[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


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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.]
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