[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
RUNNING ROUGHSHOD OVER STATES AND
STAKEHOLDERS: EPA'S NUTRIENTS POLICIES
=======================================================================
(112-39)
HEARING
BEFORE THE
SUBCOMMITTEE ON
WATER RESOURCES AND ENVIRONMENT
OF THE
COMMITTEE ON
TRANSPORTATION AND INFRASTRUCTURE
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
JUNE 24, 2011
__________
Printed for the use of the
Committee on Transportation and Infrastructure
Available online at: http://www.gpo.gov/fdsys/browse/
committee.action?chamber=house&committee=transportation
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COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
JOHN L. MICA, Florida, Chairman
DON YOUNG, Alaska NICK J. RAHALL II, West Virginia
THOMAS E. PETRI, Wisconsin PETER A. DeFAZIO, Oregon
HOWARD COBLE, North Carolina JERRY F. COSTELLO, Illinois
JOHN J. DUNCAN, Jr., Tennessee ELEANOR HOLMES NORTON, District of
FRANK A. LoBIONDO, New Jersey Columbia
GARY G. MILLER, California JERROLD NADLER, New York
TIMOTHY V. JOHNSON, Illinois CORRINE BROWN, Florida
SAM GRAVES, Missouri BOB FILNER, California
BILL SHUSTER, Pennsylvania EDDIE BERNICE JOHNSON, Texas
SHELLEY MOORE CAPITO, West Virginia ELIJAH E. CUMMINGS, Maryland
JEAN SCHMIDT, Ohio LEONARD L. BOSWELL, Iowa
CANDICE S. MILLER, Michigan TIM HOLDEN, Pennsylvania
DUNCAN HUNTER, California RICK LARSEN, Washington
ANDY HARRIS, Maryland MICHAEL E. CAPUANO, Massachusetts
ERIC A. ``RICK'' CRAWFORD, Arkansas TIMOTHY H. BISHOP, New York
JAIME HERRERA BEUTLER, Washington MICHAEL H. MICHAUD, Maine
FRANK C. GUINTA, New Hampshire RUSS CARNAHAN, Missouri
RANDY HULTGREN, Illinois GRACE F. NAPOLITANO, California
LOU BARLETTA, Pennsylvania DANIEL LIPINSKI, Illinois
CHIP CRAVAACK, Minnesota MAZIE K. HIRONO, Hawaii
BLAKE FARENTHOLD, Texas JASON ALTMIRE, Pennsylvania
LARRY BUCSHON, Indiana TIMOTHY J. WALZ, Minnesota
BILLY LONG, Missouri HEATH SHULER, North Carolina
BOB GIBBS, Ohio STEVE COHEN, Tennessee
PATRICK MEEHAN, Pennsylvania LAURA RICHARDSON, California
RICHARD L. HANNA, New York ALBIO SIRES, New Jersey
JEFFREY M. LANDRY, Louisiana DONNA F. EDWARDS, Maryland
STEVE SOUTHERLAND II, Florida
JEFF DENHAM, California
JAMES LANKFORD, Oklahoma
REID J. RIBBLE, Wisconsin
CHARLES J. ``CHUCK'' FLEISCHMANN,
Tennessee
(ii)
?
Subcommittee on Water Resources and Environment
BOB GIBBS, Ohio, Chairman
DON YOUNG, Alaska TIMOTHY H. BISHOP, New York
JOHN J. DUNCAN, Jr., Tennessee JERRY F. COSTELLO, Illinois
GARY G. MILLER, California ELEANOR HOLMES NORTON, District of
TIMOTHY V. JOHNSON, Illinois Columbia
BILL SHUSTER, Pennsylvania RUSS CARNAHAN, Missouri
SHELLEY MOORE CAPITO, West Virginia DONNA F. EDWARDS, Maryland
CANDICE S. MILLER, Michigan CORRINE BROWN, Florida
DUNCAN HUNTER, California BOB FILNER, California
ANDY HARRIS, Maryland EDDIE BERNICE JOHNSON, Texas
ERIC A. ``RICK'' CRAWFORD, Arkansas MICHAEL E. CAPUANO, Massachusetts
JAIME HERRERA BEUTLER, Washington, GRACE F. NAPOLITANO, California
Vice Chair JASON ALTMIRE, Pennsylvania
CHIP CRAVAACK, Minnesota STEVE COHEN, Tennessee
LARRY BUCSHON, Indiana LAURA RICHARDSON, California
JEFFREY M. LANDRY, Louisiana MAZIE K. HIRONO, Hawaii
JEFF DENHAM, California NICK J. RAHALL II, West Virginia
JAMES LANKFORD, Oklahoma (Ex Officio)
REID J. RIBBLE, Wisconsin
JOHN L. MICA, Florida (Ex Officio)
(iii)
CONTENTS
Page
Summary of Subject Matter........................................ vii
TESTIMONY
Biggs, Barbara, Government Affairs Officer, Denver Metro
Wastewater Reclamation District, representing the National
Association of Clean Water Agencies (NACWA).................... 70
Budell, Richard J., Director, Office of Agricultural Water
Policy, Florida Department of Agriculture and Consumer Services 70
Card, Bethany, Director of Water Quality Programs, New England
Interstate Water Pollution Control Commission (NEIWPCC)........ 70
Elmaraghy, George, P.E., Chief, Division of Surface Water, Ohio
Environmental Protection Agency................................ 70
Opper, Richard H., Director, Montana Department of Environmental
Quality, representing the Environmental Council of the States
(ECOS)......................................................... 70
Stoner, Nancy K., Acting Assistant Administrator, Office of
Water, United States Environmental Protection Agency........... 70
Sullins, Coleen, Director, Division of Water Quality, North
Carolina Department of Environment and Natural Resources,
representing the Association of State and Interstate Water
Pollution Control Administrators (ASIWPCA)..................... 70
PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS
Mica, Hon. John L., of Florida................................... 98
PREPARED STATEMENTS SUBMITTED BY WITNESSES
Biggs, Barbara................................................... 99
Budell, Richard J................................................ 121
Card, Bethany.................................................... 124
Elmaraghy, George, P.E........................................... 130
Opper, Richard H................................................. 137
Stoner, Nancy K.................................................. 141
Sullins, Coleen.................................................. 170
SUBMISSIONS FOR THE RECORD
Bishop, Hon. Timothy H., a Representative in Congress from the
State of New York, request to submit statements of additional
testimony from the following organizations into the record:
Surfrider Foundation......................................... 7
Nine member organizations of the Mississippi River
Cooperative................................................ 9
Sierra Club.................................................. 14
Earthjustice................................................. 18
East Coast Shellfish Growers Association..................... 35
Pacific Coast Shellfish Growers Association.................. 38
Puget Sound Restoration Fund................................. 42
Mr. Ben Williams, Owner, Fisherman's Dock Seafood Market in
Florida.................................................... 44
Chesapeake Bay Foundation.................................... 46
Des Moines Water Works....................................... 49
Sixty-eight member organizations of America's Great Waters
Coalition.................................................. 55
Gibbs, Hon. Bob, a Representative in Congress from the State of
Ohio, request to submit the following into the record:
Statement of William Dever, President, Florida Gulf Coast
Building and Construction Trades Council................... 60
Letter regarding numeric nutrient criteria to the Honorable
Lisa Jackson, Administrator, U.S. Environmental Protection
Agency, from 50 national and multistate organizations, and
municipal, corporate, and regional entities, June 23, 2011. 65
Stoner, Nancy K., Acting Assistant Administrator, Office of
Water, United States Environmental Protection Agency, request
to submit into the record the report entitled, ``An Urgent Call
to Action--Report of the State-EPA Nutrient Innovations Task
Group,'' August 2009........................................... 72
United States Environmental Protection Agency, responses to
questions from the Subcommittee on Water Resources and
Environment.................................................... 149
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RUNNING ROUGHSHOD OVER STATES AND
STAKEHOLDERS: EPA'S NUTRIENTS POLICIES
----------
FRIDAY, JUNE 24, 2011
House of Representatives,
Subcommittee on Water Resources
and Environment,
Committee on Transportation and Infrastructure,
Washington, DC.
The subcommittee met, pursuant to call, at 10:38 a.m., in
room 2167, Rayburn House Office Building, Hon. Bob Gibbs
(Chairman of the subcommittee) presiding.
Mr. Gibbs. We will start the hearing for the Water
Resources and Environment Committee of T&I today, a hearing
regarding nutrient management and nutrient policies of the EPA.
I would like to welcome everyone to the hearing today. We
are meeting to examine the Environmental Protection Agency's
policies for controlling nutrient pollution in water bodies.
The focus of this hearing is not about whether nutrients may be
a problem in some water bodies around the Nation. It is well
documented that nutrients can change conditions in some waters.
Rather, the focus of this hearing is on the process,
specifically how the Federal EPA is addressing the issue of
nutrients in consultation with the States under the Clean Water
Act. I really want to emphasize this is really about the
process and the collaboration between the Federal Government
and State governments.
Congress wrote the Clean Water Act almost 40 years ago with
the vision that the Federal Government and the States would be
equal partners in solving the Nation's water pollution
problems, and for many years the Federal and State partnership
has worked well in addressing issues under the Clean Water Act.
However, most recently we have seen a substantial change in the
approach by EPA. This heavy handed approach is now jeopardizing
the balance between the Federal and State partnership that had
long existed under the Clean Water Act.
EPA is now insisting on imposing its Federal will on States
with a Federal, top down, one-size-fits-all approach to water
quality regulation that is taking away the flexibility that
States need to address their water quality issues. EPA's
continued insistence on pursuing its own radical agenda is once
again evident as it bullies States to adopt extreme and
arbitrary nutrient policies. A one-size-fits-all approach is
not workable or reasonable for different waters in an
individual State, much less 50 States with their own unique
biology, environmental characteristics.
Washington, DC, cannot and should not decide what is best
for the States. The Clean Water Act calls on States to
establish water quality standards for their water bodies. The
standards that States adopt are subject to approval or the
disapproval of the EPA, giving the Agency the final word in
their adequacy.
States traditionally have adopted narrative standards that
would give them flexibility in protecting is State waters from
excessive nutrients. However, EPA has begun pressing States to
adopt a one-size-fits-all numerical nutrient water quality
standards for their waters, which will take away the
flexibility that States need to address the various water
quality issues.
The EPA's nutrient policies will subject waters all across
the Nation to rigid, scientifically questionable standards that
are set at levels more stringent than necessary to protect most
State waters and will result in cost and economic impacts for
the States and the regulating community to comply with the
standards that are substantially more than are needed to
protect the water quality.
The subcommittee today will hear about the efforts many
States have undertaken to address excessive nutrients in their
waters, review how the EPA recently second-guessed the State of
Florida's work to develop numerical nutrient standards for the
State's waters when the EPA promulgated Federal nutrient
standards in Florida, and examine the impacts that the EPA's
policies are having in Florida and the other States.
In a departure from typical subcommittee hearings today's
witness panel all come from the public sector. These public
sector entities are at times the regulator and at other times
are the regulated. Most are speaking not just for their own
State or local public utility but for national associations and
for all who hold similar positions in other States and
localities.
It is not big oil, it is not big coal or even big enviro or
any other big business. Many of our witnesses today work
directly for Governors, both Democrat and Republican, who are
elected by the people of their State to look after their
welfare and the State's resources, including the quality of
their State's waters.
I think it is important to note that those who are tasked
most directly with protecting the waters of the United States
are represented here today, and they are saying that in some
respects their ability to do their job is being threatened by
the policies of the Federal EPA.
We need to restore the partnership of the States and the
EPA. That is why I am pleased to join Chairman Mica and Ranking
Member Rahall and other Members from both parties in
introducing H.R. 2018, the Clean Water Cooperative federalism
Act of 2011. This bill preserves the role and the rights of
States as they make important decisions of land and water use
within their jurisdictions.
I was surprised that the so-called legal analysis that the
EPA provided on H.R. 2018, first that it read more like an
advocacy piece than a legal analysis, and second how it
illustrated what little regard the EPA has for the Army Corps
of Engineers. Clearly the EPA doesn't care any more for its
sister agencies than it does for the States. This is just
another example of dysfunctional administration and an EPA that
is out of control.
I especially would like to welcome George Elmaraghy, who is
the Chief of the Ohio Environmental Protection Agency's
Division of Surface Water. He is a professional engineer and
has more than 30 years' experience in water quality development
and implementation. We welcome you to today's hearing, and I
welcome you first because I am from Ohio and you are from Ohio,
so great to have another Buckeye here.
Now I yield to Ranking Member, Mr. Bishop, for any remarks
you may have.
Mr. Bishop. Thank you, Mr. Chairman, and thank you very
much for holding this very important hearing today, shining a
spotlight on the significant impacts cause by nutrient
pollution in the United States. High nitrogen and phosphorus
loading, otherwise known as nutrient pollution, is a widespread
problem with severe economic and public health repercussions.
Virtually every State and territory in the United States is
impacted by a nutrient-related degradation of their waterways.
These impacts include harmful algal blooms, reduced spawning
grounds and nursery habitats for many of our important
fisheries, frequent fish kills, dead or hypoxic zones that are
starved of oxygen and devoid of marine life, and public health
concerns related to nutrient contaminated drinking water
sources and increased exposure to toxic microbes.
In fact in many areas of the country States are forced to
issue warnings to prevent any contact with nutrient polluted
waters. In the St. John's River in Florida, for example,
nutrient pollution results in swaths of green slime that fill
back channels and blanket miles of shoreline, devastating
aquatic life. Fishermen on the river report that the seafood
they can catch is often shunned by customers concerned about
safety. At the same time homeowners and recreational boaters
have no interest in swimming or boating in this green slime,
nor should they.
Or as our witness from the Ohio EPA can no doubt talk about
today, the largest inland lake in the State, Grand Lake St.
Mary's, is a popular State park for fishers and boaters.
Nutrient pollution has become so severe there that last July
his Agency issued a warning against all contact with the lake
by people, pets and even boats. In addition, the Agency
recommended that no fish from the lake be consumed. These
warnings were reissued in May of this year.
Even more well-known is the Gulf of Mexico dead zone which
affects a stretch of ocean from the mouth of the Mississippi to
Texas and is also caused by excessive nutrients. Earlier this
month the United States Geological Survey estimated that the
dead zone in the Gulf from nutrient pollution would measure
between 85 and 9,400 square miles, the largest to date.
To someone from New York such as me, these are all too
familiar stories. The most serious water quality problem in the
Long Island Sound is hypoxia, resulting from excessive nitrogen
runoff. In 2007 hypoxia in the Sound lasted for 58 days and at
its peak effected 162 square miles. While the size of the
hypoxic zones fluctuate from year to year, its duration appears
to be getting longer, not shorter, with significant impacts to
fisheries, fishermen, and our water quality.
The problems of nutrient pollution are not unique to these
regions. As I mentioned, all but two States have waters that
are impacted by nutrient degradation and more than 15,000 such
waters had been identified nationwide.
In short, Mr. Chairman, the scope and severity of nutrient
pollution cannot be over emphasized. For all of these reasons
in May of 2007 Benjamin Grumbles, then the EPA Assistant
Administrator for Water in the Bush administration, issued a
memo regarding nutrient pollution and numeric water quality
standards while recognizing that many States and territories
had made significant progress in establishing numeric nutrient
standards. He also called upon the States and territories to
take bold steps to, ``Accelerate their efforts and give
priority to adopting numeric and nutrient standards.''
Since then the EPA has collaborated with the States on a
nutrient task force to evaluate the science, sources and
economic impacts of nutrient pollution and develop
recommendations for controlling the impacts on our economy and
on our water sources.
In March of this year EPA issued a memo regarding
additional efforts planned to work in partnership with the
States--let me say that again--in partnership with the States
to address these problems. In addition, Administrator Jackson
stated quite definitively that contrary to the claims that had
been made by some that the EPA is not working--again I will
repeat--not working on Federal numeric nutrient limits that it
plans to impose as a mandate on the States.
I support these collaborative efforts and appreciate the
Administrator's comments. I believe it is critical that the EPA
and the States continue to move forward together in their
efforts to address the growing public health risks and economic
impacts of nutrient pollution. In my view, this is not about
either the EPA on the States being good actors or bad actors,
but about finding the right balance between the science, the
implementation of effective and reliable nutrient controls, and
ensuring the highest level of protecting human health and the
environment. That is the charge this Congress gave the Agency
and the States almost 40 years ago and one that the American
public continues to support today.
I also believe we in the Congress have a role to play. For
that reason I and many of my colleagues from the region
recently reintroduced H.R. 2110, the Long Island Sound
Improvement Act Amendments of 2011. That bill is intended to
improve the water quality of Long Island Sound with a
particular focus on reducing nutrient pollution using a wide
range of innovative tools and approaches.
So again, Mr. Chairman, thank you for highlighting the very
serious and growing problems of nutrient pollution in U.S.
waters. I look forward to hearing from our witnesses on their
plans to address this problem and how we can all
collaboratively support these efforts.
Before I yield back, I ask unanimous consent to enter into
the record statements of additional testimony from the
following organizations: The Surfrider Foundation; the nine
member organizations that joined with the Mississippi River
Cooperative; the Sierra Club; Earthjustice; East Coast
Shellfish Growers Association; the Pacific Coast Shellfish
Growers Association; the Puget Sound Restoration Fund; the
testimony of Mr. Ben Williams, Fisherman's Dock Seafood Market
in Florida; the Chesapeake Bay Foundation; the Des Moines Water
Works; and the 68 member organizations that joined with the
America's Great Waters Coalition.
Mr. Gibbs. So ordered.
[The information follows:]
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Mr. Bishop. Thank you very much, Mr. Chairman, I yield
back.
Mr. Gibbs. Before I introduce the witnesses, I ask
unanimous consent that Mr. Southerland and Mr. Guinta be
allowed to sit on the committee today and participate, full
members of the T&I.
And also I want to ask unanimous consent the statement of
William Dever of the Florida Gulf Coast Building and
Construction Trades Council be included in the record for
today's hearing. Mr. Dever's testimony expresses the affiliated
unions' opposition to EPA's costly numeric nutrient criteria
for Florida.
[The information follows:]
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Mr. Gibbs. In addition, I have a letter signed by 50 State
municipal industry and agricultural representatives that
express deep concerns about the direction EPA is taking
regarding numeric nutrient criteria. I ask unanimous consent
that it be made part of the record for the hearing today. So
ordered.
[The information follows:]
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Mr. Gibbs. Let me read one section of the letter: ``EPA's
insistence that the State must develop independently applicable
numerical nutrient criteria for all water bodies, even in the
absence of cause and effect relationship between the nutrient
level and achievement of decimated uses. It is not
scientifically defensible and is undermining innovative State
approaches to reducing nutrient pollution. Continued
controversy among EPA, States and the regulatory community over
EPA's approach to nutrients is slowing progress towards
reducing impairments associated with the excess nutrients.''
That is a quote from this letter. Today we are going to
hear about these innovative State approaches that may be
stymied by EPA's inflexible approach.
I want to introduce our witnesses. I will go through and
introduce them and start at the end. Today I welcome Ms. Nancy
Stoner, who is the Assistant Administrator of Office of Water,
the U.S. EPA.
Next to her is Mr. Richard Opper, Director of the Montana
Department of Environmental Quality and also representing the
Environmental Council of States.
To his left is Ms. Coleen Sullins, Director of Division of
Water Quality, North Carolina Department of Environmental and
Natural Resources, representing the Association of State and
Interstate Water Pollution Control Administrators.
Ms. Bethany Card, Director of Water Quality Programs in New
England Interstate Water Pollution Control Commission.
Mr. George Elmaraghy--I am going to struggle with that--
Chief, Division of Surface Water, Ohio Environmental Protection
Agency.
Mr. Richard Budell, Director, Office of Agricultural Water
Policy at Florida Department of Agriculture and Consumer
Services.
And finally, Ms. Barbara Biggs, Government Affairs Officer
of the Denver Metro Wastewater, representing the National
Association of Clean Water Agencies. Well, welcome and thank
you for coming today and traveling all the way to DC.
Ms. Stoner, welcome, and the floor is yours.
TESTIMONY OF NANCY K. STONER, ACTING ASSISTANT ADMINISTRATOR,
OFFICE OF WATER, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY;
RICHARD H. OPPER, DIRECTOR, MONTANA DEPARTMENT OF ENVIRONMENTAL
QUALITY, REPRESENTING THE ENVIRONMENTAL COUNCIL OF THE STATES
(ECOS); COLEEN SULLINS, DIRECTOR, DIVISION OF WATER QUALITY,
NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES,
REPRESENTING THE ASSOCIATION OF STATE AND INTERSTATE WATER
POLLUTION CONTROL ADMINISTRATORS (ASIWPCA); BETHANY CARD,
DIRECTOR OF WATER QUALITY PROGRAMS, NEW ENGLAND INTERSTATE
WATER POLLUTION CONTROL COMMISSION (NEIWPCC); GEORGE ELMARAGHY,
P.E., CHIEF, DIVISION OF SURFACE WATER, OHIO ENVIRONMENTAL
PROTECTION AGENCY; RICHARD J. BUDELL, DIRECTOR, OFFICE OF
AGRICULTURAL WATER POLICY, FLORIDA DEPARTMENT OF AGRICULTURE
AND CONSUMER SERVICES; AND BARBARA BIGGS, GOVERNMENT AFFAIRS
OFFICER, DENVER METRO WASTEWATER RECLAMATION DISTRICT,
REPRESENTING THE NATIONAL ASSOCIATION OF CLEAN WATER AGENCIES
(NACWA)
Ms. Stoner. Good morning, Chairman Gibbs, Ranking Member
Bishop, and members of the committee. I am Nancy Stoner, Acting
Assistant Administrator for Water at U.S. EPA.
Nutrient pollution is one of the greatest water pollution
challenges being faced by communities across the country.
Nutrients such as nitrogen and phosphorous pollution pollute
the waterways in which our families fish and swim, contaminate
our drinking water supplies, and cause illness and impact the
economic health of businesses across the Nation that rely on
clean and safe water.
We all recognize the value of clean water. Clean water is
not simply a resource and asset to be passed on to our
children, but is an essential part of life. Clean water is an
essential component of public health. Our drinking water
supplies and the welfare of our families and communities
whether in large cities, small towns or rural America.
The economic health and growth of businesses, large and
small, and the jobs they create rely upon a high-quality and
sustainable source of clean water. The range of businesses
include tourism, farming, fishing, beverage production,
manufacturing, transportation and energy generation, to mention
a few.
Nutrient pollution is having significant impacts on our
Nation's economies and the health of our communities. Let me
provide a few examples.
In Ohio, Grand Lake St. Mary's, a large drinking water
supply and historically popular recreation area, has suffered
over the last several years from harmful algal blooms caused by
increasing loads of nitrogen and phosphorous. As a result small
businesses like marinas and restaurants are closing, the local
tourism economy has suffered, and local small businesses have
become eligible for low-interest disaster loans.
This summer pollution again threatens the health of the
lake's visitors and economy. The Ohio Department of health
issued a warning on May 19th to community residents and
visitors against using the lake because of harmful algal booms
known to produce toxins.
EPA through the 319 9-point source program is working
closely with the State of Ohio on a restoration plan for the
lake.
In the State of Florida, the Caloosahatchee River, which
runs less from Lake Okeechobee to Fort Myers, is currently
suffering from dangerous algal blooms caused by excess levels
of nutrients. Residents complained of noxious odors. The local
health department is warning residents not to swim in the river
or eat fish caught from the Caloosahatchee.
Red tides, blue green algae, dead zones. We are seeing
problems like these, graphic examples in the U.S. every summer.
In many of these water bodies not only is it not safe to swim,
it isn't safe to let your dog swim.
Nutrient pollution can also pose a risk to the water we
drink. High levels of nitrate in drinking water have been
linked to serious illness in infants and other human health
affects. Reported drinking water violations for nitrates have
doubled in the last 8 years. Some public water systems have had
to install costly treatment systems to reduce nitrate levels.
These systems can cost millions of dollars.
A 2010 study by the U.S. Geological Survey identified
particularly high levels of nitrates in shallow drinking water
wells in agricultural areas in the United States. Twenty-two
percent were above the maximum contaminant level for drinking
water quality.
High nitrate levels are expected to represent a continuing
public health concern in these areas and elsewhere in the
United States. Recognizing the need for a coordinated effort to
reduce nutrient pollution, the EPA is renewing its commitment
to work with States and other stakeholders to achieve progress.
States do the majority of the hard, on the ground work to
address nutrient pollution, and we work closely with our State
and local partners to aid their efforts.
I recently issued a directive to our regional offices
making it clear that reducing nitrogen and phosphorous
pollution is best addressed by catalyzing and supporting
actions by States, relying on a range of regulatory and
nonregulatory tools, including proven conservation practices.
As I stated in that memo from March, States need room to
innovate and respond to local water quality needs. So a one-
size-fits-all solution to nitrogen and phosphorous pollution is
neither desirable nor necessary. My directive builds on the
principle that the EPA had previously articulated and reaffirms
the EPA's commitment to foster partnerships with States and
collaboration with stakeholders.
In conclusion, Mr. Chairman, the threat posed by nutrients
in our Nation's waters is perhaps the most serious water
pollution problem faced by our communities nationwide. We are
committed to working with States, with other Federal agencies,
our Nation's farmers, industries and other stakeholders to
identify ways to tackle the nutrient problem in a way that
protect our Nation's waters, sustains our economy, and
safeguards the health and well-being of all Americans who
depend upon clean and safe water.
EPA is committed to working with States to find solutions
to achieve our common goals. I ask to be able to put in the
record a report from the State-EPA Nutrient Innovations Task
Group called ``An Urgent Call to Action'' from August of 2009.
Mr. Gibbs. So ordered.
[The information follows:]
The report is available online at: http://water.epa.gov/scitech/
swguidance/standards/criteria/nutrients/upload/
2009_08_27_criteria_nutrient_nitgreport.pdf.
Ms. Stoner. Thank you.
Mr. Gibbs. Thank you. Mr. Opper.
Mr. Opper. I think my 5 minutes are up already.
Good morning, Mr. Chairman, members and staff of the
subcommittee, thank you for the chance to talk about what is
fast becoming one of my favorite topics, numeric nutrient
standards.
Again my name is Richard Opper. I am here representing the
States and territories responsible for implementing the
environmental laws of the States and Nation, on behalf of ECOS,
the Environmental Council of States. I am also lucky enough to
be the Director of the Montana Department of Environmental
Quality. And Mr. Chairman, I look forward to hosting you in my
fair State one of these days. I hope you do come out sometime
and visit.
Nobody disputes the fact that nitrogen and phosphorous,
which is euphemistically referred to as nutrients, are
polluting this Nation's waterways. Everybody really is on board
with the fact that they are serious pollutants and we need to
do a better job of controlling those nutrients. I think there
is no dispute over that fact.
Representative Bishop, you already referred to the Gulf
hypoxia zone. I think it was that particular issue that
triggered, largely triggered EPA in 1998 to direct the States
to develop the numeric nutrient standards for nitrogen and
phosphorous. Generally the States don't even object to
developing numeric nutrient standards, because they are easier
to administer if you have to manage to a number rather than the
narrative standards that are hard to interpret. I think
regulated communities like the concept generally of having a
number to manage to because there is not as much danger of
regulator creep and they at least have the certainty they need
in order to operate. So again to this point I don't think
there's a lot of dispute.
The dispute is how much leeway the States are going to have
to develop and implement these standards once they are
developed.
So I am going to give you an example from my State of
Montana, briefly some of the issues we are having with EPA and
I am hopeful that we are going to be able to work things out
and common sense will prevail, but we have had some issues so
far.
So Montana is one of 10 States roughly that actually have
developed numeric nutrient standards. Nobody questions the
science we used in developing these standards. I think we did a
very good job at developing these. I think EPA is largely
supportive of the numeric standards we developed. The
environmental community is supportive, the industry is
supportive of the science we used to develop these standards,
but we haven't adopted them yet. We haven't adopted them
because of one simple reason, which is that they can't be
achieved. They are too stringent. At this point, given the
limits of technology and the expense that would be required,
they are not achievable.
So the question becomes how are we going to implement these
numeric standards once we adopt them? And we have been working
with a group of municipalities, industries, the environmental
community for a couple of years to develop an implementation
plan, and what we came up with is a bill that was passed by our
recent legislature which thankfully is no longer in session.
This was one of the bills that I actually liked that came out
of this session but it allowed for a variance, a general
variance for people who applied for discharge permits from
Montana.
Now, this variance would require about 70 percent of our
permitted dischargers to make improvements to the way they
operate their water treatment facilities or to make actual
improvements to their plants in order just to meet the
variance. So the result is some immediate improvement to water
quality, which is a good thing.
Everybody that worked with us on this is on board. It was a
near unanimous bill that was passed out of our legislature,
which was unheard of this session. Everybody is on board. The
only potential opposition to this approach we have to
implementation is EPA, whose reaction to the variance is tepid.
And I have to add it took a lot of work to move them from
antagonistic to tepid, so we are headed in the right direction
here.
So I think EPA was having a difficult time seeing past the
word ``variance'' to the benefits that this bill would provide
the State which are immediate improvements to water quality,
continual tightening of the standards every 3 years when they
come up for renewal, and a 20-year timeframe when the strict
standards will be met by all of our dischargers. So it provides
the kind of flexibility, innovation and consensus among the
State that I think EPA would like to see. And I am very hopeful
that common sense is going to prevail here. I think EPA will
ultimately be on board with this. I have seen some hopeful
signs lately.
So that is it, Mr. Chairman. I will be available for
questions, thank you.
Mr. Gibbs. Thank you. Ms. Sullins.
Ms. Sullins. Good morning, Chairman Gibbs, Ranking Member
Bishop and members of the committee. My name is Coleen Sullins.
I am testifying today on behalf of the Association of State and
Interstate Water Pollution Control Administrators, where I
serve on the Board of Directors. I am responsible for North
Carolina's Division of Water Quality in the State Department of
Environment and Natural Resources. I have more than 25 years'
experience in implementing the Clean Water Act programs in
multiple States and in local government.
Today I am testifying on behalf of ASIWPCA and not the
State of North Carolina, although I will use some North
Carolina examples to illustrate our points.
Celebrating its 50th anniversary this year, ASIWPCA is the
national voice of State, interstate and territorial officials
responsible for implementation of programs that protect surface
waters across the Nation.
ASIWPCA's membership consists of State, interstate
officials who administer the Clean Water Act programs on the
ground. ASIWPCA's members work closely with the Environmental
Protection Agency as the coregulators responsible for
implementing this critical regulation in a way that makes good
sense and yields the most beneficial environmental results.
The Clean Water Act has allowed us to successfully reduce
many sources of pollution to our Nation's waters. The
mechanisms we have used in the past do not always work with the
issues that we face today, including problems such as nutrient
pollution. Today nutrient pollution is the leading cause of the
water quality impairments across the Nation, as you heard Ms.
Stoner say, and causes adverse impacts for drinking water,
aesthetics, recreational uses, and aquatic life.
While 21 percent of the impairments documented in EPA's
database is nutrient related, 18 percent of the TMDLs that have
been developed were developed specifically to address nutrient
impairment. The bottom line is the States are taking action to
address a complicated and important issue.
So why is nutrient pollution control so difficult? Because
the traditional approaches have not worked and they will not
work related to nutrients. Our traditional approaches have been
to identify the pollutant at a level at which it is too toxic
in the environment and then set water quality-based numeric and
or narrative standards to keep that pollutant below the toxic
level.
Nutrients are different. There isn't a consistent
definitive level which we can say across an entire State or
even across a water body or a watershed that this level is too
much.
Nitrogen and phosphorous are widely variable, naturally
occurring and necessary components of healthy ecosystems, and
ecosystems can be healthy under a wide variety of nutrient
levels. Just as the amount of calories a person needs changes
based on the individual's height, weight and metabolism,
percent of body fat, exercise, et cetera, an ecosystem's need
for nitrogen and phosphorous depends on many factors. So the
extent to which the nutrients' adverse effects occur within a
water body depends on a wide range of other very site specific
factors.
States have found that nutrient levels that may cause
impairment in one system under one set of conditions will not
have the same negative impact on a different stream. Since
nutrient impacts are dependent on the presence of other
factors, many States are finding that a weight of evidence
approach is needed to identify waters that may be undesirably
affected by high levels of nutrients or to determine that
nutrients are key to biological impairment. States are
generally doing this on a watershed basis. For example, the
high levels of nutrients are present in a water body where high
cholorophyll A, a measure of algae, high light levels, low
nighttime dissolved oxygen levels are observed, State
biologists may conclude that the biological impairments noted
are due to the influence of excessive anthropogenic nutrients.
In contrast, some streams may exhibit high nutrient levels
that have no deleterious affect on the stream's biology. Simply
stated, a single number for nitrogen or phosphorous is not an
accurate indicator of adverse ecological or water quality
effects.
We have another complicating factor that I need to touch
on, and that is under the Clean Water Act, States only have
direct authority over point source discharges, leaving most
States in a position to only incentivize and encourage non-
point source reductions. In many watersheds non-point sources
may account for a large percentage of nutrient loads;
therefore, expenditures aimed at achieving reductions at the
end of the pipe may produce little overall gain where non-point
sources contribute the bulk of nitrogen and phosphorous.
In North Carolina we have performed indepth analysis of our
estuarine systems and multiple significant reservoirs in the
State that are impaired by nutrients. What we have found in
almost all situations is that the non-point source contributes
greater than 70 percent of the nutrients of those impaired
waters.
States are using a wide variety of tools to achieve
nutrient reductions, beyond nitrogen and phosphorousstandards
and TMDLs. These tools include individual permit levels,
wastewater treatment plant optimization, best management
practices, nutrient trading, control of other water quality
parameters, voluntary nutrient coalitions and other innovative
approaches.
States understand the appeal of the single water quality
standard for nitrogen or phosphorous and implementation.
However, this approach does not acknowledge the need for a more
flexible system which allows the States to work effectively on
nutrient issues and a wide array of applications used by
permitting authorities.
As Nancy indicated, she documented in a memo recently that
innovation and flexibility is necessary. The States, however,
are concerned that this memorandum still establishes the
expectation of the numeric nitrogen and phosphorous standards.
I would like to offer a few examples from North Carolina.
North Carolina has proactively adopted and maintained a suite
of both numeric and narrative nutrient criteria for many years.
For more than two decades the State has implemented a statewide
chlorophyll A water quality standard for all surface waters.
Other examples include the phosphate detergent ban that
went into place in the late 1980s and the required monitoring
of nitrogen and phosphorous in the effluent from wastewater
treatment plants. These actions resulted in a statewide
reduction of phosphorous, plus an understanding of the level of
contribution from point sources.
In conclusion, States share the administration and
Congress' concern about nutrients and have adopted a variety of
approaches, including narrative standards, response variables,
weight of evidence approaches, and in some cases nitrogen and
phosphorous standards.
In my own State we have developed a variety of approaches
because nutrient issues are dependent on many site specific
issues. State economies are already under stress and are facing
additional losses if we don't continue to reduce nutrient
impairments. We agree with EPA that it is imperative to prevent
additional nutrient impairments from developing, as it is much
more economical to prevent impairments than it is to restore a
system once it is impaired.
We need room to innovate and respond to local water quality
needs, and we believe that the States have shown the initiative
to do so. We encourage EPA to work with the States to continue
to develop and implement the most appropriate tools.
Mr. Chairman, members of the committee, thank you for this
opportunity to share ASIWPCA's thoughts on the importance of
the States' role in nutrient pollution and control.
Mr. Gibbs. Thank you. Ms. Card, welcome. The floor is
yours.
Ms. Card. Good morning, Chairman Gibbs, Ranking Member
Bishop and members of the subcommittee. My name is Bethany
Card, and I am the Water Quality Division Director for the New
England Interstate Water Pollution Control Commission.
I have been working with our compact member States, which
includes the six New England States and New York on their Clean
Water Act programs for 12 years. During that time we have
worked with our member States on water quality standards
development and implementation specifically related to
nutrients.
The Northeast States are focused on nutrient management; it
is a high priority. The States are keenly aware that nutrient
pollution is a significant environment problem and every day
they are working through various initiatives to address this
issue. It is clear that the States and EPA are committed to
resolving this problem together. There are many strong examples
of that partnership. For well over a decade, States, EPA and
stakeholders have been working on the development and
implementation of multistate total maximum daily loads to
address phosphorous in Lake Champlain and nitrogen in Long
Island Sound.
In the Commonwealth of Massachusetts there has been an
ongoing comprehensive project that has been designed to protect
the ecological health of 89 different coastal embayments, and
these are just a few examples.
At the same time the Northeast States have put significant
resources into the process of developing numeric nutrient
criteria, and because of the important connection between
established criteria and ability to make water quality
management decisions the States have no intention of abandoning
these efforts. Yet when it comes to establishing the criteria
themselves, there are two specific areas where the States take
issue with the EPA's preferred approach, which calls for
independent applicability of numeric nutrient criteria and the
need for nitrogen and phosphorous criteria for all waters,
fresh and marine.
The technical approach favored and intended to be used by
many States bases criteria on strong scientific evidence using
stressor-response relationships where nitrogen and phosphorous
are the stressors and environmental indicators are the
response.
The relationship between nutrients and environmental
response is influenced by any site specific factors, light,
temperature and depth. And these factors must be taken into
consideration in order to apply criteria efficiently. The
stressor-response analysis is the most appropriate indicator of
water body impairment status and paints the whole picture
regarding the health of the watershed.
In the Northeast our experience has been that there are
distinctions between the State and EPA approaches on how to
assess support for designated uses. In Maine and Vermont, for
example, they have been proposing criteria for freshwater that
are based on a decision framework that takes into account both
stressor variables and environmental response to each water
body. Yet EPA has argued that single numbered criteria
approaches should be used. However, no such uniformity exists
in the natural world. Nutrients are not toxic contaminants with
threshold responses. And when you consider the distinction, it
becomes more clear why conditions demonstrated by acceptable
environmental responses are the most appropriate way to
determine if designated uses are being supported.
Evaluating nitrogen and phosphorous may be helpful in
screening potential impairments, but even still under the
States' preferred approach a water body would be considered
impaired only if one or more of the measured environmental
response criteria did not meet limits. In the case where all
measured environmental response criteria are met, the water
body would not be considered impaired even if nitrogen or
phosphorous concentrations were above the States' numeric
criteria.
Based on the criteria established by EPA for the State of
Florida and feedback provided to our member States by EPA, we
understand that the Agency is not supportive of the response-
based approaches I have described unless they include numeric
nutrient criteria for both nitrogen and phosphorous, where each
criterion must be applied independently from any environmental
response criteria in order to determine a water body's
impairment status.
The Northeast States are concerned that by requiring both
nitrogen and phosphorus criteria to be incorporated into State
water quality standards and applied independently,
technological controls could be required to remove both
nutrients even though the production of growth in most water
body systems is controlled by the most limiting nutrient,
typically phosphorous in fresh water and nitrogen in marine.
If the States are forced to deviate from their preferred
approach, the consequences could be that water bodies would be
inaccurately categorized as impaired. The result and outcome
could mean requiring more advanced wastewater treatment
processes that increased sludge production, require additional
energy usage and most certainly inflate overall costs.
In summary, the approach designed by the States which looks
at environmental responses tells the story about the health of
the water body, and therefore the States feel it is the most
accurate and efficient way to figure out if designated uses are
being supported. States have demonstrated that using
environmental response variables to develop nutrient criteria
is a scientifically valid approach that is highly protective of
water quality.
In the Northeast the States are very appreciative of the
assistance provided by the EPA regional staff and intend to
continue working with them on innovative approaches to
protecting water quality from nutrient pollution like the TMDL
process, the permitting programs and adopted watershed
management. At the same time they intend to proceed with the
scientific work that will build the foundation of their numeric
nutrient criteria.
Water quality protection is of the utmost importance to our
State environmental agencies. Therefore, we encourage EPA to
embrace a more flexible path towards development and
implementation of numeric nutrient criteria so that the States
will be empowered to use the most appropriately targeted tools
to implement these important criteria in earnest.
Mr. Chairman, Ranking Member Bishop, and members of the
committee, thank you for your time today. I am happy to answer
if I questions you may have.
Mr. Gibbs. Mr. Elmaraghy, welcome.
Mr. Elmaraghy. Good morning, Chairman Gibbs, Ranking Member
Bishop, members of the committee. I am grateful for the
opportunity to speak on the issue of nutrient standards. I am
George Elmaraghy, Chief of Division of Surface Water at the
Ohio EPA and longstanding member of ASIWPCA. Ohio is a water
rich State. We have lake Erie in the north, we have Ohio River
in the south, we have 87,000 miles of streams and rivers. Also,
we have 58,000 lakes and small ponds.
Lake Erie was declared dead in the 1960s. The problem was
greatly abated, thanks to the Clean Water Act and the Bi-
National Water Quality Agreement of 1978. Lake Erie became
known as the walleye capital of the world. Unfortunately, due
to excessive nutrients, Lake Erie has greatly changed, nuisance
algal bloom returned in the mid-90s and continued to worsen.
Grand Lake St. Mary's, the largest lake in Ohio, experienced
very high levels of algal toxins last summer and this summer
too. Ohio issued a no-contact advisory, essentially closing the
lake.
Regulating nutrients in streams is very challenging. Unlike
other parameters, we cannot accurately predict a dose-response
relationship. As a result nutrient water quality standards must
be based on the weight of evidence approach that consider other
factors besides the nutrient concentrations.
For more than 12 years Ohio has been developing tools to
predict the relationship between nutrient concentrations and
biological health. Using the weight of evidence approach, we
identify factors that we should consider to determine the
stream response, such factors as chlorophyll A, biological
health, nutrient concentration, dissolved oxygen and so on.
These factors distilled into a multimetric scoring system known
as Trophic Index Criteria, or TIC. This unique index accurately
will predict a stream response to specific nutrient
concentrations and stream habitat conditions. The TIC will be
used to develop the 303(d) list, prepare the TMDL and to
determine if nutrient limits should be included in a discharge
permit.
Ohio's approach received positive feedback from USGS and
other organizations. Ohio currently is working with U.S. EPA
Region 5 to finalize this concept. The staff in Region 5 is
receptive to Ohio's approach. Industries are faced with a wide
variety of regulatory requirements. We shouldn't require them
to meet stringent nutrient limits unless we simultaneously
address nutrient load from non-plant sources and we are sure
that imposing these stringent limits will result in significant
water quality improvement.
The States need flexibility in developing numerical
standards and, more critically, on how to implement these
standards, to protect our streams without wasting valuable
resources. Eliminating nutrient impairment in streams may take
several decades. Therefore, regulations should call for a
phased approach and utilization of adaptive management
techniques.
Mr. Chairman and members of the subcommittee, thank you for
the opportunity to share Ohio's thoughts on the importance of
flexibility in developing and implementing nutrient standards.
Thank you.
Mr. Gibbs. Thank you. Mr. Budell.
Mr. Budell. Chairman Gibbs, Ranking Member Bishop,
committee members, good morning. My name is Richard Budell, I
am the Director of the Office of Agricultural Water Policy with
the Florida Department of Agriculture and Consumer Services. I
am pleased to have the opportunity to share with you my
department's perspective on several key aspects of the U.S.
EPA's final numeric nutrient water quality criteria for Florida
springs and inland waters that were finalized this past
December.
In EPA's own words, and I quote, Florida has developed and
implemented some of the most progressive nutrient management
strategies in the Nation, end quote. The EPA has repeatedly
acknowledged Florida for the substantial emphasis it has placed
on monitoring and assessing the quality of its water. As a
result of this commitment, Florida has collected significantly
more water quality data than any other State in the Nation.
More than 30 percent of the entire EPA national water
quality database comes from Florida. Florida was the first
State in the Nation to develop comprehensive urban storm water
regulatory programs. Our wastewater treatment and reuse program
is a model for the rest of the country. Our agricultural best
management practices programs are firmly based on State law and
science. They have been implemented on more than 8 million
acres of agricultural lands and commercial forest lands across
the State.
By targeting its efforts and resources, Florida has made
significant progress in nutrient reduction across the State.
Examples range from Tampa Bay where sea grass populations have
risen to levels not seen since the 1950s and now cover 30,000
acres of the bay, to Lake Apopka where over the last 8 years
phosphorous concentrations have been reduced by 56 percent and
water clarity increased by 54 percent. Despite these glowing
reviews and Florida's demonstrated commitment to water resource
protection, EPA, we believe in direct response to litigation,
determined in January of 2009 that Florida had not done enough
and mandated that we develop numeric nutrient criteria within 1
year.
Before that year was up, however, EPA entered into a
settlement agreement with the litigants and agreed to a time
schedule to implement Federal rules that essentially usurped
the State's effort to move forward with its own. EPA
subsequently developed and released their own draft numeric
criteria for Florida in January of 2010 and finalized those
criteria last December.
In our view, if this takeover wasn't bad enough, we believe
the methods used by EPA to develop its rules were inconsistent
with its own guidance documents and the advice it received from
its Science Advisory Board.
Furthermore, we believe they compounded the situation by
improperly applying the methods they did use, which in many
cases would deem healthy waters in Florida as impaired. In
response to these issues, Florida's Attorney General and the
Commissioner of Agriculture filed a complaint in Federal court
challenging the rule. Subsequently over 30 additional entities,
both public and private, in Florida have filed similar
complaints against EPA and their criteria, citing the same
shortcomings.
Florida believes strongly any nutrient reduction strategy
should focus on measurable, environmental, and biological
improvement while optimizing cost and efficiency. In the
preamble to their rule EPA admits they are unable to find a
cause and effect relationship between nutrient concentration
and biological response for flowing waters like streams and
rivers.
In the absence of that cause and effect relationship there
can be no certainty that the money and human resources devoted
to reduce nutrient concentration in a stream or river will
result in any measurable improvement in the biological
condition of that stream or river. As stated previously,
Florida believes that because there are so many natural factors
like stream size and flow velocity and light penetration that
impact how nutrients impact ecosystems, nutrient standards are
best developed on a site specific basis. It is important to
recognize, as also stated previously, that nitrogen and
phosphorous are naturally occurring in the environment. They
are necessary for the normal biological productivity of all
water bodies. Determining when too much human induced nitrogen
or phosphorous is present is very, very difficult.
In other words, Florida believes it is important to link
nutrient concentration with an assessment of the biological
health of the water body before requiring the implementation of
costly nutrient reduction strategies. Without this linkage,
implementation of the EPA criteria would have Florida
businesses, wastewater and storm water utilities, and
agricultural producers spending time and money attempting to
reduce nutrient concentrations, in some cases, to levels below
natural background.
In all estimations the implementation of these criteria is
going to be expensive. It doesn't matter whether Florida
develops them or EPA develops them, it is going to cost a lot
of money. And there is a lot of dispute about the costs
associated with the implementation of these criteria. EPA's
estimates are much lower than the estimates that have been
generated by my agency and other public and private entities in
Florida.
We are pleased that EPA has engaged the National Research
Council in seating a panel to review these economic analyses
and come up with an opinion of what we really think it will
cost.
In closing, Florida believes that Florida is best
positioned to assess the health of its waters and establish
associated water quality criteria for their protection and
restoration. We believe that our track record for the
implementation of progressive and successful water resource
management programs is one of the best in the country. We have
earned the right to exercise the authority envisioned by the
Clean Water Act to develop our own water quality standards and
implement them through an EPA-approved and predictable process
governed by existing State law.
Thank you.
Mr. Gibbs. Thank you. Ms. Biggs.
Ms. Biggs. Chairman Gibbs, Ranking Member Bishop, and
members of the committee, I thank you for the opportunity to
testify today on policies to reduce nutrients in our waterways.
My name is Barbara Biggs, and I am the Governmental Affairs
Officer for the Metro Wastewater Reclamation District in
Denver, Colorado. In addition to my duties at the metro
district, I also serve as the Chair of the Water Quality
Committee for the National Association of Clean Water Agencies.
It is my pleasure to testify on NACWA's behalf today.
Nitrogen and phosphorous are unlike any pollutants we have
dealt with under the Clean Water Act. As such, they demand an
approach that will result in verifiable and sustainable water
quality improvement through an equitable cost effective
implementation of nutrient controls by all sources of nutrient
loading, including agriculture.
The subcommittee's focus on nutrient criteria is very
timely and all stakeholders involved in this issue should agree
that criteria development is a complex, strategic endeavor.
Nutrient-related impacts are the water quality challenge of our
time. NACWA members understand that clean water agencies need
to be an equitable partner in the solution to this challenge.
We are ready to do our fair share.
However, the nutrient challenge won't be fully addressed
until agricultural sources, which are the dominant source in
many watersheds, are asked to do their part in reducing
nutrients as well.
The existing Federal model for numeric criteria development
and implementation is not working for all water bodies. The
delay in implementing controls is largely due to the fact that
we are trying to use a system that was designed for more
traditional toxic pollutants.
A number of States are exploring new approaches, but more
needs to be done to ensure these approaches are embraced by EPA
and that other States have the flexibility to undertake similar
efforts. New and innovative approaches for expressing nutrient
water quality criteria or goals instead of independently
applicable total nitrogen and total phosphorous concentrations
must be develop and encouraged.
Colorado has taken steps to develop a unique approach to
reducing nutrient concentrations and surface waters. A large
group of stakeholders, including POTW, publicly owned treatment
works, have been working for almost 2 years on an approach that
includes scientifically derived nutrient numeric values for
nitrogen and phosphorous, as well as an adaptive implementation
plan that ensures nutrient reductions in priority watersheds,
including those where point sources are a significant
contribution.
There is no singular national model for addressing
nutrient-related water quality impacts, and what Colorado is
doing may not work everywhere. The Colorado approach, however,
does serve as an important model in terms of collaboration
between stakeholders and regulators, which is the key to any
successful approach.
The elements of the Colorado approach include the adoption
of enforceable water quality standards for high-quality waters
and protected water supplies, a nutrient control regulation
that would require implementation of biological nutrient
removal for existing and new POTWs with appropriate off ramps
for small, disadvantaged communities and situations where the
POTW contribution is de minimis, and a monitoring program to
quantify sources of nutrients by watershed to ensure controls
will be effective.
Implementation of nutrient removal even in priority
watershed is not a small investment, as shown by the color
coded maps attached to our written testimony. While wastewater
treatment plans accounts for a very small portion of the
nutrient load statewide in Colorado, the metro district and the
Greater Denver Metropolitan Area are nearly 50 percent of the
phosphorous flow to the South Platte River. And we recognize
that as a significant contributor of nutrients we must do our
fair share.
The district has identified a capital improvement program
to meet the proposed numeric value for phosphorous and to treat
to the limits of achievable technology for nitrogen that will
involve the investment of $965.5 million over the next 20
years. EPA Region 8's reaction to Colorado's proposal has not
been encouraging. They have raised concerns over the lack of
enforceable standards for more waters and have threatened to
object to permits that do not address nutrients. Though EPA
continues to underscore that States should have a lead on
nutrient control efforts, Colorado and other States continue to
face significant hurdles.
In conclusion, we have seen that the flexibility to explore
new and innovative approaches to nutrient control as
exemplified in Colorado can be a key element in any effort to
address our national nutrient load challenge. Given the unique
characteristics of each waterway, the multiple sources of
nutrient loading as well as the varying effects nutrients have
on aquatic life, it is clear that a suite of approaches is
needed.
Utility managers must be able to demonstrate that the
investment they are being required to make will have an impact
on water quality, are a cost effective way of addressing the
problem, and will be sustainable over time. All of these
considerations can only be achieved if at the end of the day
point sources are not the only actors on the hook for
controlling nutrients. Recently agricultural organizations
signed on to a letter to EPA stating that they are partners and
stakeholders committed to addressing nutrient loadings in our
Nation's waters. NACWA stands ready to join these organizations
to undertake meaningful actions to address the nutrient issue
because ultimately comprehensive reforms are needed to put in
place an equitable framework for ensuring all sources of
nutrients held accountable for their fair share of the problem.
Thank you for the opportunity to be appear before you
today. I look forward to any questions the subcommittee may I
have.
Mr. Gibbs. Thank you, Ms. Biggs. Just for the record, these
are opening statements, and all the witnesses have written
testimony that will be submitted for the record. And also,
committee members, if you have opening statements, submit them
for the record.
Also, we are not going to have time today to get through
all our questions, so we are going to have written questions
for all the panelists to get back, because I know we are going
to have votes soon, and I know Ms. Stoner has to leave at noon,
correct?
Ms. Stoner. Yes.
Mr. Gibbs. So I am going to start out here on the first
question. To me it is kind of an obvious question. We are all
concerned about clean water and clean air, and enhancing and
protecting the environment. And all our panelists here are what
I would call are part of that team. And I hear, from the
panelists from the States, major concerns about the
relationship with the U.S. EPA and how we address this. Because
obviously, phosphorous, nitrogen, nutrients are a problem and
an issue, and it is a challenge we need to address, but the
process seems to be the problem.
And I know, Ms. Stoner, you referred to you strongly
believe that States should lead the effort to reduce nutrient
pollution, and the EPA is committed to finding collaborative
solutions.
In light of these statements and what we heard today, I am
struggling with that. If the EPA is so collaborative and
willing to work with the States to lead the effort, why are so
many States that are here today--and we heard from other
States--have so many issues with what they are hearing? It is
kind of like we are all part of the team, and you call a team
meeting, and you bring all the team members to the meeting, and
you say we are going do this, we are going to fix the problem
here, here is our challenges, but here is what you are going to
do.
Is that how you see it? What is going on here? Your mic is
not on.
Ms. Stoner. Does it work? Excellent. I think you are
certainly hearing that there are some issues that we are
continuing to discuss, and people have different views on. I
think there are some complexities associated with nutrient
pollution that reasonable people of good faith, working
together, can have different views on.
We are guided by the law and the science. And we have boxes
and boxes of scientific studies showing the relationship
between nutrients and plant growth, which of course is why we
put fertilizer on the ground, is to grow plants.
We see the same relationship in water. And there is lots of
different factors that affect how it operates in different
kinds of water bodies. You are hearing that. People are trying
to figure out different ways of dealing with those
complexities. And we are in discussions, and I personally have
been in discussions with many of the members of the panel and
lots of other States, trying to figure out the best way
forward.
Mr. Gibbs. Let me just stop you there. You know, your own
EPA's Science and Advisory Board has recognized the
shortcomings in using the numerical approach because of the
differences going on in different localities; you know, flow,
light, the biological conditions we heard.
How do you address your own Advisory Board that has serious
concerns about this one-size-fits-all approach that you are
pushing off onto the States?
Ms. Stoner. The Science Advisory Board has actually
indicated a lot of support for the approaches that we are
using. We recently have taken their recommendations in a
guidance document that we put out. We are consulting with them
now on the Florida coastal standards. We are working very
closely with them to make sure we are using the best science.
That is what we are doing to address this.
And I would be happy to submit additional scientific
studies for the hearing for the record to show you the
scientific support on which U.S. EPA is relying.
Mr. Gibbs. Mr. Budell from Florida, would you like to
respond to that?
Mr. Budell. There is no question there is a lot of science
out there, and there are clear cases where cause-and-effect
relationships can be established in lakes, for example, and
springs. I think we largely agree with EPA that you can
establish a cause-and-effect relationship.
In flowing waters, I don't think there is very much data
that would reflect that you can clearly establish a cause-and-
effect relationship between nutrient concentration and
biological response. You can do it on a site-specific basis if
you work very hard at it.
I think the TMDL program, at least as it has been
implemented in Florida, is an example that if you work hard
enough at it, you can establish a relationship between
concentration and biological response. It takes time. It takes
money. It takes effort. But it results in a better end product,
something that the participants, the stakeholders in the
watershed, those that discharge, both point and nonpoint
source, can embrace because it is a cause-and-effect
relationship. There is some certainty that the money and effort
that you implement----
Mr. Gibbs. Let me just interject because time is limited.
Any others on the panel like to add something in this regard?
Yes.
Mr. Elmaraghy. I hear from everybody here and feel like the
difference is very clear. We believe like weight of evidence is
the way to go. And U.S. EPA is still kind of thinking like
independent applicability is the way to go. We need to resolve
this issue before any other discussion.
Mr. Gibbs. You are addressing cause and effect, you know,
what is going on in those streams.
Mr. Elmaraghy. Yeah. There is no doubt the streams react
differently to the same----
Mr. Gibbs. But for Washington EPA to come out and set a
number and put that across the country, it creates serious
problems. You can't address it; right?
Mr. Elmaraghy. It will not work. And definitely we need to
develop different number for different streams. And the more
importantly. Like how to apply the standards. It is not like
you need to apply it immediately; and the same way we apply it
for zinc, you put number in the permit and within 5 years you
meet this number. We have to develop the adaptive management
approach to attaining nutrient standards.
Mr. Gibbs. Thank you. My time is up. I yield to Mr. Bishop.
Mr. Bishop. Thank you very much, Mr. Chairman.
Ms. Stoner, is there any effort on the part of the EPA to
establish a set number and mandate it across the country?
Ms. Stoner. No, sir.
Mr. Bishop. Thank you very much.
Mr. Budell, in your testimony you state that Florida has
earned the right to develop its own water quality standards and
implement them through an EPA-approved and predictable process.
I am quoting you precisely, right?
Mr. Budell. That is correct.
Mr. Bishop. With respect, isn't that essentially what is
happening now? I mean aren't the nutrient standards that the
EPA promulgated in December of 2010 virtually identical to the
standards that Florida suggested in the fall of 2008, and in
some cases, actually 7 of 10 cases as it relates to streams,
that the EPA standards are less stringent than the Florida
standards? Isn't that the case?
Mr. Budell. The numbers that EPA promulgated were based
largely on the work that Florida did. Florida had been working
cooperatively with EPA on a strategy and a timeline to develop
water quality numeric criteria for years. We don't understand
why EPA stepped in and adopted----
Mr. Bishop. May I interrupt you there, sir? Isn't it the
case that EPA was brought in as the result of a lawsuit, and
there was a consent decree entered into in settlement of that
lawsuit by the State of Florida, by the EPA, and by the
environmental groups that brought the lawsuit? Isn't that the
case?
Mr. Budell. I don't believe the State of Florida was a
member to that consent decree.
Mr. Bishop. I have a press release that was issued by the
State of Florida, January 16, 2009, quotes DEP Secretary
Michael--is it Sole or Sole?
Mr. Budell. Michael Sole was then Secretary.
Mr. Bishop. I am quoting. The State of Florida recognizes
that more needs to be done to address nutrient pollution in our
rivers, streams, lakes, and estuaries. And these actions, that
is, the actions of the EPA, will help our State and all of our
stakeholders prevent and better manage sources of nitrogen and
phosphorous from entering our waters.
Mr. Budell. That is in January of 2009; that is correct.
That was when EPA determined that Florida needed to develop
numeric nutrient criteria within 1 year.
Mr. Bishop. Again, I am not trying to be difficult. I think
it is important for the record. Wasn't EPA's involvement,
though, brought about by the lawsuit? It wasn't as if EPA was--
--
Mr. Budell. That was what my testimony was, yes, they were
sued in August or July of 2008.
Mr. Bishop. And then when EPA in effect established the
nutrient standards pursuant to the consent decree, isn't it the
case that those standards are A, not one-size-fits-all
standards; but B, aren't they less stringent in the majority of
cases than the very standards that the State of Florida
proposed?
Mr. Budell. The numbers vary. Yes. Some of them are less.
Mr. Bishop. Seven of the ten as it relates to streams are
less.
Mr. Budell. OK.
Mr. Bishop. I guess what I am trying to get at is----
Mr. Budell. The issue isn't the number. The issue that we
differed with, and EPA, is the way we would implement those.
Florida never had a chance to bring those standards to the
Agency and propose them, that would have included the
implementation strategies for the adoption of them.
Mr. Bishop. Didn't the existence of the lawsuit preclude
Florida from bringing those standards to EPA?
Mr. Budell. No. Not at all. In fact, the determination
letter that EPA gave to Florida in 2009 gave Florida 1 year to
develop the standards.
Mr. Bishop. Has not the EPA said to the State of Florida
that if Florida wants to take the lead on this, be our guest,
go ahead and do it? Is that not the case, Ms. Stoner?
Ms. Stoner. We have indicated to the State of Florida that
we would welcome their moving forward with standards. They are
actually working to do so in the State of Florida right now.
And we have said if they complete those standards they can
replace the Federal standards. Yes, sir, we have said that.
Mr. Bishop. And they would be responsible for the
implementation of those standards. Is that not correct?
Ms. Stoner. That is correct. We also gave them a 15-month
extension on the standards we have already done to work on
implementation strategies together, and have offered to help
them to do that, including site-specific criteria as
appropriate.
Mr. Bishop. Thank you. I don't want to cut you off, but I
am running out of time.
I want to go to Ms. Card, if I could. There is a very
profound suggestion that with respect to enforcing the Clean
Water Act that we return to pre-Clean Water Act days of where
State-by-State enforcement, State-by-State standards and a go-
it-alone approach.
Now, I represent a district that has extensive coastline
along Long Island Sound. Long Island Sound has in many ways
been restored as a result of cooperative efforts between the
State of New York and the State of Connecticut. If we were to
adopt a go-it-alone approach, if, for example, Connecticut were
to drop out--I don't believe that they will, don't get me
wrong--but if they were to decide that they are going to drop
out, that they are not really that concerned about the Sound,
what impact do you think that that would have on the health and
the vitality and really the economic benefits provided by the
Sound?
Ms. Card. Mr. Bishop, I believe that the States, as you
have heard today, are the primary implementers of the Clean
Water Act. However, I think that the success that they have in
implementing the Clean Water Act successfully and in accordance
with the law is very much related to the partnership between
the States and EPA, and that without that partnership the
success is not possible. In my experience, this is even more
true with multistate or interstate watersheds like Long Island
Sound. And I think that any one of the partners pulling out of
that process could certainly have an impact on the water
quality protection, and certainly the economy that takes place
in that watershed. And in Long Island Sound it would be shell
fishing and----
Mr. Bishop. A go-it-alone approach could be detrimental to
water quality. Is that your conclusion?
Ms. Card. I agree with that statement, yes.
Mr. Bishop. I yield back, Mr. Chairman. Thank you.
Mr. Gibbs. Thank you. Mr. Harris.
Dr. Harris. Thank you very much, Mr. Chairman. And I will
try to be brief.
Ms. Stoner, thank you for appearing before the subcommittee
again today. I have got a problem in Maryland. The problem is
that just last week it was announced that Maryland was 50 out
of 50 States in job creation, and private job creation. And
then 2 weeks ago or 3 weeks ago Allen Family Foods, you know, a
large poultry producer on the Delmarva Peninsula filed for
Chapter 11 bankruptcy. And one of the driving forces behind
that is the uncertainty with regards to the future for the
agriculture and poultry industry on the Eastern Shore of
Maryland because of the pending--looming, I should say--TMDL
regulations that are working their way through the system.
I am just going to ask a couple of questions. First of all,
given the fact that the economic environment in the country is
not improving, in fact it is worsening, especially in my
district on the Eastern Shore of Maryland, with a rising
unemployment rate, and which is reflective of the national
situation as you know, is there a move within the EPA when they
come up with these kind of regulations that I think everyone
agrees they are going to economically adversely impact areas
that are agriculturally dependent, or in our case dependent on
an industry like the poultry industry, is there going to be a
move in the EPA to take economic and job creation--or job
destruction, I should say--factors into account when going
forward with these regulations?
Ms. Stoner. Congressman, EPA does consider job creation,
economic issues associated with implementation of water quality
standards. States also look at those issues with respect to the
uses that they set. There are, as you know, huge economic
benefits associated with clean water and jobs associated with
that, including those for agriculture, which is heavily
dependent upon having clean water for irrigation and for
feeding animals.
Dr. Harris. Ms. Stoner, I only have a few minutes. I
appreciate that sentiment that somehow the farmers on the
Eastern Shore of Maryland are really thankful to the EPA for
giving them--somehow making them able to have clean water for
crops. But that is not what they are telling me. They are
telling me they are afraid of what the EPA is going to do. They
are afraid it is going to increase costs.
Our poultry producers--again, this is the second major
poultry producer in the United States to go bankrupt. Is the
EPA going to change their modeling into what they should do
with regards to the fact that now we have actual proof that
there are businesses going out of business because of the
uncertainty with regards to environmental regulations? And it
is a simple question.
Is the EPA going to change the way they look at regulations
based on the worsening economic environment in the country,
especially with regards to the effect on the agriculture and
poultry raising industry from the regulatory environment?
Ms. Stoner. We already consider those----
Dr. Harris. Is the EPA going to change it? Is it going to
enhance it? Ms. Stoner, you have a job, I have a job, but 2,400
people working for Allen Family Foods no longer have a job. And
it is serious to them. It is dead serious.
The unemployment rate in the country is up to 9.1 percent.
The job creation in the last statistics only created 56,000 new
jobs, when we should create 200,000 new jobs. We have to stop
destroying jobs. And the Federal Government role in destroying
jobs is a worrisome factor in my congressional district.
So is your answer that the EPA is not going to change its
attitude and increase its sensitivity to job destruction with
regards to promulgating new regulations?
Ms. Stoner. The EPA believes, and I personally believe,
that the policies we proceed with are to the economic benefit
of the country as a whole.
Dr. Harris. Well, Ms. Stoner, it is not to the economic
benefit of my congressional district. I don't represent the
country as a whole. I represent the Eastern Shore of Maryland.
And the EPA is destroying the economy on the Eastern Shore of
Maryland.
A final question to you. Has the EPA prepared any response
at all to the controversy regarding the modeling in the
Chesapeake Bay between the USDA and the EPA in coming up with
their draft load estimates?
Ms. Stoner. My understanding is we are working closely with
USDA on that.
Dr. Harris. This is dated December 8, 2010. Now, it is now
June. Jobs are being destroyed on the Eastern Shore because of
the uncertainty with regards to regulations. It is now 6
months. Can you give me an idea how many more months it is
going to take?
Ms. Stoner. I would have to get back to you on that.
Dr. Harris. Please do.
Thank you very much. Thank you, Mr. Chairman.
Mr. Gibbs. Thank you. Ms. Edwards.
Ms. Edwards. Thank you very much, Mr. Chairman. And thank
you to the panel. And I just want you to know, Ms. Stoner, not
everybody in Maryland shares my colleague's viewpoints about
the role of the EPA, the importance of the role that the EPA
plays in making sure that all of us enjoy clean water. And even
those of us who are in the more urban-suburban areas of
Maryland, who know that the things that we do also contribute
to the health of the Chesapeake Bay, really value the role that
the EPA has played.
And most importantly, and I wonder if you would share with
me--a couple of things. I want to make sure that the panel
understands that Maryland's unemployment is 6.8 percent, which
is well below the national average, and that in fact we are in
the business of creating jobs in our State. And as well, I know
that our Governor has signed into law a law that limits the use
of lawn fertilizer to address nutrient pollution in the
Chesapeake Bay.
And I wonder if you could tell me your relationship with
the Chesapeake Bay watershed States and the role that the EPA
in fact plays with the States in helping them figure out what
their responsibilities are in meeting the prescriptions of the
Clean Water Act.
Ms. Stoner. Thank you. We are working closely with the
States through their watershed----
Ms. Edwards. Is your microphone on?
Ms. Stoner. It is supposed to be on. Can you hear me?
Through the watershed implementation plan process to have
State-led plans to achieve nutrient reductions that will not
only clean up the Chesapeake Bay, but actually waters
throughout the watershed, and provide all the economic,
recreational, public health benefits that you refer to. That
process is ongoing.
And you know, I would just say that the water quality of
the United States is only as well protected as the least
protected State. So we feel like it is very important that
Americans can go anywhere in the United States and know that
they have safe water to drink, and fish that they can eat, and
waters they can recreate in. That is very important to the EPA.
And that is one of the components we bring to the process
in our work with the States. We recognize that States have
tremendous expertise as well. And as I said, they do most of
the hard work. So it is very important that we support them and
that Congress supports them in their efforts to do that.
Resources are a huge issue for States, as you know. They are
very important to make sure that we can all do these things
together. And we appreciate the support that Congress has given
to States and to EPA in moving forward with these programs.
Ms. Edwards. And Ms. Stoner, just to finish up, I just want
to be clear then in terms of your relationship with just, say,
one of the States in the Chesapeake Bay watershed, in Maryland,
and Governor Martin O'Malley, and the work that our State and
our State legislature, with full accord, have actually given to
the standards that have been placed in terms of looking at
nutrients in the Chesapeake Bay, that you have been working in
partnership with the State to ensure that those standards are
ones that over time are going to reduce the high level of
nutrients and nutrient pollution in the Chesapeake Bay
watershed; isn't that correct?
Ms. Stoner. That is correct. And there were several States
that put out statements to that effect in December, when we
finished the TMDL and began the additional work on the
watershed implementation plans with those States.
Ms. Edwards. And just as we conclude here, I just have a
little bit of time, in H.R. 1, which was a bill that was
championed by the majority in this House, including my
colleague from the Chesapeake Bay, that there were cuts both to
the SRF and the State 106 programs. The SRF program actually
lost two-thirds of its funding from the previous year, and the
106 programs lost about half of their funds.
Would you say that significant increases in funding will be
needed, and not the cuts proposed in H.R. 1, for both the SRF
and the 106 programs to ensure that collaborative efforts to
reduce nutrient pollution and address other water pollution
challenges would be successful?
Ms. Stoner. Those programs are very important to support
the State work, the permitting programs, the State standards
programs and so forth. The 106 program is the principal source
of funding for those. The clean water and drinking water SRF,
that is the way we pay for water and wastewater infrastructure
in this country to ensure everyone has clean and safe waters,
and, Congressman Harris, to create jobs for people in doing
that for people across the country.
Ms. Edwards. And do any of the other witnesses have a
contribution to that? Thank you.
Mr. Gibbs. The committee is going to recess here for about
15, 20 minutes, more or less. Votes have been called. It is a
little less than 8 minutes yet on the vote call. So we will
come back here in about 20 minutes. And we also have to dismiss
Ms. Stoner. She has another commitment. Thank you for being
here today.
Ms. Stoner. I appreciate that.
Mr. Gibbs. And we will have some written questions we will
submit.
[Recess.]
Mr. Gibbs. The committee will reconvene. Thank you for your
indulgence. At this time, Mr. Bucshon, questions.
Dr. Bucshon. Thank you, Mr. Chairman. A couple comments
first. It is unfortunate Ms. Stoner couldn't stay. But I mean
the result of this hearing today continues to confirm my
opinion that there is a philosophical difference that we have
here concerning the direction of Government, and my view that
the current administration believes in central Government
control of most things. And again, the testimony today just
continues to confirm that.
It seems in the face of a nationwide concern about EPA
overreach, we continue to hear justification from the
administration for their environmental policies, which appear
to be somewhat extreme. Of course we have seen this before, I
think, with the way the Affordable Care Act was passed. I would
like to go on record saying that I am hearing from my
constituents in my district in southwestern Indiana that these
policies will definitely kill jobs, and especially in the area
of the coal industry, which is critical to the State of Indiana
and to my district.
So with that said, I really ask this question of really the
entire panel. Does what you heard today from Ms. Stoner from
the EPA at all change your view that you have given in your
testimony of the interaction between the Federal Government and
your State? Start at the end and go down.
Mr. Opper. Thank you, Representative. I appreciate the
question.
The States implement almost all of the environmental
programs that are handed down to EPA from Congress through the
delegation process. EPA delegates the implementation of those
programs to the States. They have a legitimate role in
oversight. There is always going to be creative tension, and at
times issues come up where the tension really flares. The
numeric nutrient criteria is one where it flares particularly.
So we are used to the tension between the State agencies and
the Federal Government.
As bad as things get, usually common sense prevails. I
certainly hope that it does here, and expect that it will, but
it is going to take a while.
Dr. Bucshon. OK. Thank you.
Ms. Sullins. Thank you, Representative. I don't know that I
can add a lot to what Mr. Opper has had to say. I believe that
this issue is a significant issue in terms of the water quality
and the need to protect water quality and address nutrient
issues. And I believe that if we do not address nutrient issues
that it will have an economic impact on our States.
Dr. Bucshon. I guess I would agree with that opinion. The
question is who should be primarily doing that? Can the States
adequately do that? Should the Federal Government set a one-
size-fits-all? I mean that is the discussion here today at our
committee.
Ms. Sullins. And no, sir, I don't think a one-size-fits-all
is an answer to this particular issue. And I think that is
where the struggle is. And we continue to work with EPA to try
to specifically address our concerns. And I believe the March
memo that was issued specifically did come closer to addressing
our concerns. However, there was a final statement in it that
implied we all needed to adopt end stream nitrogen and
phosphorous standards. And that, I believe, is where the
tension lies, is that we do not believe that is necessarily
appropriate in all cases. And it is necessary for the States to
be able to address their watershed-specific issues.
Dr. Bucshon. Thank you. I only have a limited amount of
time, so if you could limit your answer to maybe 10, 20
seconds.
Ms. Card. Sure. I would just agree that I believe the
States and EPA do have a common understanding of the problem,
yet the States have yet to hear EPA state that they are open to
a more flexible approach that incorporates environmental
response criteria as opposed to nitrogen and phosphorous
criteria. And we need that flexibility.
Mr. Elmaraghy. Thank you, Representative. U.S. EPA has a
role to play in adopting the standards, but they are not very
flexible in allowing the State to consider our local conditions
and allowing us to give the flexibility in order to achieve the
same goal. Our goal is to eliminate impairment. Every State can
deal with in different way.
Dr. Bucshon. Thank you.
Mr. Budell. Congressman, nothing Ms. Stoner said here today
in any way changed my perception of the relationship, the
strained relationship, that exists right now between EPA and
Florida relative to numeric nutrient criteria.
Ms. Biggs. Congressman, my concern--thank you for your
question--my concern is that EPA continues to be more focused
on a number than on meaningful reductions and meaningful
improvements in water quality.
I think what you are seeing in Montana, what you are seeing
in Colorado, are attempts to make meaningful improvement while
we keep talking about the number. This problem has to be dealt
with on a watershed-wide basis. You can't just go after, for
example, the clean water utilities, because we are the easiest,
and there is a section in the Clean Water Act that gives you
the authority to go after that one sector of the source.
Dr. Bucshon. OK. Thank you all. Yield back.
Mr. Gibbs. Thank you. Mr. Bishop?
Mr. Bishop. Thank you, Mr. Chairman. I just have one
question, but I am going to ask it of each of the panelists. I
want to read a quote. And Ms. Sullins, I am going to start with
you. It is OK.
I want to read a quote from an August 2009 report entitled,
``An Urgent Call to Action'' that was prepared with the
participation of EPA and ASIWPCA. Is that how you say it? You
need fewer letters in this, OK?
Ms. Sullins. ASIWPCA.
Mr. Bishop. OK. Thank you. The report states, and I am
quoting, Establishing a cross-State enforceable framework of
responsibility and accountability for all point and nonpoint
pollution sources is central to ensuring balanced and equitable
upstream and downstream environmental protection. It is also
essential to strengthen the ability of any single State to
demand environmental accountability, without jeopardizing the
loss of economic activity that might shift to another State
with less rigorous standards, close quote. Is that a statement
that your organization still agrees with?
Ms. Sullins. Yes.
Mr. Bishop. OK. May I ask each of the panelists? May I
start with you, sir?
Mr. Opper. Yes. We do agree with that. And we do see some
need for unanimity among standards. But there still has to be
flexibility worked into the equation. So I don't disagree.
Mr. Bishop. OK. Ms. Card?
Ms. Card. Yes, we agree with that statement.
Mr. Bishop. Mr. Elmaraghy?
Mr. Elmaraghy. You pronounced it perfectly.
Mr. Bishop. Thank you.
Mr. Elmaraghy. I agree with the statement.
Mr. Bishop. Thank you. Mr. Budell?
Mr. Budell. I agree with it as well, but implementation
flexibility is the key.
Mr. Bishop. OK.
Ms. Biggs. Congressman Bishop, I also agree with the
statement. I have to agree with Mr. Budell that implementation
is the key. And I have to reiterate that it has got to be a
watershed-wide solution.
Mr. Bishop. But that would certainly suggest, if it is a
watershed-wide solution, that would certainly suggest, if not
mandate, cooperation among the States. Correct?
Ms. Biggs. Yes.
Mr. Bishop. OK. Thank you. I yield back, Mr. Chairman.
Mr. Gibbs. Thank you.
Mr. Budell, I think in the last round of questioning you
didn't have a chance to maybe finish what you wanted to say. I
want to give you the opportunity to maybe finish your thought,
what your thought process was there.
Mr. Budell. Well, sure. It was that the series of questions
that Congressman Bishop asked about the litigation and the
impact of the litigation on Florida's involvement in numeric
criteria. What I was going to say is that, yes, there was a
lawsuit against EPA that resulted in EPA determining that
Florida needed to develop numeric criteria. And we were on a
schedule, working cooperatively to develop those criteria with
EPA, on their timeline, when they independently, without
consultation with the State, entered into a settlement
agreement with the litigants. And that settlement agreement
specifically replaced our effort with their own.
In the settlement agreement, they agreed that they would
take over the process of developing the numeric criteria, even
though they had been working with us cooperatively during the
period of the 9 months since they made the determination. And
that settlement agreement we were not a partner to, we were not
privy to, we were not consulted in any way, shape, or form. It
was a complete surprise to us, the State, and particularly the
Department of Environmental Protection, that that settlement
agreement was entered into in August.
Mr. Gibbs. So much for working together collaboratively.
Mr. Budell. Not so collaborative.
Mr. Bishop. Would the gentleman yield?
Mr. Gibbs. Yes, go ahead.
Mr. Bishop. Is it not fair, though, to at least assume that
if the EPA had not entered into a settlement, that a settlement
or a finding would have been imposed by the judge or by the
courts?
Mr. Budell. There was no court date scheduled. The
department--the State is on a schedule.
Mr. Bishop. Are you suggesting that the case could have
gone forward with no resolution?
Mr. Budell. No. I am suggesting that we were agreeing and
working cooperatively with EPA on a schedule to develop
nitrogen and phosphorous numeric criteria to be submitted to
EPA for approval by January of 2010. The determination letter
was January of 2009. They gave us 1 year to develop those
criteria. Before that year was up, they entered into a
settlement agreement with the litigants and usurped our ability
to complete that process. That settlement agreement was not a
requirement of the court.
Mr. Gibbs. So they entered--the U.S. EPA entered into a
settlement agreement with the litigants and didn't consult with
Florida?
Mr. Budell. There was no consultation with Florida at all.
Mr. Gibbs. OK. To me that kind of possibly raises a red
flag about the motive of the lawsuit and who was directing it.
But we will let that go at that.
Mr. Opper, can you talk a little bit about the variances?
And apparently in your testimony you talked about that the
technology doesn't really exist to get there. So can you just
elaborate a little bit more on variances and my understanding
that the opposition from the U.S. EPA regarding the variances?
Mr. Opper. Thank you, Mr. Chairman. I wouldn't say the
opposition at this point is adamant. I understand EPA's
heartburn with variances if a variance is a ``get out of jail''
free card, because EPA wants to see some immediate progress
made. I can understand EPA's hesitation over a variance if the
variance isn't strengthened over time--the variance is
diminished over time, so you get stronger standards over time
as the technology develops. However, Montana's variance does
both of those things, sets a 20-year timeframe, it results--
when the standards have to be met it results in immediate
improvement to water quality, significant progress. And it is
ratcheted down, so it is tighter and tighter, the standards
are, over time.
I think it should be a model for the rest of the country,
because as you know, Montana tends to be a trendsetter when it
comes to things like fashion and standards. So I think EPA
again will get to that point where they will accept our
variance. But they have heartburn because they are worried it
will set precedence with other States whose variances aren't
thought through maybe as well.
Mr. Gibbs. But your point is if a State is making progress
and has a program in place that is ratcheting down and getting
to where reducing the nutrient loads and improving the
environment in the streams and all that, they should be allowed
to proceed that way.
Mr. Opper. Mr. Chairman, we are demonstrating the immediate
improvements to water quality, the flexibility, the innovation,
and the collaborative work that EPA called for in Nancy
Stoner's March 11 memo. They should be standing up and
applauding Montana's work.
Mr. Gibbs. Great. Mr. Elmaraghy, in Ms. Stoner's testimony
she mentioned the great Lake Saint Mary's in Ohio. Can you
elaborate a little bit what the State of Ohio is doing to work
to correct the problem at Lake Saint Mary's?
Mr. Elmaraghy. Thank you, Mr. Chairman. The State of Ohio
enacted some rules last year, last December, that require
farmers and the watershed to adopt some kind of best management
plans and submit these plans to the Ohio Board of Natural
Resources for their approval. Also by 2012, a farmer will not
be allowed to apply manure on frozen land or during the winter.
In addition to that is the State of Ohio directed, so far,
around maybe $8 million to help in resolving this issue. This
month we started to treat the lake with alum, at a cost of
about $3.5 million. We add alum in order to precipitate the
phosphorous, the dissolved phosphorous, and make it not
available for algae.
It will be a long struggle. I am not expecting this problem
will be resolved overnight. But we need to get the local people
to start to take the lead in dealing with this issue.
Mr. Gibbs. Great. It is great to hear that States are
addressing it.
Now, one concern that came up in the full Transportation
hearing earlier this week was that States aren't set up to
address nutrient issues. I know we had quite a little debate.
And one of the arguments I heard was because States didn't do
it before, prior to 1972 with the Clean Water Act. By all your
testimonies today and what we are seeing, in my opinion the
States are geared up and willing and are addressing the issue.
And this is a really tough issue because phosphorous and
nitrogen loads, basically a lot of it is, as I think we heard
today--nonpoint source pollution is a challenge.
And I just have serious reservations when the U.S. EPA is
going to come out and take away the flexibility, especially
when you have had programs that have already been approved by
them, and try to do your work. So I am going to praise what you
are trying to do. And it is my commitment to try get as much
flexibility to institute your programs.
I think what has happened in Florida, for example, is a
serious concern that needs to be addressed. Because phosphorous
is an important nutrient for American agriculture. And most of
it comes from Florida. So there could be serious ramifications
if we shut down the phosphorous mining industry in Florida for
American agriculture and our food supply.
So I commend you for the work you are doing to protect the
environment and work to also create and enhance that industry
sector and the jobs.
I would like to get clarification. I will just open it up I
guess to everybody. Is the EPA proposing a single number
standard by ecoregion? And I had notes, and I am glad my
staffer reminded me of that. It is under my impression, and I
remember Ms. Stoner testified they weren't. But I think they
have their database and setting up by ecological regions. Is
that true? Anybody want to go first?
Mr. Budell. Mr. Chairman, the EPA criteria, as they have
been adopted for Florida, do establish numbers for nitrogen and
phosphorous by ecological region. They have broken the State
up. So it is not a one-size-fits-all, but it is a one-size-
fits-all for each ecoregion. And our position is that even
within those ecoregions there is significant variability
between the water bodies that exist in those regions.
Mr. Gibbs. How vast is an ecoregion?
Mr. Budell. It is dependent on geology, soils, geography to
some extent, weather. There are criteria that go into
establishing different ecoregions. I just named a few. But it
doesn't necessarily mean that all streams within an ecoregion
are identical and have the same exact nutrient regime. And that
is why--I can understand numbers, single numbers being used as
a guidance, as a guide for an ecoregion.
But before you would actually require landowners within a
particular stream reach or watershed to implement costly
nutrient reduction strategies, you need to confirm that those
reduction strategies are actually going to result in
environmental benefit.
I think one of the earlier speakers said that nutrient
content in one stream may result in some kind of impairment.
The same nutrient content in an adjacent stream would support a
perfectly healthy biological community. And that is what we
encounter in the real world out there. That is what Mother
Nature gives us.
Mr. Gibbs. I think Mr. Bishop wants----
Mr. Bishop. Just to be clear, was it not Florida that
proposed an ecoregion approach, Panhandle East, Panhandle West,
Bone Valley West?
Mr. Budell. And we are not opposed to an ecoregion
approach.
Mr. Bishop. But in Florida there is an ecoregion approach
that Florida at least initially endorsed. Is that correct?
Mr. Budell. That is correct. If I could----
Mr. Bishop. Of course.
Mr. Budell. Yes. I just point out that, yes, we were going
to use those numbers as a guide. And we were always going to
pair the evaluation of the nutrient content in a water body
with a biological assessment of the health of that water body.
That was what we were going to submit to EPA for approval. Not
just you have to meet the number that is in the ecoregion
regardless of the health of the water body that is in that.
Mr. Bishop. And can you still not do that?
Mr. Budell. That is what we are struggling with. We gave
EPA the opportunity, we believe, to back out gracefully and let
us pursue and submit that to them for approval. That was the
petition that we sent to the Agency in----
Mr. Bishop. Which they have not either approved or denied.
Mr. Budell. Well, that is----
Mr. Bishop. Is that not the case?
Mr. Budell. We are dissatisfied with the response that we
got from the Agency. Let me just say that.
Mr. Bishop. OK. I yield back, sir.
Mr. Gibbs. And I do believe that they are trying to set a
number from a numerical standard what the phosphorous and
nitrogen load can be, and not factoring in the biological
conditions that might exist in specific locales.
Mr. Budell. That is correct.
Mr. Gibbs. And I think that is really the big issue here.
Mr. Budell. That is the major issue in Florida.
Mr. Gibbs. And obviously to me, I think the local States,
or localities and States, would have the best hands-on
knowledge to address that than to have set parameter tight
numbers.
Mr. Budell. I think Mr. Elmaraghy recognizes the value of
these trophic State indices, various tests that can be made. We
have a stream condition index that is a very, very robust test
of the biological health of water bodies. That was what we had
proposed to use as a confirmatory tool when using these
nitrogen numbers as guidelines. And the response was less than
warm I will just say.
Mr. Gibbs. Now, just a quick follow-up on my thought. Are
there some areas where the number that has been proposed or set
by the U.S. EPA for, say, phosphorous that is--even if there
was no human activity in that system that the number would
still be higher, especially in phosphorous, than the number
they are setting?
Mr. Budell. That is correct. I mean the process that they
used by using the 90th percentile or the 75th percentile of a
reference-stream approach invariably results in unimpacted
waters not being able to meet their numeric criteria. So you
have got standards that even Mother Nature can't meet in a
certain subset of the water bodies. That is correct.
Mr. Gibbs. Mr. Elmaraghy.
Mr. Elmaraghy. You got it right. Thank you, Mr. Chairman.
Ohio spent about 5 years period, studied in detail about 50
streams. And the reason we find like every stream is kind of
unique. You cannot really say because of the concentration of
phosphorous at this level you would have impairment. And as a
result, we developed this trophic index criteria, which include
all the variables in one index. And we are testing it on other
streams to be sure, like this index, can be predictive of
impairment in the stream. And so far we are getting some
indications this index is workable, and we are getting
endorsement from USGS and the other scientific organizations.
My feeling is this approach should consider one parameter.
Considering all the factors is a good approach to proceed
on, because like there is no one number will be acceptable for
all the streams. The important thing really, instead of
concentrating on the number for phosphorous and nitrogen, is
how to implement this number. It seems like that is a key for
approaching the nutrients.
The Ohio approach, like when we develop our standards, will
include in our standards implementation strategies. So
everybody knows this number is not exactly a final number, it
is a target. We need to use adaptive management technique. We
may try something first and see how the stream will respond.
And if it didn't respond appropriately, we have to do something
different until we meet attainment in the stream. Our way of
assessment attainment of the stream is using the biology of the
stream. Ohio is kind of very unique. We have biological
standards for the streams. So we can tell, like if we go and do
biological survey of the stream on attainment or no, and we can
also tell if the impairment is coming from nutrient or from
other parameters.
Mr. Gibbs. That is a good point. I think it is possible to
have a stream not in impairment, but maybe the phosphorous
level might be higher than the numeric set standard and it
still be a stream that is functioning biologically right;
correct? I don't know how to say it.
Mr. Elmaraghy. Absolutely. Nutrients is different.
Mr. Gibbs. Pardon?
Mr. Elmaraghy. Nutrients is completely different than other
parameters like zinc or copper.
Mr. Gibbs. Anybody else want to comment on this? Ms. Card.
Ms. Card. If I might, I just wanted to emphasize something
that I said in my testimony that is critical to the issue that
we are having with EPA is that regardless of whether nitrogen
or phosphorous are established in guidance or are incorporated
as part of the water quality standards themselves, the sticking
point for us is that they should not be applied independently
of what the environmental response is telling us. And that the
environmental response, whether it be the biological response,
the clarity of the water body, dissolved oxygen, that is what
makes the determination of whether designated uses are being
supported, and not the nitrogen or phosphorous criteria as the
case may be. Those numbers should not be applied in and of
themselves, absent the consideration of the environment.
Mr. Gibbs. That gets back to my point I just made. It may
be possible to have a stream not in impairment that could have
a high numerical phosphorous because of other things going on
in that stream, and it is not a problem, and you have aquatic
life and everything is functioning well.
Ms. Card. Yes, sir.
Mr. Gibbs. Anybody else want to respond?
I sincerely want to thank you for making the trip into DC
and suffering through all the humidity in this town. Have a
safe trip back to your respective States, and keep up the good
work.
Thank you very much. At this time the committee is
adjourned.
[Whereupon, at 12:56 p.m., the subcommittee was adjourned.]