be listed? The statute does not
    require the listing of threatened water bodies; it requires the listing
    of bodies where data show that certain effluent ``are not stringent
    enough to implement any water quality standards applicable to such
    waters.'' The statute does not support the Agency's conclusion that
    water bodies should be listed because there is some possibility that
    standards will not be attained. The States would be required to predict
    which water bodies now meeting standards might not meet standards in
    the future, and then defend those uncertain predictions when they are
    challenged.
        Instead of requiring the listing of threatened water bodies, EPA
    should encourage States to identify water bodies that they believe are
    threatened and to take appropriate actions to assure that they do not
    become impaired.
        EPA should reconsider its attempt to expand its authority into
    traditional State regulatory areas. It is important to look to the
    entire Clean Water Act, with its balance of State and Federal
    authorities for achieving clean water goals, rather than to force the
    TMDL program to achieve these goals on its own in a complex and
    prescriptive program. We believe that the better course is to work
    cooperatively with the States and the regulated community affected by
    the rules and we look forward to working with both the State and EPA on
    these important goals. We look forward to the balance between the
    certainty of a consistent Federal program and the flexibility and
    efficiency of an effective State-managed program.
        Thank you for the opportunity to address you today. I will be happy
    to answer any questions.
                                     ______

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

        Good morning. My name is Tom Thomson. I'm a Tree Farmer from New
    Hampshire and chairman of the policy committee for the American Tree
    Farm System.
        I'm grateful for the opportunity to be here today. Our properties,
    the Thomson Family Tree Farm, cover 2,600 acres of working, sustainable
    forests. They're managed by my family--including Sheila, my wife of 33
    years, and my 22-year-old-son Stacey, whom I am honored to represent
    here today.
        But I also want to speak today on behalf of 66,000 other family
    forestland owners who are members of the American Tree Farm System--
    founded in 1941 and now the nation's largest and oldest forest
    certification program for small, private landowners. Together, we Tree
    Farmers own nearly 25 million acres of diverse and growing forests.
        That a lot of trees. But it's only a fraction of the 405 million
    acres of forests owned by 9.9 million individual citizens and families
    in the United States. It's those individuals and families not industry
    and not government--who are the true ``majority owners'' of America's
    forests.
        And it's those individuals and families--and the forests they have
    tended--who stand at risk because of EPA's ill-considered policies on
    TMDL and their decision to regulate forestry activities as a point
    source of pollution.
        Sitting right behind me today are four other Certified Tree Farmers
    from around the country--Anitra Webster from Virginia, Wilson Rivers of
    Florida, Bill Lawhon from Ohio, and Greg Daley of New Jersey.
        They are joining me today because Tree Farmers all over this Nation
    are opposed to EPA's proposed rule. I know many of you have seen a list
    of 200 or so people who are opposed to S. 2041 and S. 2139--legislation
    that would prevent EPA from designating forestry as a point source.
    They call it a ``special interest loophole.''
        They're wrong. The attached list contains the names of over 3,000
    Certified Tree Farmers--people who own perhaps 80 or 100 acres of
    forest, who have invested and cared for the land. All of them took the
    time to contact EPA and urge Carol Browner to withdraw the rule. The
    Tree Farm leadership from almost every forested State in the Nation has
    written their Congressional delegation. In some ways, our interest is
    special; we believe in good stewardship and then work to do something
    about it. And we believe Congress was right all along: forestry simply
    shouldn't be considered a point source of pollution.
        Three months ago, most of us didn't know exactly what a TMDL was.
    But each of us knew quite a bit about water quality and forestry.
        Every Certified Tree Farmer--all 66,000 of us--has made a written
    pledge to grow the wood our Nation needs while protecting water
    quality, soil and wildlife habitat. Each of us has pledged to meet or
    exceed State best management practices. Many of us provide recreation
    opportunities for our neighbors--a place to hike, watch the leaves
    change colors, fish or hunt. And our Tree Farms are inspected every 5
    years by professional foresters to assure we meet the high standards of
    the American Tree Farm System.
        I'm proud to say that Certified Tree Farms are among the most
    beautiful, best managed forests in the United States.
        And we are enthusiastic about preaching what we practice. Many of
    us work with our State agencies and with our State Tree Farm Committees
    to help educate other landowners about the importance of following BMPs
    and practicing the best kind of sustainable forestry.
        With this kind of aggressive, private and voluntary stewardship, it
    is no surprise that water quality issues related to forestry are small
    and getting smaller.
         Compliance rates now approach 90 percent in many of the
    States where BMPs are in place.
         Total river and stream miles impaired due to silviculture
    declined 20 percent between 1994 and 1996.
         The number of miles deemed to have ``major impairment''
    from silviculture fell 83 percent.
         In 1996, EPA dropped silviculture from its list of 7
    leading sources of river and stream impairment.
         That same year, silviculture contributed only 7 per cent
    of total stream impairment.
        We are proud of this record, and anxious to work with our State
    agencies the people who know our land and water best--to do an even
    better job in the future.
        But, from where we stand, EPA's proposal to designate forestry
    activities as a point source of pollution will make it harder, not
    easier to do that job. We see this as a clear case where ``trying to
    fix it will break it.''
        Let me explain.
        Owning and managing forestland is risky business. It is definitely
    not for the faint-hearted. Two years ago on January 8, a massive ice
    storm stunned four northeast States, and caused hundreds of millions of
    dollars of damage to forests. Two months before that storm, our own
    Tree Farm was recognized as the Outstanding Northeastern Tree Farm for
    1997. Three days after the storm, 900 acres of prime forestland were
    devastated. Our legacy to our son Stacey lay on the ground, broken
    under the weight of tons of ice.
        Today we are working tirelessly to repair the land. It will take a
    whole generation to restore our forests.
        Every other Tree Farmer faces the same kind of challenge perhaps
    from fire, or insects, or drought and disease. But most of us are
    willing to make the best of it, or at least try.
        What do we need to succeed?
        First, the flexibility to conduct our timber operations when the
    time is right--and that time may be when we need money to pay for
    surgery or college tuition or retirement. Or it may be when market
    conditions are just right and we can get the kind of return we want on
    our investment. Or it may be, as it is for us, when we're racing
    against the clock to retrieve some value from our ice-damaged timber
    before it's lost to insects and rot.
        Second, we need the opportunity to work with the State forestry
    agencies that know us . . . and the land . . . best. Landowners have
    worked with these agencies to establish BMPs. We work with these
    agencies to assure that compliance is where it should be. Where it
    isn't, we've worked to find ways to improve it--and I know we will
    continue to do so in the future. EPA already reviews and approves BMP
    programs. Why not continue down this road that's already taken us so
    far.
        The alternative EPA proposes is--plain and simple--a Federal
    regulatory program that reaches far beyond ``bad actors'' to virtually
    every forest landowner, including the millions of people like me whose
    forest practices improve the environment, not hurt it.
        What happens if we're faced with this radical departure in law and
    policy? Requiring us to get a permit will likely cost us money, even if
    it's simply to qualify under a general permit. It will almost certainly
    take time. And, if my friends are right about the inevitability of
    citizen suits gumming up the whole process, that time might stretch out
    to forever.
        In other words, practicing sound sustainable forestry won't get
    easier; it will get harder. Especially today, when urban sprawl is
    sending the value of forestland into the stratosphere and developers
    call week after week with offers to buy up your Tree Farm, then pave
    it.
        So far we've just said no. But others may not be able to--
    especially if they're faced with more red tape, higher costs and a
    Federal permitting system that could lead, ultimately, to lawsuits from
    faraway places trying to stop the one timber harvest they might plan
    every decade.
        I know that EPA officials claim they will only use permitting in
    extreme cases where damage to water quality is severe and State
    programs are not effective. But lawyers who have studied the issue
    claim that case law will make it very difficult for EPA ultimately to
    prevent the designation of all forestry operations as subject to point
    source discharge permits, once they have started down the road they
    propose.
        Under these circumstances, many landowners might do what Thomas
    Dowd--a Certified Tree Farmer from Massachusetts--wrote on January 8 in
    a letter to his State's Congressional delegation: ``Should the EPA,
    through increasing regulation, make Tree Farming uneconomical, the
    unintended consequence would be that I would most likely sell my 200
    acres of forest for a housing subdivision.''
        This is no idle threat. In my own home State of New Hampshire, more
    and more forestland is falling under developers' bulldozers every year.
    In 1983, 87 percent of New Hampshire was covered by forests. In 1993,
    that number had dropped to 83 percent. By 2020, even the most
    optimistic survey by the Society for the Protection of New Hampshire
    Forests has that number falling to 80 percent.
        That's a lot of trees, about twice as much forest cover as we had
    100 years ago. But, best case, it still means we'll lose about 150,000
    acres of forest in the next 20 years just in my little State--most of
    it developed, replaced by homes, shopping centers and parking lots.
        No one would argue that this is good for water quality or the
    environment. It's not.
        So what about Thomas Dowd, and me and countless other landowners
    who simply aren't inclined to sell? EPA and Congress can make it easier
    for us to say no--much easier--by getting rid of red tape, not adding
    to it. Don't impose a Federal permitting system.
        You can make it easier for us to do even more for water quality by
    directing a larger share of Section 319 funds to forest landowners for
    improvement projects. Right now, only 2 percent of those funds are
    devoted to forestry. Help us expand our heritage of voluntary, private
    stewardship. Make it possible for EPA to invest public resources in the
    kind of citizen initiatives that have already worked for decades.
        Over the past 60 years, our American Tree Farm System and the
    66,000 landowners who've pledged to meet its standards, have made
    enormous strides in conserving our forests and water. It is a record we
    should celebrate, not regulate--and we invite you to join us.
                                     ______

                                                Pine Knob Farm,
                                        Whitefield, NH, March 13, 2000.
    Mr. Tom Thomson,
    Orford, NH.
        Dear Tom: Forwarded is a copy of the letter we sent to the EPA
    regarding the proposal to designate forestry operations as a point
    source for pollution. We were pleased to learn that you will be going
    to Washington to testify before the Fisheries, Wildlife and Water
    Subcommittee of the U.S. Senate's Public Works Committee regarding the
    proposed change. We hope the members of this committee appreciate what
    Tree Farmers and most woodland owners regardless of affiliations do to
    improve water quality not degrade it.
        Please provide a copy of our letter of January 17, 2000, addressed
    to the EPA to the subcommittee and any other interested parties. We
    trust that reason will prevail and that a non-partisan intervention by
    the Senate and, hopefully, the House as well will insure that the EPA
    withdraws this proposal as one which will do more damage than good to
    our nation's forests.
                Sincerely,
                                                      David W. Tellman.
                                     ______

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

                       STATEMENT OF THE CHEVRON COMPANIES

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

                CURRENT ACTIVITY ON TMDL'S AND IMPACT ON CHEVRON

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

                        IF CONGRESS WERE TO TAKE ACTION

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

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

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

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

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

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

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

        G. States Should Run the Program. We agree with suggestions made by
    NGA in their water policy paper regarding Federal versus State roles
    (Section 3.2.2 in Ref. 1), \1\ such as having EPA approve the State's
    water program, but not the individual plans for each water body. Also,
    we like NGA's suggestion that if EPA rejects a State's program, the
    State should be given a reasonable amount of time to make
    modifications. A recent example where we feel EPA is getting too
    involved in what should be a State decision is Region IV's actions on
    the mercury TMDL for the Savannah River. EPA is replacing the State's
    water quality standard of 12 ppt with EPA's own target of 1 ppt. Of 115
    point sources, EPA is requiring only two facilities to meet the 1 ppt
    since they just happen to have mercury limits in their existing
    permits. The other 113 sources, as well as air emissions and other
    sources are not being considered. This is an example of where we
    believe that EPA's quick approach is neither technically sound nor
    equitable for the two targeted facilities.
    ---------------------------------------------------------------------------
        \1\ NGA's Policy on Water Resource Management, Adopted Winter
    Meeting 2000; See www.nga.org
    ---------------------------------------------------------------------------
        EPA should develop comprehensive guidance and workshops on how to
    develop TMDLs, load allocations, and other details for the States. We
    feel that such communication among EPA Regions, States and EPA
    Headquarters often result in better solution ideas and improved
    cooperation.
        We do have some additional concerns with EPA's proposed rule beyond
    the items discussed above, however we have tried to focus comments on
    our highest priority issues. We appreciate the opportunity to provide a
    statement for the record, and look forward to continuing to work with
    the subcommittee to address these issues.
                                     ______

                                             Joe F. Nix, Ph.D.,
                                        Arkadelphia, AR, June 21, 2000.
    Chairman,
    Senate Committee on Environment and Public Works,
    Washington, DC.
        Dear Mr. Chairman: I wish to make a few comments regarding proposed
    EPA regulations which would require permitting of silviculture
    operations based on TMDL allocation of impaired streams. As a matter of
    background, I am a chemist and I have spent 30 years of my professional
    life studying streams and lakes of Arkansas. Although I fully
    understand the position of those who oppose the regulation based on
    economic impact, I think that there is a more fundamental issue which
    appears to have been overlooked.
        The fact is that there is very little scientific evidence which
    indicates that silviculture activities are a major source of stream
    impairment in Arkansas. I think it is generally understood that the
    nature and magnitude of water quality impacts from silvicultural
    actives vary from region to region. What may be true on steep slopes of
    the Pacific Northwest may not be true or applicable to the timberlands
    of Arkansas or the southeastern U.S. EPA seems to have assumed that
    there is an impact then set out to develop regulations to control
    something that does not necessarily exist.
        Others have suggested that the TMDL program provides a sound
    framework for the evaluation of the factors which impact streams. This
    is true but it should be recognized that the process has not progressed
    to the point where significant stream impairment from silviculture has
    been demonstrated in this part of the country.
        Most of the data that I have seen indicates that the source of
    sediment in most of the streams throughout the timber producing areas
    of the southeast is roads and road cuts. Obviously there is some road
    construction associated with silviculture operations but I have yet to
    see a study that indicates that roads built for silvicultural purposes
    constitutes a majority of the sources.
        I am also convinced that we do not understand the loading which
    occur from the natural environment An understanding of these processes
    is needed so that a comparison can be made to loading from
    anthropogenic sources. In some cases, the loading from anthropogenic
    sources may be lost in the background of natural processes. Additional
    studies are needed to make this type of comparison.
        To summarize, I do not believe that the proposed EPA regulation has
    scientific merit at this point. EPA and other funding agencies should
    direct research funding in an effort to answer critical questions about
    sources of loading from the natural environment and only then consider
    the need for regulations. To be specific, it is wrong to regulate
    without cause then go out and see if the regulation is really needed.
    The reverse would be a more logical approach. EPA must learn to adhere
    to good science.
                Sincerely,
                                                      Joe F. Nix, Ph.D.
                                     ______

                                      Green Bay Packaging Inc.,
                                          Morrilton, AR, June 21, 2000.
    Committee on Environment and Public Works,
    Washington, DC.
        Honorable Sirs: My name is Allen Farley and I am the Landowner
    Assistance Forester with Green Bay Packaging Inc. in Morrilton,
    Arkansas. I would like to commend your committee for the thorough job
    you are doing with evaluating the purpose and need of additional
    Federal regulations concerning TMDL standards relating to forestry
    practices. As you are aware from the public meetings and panel
    discussions, the State of Arkansas has multiple layers of leadership in
    place to monitor the water quality of our State and are very conscious
    of maintaining the environment in a professional manner.
        It is my belief that any additional Federal regulations forced on
    the citizens of Arkansas to attempt to fix a problem that does not
    exist by the EPA would not only cost the tax payers many millions of
    dollars unnecessarily, but would hamper if not eliminate the private
    landowner from conducting needed silvicultural practices to improve
    their forests. A large part of my job is to educate and to assist
    private landowners in conducting wise and correct forest management
    practices. I have never come across any landowner that is not concerned
    with water quality, erosion, wildlife and planting trees for the
    future. Any regulations that may cause money to be taken out of the
    pockets of these landowners will adversely effect their decision to
    actively manage their property.
        I trust your committee will be very cautious with any decisions
    concerning altering the way private landowners and industrial forest
    products companies management of their lands.
                Sincerely,
                                                  Allen Farley,
                                         Landowner Assistance Forester.
                                     ______

             [From the New Hampshire Sunday News, February 1, 1998]

                          Tree Farms Tally Ice Damage

        A landscape littered with downed limbs and splintered trunks seems
    to make a mockery of the sign posted at the entrance to Tom and Sheila
    Thomson's 1,060-acre woodlot in Orford: ``Thomson Family Tree Farm and
    Wildlife Habitat, A Working Sustainable Forest.''
        Weeks after one of the worst ice storms on record hit New England,
    New York and Quebec, the Thomsons and thousands of other private forest
    landowners are reeling from the disaster's impact on their woodlots.
    ``I just can't believe it. It looks like a bomb struck out there,''
    said Tom, who owns and manages 2,400 acres of forest along the New
    Hampshire-Vermont border.
        Although recovery operations are under way, Thomson says the storm
    devastated 90 percent of his trees, the outlook for meaningful salvage
    efforts is bleak.
        Preliminary estimates indicate that 20 percent of the region's 26
    million acres of forests suffered moderate to severe damage. Most, like
    Thomson's, were privately owned woodlots ranging in size from 10 to 500
    acres.
        ``Forest owners depend on the income from timber and firewood, or
    from maple syrup production,'' said Larry Wiseman, president of the
    American Forest Foundation. ``It provides the cash they need to pay
    taxes, plant trees and keep their forests healthy.''
        With five million acres of forests damaged, it will be nearly
    impossible for landowners to receive ample compensation for their
    timber, or to replace the income they've lost. More than 70 percent of
    the forestland in the Northeast is privately owned.
        ``This isn't really about money,'' said Wiseman. ``It's about the
    future of New England's forests, watersheds and wildlife.'' Conversion
    of forestland for development, he said, may be the biggest threat posed
    by the storm.
        ``All the landowners I know are passionate about good stewardship.
    But if I were looking at 20 years of income lying on the ground, I'd
    listen a lot more closely the next time a developer came calling.''
        Honored last November for his exemplary forest stewardship with the
    American Tree Farm System's Northeast Regional Tree Farmer of the Year
    Award, Thomson--a son of former Gov. Meldrim Thomson--bought his first
    125 acres when he was 11 years old. Little by little he purchased more
    land, all the while managing its resources according to the principles
    of sound forestry.
        Tree Farm System Director Robert Simpson says the Thomson operation
    was a study in how everyone benefits from good stewardship. ``By
    conserving water and wildlife habitat and providing recreational
    opportunities for their neighbors, Tom and Sheila represent the very
    best in non-industrial private forestland ownership,'' he said. ``The
    devastation they're facing will be felt far beyond the boundaries of
    their tree farm.''
        Moose, bear, coyote, deer, beaver and more than 90 identified
    species of birds live on and visit their farm. The Thomsons built
    hiking trails connected to the Appalachian Trail, and opened their land
    to cross-country skiers and other outdoor recreation enthusiasts. In
    addition, dozens of area schools and civic groups have visited their
    woods to learn about the value of sustainable forestry.
        ``On an emotional level, the thing that hurts most is the loss of
    the legacy that Sheila and I worked so hard to leave for our son,'' Tom
    says.
        Like his father, 20-year-old Stacey Thomson got an early start in
    forestry. He received a 12-acre woodlot as a birthday gift when he
    turned 12, and recently bought his first house with the profits from
    his own firewood business.
        Two months ago Stacey started his own timber harvesting business,
    as well, and bought a skidder to remove timber from his tree farm. ``My
    dad and I weren't planning to harvest our tree farm under these
    conditions,'' he said.
        Tom is working with his forester in preparing a new forest
    management plan. ``At a time like this, you look for the positive
    opportunities and make the most out of them,'' he said. ``Our
    management plans have changed because of the storm, but our goal
    remains the same--to maintain a working, sustainable tree farm and
    share it by offering educational and recreation opportunities to
    others.''
        With its nearly 70,000 non-industrial, private forest landowners,
    the American Tree Farm System is the nation's oldest and largest
    certifier of sustainable forestry.
                                     ______

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

                        INDIVIDUAL CLEAN WATER ADVOCATES

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

                                   __________

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

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

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

                         Society of American Foresters
     FOREST SCIENTISTS VOICE OPPOSITION TO EPA'S WATER QUALITY REGULATIONS
                              (BY MICHAEL GOERGEN)

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

                           FORESTRY AND WATER QUALITY

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

                                                        March 21, 2000.
    Hon. Rod Grams,
    U.S. Senate,
    Washington, DC.

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

                        Kentucky Forest Industries Association,
                                                        March 21, 2000.
    Hon. Jim Bunning,
    U.S. Senate,
    Washington, DC.

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

                            Montana Forest Owners Association,
                                   Montana Tree Farm Committee,
                                             Evaro, MT, March 22, 2000.
    Hon. Max Baucus,
    U.S. Senate,
    Washington, DC.

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

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

                                                  Freeman Farm,
                                              Knox, PA, March 21, 2000.
    Hon. Rick Santorum,
    U.S. Senate,
    Washington, DC.
    Re: EPA's Proposed Federal Water Regulation

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

    Hon. Wayne Allard,
    U.S. Senate,
    Washington, DC.

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

                            Colorado State Tree Farm Committee:
                                               Wes Rutt, Chair,
                                               Michael Hughes, Secretary,
                                               Wayne Baasch,
                                               Ray Ramos,
                                               Gary Hiner,
                                               Ray Mehaffey, Vice Chair,
                                               Joel Stewart, Treasurer,
                                               Raul Bustamante,
                                               John Smethurst,
                                               Jan Hackett.
                                     ______

                                           Charlane Plantation,
                                                        March 20, 2000.
    Senator Michael Crapo,
    U.S. Senate,
    Washington, DC.

        Dear Senator Crapo: As the current National Outstanding Tree
    Farmers as named by the American Forest Foundation and the American
    Tree Farm System, we represent some 65,000 Tree Farmers across our
    country managing over 25,000,000 forested acres. We are writing you
    about our concern for one of the most important issues ever to face us.
    I'm sure that you are aware of the issue of Total Maximum Daily Loads,
    or TMDL's, as they pertain to forestry. Mainly, that forestry
    activities have in the past been considered a non-point source of
    TMDL's, and that the EPA is now seeking to make forest activities a
    point-source. It is certainly no secret that all of the American Tree
    Farmers in our country have always supported clean water, air, and
    sustainable forestry practices, and therefore stand as shining examples
    of good stewards of the land. As you may be aware, by it's own
    admission the EPA has determined that forestry has contributed less
    that 7 percent of the levels of TMDL's. In 1996, EPA dropped forestry
    from it's list of leading sources of river and stream impairment. It is
    therefore absolutely shocking and staggering to all of us in the
    forestry community that the EPA would seek to change the current status
    of forestry activities. This change amounts to punishing all of the
    private landowners that supply our country with the all-important
    resource of wood for the good stewardship practices that we have been
    following for nearly 60 years. The American Tree Farmers stand as one
    of the finest group of practicing environmentalists in the world. As
    private landowners, we are and always have been concerned with sound
    environmental practices, and to be subjected to this outrageous
    regulation is more than a slap in the face for us. Please say NO to
    this unreasonable rule change that would cause permitting of forestry
    activities on our private lands. Please say YES to improving water
    quality through voluntary programs like the successful American Tree
    Farm System, that educate and inform private forest landowners. Thank
    you for your kind attention to this matter.
                Sincerely,
                                   Chuck and Rose Lane Leavell,
                          National Outstanding Tree Farmers, 1999-2000.
                                     ______

        Statement of Sharon Buccino, Senior Attorney, Natural Resources
                                Defense Council
        Mr. Chairman and members of the committee: Thank you for the
    opportunity to talk with you today about critical steps needed to
    address the more than 20,000 water bodies across the country that still
    do not meet water quality standards. My name is Sharon Buccino. I am a
    Senior Attorney in the public lands program of the Natural Resources
    Defense Council (NRDC). NRDC is a non-profit organization with over
    400,000 members across the country. NRDC's members depend on clean
    water to enhance their quality of life and protect their health.
        NRDC supports EPA's efforts to revive the Clean Water Act's (CWA)
    Total Maximum Daily Load (TMDL) program. We also support EPA's proposal
    to eliminate the current regulatory exemption for silviculture from the
    CWA's National Pollutant Discharge Elimination System (NPDES) permit
    requirements. I will make four main points in my testimony today.
    First, I want to clarify that EPA's silviculture proposal applies only
    to point sources. Second, I will provide some examples demonstrating
    the need for the EPA's new regulations--where silviculture point
    sources are causing significant water pollution and therefore an NPDES
    permit is appropriate. Third, I will explain EPA's legal authority for
    eliminating the silviculture exemption. Fourth, I will explain why non-
    point sources should be included in the TMDL process.
        In 1972, Congress recognized that technology-based controls alone
    would not deliver clean water to the American public. Congress
    established the TMDL program to identify those water bodies which did
    not meet water quality standards and to develop a plan to restore the
    water quality of these impaired waters. Until recently, the TMDL
    program was largely ignored. Citizens across the country had to bring
    suit to force EPA and States to begin to address their obligations
    under the program. Yet, despite this effort, almost 40 percent of the
    Nation's waters assessed by States still do not meet water quality
    standards. These polluted waters include approximately 300,000 miles of
    river and shoreline and 5 million acres of lakes.
        More needs to be done by EPA and the States if the TMDL program is
    to succeed in cleaning up our nation's waters. EPA has proposed changes
    to the TMDL regulations, as well as a few changes to the regulations
    for point source discharge permits under the NPDES program that it
    believes will improve the implementation of the program. NRDC supports
    some aspects of the proposed rule and opposes others, but we strongly
    support effective implementation of the TMDL program, most of which is
    already in the existing statute and regulations, to clean up impaired
    waters.
        One important piece of EPA's proposed rule changes is the proposal
    to eliminate the current exemption that silvicultural point sources
    enjoy from NPDES permit requirements. Logging and logging roads degrade
    water quality in many parts of the country. Numerous scientific studies
    document the harm to water quality and aquatic ecosystems caused by
    logging and logging roads. Current State practices fail to address
    adequately water pollution from logging activities. Where a
    silviculture activity meets the statutory definition of point source
    and it is causing significant water pollution, there is no excuse for
    not requiring a discharge permit. Timber companies should not be exempt
    from CWA requirements that other industries must comply with. EPA has
    appropriately decide to eliminate the special carve-out from CWA
    requirements that timber companies now enjoy.
        The American public has already waited almost 30 years for
    effective implementation of the TMDL program. NRDC has urged EPA to
    move forward expeditiously with new regulations that will make the TMDL
    program more efficient and effective. We hope Congress will not
    interfere with this progress. In particular, we urge Congress not to
    adopt the legislation proposed by Senators Lincoln and Hutchinson. I
    have with me today a letter signed by over 250 organizations and
    citizens across the country opposing the exemptions for timber
    companies from CWA requirements contained in S. 2041 and S. 2139. I
    have attached this letter as Attachment 1 to my testimony and ask that
    it be entered into the record.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                  V. THE CLEAN WATER ACT SUPPORTS EPA'S ACTION

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

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

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

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

                                VII. CONCLUSION

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

                                  Attachment 1

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

                        INDIVIDUAL CLEAN WATER ADVOCATES

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

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

                                  INTRODUCTION

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

                  TWO ISSUES: FORESTRY REDESIGNATED AND TMDLS

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

                                LEGAL AUTHORITY

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

                           TOTAL MAXIMUM DAILY LOADS

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

                             ECONOMIC IMPLICATIONS

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

                        PROGRESS IMPROVING WATER QUALITY

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

                                  A BETTER WAY

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

      STATEMENT OF DINA J. MOORE, RANCHER, KNEELAND, CA, ON BEHALF OF THE
                     NATIONAL CATTLEMEN'S BEEF ASSOCIATION

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

          PROPOSED RULE CHANGES TO THE TMDL AND NPDES PERMIT PROGRAMS

                                  ----------

                             SATURDAY, MAY 6, 2000

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

                 IMPACT OF PROPOSES RULES ON FORESTRY PRACTICES

        Present: Senator Smith.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    STATEMENT OF TOM BUOB, UNIVERSITY OF NEW HAMPSHIRE COOPERATIVE
                               EXTENSION

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

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

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

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

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

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

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

                IMPORTANT RECENT DEVELOPMENTS RELATING TO TMDLS

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

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

                                   CONCLUSION

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

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

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

                                  INTRODUCTION

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

                          EPA/USDA AREAS OF AGREEMENT

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

                                   CONCLUSION

        The final TMDL regulations will provide an improved framework for
    restoring our polluted waters. Much work remains to be done to meet
    clean water goals. The EPA and USDA will continue to work with State
    and private partners in improving the communication and outreach
    essential for successfully implementing the TMDL program.
                                     ______

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

                 Functional Equivalency--Massachusetts Approach

                      FUNCTIONAL EQUIVALENCY BASIC CONCEPT

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

                        SCOPE OF FUNCTIONAL EQUIVALENCY

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

                        TYPES OF FUNCTIONAL EQUIVALENCY

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

                     ELIGIBILITY FOR FUNCTIONAL EQUIVALENCY

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

         A STATE TMDL STRATEGY AS THE BASIS FOR FUNCTIONAL EQUIVALENCY

        A State TMDL Strategy could provide the basis for a functionally
    equivalent program. Massachusetts developed its TMDL Strategy in 1998.
    Together with the existing implementation of the Watershed Approach
    already underway, the Strategy earned the highest grade for any State
    in the National Wildlife Federation study of TMDL programs. The
    Strategy sets out a schedule for development of TMDLs by 2012,
    beginning with a pilot program and concentrating on pollutants with
    established protocols. The 1998 list identified 908 segments of
    impaired waters, resulting in the need to perform 1454 TMDLs
    (Massachusetts has not tackled the TMDL problem through limiting its
    303(d) list). TMDLs would be a component of the Watershed Management
    Plans for each of the State's 27 basins. The Strategy relies on a
    variety of regulatory programs for implementation to address water
    quality problems, including the State Clean Waters Act, the Wetlands
    Protection Act, a comprehensive stormwater program, the Water
    Management Act (withdrawals/flows), new source approvals for water
    supplies, a comprehensive program for septic systems, and linkage of
    water quality problems of SRP funding decisions. The watershed approach
    includes extensive stakeholder involvement which will provide a forum
    for negotiating load allocations.
                                     ______

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

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

               STATEMENT OF RONALD LOVAGLIO, COMMISSIONER, MAINE
                           DEPARTMENT OF CONSERVATION

        Senator Smith, members of the Committee on Environment and Public
    Works, distinguished guests, I am Ron Lovaglio, speaking on behalf of
    the State of Maine. I serve as Maine's Commissioner of the Department
    of Conservation, but today am representing all of Maine's natural
    resource agencies, as well as the Administration.
        In January of this year, Maine's Commissioner of Environmental
    Protection and I submitted joint comments on EPA's proposed TMDL/NPDES
    rules. At the same time State Forester Thomas Doak submitted comments,
    as did Maine's Department of Agriculture. Our concerns were
    substantial:
         Resources to implement EPA's proposal are inadequate. TMDL
    development and implementation as proposed, within the given timetable,
    would require at least a doubling of State resources. We consider EPA's
    own oversight capability of this process inadequate.
         Inclusion of ``threatened'' waters is unnecessary and
    burdensome, especially in light of the public review process that EPA
    proposed. The definition EPA provides leaves open virtually any water
    body, and the adjacent landowners, to entanglement in this complex and
    potentially costly process, in a divisive and potentially litigious
    public forum.
         The proposal will not advance us any faster toward
    achievement of clean water goals. Application of TMDLs and NPDES
    permits to nonpoint sources such as forestry would be highly
    impractical, costly, and burdensome to private landowners, businesses,
    and the State agencies. No new, on-the-ground measures for achieving
    better protection of waters from pollution are proposed. Resources for
    this regulatory program would be better spent on improving technical
    assistance and education.
         EPA's new authority under the proposal would be too broad
    and inflexible. At the same time, protocols for the exercise of that
    authority are vague. As an example, applying NPDES permits to
    silviculture is left to the States, but with oversight unpredictably
    exercised by EPA.
         Forests typically provide the cleanest water of all land
    uses. Increased regulations, or even the perception of such an
    increase, act as a disincentive to manage land as forest, and as an
    incentive to convert land to other uses with higher water quality
    impacts.
        EPA received tens of thousands of comments on its proposal. In the
    months since the end of the comment period in January, EPA has somewhat
    confusingly restated its position.
         In ``Achieving Cleaner Waters'', released in March, EPA
    acknowledged that forests are essential to maintaining clean water for
    wildlife and for human use in many parts of the country. However, EPA
    provided no further insight into how costly TMDLs and the threat of
    NPDES permits would enhance State efforts to apply a combination of
    voluntary and regulatory approaches to the forestry water quality
    problems that do occur. Instead, EPA lamely justified its sweeping
    change in how forestry is addressed as ``backstopping the States''.
         EPA Assistant Administrator Charles Fox's April letter to
    the Transportation Committee included a list of ``Key Elements of the
    Expected Final Regulation.'' The letter indicates some new resources
    available for TMDL implementation and for voluntary and incentive-based
    polluted run-off programs. The ``Key Elements'' included more time for
    polluted waters lists and TMDL development, and appeared to reaffirm
    EPA's commitment to voluntary approaches with respect to nonpoint
    pollution sources. In fact, EPA dropped major components of their
    original proposal, including threatened waters, offsets for new
    pollution, the public petition process, and the potential for Federal
    permits to be applied to forestry operations. However, the letter
    supplied few details about how the remaining program would address
    nonpoint sources, and pointedly made reference to a Federal lawsuit in
    California which in EPA's words affirms ``the statutory basis for
    including these sources in the TMDL process''. In that case the court
    did not rule on the manner in which California implemented EPA's TMDL,
    however. In effect, implementation of TMDLs for nonpoint sources
    remains a black box lacking substantive guidance by EPA, testing by the
    States, or interpretation by the courts. Indeed, the court suggested
    that the plaintiffs could seek redress by appealing California's
    restrictions, while simultaneously acknowledging that easing or failing
    to implement restrictions might lead to loss of funding to California
    from EPA.
         Earlier this week EPA and USDA issued a joint statement
    which reiterated some of the same modifications to the original EPA
    proposal, including threatened waters, offsets, and timelines for
    development of TMDLs. Removing the public petition component, as
    articulated in April, is not mentioned in this most recent document. In
    addition, under the joint proposal, no NPDES permits for forestry would
    be required, but only for 5 years. Thereafter, forestry would be exempt
    from NPDES permits, but only if States were implementing a forestry
    Best Management Practices Program approved by EPA. So-called
    ``guidance'' for such State programs would be developed by EPA within
    the same timeframe. The letter also references increases in
    conservation funding, but identifies no new resources for developing
    and implementing BMP programs. This proposal, in our view, would
    effectively leave EPA with direct oversight over State efforts.
        Maine has little confidence that EPA's efforts to finalize a rule
    by the end of June will result in a practical mechanism to apply the
    best analytic tools and the best remedies to the issue of clean water.
    Further, we are concerned with a seemingly reluctance on EPA's part to
    recognize that State, rather than Federal approaches, particularly in
    the area of nonpoint pollution sources, have proven most successful in
    recent years. At the same time Federal resources have not matched the
    need for water quality monitoring, and voluntary and incentive-based
    pollution prevention.
        Maine's water quality efforts, administered through several
    agencies, combines water quality laws, incentives to landowners, and
    best management practices. While not perfect, we have made impressive
    progress, in partnership with numerous stakeholders.
        In our view, Senate Bill 2417 presents a much preferred
    alternative. The bill recognizes that the single most effective way to
    improve water quality and reduce nonpoint pollution is to increase
    funding to State programs that reach landowners directly, and improve
    practices on the ground. The bill supports innovative State approaches
    that develop and build on watershed management efforts. Finally, S.
    2417 provides critical resources both for monitoring to develop the
    water quality data needed to make informed decisions, and to develop a
    better understanding of how and where TMDLs can be a useful tool--and
    where they may not be.
        Thank you for the opportunity to comment today.
                                     ______

                              Maine Department of Agriculture,
                                        Food & Rural Resources,
                                              Augusta, ME, May 5, 2000.
    Hon. Robert Smith,
    Committee on the Environment and Public Works,
    Washington, DC.
        Dear Senator Smith: After reviewing the Proposed Revisions to the
    Water Quality Planning and Management Regulation, 40 CFR Part 130, the
    Maine Department of Agriculture, Food and Rural Resources offers the
    following comments:
        1. Identifying threatened or impaired waters on the basis of
    ``Evaluated Data'' [continuing]. This is the issue of greatest concern
    to our department, for a number of reasons. First, is the fact that it
    is not based upon hard facts but deductive reasoning or assumptions. It
    requires one to reach out on the basis of such factors as ``Historical
    Adjacent Land Uses or ``Location of Sources'' to make a determination
    that a waterbody is being impaired or threatened. Therefore, if a farm
    is located next to a waterbody that appears to have symptoms of water
    quality problems, it is likely to be considered as the or a source.
    That is akin to being convicted before being proven guilty. Second, is
    the minimum elements that are required, once a TMDL is developed for a
    waterbody, including the requirements for:
        a. Load Allocation.--A load allocation is to be assigned to all
    sources and if possible, to specific sources, based upon ``reasonably
    accurate estimates''. If supporting data is not present to make a
    definite determination that water quality is impaired or threatened, it
    stands to reason that the source or sources can not have been
    identified either or how much of a load is being contributed by those
    sources. Assumptions must be made again, as to the suspected sources
    which without data or documentation is kind of like ``Guilt-by-
    Association''. In other words, because an activity is a possible
    source, it therefore is a source and must reduce its guestimated
    contributing pollutant load. This can be an unfair burden to be placed
    upon farmers.
        b. Margin of Safety.--Requiring a margin of safety for a TMDL that
    was developed upon the basis of Evaluated Data amounts to adding insult
    to injury for the suspected, potential sources, such as farmers.
    Farmers will be required to implement even greater measures in order to
    achieve reductions in assumed pollutant load levels.
        c. An Allowance for Future Growth.--This seems like another unfair
    burden to place upon known or suspected sources of a pollutant(s) as it
    is based upon best guesses that may or may not be realized. Farmers
    should not be penalized for activities beyond their control and which
    might never happen.
        d. Implementation Plan.--This is perhaps the most troublesome
    element of a TMDL developed upon the basis of Evaluated Data. It
    requires a description of the management measures and/or actions which
    will be implemented to achieve the load allocations and a demonstration
    that those measures or actions are expected to achieve the required
    pollutant loads. This is required for a waterbody that may not have
    data to positively determine it has a pollutant(s) problem or where the
    sources are or how much each potential source contributes. Other
    elements of an implementation plan that are of concern to this
    department include the need for milestones. These are measurable
    incremental milestones to determine whether or not progress is being
    made to reach water quality standards. A monitoring plan must be
    developed to obtain the data necessary to make such determinations,
    even though no background data may be present. It makes sense for water
    bodies that have good data and a point source(s) but not for Evaluated
    Data and for non-point sources of pollution. If you do not have good
    background data or know for sure where the pollutant(s) are coming
    from, these would be, at best, shots-in-the-dark. And, if the
    milestones were not being met, along a predetermined time line, the
    proposed regulations would require enforceable actions to see that they
    were met.
        2. Another concern by this department is that of non-point sources
    as compared to point sources.--Point sources are known entities
    contributing known quantities of a pollutant or pollutants. Non-point
    sources are generally assumed sources which may or may not contribute
    unknown quantities of a pollutant or pollutants. The problem of
    regulating non-point sources is compounded when coupled with
    waterbodies considered threatened or impaired upon the basis of
    evaluated data. How is it possible to assign pollutant(s) loads to
    potential non-point sources which may or may not be contributing to a
    water quality problem? And then to require enforcement to make sure
    assumed corrective actions or measures are being implemented to achieve
    arbitrarily chosen milestones along an arbitrarily chosen time line?
        3. Unfunded Mandates Reform Act.--On page 46043 of the draft, you
    State ``In addition, since today's proposal does not impose any
    requirements on the private sector, the private sector will incur no
    costs. Thus, today's proposal is not subject to the requirements of
    section 202 and 205 of UMRA''. We disagree with this statement in that
    it will be the private sector, including farmers, that will have to
    implement measures to reduce (in most cases assumed) pollutant loads.
    It is by no means clear that all of the measures required to be
    implemented by the suspected pollutant source will be fully funded.
    Then there is the issue of maintenance of the measures and the
    potential impact that some of the measures may have on a farming
    operation, particularly if those measures go beyond standard
    agricultural Best Management Practices. These costs could be
    substantial to a farming operation.
        In summary, the Maine Department of Agriculture, Food and Rural
    Resources is concerned about the impact that the proposed regulations
    will have on farmers and recommends that you re-consider some of your
    proposed requirements. We are particularly concerned with the proposal
    to require TMDL's for waterbodies assumed to be threatened or impaired
    on the basis of ``Evaluated Data'' and when the sources of suspected
    pollutants are non-point. It is our recommendation that TMDL's only be
    required for those waters which have strong supporting data; whether
    the sources of pollutants is point or non-point. We do however feel
    that the implementation plan for such TMDL's should be adjusted to
    reflect the source of pollutant. If it is from a point source or
    sources, the implementation plan proposed is appropriate. If however,
    the source or sources are non-point, where an unknown amount of load is
    coming from a number of suspected sources, more flexibility should be
    allowed for the implementation plan requirements. For waters which are
    assumed to be threatened or impaired from non-point sources on the
    basis of evaluated data, we recommend an entirely voluntary program
    which focuses on education and information. Data gathering should take
    place on these waters during this time so that an accurate
    determination of water quality becomes available for future
    decisionmaking. This would be a much more defendable approach and one
    which would not unfairly burden a potential pollutant source (farmers)
    in the watershed of a waterbody in which a water quality problem is
    assumed.
        Thank you for your consideration of our comments and concerns. We
    would be glad to discuss any of the issues raised.
                Sincerely,
                                               Peter N. Mosher,
                             Director, Office of Agricultural, Natural
                                                   and Rural Resources.
                                     ______

                  Maine Department of Environmental Protection,
                                                      January 19, 2000.
    Ms. Carol Browner, Administrator,
    Environmental Protection Agency,
    Washington, DC.
        Dear Ms. Browner: The Environmental Protection Agency's proposed
    changes to the TMDL and NPDES programs are a source of concern to our
    agencies, our customers in the broad communities we serve, and the
    citizens of Maine. As Commissioners of two of Maine's major natural
    resource agencies, we submit the following comments regarding the
    Proposed Revisions to the Water Quality Planning and Management
    Regulation: Proposed Rule, 40 CFR Part 130. Our comments address
    specific issues important to Maine. In addition, the Maine Department
    of Environmental Protection (MEDEP) has communicated other issues
    jointly with other New England States in the consensus comments
    submitted by the New England Interstate Water Pollution Control
    Commission, dated December 9, 1999.

                     STAFF RESOURCES WILL NOT BE SUFFICIENT

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

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

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

       WHY THE NEED TO REMOVE THE CATEGORICAL EXCLUSION FOR SILVICULTURE

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

                                       Ronald Lovaglio, Commissioner,
                                                 Maine Department of
                                                   Conservation.
                                     ______

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

                WHY THE NEED FOR ADDITIONAL FEDERAL REGULATION?

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

                            WILL EPA'S CHANGES HELP?

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

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

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

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

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

             CURRENT FUNDING IS INADEQUATE TO CARRY OUT THE PROGRAM

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

        STATEMENT OF THE NATIONAL ASSOCIATION OF CONSERVATION DISTRICTS

        America's conservation districts fully support the Clean Water
    Act's goal to restore and maintain the quality of the nation's waters.
    Conservation districts recognize and accept their responsibility to
    work with agricultural producers and other private landowners and
    operators in stemming runoff that contributes to water quality
    problems.
        The Environmental Protection Agency published proposed Total
    Maximum Daily Load Program (TMDL) regulations in the Federal Register
    on August 23, 1999. The proposed revisions will have a direct impact on
    State water quality programs, conservation district programs and
    landowners nationwide. Addressing impaired waterbodies identified under
    section 303(d) of the Clean Water Act will be a driving factor in the
    day-to-day business of allocating workload resources and making land
    management decisions that will have a direct economic impact on
    producers and other landowners.
        We believe EPA has exceeded its statutory reach by proposing the
    listing of nonpoint source-only impaired and threatened waters.
    Further, the Clean Water Act provides no authority for EPA to enforce
    implementation of any part of a TMDL other than the National Pollution
    Discharge Elimination System (NPDES) permit program.
        The history of the Clean Water Act provides ample evidence that
    Congress intended to treat point and nonpoint sources of pollution
    differently. It is clear from the structure and language of the Clean
    Water Act that section 303(d) was intended to provide a tool for
    calculating water quality-based effluent limitations for point source
    discharges. The language in section 303(d) contains no reference to
    nonpoint sources, nor to runoff, nor to section 319C the portion of the
    Clean Water Act designed specifically to address nonpoint sources of
    pollution. Instead, section 303(d) refers repeatedly to ``effluent
    limitations'' and to the requirements of section 301, which is entitled
    ``Effluent Limitations.'' The way in which it is written repeated
    references to section 301 and no reference to 319 demonstrates clearly
    that Congress intended section 303(d) to deal exclusively with point
    source discharges.
        By allowing EPA to list, develop TMDLs and require implementation
    plans for nonpoint source-impaired waters, the proposed regulations
    constitute a big leap in the direction of Federal land-use regulation.
    Conservation districts strongly oppose Federal land-use regulation
    particularly under the guise of TMDL regulation.
        Under the TMDL program, compliance with section 303(d) is not
    achieved until water quality standards are attained. In the case of a
    TMDL for nonpoint sources of pollution, if, for example, agricultural
    best management practices failed to result in completely meeting water
    quality standards in a watershed, agriculture may have to be eliminated
    in that watershed? Further, EPA proposes to regulate agricultural and
    silvicultural practices such as harvesting, site preparation, thinning,
    prescribed burning, land application and more by requiring landowners
    to obtain discharge permits for these activities. Once again, this
    amounts to a foray into Federal land-use regulation. Such activities
    were exempted under prior regulations, as they are under the Clean
    Water Act's Section 404 program, and should remain so under the TMDL
    program.
        EPA's proposal also would require that, in addition to impaired
    waters, States list ``threatened'' waters. Again, section 303(d) does
    not provide authority for EPA to impose this mandate. It also directs
    that TMDLs must contain a reserve capacity for anticipated future
    loading, seasonal variation and margin of safety. It is not clear how
    this ``reserve capacity'' would be calculated or what ``margin of
    safety'' means.
        EPA's proposal also would require improving the water quality of an
    impaired stream to a standard more stringent than applicable drinking
    water maximum contaminant levels (MCLs) or aquatic habitat water
    quality criteria. This is not only unreasonable, but probably
    unattainable in any practicable manner. MCLs for treated tap water are
    not appropriate for use on source waters under the TMDL program.
    Congress enacted Clean Water Act Section 319 with the specific purpose
    of assisting States in developing nonpoint source pollution control
    programs. That program encourages States, with appropriate Federal
    financial assistance, to reduce nonpoint sources of pollution ``to the
    maximum extent practicable.'' While in cases in which a landowner
    refuses to address a proven water quality problem under a voluntary
    framework, a regulatory mechanism may be needed, it should be left up
    to States to determine the type and level of regulation they deem
    appropriate. The Federal role is most appropriate in providing funding
    resources and technical assistance to meet national water quality goals
    through State actions.
        Conservation districts oppose expanding the Clean Water Act TMDL
    program to address water quality impairments resulting solely from
    nonpoint sources of pollution. Districts also oppose requiring States
    to list threatened waters under the TMDL program. State conservation
    agencies and conservation districts, with assistance from initiatives
    such as Section 319 and NRCS's conservation technical assistance
    program, should have the lead in addressing nonpoint source pollution
    issues, primarily through voluntary, incentive-based programs.
                                     ______

           New Hampshire Association of Conservation Districts,
                                         Concord, NH, January 20, 2000.
    Comment Clerk: TMDL Rule, Water Docket (W-98-31)
    USEPA,
    Washington DC.
        At a recent meeting the NH Association of Conservation Districts
    (NHACD) Water Quality and Urban Conservation Committee decided they
    concur with the TMDL response submitted by the National Association of
    Conservation Districts, but would like to add a few comments of their
    own.
        NHACD is a nonprofit, non-governmental association of the 10
    Conservation
    Districts in NH. The Conservation Districts are subdivisions of State
    government organized along county lines. We are dedicated to the
    conservation and sustainable beneficial use of our natural resources.
    We focus on protecting and enhancing soil quality and water quality,
    but also recognize the economic component of sustainability.
        We have worked with New Hampshire's agricultural and forestry
    operations since 1946 on a voluntary basis in partnership with the
    Natural Resources Conservation Service (formerly the Soil Conservation
    Service), and other State and Federal partners. We are providing
    increasing assistance to towns in their land use decisions and
    regulations. We are non-regulatory and work by providing education,
    technical assistance and financial incentives. Funding assistance
    includes USDA programs such as the Environmental Quality Incentive
    Program (EQIP), EPA programs like 319 and Unified Watershed (both for
    NPS pollution management) grants, and FEMA-NH Office of Emergency
    Management programs like Flood Hazard Mitigation.
        We have been very effective, successfully reducing erosion,
    sedimentation and other nonpoint source pollution from agricultural and
    forestry practices, and now from development activities. New
    Hampshire's 303(d) list shows that our major NPS problems come
    primarily from land disturbance due to development, runoff from urban
    areas and combined sewer overflows.
        We continue to promote best management practices in agriculture,
    forestry, and local land use regulations. The major impediment now to
    more effective NPS pollution management is that effective measures to
    address certain practices, such as manure storage facilities and
    streambank stabilization, often exceed available financial resources.
        We are concerned that reorganizing the proposed regulatory
    structure of our present program to treat agricultural and
    sylvicultural practices like point sources, will be counterproductive
    to an effective program and impede the economic sustainability of
    animal agriculture and small woodlot (less than 1,000 acres) management
    in New Hampshire. Billions of dollars and 27 years have been devoted to
    alleviating point sources. Effective management of NPS will require
    further commitment of time and financial resources than are presently
    offered to be effective.
        There is a question as to whether EPA has the legal authority to
    use TMDLs for NPS pollution sources, however we fear that such
    regulation would be counterproductive and would impede the present
    successful efforts.
        We look forward to working with you on a program that is more
    voluntary and incentive driven.
                Sincerely,
                                                  John Hodsdon,
     NHACD Water Quality and Urban Conservation Committee Chairman and
                         Belknap County Conservation District Chairman.
                                   __________

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

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

                           WATER QUALITY AND FORESTRY

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

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

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

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

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

      STATEMENT OF TOM BUOB, EXTENSION EDUCATOR, UNH COOPERATIVE EXTENSION

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

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

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

                   DESCRIPTION OF CONSERVATION LAW FOUNDATION

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

                         WATER POLLUTION IN NEW ENGLAND

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

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

                       OPPOSITION TO REGULATORY REVISIONS

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

                   NEED FOR MORE PUBLIC COMMENT ON THE RULES

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

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

        STATEMENT OF SCOTT R. MASON, COOS COUNTY FARM BUREAU PRESIDENT,
                                NORTHWINDS FARM

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

                                               Northwinds Farm,
                                        N. Stratford, NH, May 12, 2000.

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

                                  INTRODUCTION

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

              DRINKING WATER SUPPLIES AS HIGH PRIORITY WATERSHEDS

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

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

                        REALITIES OF IMPLEMENTING TMDLS

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

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

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

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

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

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

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

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

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

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

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

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

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

                 STATEMENT OF DAVID BONNEY, FORESTER, NEWRY, ME

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

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

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

             STATEMENT OF JON OLSON, MAINE FARM BUREAU ASSOCIATION

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

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

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

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

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

                  ALTERNATE COMMENTS FOR TMDL HEARING AT WMRHS

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

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

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

          STATEMENT OF SARA PACKER, FORESTER, WAGNER FOREST MANAGEMENT

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

    7      PROPOSED RULE CHANGES TO THE TMDL AND NPDES PERMIT PROGRAMS

                                  ----------

                             THURSDAY, MAY 18, 2000

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

           S. 2417, WATER POLLUTION PROGRAM ENHANCEMENTS ACT OF 2000

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

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

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

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

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

        Senator Crapo. We welcome you.

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

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

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

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

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

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

        Senator Crapo. Thank you.
        Senator Baucus.

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

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

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

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

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

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

        Senator Crapo. Thank you.
        Senator Wyden.

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

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

                 CONSULTATION WITH PARTIES INTERESTED IN TMDLS

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

                 EXPECTED CHANGES TO PROPOSED TMDL REGULATIONS

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

                IMPORTANT RECENT DEVELOPMENTS RELATING TO TMDLS

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

                                   CONCLUSION

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

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

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

     TESTIMONY OF JIM GEISINGER, PRESIDENT, NORTHWEST FORESTRY ASSOCIATIONS

                                  INTRODUCTION

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

                                     ______

                                               State of Oregon,
                                                Salem, OR, May 8, 2000.
    Hon. Carol Browner, Administrator,
    U.S. Environmental Protection Agency,
    Washington, DC.
        Dear Ms. Browner: The State of Oregon support the EPA's proposed
    TMDL regulations but we do not supports redesignating Oregon's
    silviculture activities from nonpoint to point source status. We
    appreciate and support the Agency's proposed positive response to other
    issues we raised with regard to the TMDL portion of the regulations,
    but we are very concerned that EPA's proposed approach on silviculture,
    as outlined in the May 1st, 2000, Joint Agreement by EPA and USDA, will
    delay adoption of the regulations as a whole.
        The proposed EPA/USDA agreement lacks specific, predictable
    criteria for EPA to judge State forest practices and thus would lead to
    major opposition and delay in TMDL rule adoption. It is premature and
    incomplete. Oregon has a Forest Practice Act, backed by a strong
    monitoring element, that provides for statewide management practices,
    which can be intensified under individual TMDL's.
        In summary, Oregon opposes adoption of the silvicultural provisions
    of the regulations. We also believe that Section 3 of the Joint
    Agreement between EPA and USDA is an inappropriate way to address
    silviculture activities. In order to not jeopardize adoption of the
    TMDL regulations as a whole, we recommend that EPA remove the
    silviculture provisions from this rulemaking, and take those provisions
    through full public comment and debate as occurred with the remainder
    of the regulations.
                Sincerely,
                                        John A. Kitzhaber, M.D.
                                     ______

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

                                   __________

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

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

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

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

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

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

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

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

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

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

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

             I. THE TMDL REGULATIONS PLACE NO NEW BURDENS ON STATES

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

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

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

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

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

                                   CONCLUSION

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

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

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

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

                                  INTRODUCTION

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

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

                                  INTRODUCTION

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

                              EPA'S TMDL PROPOSAL

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

                                   CONCLUSION

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

                        Statement of Clean Water Network

                                FICTION VS. FACT

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

                                     ______

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

                                     ______

                       Total Maximum Daily Loads (TMDLs)

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

                                     ______

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

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

                                            State of Louisiana,
                                     Baton Rouge, LA, January 19, 2000.
    Comment Clerk for the TMDL Program Rule Water Docket (W-98-31)
    Environmental Protection Agency,
    Washington, DC.
        Re: Comments on (1) the Proposed Revisions to 40 CFR Part 130 the
    Water Quality Planning and Management Regulation (W-98-31); and (2) the
    Revisions to the NPDES Program & Federal Antidegradation Policy 40 CFR
    Part 122 et. al. (W-99-04)

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

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

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

                       COMMENTS ON 40 CFR PART 122 ET AL

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

                        Statement of Clean Water Network

                                 OPPOSE S. 2417

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

                               WHAT IS AT STAKE?

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

                          MAJOR PROBLEMS WITH S. 2417

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

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

          PROPOSED RULE CHANGES IN THE TMDL AND NPDES PERMIT PROGRAMS

                                  ----------

                             MONDAY, JUNE 12, 2000

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

           S. 2417, WATER POLLUTION PROGRAM ENHANCEMENTS ACT OF 2000

        Also present: Senator Hutchinson.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    and it does say,

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

        Now, as I read that, it says,

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

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

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

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

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

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

                 CONSULTATION WITH PARTIES INTERESTED IN TMDLS

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

                 EXPECTED CHANGES TO PROPOSED TMDL REGULATIONS

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

                IMPORTANT RECENT DEVELOPMENTS RELATING TO TMDLS

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

                                   CONCLUSION

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

         STATEMENT OF RANDALL MATHIS, DIRECTOR, ARKANSAS DEPARTMENT OF
                             ENVIRONMENTAL QUALITY

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

                              ADDITIONAL COMMENTS

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

         STATEMENT OF LARRY D. NANCE, DEPUTY STATE FORESTER, ARKANSAS
                              FORESTRY COMMISSION

        Senator Crapo, the Arkansas Forestry Commission welcomes you to
    Arkansas. The forestry community thanks you for sponsoring the Water
    Pollution Program Enhancements Act of 2000. The State Forester of
    Arkansas supports the bill. We are pleased that Arkansas Senator
    Hutchison is a cosponsor and for the support of Congressman Dickey.
        Everyone wants to protect water quality especially loggers,
    foresters, and the forest landowners. Although EPA appears determined
    to install a regulatory approach, the Arkansas Forestry Commission-
    Board of Commissioners, the Governor, and the State Forester support
    voluntary implementation of Best Management Practices to protect forest
    water quality.
        We applaud the idea for EPA to contract with the National Academy
    of Sciences to study the development of TMDLs and review other methods
    of achieving water quality. Arkansas' State Forester John Shannon has
    served on the National Academy forestry committee. The organization
    does outstanding work. We hope that you will suggest to EPA and the
    National Academy that a southern State Forester serves as a member of
    the study committee.
        Lastly, the AFC position is (1) that silviculture maintain the
    Nonpoint Source category, (2) that forestry practices not require a
    NPDES permit (National Pollution Discharge Elimination System), (3)
    best management practice remain voluntary and (4) the AFC welcomes an
    EPA review of our BMP implementation monitoring and training. Looking
    at EPA's own data everyone can see that Arkansas' forestry community
    has been doing a good job of protecting water quality.
        Senator Crapo, Senator Hutchison, and Congressman Dickey we thank
    you for your support of the forestry community.
                                     ______

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

                                  A BETTER WAY

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

     STATEMENT OF DAVID HILLMAN, PRESIDENT, ARKANSAS FARM BUREAU FEDERATION

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

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

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

                STATEMENT OF ARKANSAS HOME BUILDERS ASSOCIATION

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

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

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

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

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

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

        Attest: Nancy Johnson, Garland County Clerk.

        Approved: Larry Williams, Garland County Judge.

        Sponsor: Mickey Gates, Justice of the Peace.

        Date: March 9, 1998.

                                   __________

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

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

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

                   ALL IN THE FAMILY--AS TOLD BY BILLIE PRATT

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

                       ENLISTING PROFESSIONAL ASSISTANCE

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

                            ON SUSTAINABLE FORESTRY

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

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

                             A WEEKEND TREE FARMER

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

                       ENLISTING PROFESSIONAL ASSISTANCE

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

                            ON SUSTAINABLE FORESTRY

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

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

                     MANAGEMENT GOALS REFLECT FAMILY VALUES

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

                       ENLISTING PROFESSIONAL ASSISTANCE

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

                            ON SUSTAINABLE FORESTRY

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

                            Directory of Assistance

                       FORESTRY AND WILDLIFE CONSULTANTS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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