[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
EPA'S TAKEOVER OF FLORIDA'S NUTRIENT WATER QUALITY STANDARD SETTING:
IMPACT ON COMMUNITIES AND JOB CREATION
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
OF THE
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
AUGUST 9, 2011
__________
Serial No. 112-81
Printed for the use of the Committee on Energy and Commerce
energycommerce.house.gov
----------
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Washington, DC 20402-0001
COMMITTEE ON ENERGY AND COMMERCE
FRED UPTON, Michigan
Chairman
JOE BARTON, Texas HENRY A. WAXMAN, California
Chairman Emeritus Ranking Member
CLIFF STEARNS, Florida JOHN D. DINGELL, Michigan
ED WHITFIELD, Kentucky Chairman Emeritus
JOHN SHIMKUS, Illinois EDWARD J. MARKEY, Massachusetts
JOSEPH R. PITTS, Pennsylvania EDOLPHUS TOWNS, New York
MARY BONO MACK, California FRANK PALLONE, Jr., New Jersey
GREG WALDEN, Oregon BOBBY L. RUSH, Illinois
LEE TERRY, Nebraska ANNA G. ESHOO, California
MIKE ROGERS, Michigan ELIOT L. ENGEL, New York
SUE WILKINS MYRICK, North Carolina GENE GREEN, Texas
Vice Chairman DIANA DeGETTE, Colorado
JOHN SULLIVAN, Oklahoma LOIS CAPPS, California
TIM MURPHY, Pennsylvania MICHAEL F. DOYLE, Pennsylvania
MICHAEL C. BURGESS, Texas JANICE D. SCHAKOWSKY, Illinois
MARSHA BLACKBURN, Tennessee CHARLES A. GONZALEZ, Texas
BRIAN P. BILBRAY, California JAY INSLEE, Washington
CHARLES F. BASS, New Hampshire TAMMY BALDWIN, Wisconsin
PHIL GINGREY, Georgia MIKE ROSS, Arkansas
STEVE SCALISE, Louisiana ANTHONY D. WEINER, New York
ROBERT E. LATTA, Ohio JIM MATHESON, Utah
CATHY McMORRIS RODGERS, Washington G.K. BUTTERFIELD, North Carolina
GREGG HARPER, Mississippi JOHN BARROW, Georgia
LEONARD LANCE, New Jersey DORIS O. MATSUI, California
BILL CASSIDY, Louisiana DONNA M. CHRISTENSEN, Virgin
BRETT GUTHRIE, Kentucky Islands
PETE OLSON, Texas KATHY CASTOR, Florida
DAVID B. McKINLEY, West Virginia
CORY GARDNER, Colorado
MIKE POMPEO, Kansas
ADAM KINZINGER, Illinois
H. MORGAN GRIFFITH, Virginia
_____
Subcommittee on Oversight and Investigations
CLIFF STEARNS, Florida
Chairman
LEE TERRY, Nebraska DIANA DeGETTE, Colorado
SUE WILKINS MYRICK, North Carolina Ranking Member
JOHN SULLIVAN, Oklahoma JANICE D. SCHAKOWSKY, Illinois
TIM MURPHY, Pennsylvania MIKE ROSS, Arkansas
MICHAEL C. BURGESS, Texas KATHY CASTOR, Florida
MARSHA BLACKBURN, Tennessee EDWARD J. MARKEY, Massachusetts
BRIAN P. BILBRAY, California GENE GREEN, Texas
PHIL GINGREY, Georgia DONNA M. CHRISTENSEN, Virgin
STEVE SCALISE, Louisiana Islands
CORY GARDNER, Colorado JOHN D. DINGELL, Michigan
H. MORGAN GRIFFITH, Virginia HENRY A. WAXMAN, California (ex
JOE BARTON, Texas officio)
FRED UPTON, Michigan (ex officio)
(ii)
C O N T E N T S
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Page
Hon. Cliff Stearns, a Representative in Congress from the State
of Florida, opening statement.................................. 1
Prepared statement........................................... 4
Hon. Corrine Brown, a Representative in Congress from the State
of Florida, opening statement.................................. 7
Hon. Joe Barton, a Representative in Congress from the State of
Texas, opening statement....................................... 8
Witnesses
Gwendolyn Keyes Fleming, Region 4 Administrator, Environmental
Protection Agency.............................................. 10
Prepared statement........................................... 13
Richard J. Budell, Director, Florida Department of Agriculture
and Consumer Services.......................................... 22
Prepared statement........................................... 25
Paul Steinbrecher, President, Florida Water Environment
Association Utility Council.................................... 53
Prepared statement........................................... 56
William Dever, President, Florida Gulf Coast Building and
Construction Trades Council.................................... 103
Prepared statement........................................... 105
Ron St. John, Managing Partner, Alliance Dairies................. 110
Prepared statement........................................... 112
Kelli Hammer Levy, Watershed Management Section Manager, Pinellas
County Department of Environment and Infrastructure............ 115
Prepared statement........................................... 117
David G. Guest, Director, Florida Regional Office, Earthjustice.. 125
Prepared statement........................................... 127
David Richardson, Assistant General Manager, Water/Wastewater
Systems, Gainesville Regional Utilities........................ 136
Prepared statement........................................... 138
Submitted Material
Memorandum, dated December 29, 2008, from Luis A. Luna, Assistant
Administrator, Environmental Protection Agency, to Stephen L.
Johnson, Administrator, Environmental Protection Agency........ 165
Memorandum, dated March 16, 2011, from Nancy K. Stoner, Acting
Assistant Administrator, Environmental Protection Agency, to
Regional Administrators, Regions 1-10, submitted by Mr. Stearns 175
Letter, dated April 22, 2011, from Herschel T. Vinyard, Jr.,
Secretary, Florida Department of Environmental Protection, to
Lisa P. Jackson, Administrator, Environmental Protection
Agency, submitted by Mr. Stearns............................... 181
Letter, dated June 13, 2011, from Nancy K. Stoner, Acting
Assistant Administrator, Environmental Protection Agency, to
Herschel T. Vinyard, Jr., Secretary, Florida Department of
Environmental Protection, submitted by Mr. Stearns............. 220
EPA'S TAKEOVER OF FLORIDA'S NUTRIENT WATER QUALITY STANDARD SETTING:
IMPACT ON COMMUNITIES AND JOB CREATION
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TUESDAY, AUGUST 9, 2011
House of Representatives,
Subcommittee on Oversight and Investigations,
Committee on Energy and Commerce,
Washington, DC.
The subcommittee met, pursuant to call, at 10:10 a.m., at
the Alumni Center, The University of Central Florida, 4000
Central Florida Boulevard, Building 126, Orlando, Florida, Hon.
Cliff Stearns (chairman of the subcommittee) presiding.
Members present: Representatives Stearns and Barton.
Also present: Representatives Brown, Bilirakis, and Ross.
Majority staff present: Katie Novaria, Legislative Clerk;
Peter Spencer, Professional Staff Member, Oversight; and James
Thomas, Policy Coordinator.
Mr. Stearns. Welcome, here at the Alumni Center, and we, as
Members of Congress, appreciate that very much.
This hearing is part of the Energy and Commerce Committee
in Congress, and I am authorized, as the chairman, to do this.
I am delighted to have my colleagues here. Corrine Brown,
of course, this is part of her congressional district. Joe
Barton is a former chairman of the Energy and Commerce
Committee. He is from Texas. He is on vacation here with his
family. Gus Bilirakis, I think all of you know, is over in the
Tampa area. And Dennis Ross, of course, is contiguous here to
Orlando. So I welcome my colleagues.
I will start with an opening statement.
OPENING STATEMENT OF HON. CLIFF STEARNS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF FLORIDA
We convene this hearing of the Subcommittee on Oversight
and Investigations to examine the impact of the Environmental
Protection Agency's, EPA, recent rulemaking setting Federal
numeric nutrient water quality criteria for Florida's lakes and
flowing waters and overruling Florida's own process for setting
the relevant standards.
This is the sixth hearing in the subcommittee's regulatory
reform series, as well as the subcommittee's first field
hearing. Regulatory reform has been a priority for this
subcommittee in the 112th Congress, and this hearing continues
its examination of potentially burdensome and costly Federal
regulation that will stifle job creation and economic growth.
As Floridians work to get back on their feet, the Federal
Government's efforts must be focused on improving our economy
and, of course, creating jobs. Unfortunately for the almost 1
million currently unemployed people from Florida, EPA's
unprecedented and potentially costly water mandates threaten to
harm Florida citizens, its local governments, and vital sectors
of our economy, with no guarantee of benefit for improved water
quality overall.
Nutrient pollution presents unique challenges that are
difficult to remedy through the EPA's non-site-specific
approach of setting numerical water quality standards. In other
words, one size fits all. This approach is not universally
appropriate for substances like nutrients that are both widely
variable, naturally occurring, and a necessary component of
healthy ecosystems.
Disturbingly, EPA's approach may result in numerous waters
being labeled as impaired even though they are not and direct
taxpayers' resources away from necessary environmental work
while blocking business growth and job creation in the meantime
here in Florida.
For example, the Cross Bayou within the Tampa Bay estuary
system has an extensive oyster reef that the Florida Fish and
Wildlife Conservation Commission has described as pristine.
This pristine wildlife conservation center is clear to us it is
OK. Yet the water quality of this area does not come close to
meeting the EPA standard. So this is not sensible regulation,
in our opinion.
Despite the well-known challenges with setting numeric
nutrient standards, Florida had--for several years has been
working to set such standards with EPA support until January
2009, when EPA abruptly called for Federal standards. Although
Florida continues to collaborate with the Federal authorities
for a workable solution, EPA instead chose in August 2009 to
abandon Florida's process and to impose its own broad-brush
standards by certain dates.
So, my colleagues, we will hear today how EPA's actions
take over Florida's well-regarded process, places tens of
millions of dollars of ongoing water quality projects into
jeopardy, and threatens billions of dollars of economic, job-
creating decision-making.
Witnesses today will provide perspective from the State,
municipalities, water utilities, the labor community, and the
agricultural community, all of which must confront the
regulatory challenges and uncertainties presented by EPA's
takeover of Florida's standard setting.
Ironically, the same EPA, bent on imposing its standards
despite scientific and economic uncertainty about the impact,
also asserts that according to a March 16, 2011, memorandum
from Nancy Stoner, the Acting Assistant Administrator for
Water, to EPA's regional administrators, quote, she says,
``States need room to innovate and respond to local water
quality needs. So a one-size-fits-all solution to nitrogen and
phosphorus pollution is neither desirable nor necessary.''
So, clearly, EPA is acting against its own advice in
Florida. There are serious questions about the necessity of EPA
actions, the quality of the analysis supporting its decisions,
and the economic and jobs impact for complying with its Federal
numeric standards.
[The prepared statement of Mr. Stearns follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Stearns. With that, that is my opening statement. And I
ask unanimous consent that Members who are not a member of the
committee may ask questions and also that my good colleague
Corrine Brown can also have an opening statement.
Without objection, so ordered.
With that, I recognize Corrine Brown for her opening
statement.
OPENING STATEMENT OF HON. CORRINE BROWN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF FLORIDA
Ms. Brown. Thank you, Mr. Chairman.
First of all, I want to acknowledge that I am happy to be
here at the University of Central Florida with Dr. Hitt and all
of the Central Florida family. I claim them as a part of
representing them in the United States Congress.
And I want to thank the committee for being fair in their
also giving me the opportunity to have an opening statement
since I am not on this committee. I am on the Transportation
and Infrastructure Committee that have had hearings, both in
full and sub on this issue.
I am also supposed to say something nice about Texas, since
they agreed for me to make the opening statement. My best
friend is from Texas, Eddie Bernice Johnson. So thank you very
much.
[Laughter.]
Ms. Brown. But I did tell him who is going to beat them in
football. So----
Mr. Barton. There you go. We will see about that.
Ms. Brown. But back to the subject area. You know, I, first
of all, have got a problem with the title of the hearing, ``EPA
Takeover of Florida Nutrient Water Quality Standard Setting:
Impact on Communities and Jobs.'' Now we do know that it is not
really an EPA takeover, and I am a little disappointed that the
State is not here today because the State has the leading role.
And my friend Herschel Vinyard, since he left Jacksonville
and in Tallahassee, is the new EPA director, and I think they
should be here at this hearing today because I would like to
know--have their input because the more input we have, the
better we can make our decisions in Washington.
As I said before, we have had two hearings, both the full
and subcommittee, on this issue. And I really think that we
need to work together in a balanced approach, but we also need
to make sure that we are fair in how we handle this issue. That
is why I supported Congressman Rooney's amendment that would
have limited funds for this new criteria of Florida.
But I also know that water is very important, and we do not
need to weaken the clean water standards. We need to work
together to protect the people of Florida, but also how can we
implement it and make sure it is safe and that Florida is not
held to a different standard than the rest of the country as we
move forward?
We are going to have a lot of water battles. We are doing
it with Georgia, and we are doing it with other communities. So
how do we do this in a way that is going to be fair to the
people of Florida and fair to the businesses as we move
forward?
So I am very interested and thank the chairman for having
me here today. And I am very interested in hearing what the
panelists have to say and seeing how we can work together to
move forward.
So thank you very much.
Mr. Stearns. I thank the gentlelady.
And with that, I recognize the gentleman from Texas, Mr.
Barton.
Mr. Barton. Well, thank you, Chairman Stearns.
I am a past chairman of the Oversight and Investigations
Subcommittee of the Energy and Commerce Committee. So it is a
delight to be here for this field hearing.
My family is on vacation in Florida. Yesterday was the
Magic Kingdom, and today I am missing Epcot Center. But I will
be home in time to help pay for supper this evening. So----
[Laughter.]
Mr. Barton [continuing]. We are contributing to your
Florida economy substantially.
Ms. Brown. Thank you.
Mr. Barton. Eddie Bernice Johnson is my good friend, and I
am glad that Congresswoman Brown is going to be in my new
congressional district I think this Friday?
Ms. Brown. This Friday.
Mr. Barton. At a transportation summit. So I, too, want to
thank the University of Central Florida for their hospitality
and being here.
I do have an official opening statement. I am going to run
through it real quickly, Mr. Chairman.
OPENING STATEMENT OF HON. JOE BARTON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
I was very pleased when I found out that you were going to
hold this field hearing on the EPA and Florida and its efforts
with regards to water regulations. I have said this before, and
I will say it here at this hearing, that it does appear to me
that the Obama EPA administration is trying to reset the
balance between State regulation and Federal regulation, with
an emphasis that Washington knows best, and it is in almost
every case very easy to override the State and implement their
own Federal standards.
What the EPA is attempting to do here in Florida with
regards to water quality is very similar to what the EPA is
trying to do in Texas with regards to air quality. In Texas, we
have a flexible air quality permitting program that was
approved back in the Clinton administration and has been in
existence for over a decade. And the Region 6 administrator for
the EPA and the Washington EPA has revoked those permits that
affect over 130 facilities in Texas without any real
justification that I can find.
Here in Florida, back in 2007, the EPA and the Florida
Environmental Protection Department agreed on a consent decree,
I am told, with regards to nutrients and phosphorus that was in
effect and that the Floridians were beginning to implement,
setting the standards, compliance dates. And then, last year,
the Obama EPA in Region 4 came in and revoked that and put in
place their own standards with a compliance date, I believe, of
early next year, which is probably going to be impossible to
meet.
I think it is fair to say, Mr. Chairman, that regardless of
whether you are a Federal official or a State official, we want
the strongest air quality and water quality standards. I think
it is fair to say also that we should recognize that those
standards should be based on real scientific data. They should
be promulgated in a cooperative atmosphere, if at all possible,
with those that are being regulated.
And since it is the State that has to implement in almost
every occasion, Mr. Chairman, that you should give deference to
the State in terms of how to implement and the timelines for
implementation. You should be very pleased and happy, Mr.
Chairman, that in Florida you have water resources to regulate.
My son yesterday, my 5-year-old son, when it started
raining wanted to know what that was. Yes, we haven't had rain
in 4 months. We have had 30 days of 100 degree temperature or
better, and we have had 7 or 8 days in a row of over 105. So
having water resources to develop is definitely a positive.
Let me conclude simply by saying that when I get to the
question and answer period here today, I do plan--first of all,
I want to thank the Region 4 administrator for being here. We
haven't been able to get the Region 6 administrator for Texas
to come to a field hearing in Texas. So give her credit for
showing up and being willing to answer questions.
But I am going to ask her some questions, such as why they
refuse to grant the flexibility needed for your State to
implement the agreed-upon plan that you had in place before it
got revoked? What does the EPA do to really take into account
the compliance costs? Why does the EPA continue to ignore the
concerns of your State officials and industry representatives
regarding the data, the assumptions, and the models that are
used?
I want to emphasize the word ``models.'' When you have real
data, Mr. Chairman, it would seem to me that you would take the
real world data over an EPA-generated model, which may or may
not reflect the real world. And again, in Texas, EPA is using
modeling data that has no relationship to the real world data
that is collected on a continuous basis with regards to air
quality.
We all want safe water. We all want clean air. It is the
appropriate oversight role of this particular subcommittee to
oversee the Environmental Protection Agency. And this field
hearing in Florida in front of your constituents and Ms.
Brown's constituents and Mr. Bilirakis's and Mr. Ross's
constituents is an open, transparent way to conduct that
oversight, and I commend you for doing that.
I look forward to the hearing.
Mr. Stearns. Thank the gentleman.
And we will welcome our first panel. If they would please
come forward? Gwendolyn Keyes Fleming is EPA's regional
administrator for Region 4 and was appointed by President
Barack Obama in September 2010. Prior to her position with the
EPA, Ms. Keyes Fleming served as a DeKalb County district
attorney and prosecuted approximately 11,000 felony cases
annually.
Ms. Keyes Fleming is a New Jersey native and earned her
bachelor's degree in finance from Douglass College and her law
degree from the Emory University School of Law. Welcome.
Richard Budell is the director of the Office of
Agricultural Water Policy with the Florida Department of
Agriculture and Consumer Services. He has been involved in the
development and implementation of agricultural water resource
protection and restoration programs in Florida for 26 years.
Mr. Budell, welcome.
Both of you are aware that the committee is holding an
investigative hearing and, when doing so, has had the practice
of taking testimony under oath. Do you have any objection to
taking testimony under oath?
Ms. Keyes Fleming. No objection.
Mr. Budell. No.
Mr. Stearns. The chair then advises you that under the
rules of the House and the rules of the committee, you are
entitled to be advised by counsel. Do you desire to be advised
by counsel during your testimony today?
Ms. Keyes Fleming. No.
Mr. Budell. No.
Mr. Stearns. In that case, if you would please rise and
raise your right hand, I will swear you in.
[Witnesses sworn.]
Mr. Stearns. You are now under oath and subject to the
penalties set forth in Title 18, Section 1001 of the United
States Code. You now may each give a 5-minute summary of your
written statement, and we welcome you.
Ms. Keyes Fleming?
STATEMENTS OF GWENDOLYN KEYES FLEMING, REGIONAL ADMINISTRATOR,
SOUTHEAST REGION, ENVIRONMENTAL PROTECTION AGENCY, AND RICHARD
J. BUDELL, DIRECTOR, FLORIDA OFFICE OF AGRICULTURE AND CONSUMER
SERVICES
STATEMENT OF GWENDOLYN KEYES FLEMING
Ms. Keyes Fleming. Good morning. I'm pleased to appear
before you today to discuss the water quality challenges here
in Florida resulting from nutrient pollution.
The urgent problem before us is how we can most effectively
collaborate at the Federal, State, and local government levels
to address the growing public health risks and adverse economic
impacts of this widespread pollution on the prosperity and
quality of life of the communities here in Florida.
Clean water is vital to Florida's economy. We know that 82
million tourists come to Florida for the beaches, rivers, and
State park system that is the envy of the Nation. Tourism, the
State's number-one industry, employs about 1 million Floridians
and generates $57 billion for the State's economy each year.
Clearly, the businesses these tourists and all of us depend on
need a reliable and plentiful supply of clean water.
Clean water is also essential to our public health, our
drinking water supplies, and to the welfare of our families and
communities. But here in Florida, over 1,900 miles of rivers
and streams are currently impaired for nutrients, and the
numbers are increasing, despite the best efforts of the State.
Nutrients cause algal blooms, that thick green muck that
fouls clear water and can produce toxins harmful to humans,
animals, and the environment. Exposure can cause skin
irritations, stomach and intestinal problems, fever, sore
throat, headache, and liver damage.
In early June of this year, for example, a toxic blue-green
algae bloom was reported on the Caloosahatchee River in Fort
Myers. Lee County officials warned people to avoid fishing,
swimming, or boating due to the potential health risks
associated with the algae.
The St. Johns River continues to routinely suffer from
harmful algae blooms and fish kills that hurt local businesses
and damage property values. If businesses that rely on clean
water don't have it, their bottom line suffers, and so does the
economy.
In January 2009, recognizing the State's significant
pollution--nutrient pollution challenges, EPA concluded that
numeric criteria were necessary to restore and protect the
State waters in a timely manner. In November 2010, EPA
promulgated standards for the State's lakes and flowing waters
but delayed the effective date by 15 months to allow
stakeholders the opportunity to review the standards and ensure
a smooth transition toward implementation by the State.
In addition, EPA recognized the need for flexibility within
the rule. So the rule allows any entity to propose site-
specific alternative criteria based on local environmental
factors, and EPA will approve such alternative criteria where
it will protect water quality.
EPA recognizes the need for a sensible approach in the
implementation of this rule. Over the course of the past 8
months, EPA has been working with a wide range of stakeholders,
communities, and organizations to address their concerns and
issues. Throughout the process, EPA has also been coordinating
closely with the State on issues related to implementation of
the rule and supporting State efforts to develop their own
rule.
EPA clearly understands there are economic consequences
associated with the implementation of the rule and that these
are difficult economic times. We believe the State can
implement the rule in an economically sensible way, using
currently available technology.
But given the concerns expressed about the economic
analysis conducted by EPA, we've asked the National Research
Council to conduct an independent review of the costs of
implementing the inland rule. This process is under way, and we
expect the results of this review will be available in February
of 2012 before the rule becomes effective.
As you know, in April of this year, Florida petitioned the
EPA to withdraw its determination, repeal Federal rulemaking to
establish criteria, and refrain from proposing or promulgating
further numeric nutrient criteria. The petition further
outlined plans in a rulemaking schedule by which the State
would adopt its own criteria.
EPA supports Florida's continued focus on reducing nitrogen
and phosphorus pollution and commends the State's commitment to
recommence its rulemaking efforts. EPA believes that the State
has the primary role in establishing and implementing water
quality standards. We are working with the State during this
process, and we will continue to make available our policy and
technical staff to provide assistance on a priority basis.
If Florida adopts an EPA-approved, legally enforceable
nutrient criteria that are sufficient to address the concerns
underlying our determination in the Clean Water Act, EPA will
promptly initiate rulemaking to repeal our criteria.
In conclusion, the threat posed by nutrients in Florida's
waters is perhaps the most serious water pollution problem
faced by EPA, the State, and local communities. EPA is
committed to continuing to work with Florida and the many
stakeholders here in the State to implement nutrient controls
in a manner that protects the State's water, sustains its
economy, and safeguards the well-being of all of its citizens
who depend on clean and safe water.
Thank you for the opportunity to testify, and I look
forward to answering your questions.
[The prepared statement of Ms. Keyes Fleming follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Stearns. Thank the gentlelady.
Mr. Budell?
STATEMENT OF RICHARD J. BUDELL
Mr. Budell. Thank you, Chairman Stearns.
Good morning, committee members. I'm pleased to have the
opportunity to share with you my department's perspective on
key aspects of the U.S. Environmental Protection Agency's final
numeric nutrient criteria for Florida's springs and inland
waters that were adopted 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.
EPA has also acknowledged that Florida has placed
substantial emphasis on the monitoring and assessment of its
waters and as a result of this commitment has collected
significantly more water quality data than any other State in
the Nation. More than 30 percent of all the water quality data
that exists in EPA's National Water Quality Database comes from
Florida.
Florida was the first State in the Nation to implement
comprehensive urban stormwater management regulations.
Florida's treated wastewater reuse program is a model for the
rest of the country.
Our agricultural best management practices program is
firmly rooted in State law and is a critical component of
Florida's overall water resource protection and restoration
program. These practices have been implemented on over 8
million acres of agricultural and commercial forest lands here
in Florida.
By targeting its efforts and resources, Florida has made
significant progress in nutrient reduction and restoration
activities. Examples range from Tampa Bay, where seagrasses
have returned to levels not seen since the 1950s and now cover
over 30,000 acres, to Lake Apopka, where phosphorus levels 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 and restoration, EPA,
we believe in direct response to litigation, determined in
January of 2009 that Florida had not done enough and mandated
the development of numeric nutrient water quality criteria
within 1 year. Before that year was up, however, EPA entered
into a settlement agreement with the plaintiffs and agreed to
deadlines for Federal rule adoption that, for all practical
purposes, usurped Florida's ongoing efforts to develop its own
standards.
EPA subsequently developed and released their draft
criteria for Florida in January of 2010 and finalized them last
December. We believe the methods used by EPA to develop its
rules are inconsistent with its own guidance documents and the
advice of its science advisory board.
EPA compounded the situation, we believe, again by
improperly applying the methods it did use. As a result, in
many cases, the rule would deem healthy waters as impaired.
In response to these issues, our 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, have filed complaints in
Federal court citing the same shortcomings.
Florida believes strongly that any nutrient reduction
strategy should focus on measurable environmental and
biological improvements while optimizing cost and efficiency.
In the preamble to the rule, their rule, EPA admits that they
were 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 content in a stream or river will have any
measurable improvement in the biological condition of that
stream or river.
Florida believes as there are so many natural factors--like
stream size, flow velocity, and light penetration--that affect
how nutrients impact ecosystems, that nutrient standards are
best determined on a site-specific basis. It is important to
recognize that nitrogen and phosphorus are naturally occurring
and necessary for the normal biological productivity of all
waters. Determining when too much human-induced nitrogen or
phosphorus is present is difficult.
In other words, Florida believes it is very important to
link nutrient concentration with an assessment of the
biological health of a 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 stormwater utilities, and
agricultural producers spending time and money attempting to
reduce nutrient concentrations in some cases to levels below
natural background.
So I'll focus a little bit on cost. There is a lot of
controversy about the issue of cost. Implementation costs for
these numeric criteria vary dramatically. EPA's are much lower
than those generated by Florida agencies and other public and
private stakeholders.
My department, working in cooperation with the University
of Florida, estimates the implementation costs for agriculture
alone to be between $900 million and $1.6 billion annually and
could result in the loss of up to 14,000 jobs. Our cost
estimates are much higher than EPA's because of the
uncertainty, because we don't know what the rules of the game
are going to be for implementing these Federal criteria.
EPA's cost estimates assume future agency action and
Florida rules that allow for the provision of variances or
site-specific alternative criteria. None of these things are
fleshed out in the rule as it is written now. So there is a lot
of uncertainty about how those kinds of relief mechanisms will
be implemented.
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.
Florida has earned the right to exercise the authority
envisioned by the Clean Water Act to develop its own water
quality standards and implement them through an EPA-approved
and predictable process governed by existing State law.
Thank you.
[The prepared statement of Mr. Budell follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Stearns. I thank the gentleman.
And I will start off with my questionings. Ms. Keyes
Fleming, I think all of us in this room and all in the State of
Florida obviously are very concerned about the water quality in
our State. We find areas that are satisfactory and others that
we would like to see improved, and I think the State has been
active in trying to address these areas.
In my opening statement, I mentioned Nancy Stoner, the
Acting Assistant Administrator for Water, to EPA's regional
administrators. She said, ``States need room to innovate,
respond to local water quality needs. So a one-size-fits-all
solution to nitrogen and phosphorus pollution is neither
desirable nor necessary.''
Do you agree with that?
Ms. Keyes Fleming. In terms of it making sure that it is
not a one-size-fits-all approach, absolutely.
Mr. Stearns. OK.
Ms. Keyes Fleming. And in doing the rule, we made sure that
we diversified based on the variable regional specifications
within the State. We divided it into five regions. We looked at
the different types of lakes, divided that into three
subsections. And then, of course, we provided for the
opportunity for even more flexibility in looking at places on a
site-by-site specific approach.
Mr. Stearns. Now I gave also in my opening statement the
Cross Bayou within the Tampa Bay, where the Florida Fish and
Wildlife Conservation said it is pristine. Yet, at the same
time, the EPA standard shows that they want to regulate it.
Does that seem like a conflict to you? That perhaps the
State indicated it is pristine, yet EPA wants to come down and
regulate it?
Ms. Keyes Fleming. Well, I think that goes to the question
of whether lakes or other water bodies that are deemed to be
healthy are going to somehow be labeled as impaired under this
rule. And in terms of our looking at the science, we do not
believe that that is going to be the case.
I've not looked at the Tampa Bay, Tampa situation
specifically, but I can do so and make sure we get back to you.
Mr. Stearns. And I could give you some other examples just
like that, where they are considered pristine, natural. Yet
EPA's regulations indicate that we are going to have to go in
and do a lot of work to clean it up when there is no cleanups
necessary.
Would you agree that it is a good idea for the EPA to work
with stakeholders in the State when its economic impact is
large, or not?
Ms. Keyes Fleming. Well, I think it's always best to work
with the State. And actually, my office has been working
consistently with the new DEP secretary and members of his
staff on this particular issue and many others.
Mr. Stearns. Do you think economic impact should have an
impact on your decision, or should it be just based upon the
regulations?
Ms. Keyes Fleming. Well, the Clean Water Act, as it was
written by Congress, does not allow EPA to take into
consideration the economic impact when setting the standard.
Those discussions occur when we do talk about implementation,
and that's one of the reasons why we've spent so much time
looking at the cost estimates of our rule and offered to have a
rule or, at the suggestion of Senator Nelson, offered to have
our rule evaluated by the National Resource Council to make
sure that as we look at our cost estimates, the underlying
assumptions of those estimates are reviewed and evaluated to
see if they're accurate.
Mr. Stearns. Would you agree that local and State
environmental authorities are perhaps better positioned to make
a decision than perhaps coming from Washington, based upon the
Clean Water Act? I mean, I know you have this mandate on the
Federal level. But obviously, the regulation was passed without
perhaps insight that some of the local stakeholders or the
State environmental agencies know.
So, wouldn't you agree that some kind of latitude and
forbearance should be in place so that they could help you make
your decisions?
Ms. Keyes Fleming. Well, again, we've had ongoing
discussions with Florida, and we do--we at EPA do believe that
the State is to be the lead in these types of things. And
actually, back in 2009, under the Bush administration, when the
determination was first made about the necessity for numeric
nutrients, the officials, Florida officials at that point in
time agreed that more needed to be done and actually said so in
several press statements.
They were on the track to implement their own rules and,
for whatever reason, decided to get off of that track. Their
doing so made it necessary for we at EPA to continue to make
sure that the rule was put in place to be as protective as
possible, as required under the Clean Water Act.
Mr. Stearns. You heard Mr. Budell indicate that it could be
an economic impact of $1 billion to $8 billion? I think those
were your words? Is that right?
Mr. Budell. I said $900 million to $1.6 billion just for
agriculture.
Mr. Stearns. Just for agriculture, you said. And I have
seen surveys that it could impact the loss of jobs up to 15,000
in the State. Do any of those figures have an impact on your
decision process?
Ms. Keyes Fleming. Well, I think we need to understand
where the figures are coming from. The assumptions that EPA put
forth, there are differing assumptions.
First of all, in the types of treatment that is required,
EPA has consistently said that we would not require reverse
osmosis or microfiltration. Looking at the scope of facilities
that would be affected by this rule, there are over 2,200, but
only one-tenth of that actually have permits. And then a fewer
percentage would actually be required to make any possible
changes under this rule.
So, yes, we do look at or did our due diligence to make
sure we recognize the good work that is already going on in the
State by a lot of folks, whether it's at DEP or the other local
governments, and looked at incremental cost as we went forward.
Mr. Stearns. Mr. Budell, I will just close with a last
question. From your perspective, and perhaps what you have
heard Ms. Keyes Fleming talk about, have the EPA's actions to
impose Federal standards helped or harmed the State's effort to
improve water quality, and have EPA's efforts helped or harmed
the State's economic priorities?
Mr. Budell. I think that the efforts that EPA undertook
were litigation driven.
Mr. Stearns. The consent agreement?
Mr. Budell. And that--correct.
Mr. Stearns. Yes.
Mr. Budell. And I think it was litigation that got us to
the point where they determined that we needed to develop
numeric criteria within a year in January of 2009. It was
litigation again, the same litigation that drove them while we
were in the process, working cooperatively with EPA on their
time schedule to develop the criteria--Florida to take the lead
to develop the criteria--they entered into a settlement
agreement in August of 2009 without consulting the State,
without discussing any of the elements of that settlement
agreement with the State.
They entered into that settlement agreement and in that
agreement were agreeing to timelines to develop their own
criteria and proposed them in January of 2010. That is why
Florida stopped development, because of the settlement
agreement where EPA said, ``We are taking over. We are going to
propose criteria in January of 2010.''
That is, I don't think, the kind of cooperation that
Florida DEP or other stakeholders expected.
Mr. Stearns. OK. My time has expired.
And I recognize the gentlelady from Florida, Corrine Brown.
Ms. Brown. What about the other----
Mr. Stearns. Oh, I think you are right. I go to Mr. Barton
next. That is right. He is on the committee. So I recognize you
for 5 minutes.
Mr. Barton. Well, thank you, Mr. Chairman.
Let me compliment Congressman Bilirakis and Mr. Ross. I
didn't really say much about them in my brief opening
statement. But Congressman Bilirakis's father was a member of
this committee, a member of this subcommittee, and his mother
is the best cook not only in the Florida delegation, but as far
as I know, the entire congressional delegation.
And Mr. Ross is not only a rising star in the Congress, but
he is my starting designated hitter on the Republican
congressional baseball team.
[Laughter.]
Mr. Barton. And we expect great things from him in the
years ahead.
Mr. Ross. Yes, sir. No pressure.
Mr. Barton. Again, Mrs. Fleming--or Ms. Fleming, I want to
thank you for showing up. The Region 6 administrator has not
yet given us the courtesy of showing up at one of these
hearings in Texas for air quality.
And I want to apologize in advance, Mr. Chairman. What
little expertise I have is on air issues, not so much on water
issues. So I am going to ask some kind of basic questions that
will help educate me and, hopefully, educate the committee as
well.
I know there was a lawsuit that required--that led to the
reversal of the decision to accept the standards that had been
agreed upon with the State. But what was the fact-based issue
there that caused the EPA to reverse its approval and go to
disapproval and make the decision to set its own standards?
Ms. Keyes Fleming. Well, Congressman, I think, first of
all, one of the things with respect to the lawsuit, I think we
can all agree the great treasure that we have here in Florida
with respect to many of the parks that you talked about your
family enjoying, certainly the water that so many come to
enjoy, whether it's for fishing or boating or those types of
things. EPA's obligation is under the Clean Water Act to make
sure that that water is healthy, safe, whether it's for
drinking water or to be able to enjoy it.
And so, in looking at whether the work that had currently
been--was going on in Florida at the time, with respect to the
requirements under the Clean Water Act, were they meeting the
needs of the act? And----
Mr. Barton. Well, I only have 5 minutes. Something made EPA
change its mind. What was that? You had approved the plan--not
you personally, but the EPA and the State--and then it got
disapproved.
It was disapproved as a consequence of a lawsuit that was
brought. The people that brought the lawsuit are going to be
able to testify on it on another panel later. But what was the
fact-based issue that moved your agency from approval to
disapproval?
Ms. Keyes Fleming. As we looked at how far the narrative
approach was getting, it was not cleaning the water fast
enough.
Mr. Barton. Fast enough. And Mr. Budell, I know you don't
represent the entire State. You represent this Florida
Department of Agriculture. But is what Ms. Fleming just said,
is that your assessment? It was a question not necessarily of
the standard, but of the timing, of implementation?
Mr. Budell. I think we were working under the understanding
that we were on a timeline that EPA had approved. We had
committed to submit numeric criteria to them by January of
2010, and we were on a line to do that. We were preparing to
submit criteria to our Environmental Regulation Commission in
September of 2009 to try to finalize those criteria so they
could be submitted to EPA in January of 2010, when they entered
the settlement agreement and agreed to take over the process.
Mr. Barton. But we can agree, for purposes of this hearing,
that the disapproval was a result in both--not that you are on
different sides, but representing EPA and representing the
State, that it was a timing issue, not a need to set the
standard. Is that a fair assessment?
Ms. Keyes Fleming. Well, I think timing was one of the main
issues. The timing that was laid out in the consent decree
mirrored what had been discussed between the State and the EPA
previously. And it was the State that decided not to continue
and present to their commission in accordance with that
timeline. When the State failed to act, EPA then had to go
forward and initiate its own rule.
Mr. Barton. Again, I am not a water expert. But we keep
talking about these numeric standards. In your testimony, Mr.
Budell, you talked about water flow and the clarity of the
water and the temperature in the water and at least gave me the
impression that one numeric standard is not appropriate for
different types of water.
Has the EPA taken the position that there should be a one-
size-fits-all standard, numeric standard?
Mr. Budell. No. No, they have regions. As the regional
administrator pointed out, they have broken the State up into
regions. But for all flowing waters within a region, they have
established one nitrogen number and one phosphorus number.
Mr. Barton. And you think that is inappropriate?
Mr. Budell. We believe that that is even too gross of a
wand to use. There is a lot of variability between streams,
even within these ecoregions that they set up.
Mr. Barton. Do you agree with that, Ms. Fleming, what he
just said?
Ms. Keyes Fleming. I think that's one of the reasons why
the rule also allows for the site-specific alternative
criteria, where, if there is an environmental reason for a
difference from the numbers that EPA has set, that particular--
anybody can bring forth the scientific basis for deviating from
the numbers that we set.
Mr. Barton. OK. My time has expired. But I want to give him
a chance to--are we going to get a second round before we go?
Mr. Budell. If I could?
Mr. Barton. Yes, sir.
Mr. Budell. I'd just like to respond to that. The only
provision for site-specific numeric criteria for nutrients is
now in the Florida law, is in the rule that they promulgated
for Florida. There is no specifics in there as to what you have
to do to get it. There is no timeline. There is no--you have no
idea how much money and how much data has to be collected to
jump over the hurdle to get EPA to approve a site-specific
alternative criteria. It's not been tested before for nutrients
ever.
There's a lot of uncertainty that you'd ever be successful
in getting such a site-specific alternative criteria. We've
developed dozens of TMDLs in Florida that have been approved by
EPA.
Mr. Barton. What is a TMDL?
Mr. Budell. Total maximum daily load. It's another
provision of the Clean Water Act that requires States to
identify protection and restoration strategies for water bodies
that have already reached impairment.
We've had dozens of these TMDLs developed and approved by
EPA. We requested or had many discussions with EPA about
approving those TMDLs as site-specific alternative criteria,
but there has not been any resolution to that yet. We've done
the data on a site-specific basis to identify a water body's
specific nitrogen or phosphorus standard, and we've not yet
been able to get those approved as site-specific alternative
criteria.
Mr. Barton. I will ask my other questions second round.
Mr. Stearns. Sure. By unanimous consent, we are allowing
people who are not on the committee to ask questions. And with
that, I recognize the gentlelady from Florida, Ms. Brown.
Ms. Brown. Thank you.
Ms. Keyes Fleming, thank you for coming.
Let me just take a minute to frame this because I think a
perfect example of the problem is the Florida Everglades. I
mean, it is a perfect example of what could happen when natural
resources aren't protected from encroachment and pollution.
Each year, the Federal, State, and local government pays
millions of dollars to restore the Everglades, money that could
be used for dredging our ports, enhancing recreational
waterways, or improving sewer and water infrastructure. So that
is the problem.
However, let me just also mention that the Riverkeeper
Program was my bill. So I am very interested in how we can work
through this issue.
Would you elaborate for us what are some of the things that
you recommend that we could do, Ms. Fleming, to move the
process forward, being fair to the local communities that have
spent--let's say, in Duval County, I know I met with all of the
stakeholders in all of the regions, Gainesville--and I want to
know what we can do because they are spending millions and
millions of dollars. And some communities have already
implemented programs and have programs in place, but I don't
know whether it has been approved by EPA.
Ms. Keyes Fleming. Well, at EPA, we've been having numerous
meetings with stakeholders. We've had webinars. We've met with
various local city agencies, trying to understand what their
concerns are and then also address them.
And what we found is in situations where there is a TMDL,
we've had discussions about whether that would apply for a
SSAC. And one of the things that EPA has agreed to do,
recognizing the good work and resources that have gone into
creating these TMDLs, is say that if that TMDL is
scientifically protective of the water body, then it can be
used to set the permit limits for the NPDES permit.
And so, it's those types of things, of recognizing good
work that has already been done and making sure that we're not
having people go back to the drawing board in every
circumstance because we do recognize the increased cost that
that could involve. We do have guidelines with respect to site-
specific alternative criteria that has gone out for review and
comment.
So we are working. We want to be able to hear from folks
about what their concerns are so we can address them. Rather
than continuing to discuss this in an abstract, let's look at
the individual water bodies and come to some solutions.
Ms. Brown. What about the study that you implemented or
Senator Nelson has recommended that you all implement this
study? So it is going to be due in February. What are you
looking for, and how can that help us as far as we implement
the rule?
Ms. Keyes Fleming. Well, I think one of the things that the
study will do will look at the basis upon which EPA used to set
its numbers. Again, we talked about us not requiring reverse
osmosis or some of the other more costly things. We talked
about how we set aside certain waters where we did not have
good information. And so, we narrowed the scope as much as we
could in terms of the applicability of this rule going forward
in order to have accurate cost figures going forward.
And so, the study will look to see whether those
assumptions were the correct ones to make. The study, however,
will not change the fact that the determination was made that
numeric standards provide more of a target, a clear idea of
where businesses and communities need to meet with respect to
their water quality standards and give them that 15-month
delayed effective date in order to plan appropriately.
I think the other thing that's important to point out is
that even after the effective date, implementation will occur
on the regular permitting schedule or TMDL review schedule. So
it's not as though everybody will be in violation on March 7th,
let's say. It'll come up through the normal course of review by
the State.
And so, that will give us more time to talk with
stakeholders and answer their questions as well.
Ms. Brown. So the actual date may not be the 15 months?
Ms. Keyes Fleming. Well, it depends on whatever the
particular entity's review cycle is. So the State will be
reviewing things, pursuant to the pre-set review cycle for
either that permit or that TMDL.
Ms. Brown. How long have you been in this position? I know
you weren't in when we made this element.
Ms. Keyes Fleming. Since September 3rd of 2010 at noon.
Ms. Brown. OK.
[Laughter.]
Ms. Brown. So you were not involved in--well, it was the
Bush administration that----
Ms. Keyes Fleming. Correct. It was the Bush administration
that made the initial determination of need for numeric
criteria.
Ms. Brown. Do you know why or what we can do as we move
forward, why that the talks were stopped and we entered into
agreement and the State was not a part of it?
Ms. Keyes Fleming. Actually, I do not know. I know, in
reviewing the documentation, that the then-DEP secretary had
agreed that more needed to be done in Florida, even though they
had been doing great stuff. They certainly are working as a
leader. But even leaders, as they're reaching a particular
target, you don't slow down the momentum and delay reaching the
target.
The target here is to make sure that we have clean water
that can support the great tourism industry and other economies
here in the State. And so, we need to keep moving forward to
make sure we provide the greatest protections possible.
Ms. Brown. OK. I know my time is up. But did you want to
respond in any way, sir?
Mr. Budell. Well, I would only repeat myself. I believe we
were aggressively moving forward according to an agreed
schedule, that had been agreed to with EPA, when they made the
determination in January of 2009. We were working on that
schedule, on their timeline, when they entered into a
settlement agreement two-thirds of the way through that
process.
Ms. Brown. OK. And the State was not involved in that?
Mr. Budell. Correct. We were not party to the settlement
agreement at all.
Ms. Brown. Thank you. Yield back.
Mr. Stearns. Thank the gentlelady.
And Mr. Bilirakis is recognized for 5 minutes.
Mr. Bilirakis. Thank you. Thank you very much, Mr.
Chairman.
And I appreciate the witnesses coming to testify.
It is worth repeating. I know that this statement was
already--Mr. Budell made this statement, and also you, Mr.
Chairman. Thanks for holding the hearing, by the way, and
including me and Mr. Ross.
A study by the Florida Department of Agriculture and
Consumer Services concludes that Florida's agriculture
community alone, alone, will lose 14,545 full-time and part-
time jobs and lose at least $1.1 billion annually. I want you
to name specifically, if you can, Ms. Fleming, the stakeholders
that you have met with and about how to keep Florida's waters
clean in a cost-effective manner, if you have had that input?
Specifically, please name these stakeholders.
Ms. Keyes Fleming. Some of the stakeholders include folks
from Palm Beach County, include folks on the Fenholloway and
Econfina Rivers. They include folks from the City of
Jacksonville, folks with respect to the St. Johns River. I have
a list that we can actually provide for you, and that's in
addition to the five webinars that we've done.
With respect to ag interests, we met with them,
additionally, last November when we first rolled out the rule,
to hear their concerns. I've had personal conversations with Ag
Commissioner Putnam about wanting to come down and talk with
him about this issue in more depth.
And I think it's important to point out, though, that
although the numbers that you're citing, one of the things is
EPA does not regulate the ag community. That is left purely to
the States, and they have been doing so based on a BMP schedule
and things that allow for improvement over time.
To the extent that EPA does regulate CAFOs and those types
of things, it's a very small circle of facilities that would be
affected by this particular rule. But again, I need to stress
that we are not looking for edge of farm changes to the ag
community or ag businesses in response to this rule. That would
be something that would be left completely up to the State
because EPA does not have the authority to go in and regulate
those entities, except for the CAFOs that are covered by the
Clean Water Act.
Mr. Bilirakis. Mr. Budell, you would like to respond?
Mr. Budell. Only that I believe that the expectation will
be that once these criteria are finalized, that there will be
an expectation that agriculture will have to comply. I think
EPA has demonstrated in the Chesapeake Bay, and even more
recently with a memo that went out from Nancy Stoner talking
about the certainty document, that talked about the development
of programs that would be led by the State but would certainly
be coordinated by EPA to develop programs to require programs
to control agricultural nonpoint source stormwater.
They've done it in the Chesapeake Bay already by mandating
that the States include bona fide programs to control
agricultural stormwater as part of their watershed improvement
plans. So while the Clean Water Act exempts agricultural
stormwater and return flow from permitting, it doesn't
specifically say agriculture is not regulated or can't be
regulated.
And I think we're seeing examples of how EPA is exerting
influence and beginning to get its arms around how to regulate
agricultural stormwater indirectly, if not directly, from the
Clean Water Act.
Mr. Bilirakis. Thank you very much.
I yield back the rest of my time. I have a couple of
questions in the second round.
Thank you, Mr. Chairman.
Mr. Stearns. Sure. Mr. Ross, you are recognized for 5
minutes.
Mr. Ross. Thank you, Mr. Chairman. And again, Mr. Chairman,
I wish to thank you and my colleagues for being here and
allowing for this hearing to take place.
As a native of Florida, a boat owner and an avid
outdoorsman, I have a great concern about the conservation of
Florida's natural resources and, of course, including their
water. Also representing a district that is predominantly
agriculture, I wish to also note that not only is tourism
important to this State, but the one area, the one part of our
economy that has continued to remain stable throughout all
these recessionary times is the agricultural industry.
And the economic impact that the agricultural industry will
face because of this proposed rule is absolutely devastating.
Mr. Budell, you indicated in your opening statement, you have
been doing this for 26 years on behalf of the State of Florida.
Mr. Budell. That's correct.
Mr. Ross. And you have seen the history in the last 26
years, as I have, in water quality improvement in the State of
Florida by the State of Florida exercising their best science
practices in order to make that happen, haven't you?
Mr. Budell. Yes, I have.
Mr. Ross. And interestingly, there has been, under the
Clean Water Act, what is known as ``narrative nutrient water
criteria,'' I guess. And that has been a standard or an
accepted practice that has been used not only in Florida, but
all other States. Is that correct?
Mr. Budell. That's correct.
Mr. Ross. And it is this first time that we now see this
numeric nutrient water criteria come about? In other words,
there is no other State that this applies to, is there?
Mr. Budell. There is no other State that I'm aware of where
EPA has come in and proposed numeric criteria for another
State. There are States that have developed some numeric
criteria on their own.
Mr. Ross. And in fact, wasn't it the EPA that then, because
of their involvement, require that the State of Florida develop
their own numeric nutrient water criteria, which you all were
working on?
Mr. Budell. Correct.
Mr. Ross. And Ms. Keyes Fleming, as I understand it, in
2007, the EPA had no problem with the plan initially proposed
by the DEP in the State of Florida. Is that correct?
Ms. Keyes Fleming. That's correct. That's why we had a
similar timeline included into the consent decree.
Mr. Ross. And that consent decree was a result of
litigation of which the State of Florida was not a party. Is
that correct?
Ms. Keyes Fleming. That is correct.
Mr. Ross. And in fact, the consent decree, they were not a
party to that either, were they?
Ms. Keyes Fleming. Well, obviously, they were affected by
it. It's something----
Mr. Ross. They were a victim of it, I guess, would be a
better way to put it.
Ms. Keyes Fleming. Well, that's not a term that we would
use. But----
Mr. Ross. Well, as a native of the State of Florida, I
would use that. Now one of the things that we talk about,
economic impact, and you mentioned the cost of the inland rule.
What exactly do you mean by that? What is the cost of the
inland rule that you talked about?
Ms. Keyes Fleming. We looked at what the incremental cost
would be, having to add new water bodies to the impaired list
as a result of new designations under the total phosphorus and
total nitrogen requirements.
Mr. Ross. And have you come up with at least empirically
what that cost in the aggregate it may be?
Ms. Keyes Fleming. Yes. We estimated anywhere around I
think it's $135 million to $200 million per year.
Mr. Ross. And that is the cost that would have to be paid
by those that need to comply with the numeric nutrient
criteria?
Ms. Keyes Fleming. Well, and that works out to be about 11
cents or so per household per day for clean water. We look at
this as an investment. It's much cheaper to be able to invest
and prevent some of the adverse health impacts that we
discussed about in my opening statement, as opposed to having
these communities or the stakeholders pay for costly cleanups
on the back end.
Mr. Ross. Now your administration, of course, has made as a
priority I think of every elected official in Washington right
now ``jobs, jobs, jobs.'' And it appears as though the
implementation of this numeric nutrient water criteria may
cost, according to the Department of Agriculture, over 14,000
jobs. Are you all prepared to have that impact if this is
implemented?
Ms. Keyes Fleming. We don't believe that that impact will
occur. But at the other end, you also need to think about the
impact of not having the rule and the adverse impact that would
have on the tourism jobs that are here in the State.
Mr. Ross. Exactly. But did not the State of Florida adopt a
plan that was accepted by the EPA that would have prevented
that because they were in the process of doing that when they
were essentially stopped because of a consent decree?
Ms. Keyes Fleming. Florida actually made the decision not
to present their rule to their own regulatory commission.
Mr. Ross. They made their decision based on the actions of
the EPA in entering a consent decree.
Ms. Keyes Fleming. Whatever the reason, they did not move
the ball forward in order to protect water quality.
Mr. Ross. And as you stated in your testimony, you said
that if Florida adopts a numeric nutrient water criteria that
is acceptable to you, then you will back off on the
implementation of this rule. Is that correct?
Ms. Keyes Fleming. Yes. As long as it----
Mr. Ross. Then what is wrong with the one adopted in 2007?
Ms. Keyes Fleming. It's not in place currently.
Mr. Ross. That is the only thing? That is the only thing.
Ms. Keyes Fleming. Well, and actually, as you look at----
Mr. Ross. In other words, they have been going on for 2 1/2
years, working on doing their science, getting ready to
implement this. They stop because of a consent decree, and now
you say, ``Ah, you stopped. We are going to have to do our own
thing.'' Come on.
Ms. Keyes Fleming. No. Actually, as you look at where we
are today, we're glad that the State of Florida has decided to
recommence its rulemaking. We have said consistently----
Mr. Ross. Had they not filed a petition asking you all to
hold off, what would have happened then? You would have
implemented it?
Ms. Keyes Fleming. Well, I don't know that speculating
about what would have been is the best way to use our time. The
fact is under the current situation Florida is working to
implement a rule, and we are working with them diligently on a
weekly basis, answering questions and things, as needed.
And so, as they continue to move forward, we have agreed to
rescind whatever corresponding Federal promulgation there is.
And as they continue to move, look at adjusting the schedules
within the consent decree.
Mr. Ross. I see my time is up. I yield back, Mr. Chairman.
Mr. Stearns. I thank the gentleman.
We are going to do a second round. So if you would be so
kind and be patient with us.
Mr. Budell. Mr. Ross's line of questioning, would you care
to comment on what he was saying, and particularly on the fact
that Florida has to make certain decisions?
Mr. Budell. Well, Florida made a conscious decision to not
move forward with the development of their criteria upon
learning that EPA was going to be promulgating their own. That
was a policy decision made from a standpoint of why would we
continue to pursue the development of numeric criteria in
Florida knowing that EPA was going to develop their own?
And we would have come out potentially--in all likelihood,
we would have come out with different numbers, and there was no
real--we didn't think any benefit of moving forward with our
effort, knowing that EPA was going to develop their own and
were obligated by a settlement agreement to do so. So we backed
off and said, OK, you entered into the settlement agreement.
You develop a criteria, and you propose them.
So, I mean, that was the rationale for why we didn't move
the ball forward supposedly is because they entered a
settlement agreement. We were prepared to move the ball forward
and would have done so on the timeline agreed to in the
original determination.
Mr. Stearns. Ms. Keyes Fleming, would you agree that
perhaps the EPA standards are not well suited to the conditions
and circumstances that are unique to Florida waterways? Do you
think that is true?
Ms. Keyes Fleming. No, I would not agree with that.
Mr. Stearns. OK. All right.
Ms. Keyes Fleming. I think what we've done is try to----
Mr. Stearns. OK. Yet, at the same time, you have indicated
that EPA would give variances, forbearance because of cost,
because of implementation. Isn't that true?
Ms. Keyes Fleming. With respect--if presented with site-
specific reasons.
Mr. Stearns. Right. So these site-specific cases would
allow you to go back and give, shall we say, flexibility or
forbearance, particularly if it was dealing with cost. Is that
true?
Ms. Keyes Fleming. The rule has always allowed for that
flexibility.
Mr. Stearns. OK. So if the rule allows for that, wouldn't
that also imply that the decisions you are making perhaps are
faulty?
Ms. Keyes Fleming. No, not at all.
Mr. Stearns. OK. Would the decisions that you are imposing
on Florida be of such a stringent nature that they don't take
into account the, shall we say, peculiarities of Florida and
its waterways? I guess I am trying to get you to admit that
Florida has particular needs, particularly with numeric
nutrient water quality that perhaps are singular to Florida.
Would you say yes on that?
Ms. Keyes Fleming. Well, as a former prosecutor, getting me
to admit things, Mr. Chairman, might go against----
[Laughter.]
Mr. Stearns. How about if I said you have got to answer--
what if I said you have to answer yes or no?
[Laughter.]
Ms. Keyes Fleming. I'd be looking for a judge then, Your
Honor, to allow me to finish the question. I think we all agree
that Florida has a unique topography, unique jewel in its water
sources. And what we did was to help protect that so, again, we
can protect the economies that rely on that water source,
whether it's fishing and boating, as Congressman Ross had
mentioned, or swimming or enjoying some of the parks that rely
on that water.
Mr. Stearns. OK. Now let's say that Florida comes up and
they specifically said we need a variance, we need flexibility,
and you grant it. Don't you think the environmental groups are
going to sue because of that? What is going to happen there, in
your opinion?
Ms. Keyes Fleming. Well, I don't have a crystal ball. I
think the bottom line is let's make sure we look at ways to
have the most protective water quality standards possible,
given the variability throughout the State.
Mr. Stearns. Do you think there is enough guidelines that
you can provide so that Florida feels comfortable following
your guidelines?
Ms. Keyes Fleming. I think we've worked hard to institute
guidelines and seek public opinion, including the 22,000
comments that we received prior to the rule, to come up with
something that would best--try best to address a lot of the
communities' concerns.
Mr. Stearns. I think a real question we all have, who are
these people that are going to give the variance? Do you know
their names? Who is actually going to be making the decision on
these variances?
Ms. Keyes Fleming. Well, I think it would go through the
normal variance process, whether that is applying through the
State originally. EPA, using its authority under the Clean
Water Act, to either approve or make suggestions.
Mr. Stearns. OK. So under that process, I come forward to
this particular agency. Is there an agency that you can tell me
specifically that I would go to for these variances? I mean,
you sort of alluded to it. But is there a specific name?
Ms. Keyes Fleming. Well, the variances, it's my
understanding, are governed by DEP, the Department of
Environmental Protection.
Mr. Stearns. OK. And is there appeal process on this?
Ms. Keyes Fleming. I believe that----
Mr. Stearns. For the stakeholders?
Ms. Keyes Fleming. For the stakeholders?
Mr. Stearns. Yes, or for the State of Florida, is there
appeal process?
Ms. Keyes Fleming. Well, I think----
Mr. Stearns. I guess you don't know. That is OK.
Mr. Budell, are there any comments you would like to make
off of my questioning?
Mr. Budell. If the State were to propose a variance, EPA
would ultimately have to approve that variance.
Mr. Stearns. Right.
Mr. Budell. If there is an appeal process if we were to
deny a variance. But even if we were to develop one and submit
it for approval, there would also be a point of entry for any
party affected by that variance to challenge it.
Mr. Stearns. And so, would that allow the environmental
groups to come back into the fray and sue again?
Mr. Budell. Absolutely.
Mr. Stearns. So, in your opinion, do you think that is
going to happen?
Mr. Budell. I stated it publicly at the National Academy of
Science meeting last week. I don't think you'll ever get a SSAC
or a variance in Florida.
Mr. Stearns. OK.
Mr. Budell. I think it's nice to say that it's there and
available, but there are too many points of entry. You'd never
achieve getting a site-specific alternative criteria.
Mr. Stearns. And that is because of the consent decree,
because of the Clean Air Act, because of the threat of
environmental suits, or why is that? Because that is pretty
categorical what you are saying.
Mr. Budell. Well, that's just my belief that it's so
litigious that I don't think you'd ever get one approved.
Mr. Stearns. So the EPA would just not do it because it is
litigious?
Mr. Budell. They may try. But the thing is, is that if
Florida--as soon as Florida were to propose a SSAC to EPA for
approval, there is a point of entry.
Mr. Stearns. There is a point of entry?
Mr. Budell. Under our Administrative Procedures Act, there
is a point of entry for affected parties to challenge that
decision.
Mr. Stearns. Uh-huh. OK. Do you agree with that, Ms. Keyes
Fleming?
Ms. Keyes Fleming. Well, I don't know that challenging
something is necessarily a bad thing. I think what we're trying
to do is make sure we arrive at the best protective result
possible.
Mr. Stearns. But he is saying basically there is going to
be no variances because of it.
Ms. Keyes Fleming. Well, certainly variances exist today,
and all of the procedures that you just talked about have been
in existence prior to this. So the fact that current variances
exist for different things suggest----
Mr. Stearns. You are saying variances already exist. So how
can you say that categorically?
Ms. Keyes Fleming. In different arenas, not just in numeric
nutrients.
Mr. Budell. Not for nutrients.
Mr. Stearns. Not for phosphorus and nitrogen. OK.
Mr. Budell. I'm not aware of any variances or SSACs for
nutrients.
Mr. Stearns. OK. My time is up.
Ms. Brown?
Ms. Brown. Thank you.
Sir, let me ask you a question. I understand this process
started in 2002, but it was 6 years or 2009, and the State had
not done anything as far as the rule process is concerned. Why
did it take 6 years?
Mr. Budell. The State had worked, we had a technical
advisory committee that had been convened early in the 2000s,
that had met multiple times, trying to develop the necessary
science methodology and proposals to deal with these
notoriously difficult issues to deal with.
As we mentioned, nitrogen and phosphorus are naturally
occurring in the environment. Trying to determine when too much
human-induced nitrogen is present is hard. And there are no
easy answers.
Florida, I believe, was working as aggressively as any
other State in the country has ever worked, putting more time
and effort into trying to deal with the issue of nutrient
management than probably any other State. We have a lot of
variety of water bodies, more varied perhaps than any other
State. Our climate is different than most other States.
Our coastal resources are so varied and multiple that
trying to arrive at a conclusion to deal with--to more
effectively deal with nitrogen is very, very difficult. And as
I said, it took 7 or 8 years of that technical advisory
committee to meet to get us to the point where we were. You
know, not----
Ms. Brown. You do understand that that is a problem? I
mean, that is why we are here.
Mr. Budell. I completely agree that nitrogen management and
phosphorus management is a problem. Yes, there's no question
about that.
Ms. Brown. Well, the other part of it is that the State
hadn't acted. And so, therefore----
Mr. Budell. But the State was constantly working under
agreements that had been negotiated with EPA. We had had plans
and strategies that we had submitted, development plans,
timelines for the development of these plans that had all been
approved by EPA.
Ms. Brown. You mentioned in your comments about the Apopka
River that at one time it was dead, and it is coming back
because of the work that has been done.
Mr. Budell. Correct. Lake Apopka.
Ms. Brown. So you do acknowledge that it is a problem in
Florida?
Mr. Budell. Absolutely. I acknowledge that nitrogen and
phosphorus management nationwide, worldwide is a problem and
that we're past arguing about whether or not it's a problem.
Ms. Brown. But the answer, I guess, is what are we going to
do about it?
Mr. Budell. That's correct.
Ms. Brown. And how we can do it in such a manner that the
science there.
Mr. Budell. That's correct.
Ms. Brown. And that we take in jobs and how we move
forward. Do we all agree with that?
Mr. Budell. Yes.
Ms. Brown. Ms. Fleming, I understand that you all have
gotten over 22,000 comments. Can you give us an update on the
nature of it and whether it is supportive as to what EPA is
trying to do?
Ms. Keyes Fleming. Absolutely. Overwhelmingly the comments
supported what we were trying to do. And as Mr. Budell had just
indicated, we all recognize that there is a problem and
something needs to be done to fix it.
I think the other thing that is--we're very close on is, in
fact, the numbers. This is not a situation in which EPA's
science is so drastically different from the State's. We may be
slightly off, but we use the State's database in arriving at
our scientific numbers.
And so, the question does become how do we move things
forward? And we at EPA looked at the most cost-effective way to
do that. We've built in flexibility. This is not a one-size-
fits-all rule.
We've narrowed the scope as best we can in terms of who the
rule applies to. And so, we believe, again, that the study will
show that our assumptions are correct ones in going forward.
Ms. Brown. Well, I mean, the question, the discussion was
how can we move forward, indicating that we talked about suits,
that the environmental groups may sue. Well, the community or I
guess the business community or certain stakeholders are suing.
So we are suing. I mean, that is just a part of what we do
every day. The question is how we move forward.
Ms. Keyes Fleming. What it's going to take is all of us
getting in a room and talking about it, and that's what we've--
--
Ms. Brown. I love that approach.
Ms. Keyes Fleming [continuing]. What we've been doing with
DEP. The secretary and I speak regularly on these issues.
Ms. Brown. He is a good fellow, too. I know him. He is from
Jacksonville.
[Laughter.]
Ms. Keyes Fleming. Trying to get--and I don't disagree at
all. Trying to get a good understanding of what the real issues
are on the ground, speaking with folks from the League of
Cities, speaking with folks from the agricultural community.
All sectors need to be able to come together to really address
this.
Because this is an opportunity not only to address and
solve the challenges here in Florida, but the issue of
nutrients is something that's affected all over the world. And
so, if we can solve it here, then perhaps it could create the
opportunity where we could export that expertise to other
places as well.
Ms. Brown. You know, I guess you are saying Florida is kind
of the guinea pig, and we don't like that. But we have the best
resources. I mean, we have the beautiful beaches, and we are
the tourist destination in the world. I mean, right here we
sit, number-one destination of the world for people to come.
And so, we want to make sure we have clean water and do
what we need to do. But it has still got to be that balanced
approach so that we can afford to move forward. As I mentioned
before, the community that went out of business, declared
bankruptcy, was based on they couldn't--you know, they had to
implement certain things, and they couldn't afford it. So it
has to be balanced, working with all of the stakeholders.
Ms. Keyes Fleming. That is correct. It's about making a
cost-effective investment today to avoid having to pay higher
costs for cleanup years from now.
Ms. Brown. But do you agree that the science--well, I guess
I just want to address if it is not a procedure in place, then
maybe this is something that we can take back to Washington so
that the communities can have a way to ensure that their input
is taken into consideration?
Ms. Keyes Fleming. Well, I would respectfully----
Ms. Brown. He asked whether or not it was appeal process,
and I don't know that you were clear. And as an attorney and as
a prosecutor, it has got to always be an appeals process.
Ms. Keyes Fleming. Well, and obviously, the way the process
is set up--and perhaps I wasn't clear, Mr. Chairman, earlier--
variances may not exist with respect to nitrogen and
phosphorus. But obviously, as we look at other chemical factors
and things within our waters, there have been variances set in
other areas here in Florida.
And whatever process was set to get those variances put
through still exist. And so, to simply say that no variance
would come out of a nitrogen or phosphorus analysis I think
doesn't do service to the fact that the process has worked
previously.
Ms. Brown. I thank you, Mr. Chairman. I yield back my time.
Mr. Stearns. I thank the gentlelady.
Mr. Bilirakis is recognized for 5 minutes. Oh, excuse me.
Mr. Barton, excuse me. Mr. Barton? I am sorry, Mr. Barton.
Mr. Barton. I am a member of the committee, Mr. Chairman.
[Laughter.]
Mr. Barton. And the past chairman. I appointed you
subcommittee chairman.
[Laughter.]
Mr. Stearns. Deference, deference, deference.
Mr. Barton. But I am not from Florida. So that downgrades
me, obviously.
In my first round of questions, I asked just some basic
information that was specific to this issue locally. This
round, I want to ask some more generic questions.
We have air quality and water quality laws because the last
100 years, the people and their representatives to Congress
have decided that the market wasn't working, that the market
function in terms of air quality and water quality was
dysfunctional. So we had to have Federal and State regulation
to be sure that the public health was protected.
We created the Food and Drug Administration. We created the
Environmental Protection Agency, the Safe Drinking Water Act,
the Clean Air Act, any number of acts. But in every case, we
have made the Federal Government preeminent because of
interstate commerce. And obviously, air is transportable across
State lines, and in many cases, water is also, but not in every
case.
These laws were created before the litigious society has
been developed. So when we created the Safe Drinking Water Act
and the Clean Water Act and those, I think there was an
understanding that various stakeholders would work
cooperatively, which is not always the case.
So we are now in a situation where the EPA in Florida, in
all--in fact, has preempted the State, for whatever reason. I
am not sure the EPA is in a better position to protect the
water quality of Florida than the State is, but the current law
gives the Federal Government preemptive ability.
So my first question to each of you would be might it be
time to review the relationship between State and Federal and
perhaps use the 10th Amendment to give preference to States,
unless there is a finding that the States are failing? And I
will let our Region 4 administrator answer first.
Ms. Keyes Fleming. Congressman Barton, I think one of the
reasons why, you had said earlier, that we have these Federal
laws is because of that interconnectivity. And so, whether you
look at the water wars that are existing between Georgia,
Alabama, and Florida or other things, regulations that occur in
Georgia and Alabama do affect what happens in Florida. And I
think for that reason, we need to be able to step back and have
that bigger picture view about how to make sure that
comprehensively the laws are still protective of the water that
knows no State boundaries.
Mr. Barton. Mr. Budell?
Mr. Budell. Well, I don't think clarification of the issue
of cooperative federalism is inappropriate. I think in this
situation there could be clarity added to the Clean Water Act
that clearly states that States are responsible for developing
standards, and EPA has oversight. And it would take tremendous
inaction by a State to justify EPA stepping in.
Mr. Barton. Well, if there is clearly an interstate issue,
the Federal Government has to mitigate or mediate between
Alabama and Florida. You can't just say go at it, boys, and
whoever has got the biggest State army or whatever is going to
win. If we did that, Texas would rule the country.
[Laughter.]
Mr. Stearns. California?
Mr. Barton. But that wouldn't--ah, we can handle California
with one hand tied behind our back. That is not a problem.
[Laughter.]
Mr. Barton. But if it is clearly within the boundary of
Florida, you know, water issues, in many cases, it would be.
Not in every case. I don't see why you couldn't reopen the
Clean Water Act and the Safe Drinking Water Act and say unless
the Federal Government can show failure, then the State should
be preeminent.
My assumption is the State cares just as much about water
quality as the Federal Government, if not more so, because the
State actually is impacted by it.
Second question would be we have talked about these
lawsuits, and Congresswoman Brown said that is just what we do.
We sue. Now she didn't mean herself. She just meant society.
Ms. Brown. She sues, too.
[Laughter.]
Mr. Barton. She sues, too? Why could we not modify standing
to bring these lawsuits that there is a higher level of proof
required to sue. It is my understanding right now there is no
skin in the game. If an environmental group or anybody, for
that matter, brings a lawsuit, it is allowed. And it is almost,
in many cases, encouraged. The EPA will go out and solicit, if
not officially, at least unofficially, a friendly lawsuit.
``Oh, well, we have to settle because of this lawsuit.''
Is that something that we might want to look at is standing
to bring a lawsuit?
Mr. Budell. I think it would be a great idea. I think that
the environmental community--and there may be others, but
certainly in the Clean Water Act, I think that there the
history shows that lawsuits are successful, and that if you sue
the EPA, they're very likely to settle.
Mr. Barton. Would you like to comment on that?
Ms. Keyes Fleming. Yes. Respectfully, Congressman, I think
we would disagree with the analysis that we don't have skin in
the game. I think all of us have skin in the game with respect
to having clean water, clean air. And whether we come to this
State as a tourist or whether we live here, we're all committed
to making sure that we have a quality of life that is enjoyable
without harm of illnesses or diarrhea or things that some of
your congressional folks have unfortunately had to experience
as a result of algae blooms.
And so, we all have this collective responsibility to make
sure that we protect----
Mr. Barton. But under current Federal law, to have standing
in court--and correct me if I am wrong--but the only thing you
have to prove is that you are a citizen of the United States
and maybe, in some cases, a citizen of the State. That is it.
There is no burden of proof on the allegation.
There is no--there is just you can bring a lawsuit. And if
you have an environmental group, they are going to pick up the
expenses. And there is no downside to bringing the lawsuit.
Wouldn't you agree with that?
Ms. Keyes Fleming. No, actually. I think--and obviously,
it's Congress that wrote this law some 40-plus or 40 or so
years ago. I think that it's beneficial to write it in that way
because having these things--clean air, clean water is an
inherent right of everybody in this country.
Mr. Barton. I understand that. But the compliance cost of
some of these regulations are in the billions of dollars
annually, and the job losses in the tens of thousands on a one-
time basis and perhaps several thousand on an annual basis. And
again, when these laws were put on the books, society was
different. There was an understanding, at least implicitly, if
not explicitly, that some of these costs would be considered.
It is different today.
I mean, it is a different issue. But on ozone, the EPA is
about to put out an ozone standard that may be 6 parts per
billion. God can't meet that standard in about 70 percent of
the country. There is no demonstrable health benefit to it. It
is just a lower standard.
You know, in my time in Congress, we have seen--and again,
it is an air issue, Mr. Chairman. Have gone from 12.5 parts per
billion on an 1-hour spike standard. I think the current
standard is 8 parts per billion on an 8-hour average standard,
and now it is going to go down to 7 or 6 or 5.
We have taken the lead standard down to almost zero, and I
mean, it is just this ``if one standard is good, a tighter
standard is better'' mentality, with no cost-benefit
requirement, with no real justification except that the Federal
laws written, as she pointed out, 40 or 50 years allow it.
And it is something I think that we, hopefully, on a
bipartisan basis need to revisit and see if it might not be a
time to revisit the 10th Amendment of the Constitution, to take
cognizance of the fact that the congressional approval rating
is at an all-time low, that President Obama's approval rating
is less than his disapproval rating. I mean, there is a reason
for it, Mr. Chairman.
Many people look at what we are doing or not doing in
Washington and say, those guys don't get it. You know, Federal
Government especially is out of control.
And with that, Mr. Chairman, I yield back.
Mr. Stearns. Thank the gentleman. And I thank and apologize
for not getting right to him and his very good comments.
Mr. Bilirakis?
Mr. Bilirakis. To follow up--thank you, Mr. Chairman--on
what Chairman Barton said, I haven't had--I represent the
coastal areas of Florida. And during the oil spill, we have had
commercial fishermen, recreational fishermen, shrimpers, people
that are in the tourist industry. I haven't had one single
person come to my office and complain about the pollution, the
nutrient pollution.
And we have had several people, both Democrats and
Republicans, this is a bipartisan issue against this rule. If
you could comment on that? And then I have another question
maybe both of you can comment on.
Ms. Keyes Fleming. Well, I would agree in that clean water
is not a partisan issue. We all want it. We all recognize the
need for it. I think where we approach things differently is
how best to achieve it.
And with respect to the coastal part of the rule, we are
currently in the process of working that segment, that
schedule.
Mr. Bilirakis. I understand. I understand that.
Ms. Keyes Fleming. But again, if you're looking for the
breakdown of the 22,000 comments, we can certainly provide that
for you. But those are voices that I don't think we can deny.
That this is a problem--Mr. Budell has said it. Several other
witnesses have said. We agree that there is a problem.
And it's our view that if we do not address and prevent
this problem now, it will get much worse and cost more later.
And might even cost more jobs later, as folks choose not to
come to Florida because they no longer see it as a rich
treasure.
Mr. Bilirakis. Thank you.
Mr. Budell, do you agree or disagree with this statement?
Florida has done more to promote clean water than, obviously,
the EPA suggests.
Mr. Budell. I agree with that statement.
Mr. Bilirakis. You agree with that. Would you like to
elaborate?
Mr. Budell. Well, I think our record stands on its own. I
think that there are more aggressive and protective programs in
Florida than almost any other State. Our 1999 Watershed
Restoration Act was really kind of a model legislation. It was
enacted far before any other State in the Nation had a
comprehensive bill in place that was the blueprint for how
Florida would implement total maximum daily load provisions of
the Clean Water Act.
It was really ground-breaking legislation. We've had
tremendous success. We've developed hundreds of TMDLs. We've
got basin management action plans underway. There are glowing
examples--Sarasota Bay, Tampa Bay, Lake Apopka--that are
wonderful examples of the restoration activity that we've taken
over time, the protection activity that we've taken over time.
I don't--I don't take a backseat to any other State in the
Nation on our water restoration and protection program.
Mr. Bilirakis. Thank you.
Next question for Ms. Fleming. It appears some of the
discrepancy in cost estimates, back to the cost, is based on an
expectation for relief or waivers. Does EPA have an estimate of
the time required to obtain regulatory relief? And then I would
like to have Mr. Budell comment on that as well.
Ms. Keyes Fleming. I don't know that we'd have a set
estimate. I think that's one of the reasons why the rule
allowed for the SSAC process to start earlier this year, as
opposed to waiting for the completion of the 15-month cycle. We
wanted to be able to have productive discussions, and I do have
the list. It includes, as I said, Palm Beach, Jacksonville,
Gainesville, Pope County, various water management districts,
and others that we have already spoken with and will continue
to speak with to figure out how best to continue to protect and
improve water quality.
I think we do want to make sure our decisions are
scientifically sound, and sometimes that takes time. But it
does result in coming or reaching the end game of making sure
we have something that is protective.
Mr. Bilirakis. Mr. Budell, again?
Mr. Budell. I believe that the site-specific alternative
criteria process would require an entity, whether that's a
regulated permanent entity or a county or a city, to collect at
least 3 years' worth of data, water quality data that would be
seasonally variable across and have to be collected throughout
the calendar year for a 3-year period, submit those data to EPA
justifying that a site-specific number is more appropriate.
We believe the costs to do that certainly enter into the
millions of dollars with no guarantee of actually achieving the
SSAC at the end of the process. So it's a tremendous gamble, a
monetary risk for any entity, whether that's Orange County or
the City of Orlando or the City of Punta Gorda. To come forward
with a site-specific alternative criteria, you're talking about
outlaying millions of dollars, time and effort and money to
develop a dataset, but there's no guarantee it would be
approved once it's submitted.
Mr. Bilirakis. I would like to suggest that maybe that
timeframe to be part of the rule so that there would be some
certainty there. Would you like to comment on that?
Ms. Keyes Fleming. Well, I think what I would like to be
able to do is go back and look at the SSAC guidelines that we
have put out for public comment. I know in some instances
with--in our conversations with the department with respect to
the St. Johns River, for example, we had indicated that we
thought we could come to a conclusion in a relatively short
timeframe, largely because the science that Mr. Budell had
talked about has already been collected. And I think that's an
important thing to remember.
That Florida has a unique database of information already,
and we are building upon that database when we instituted the
rule, and we'd be considering that database, whether it's the
State or us, as we come to conclusions about SSACs in the
future.
Mr. Bilirakis. Any comment from you?
Mr. Budell. No. It would just be duplicative. Thank you.
Mr. Bilirakis. Well, thank you very much. I yield back, Mr.
Chairman.
Thank you. Appreciate it.
Mr. Stearns. Mr. Ross is recognized for 5 minutes.
Mr. Ross. Thank you, Mr. Chairman.
Ms. Fleming, I want to make sure I understand this because
Mr. Budell brought it up in his opening that the EPA
acknowledges that its nutrient standards were established
without demonstrating a strong cause-and-effect relationship to
impaired water quality. Is that correct?
Ms. Keyes Fleming. No. I don't think that's correct. I
think it does go to the challenge of looking at those factors
that vary. But that's one of the reasons why the rule is a
rolling 3-year average.
Mr. Ross. So you would say there is a strong relationship,
cause-and-effect relationship between the standards and water
quality?
Ms. Keyes Fleming. I think there is a strong cause-and-
effect relationship between excess nutrients and the algae
blooms and other things that are adversely affecting public
health.
Mr. Ross. Mr. Budell, do you want to comment on that?
Mr. Budell. There is no demonstrated cause-and-effect
relationship between nutrient concentration and biological
response in flowing water. In any kind of flowing water.
Mr. Ross. OK.
Mr. Budell. There is stronger data for lakes and springs.
Mr. Ross. Ms. Keyes Fleming, I believe the EPA has
indicated that water utilities will not have to use reverse
osmosis in order to comply. Is that your understanding?
Ms. Keyes Fleming. That was stated in the preamble of our
rule, yes.
Mr. Ross. And you would be willing to stand by that? So
that will not be a cost that would have to be considered in
order to comply with any numeric nutrient water criteria?
Ms. Keyes Fleming. That is something we would stand by.
Mr. Ross. In regard to what utility companies have
indicated that it may be as much as $750 a household for--an
increase in your utility bills, to those in my district that
are senior citizens, unemployed, and on fixed incomes, could
you help me craft a message to them as to why we are now having
that, require that they pay that?
Ms. Keyes Fleming. The message would start with we believe
that those figures inaccurately look at the current landscape,
that they overreach, that they do not narrowly look at those
entities that would really truly have to make the change. And
if you looked at those entities, then the costs would be more
like 11 cents per day per household.
Mr. Ross. Which would translate to how much per year?
Ms. Keyes Fleming. Anywhere from, I believe, $135 million
to maybe $206 million.
Mr. Ross. And that is a justifiable cost-effective increase
for my constituents?
Ms. Keyes Fleming. Compared to the cost of having to clean
this up later, we believe that it would be a worthwhile
investment to prevent these things from happening to avoid the
increased cost later.
Mr. Ross. Let's talk about the site-specific alternative
criteria, the SSACs that you speak of. Have there ever been any
issued in the State of Florida?
Ms. Keyes Fleming. The rule was just implemented last
November, and so we are currently talking with numerous
entities about SSACs. Again, the rule does not take effect
until March. That schedule may change, depending on what the
State of Florida does with respect to implementing its own
rule.
Mr. Ross. Mr. Budell, are you aware of any SSACs that have
been approved?
Mr. Budell. None for nutrients.
Mr. Ross. OK. And would you disagree that there are over
30,000 bodies of water in the State of Florida?
Ms. Keyes Fleming. I wouldn't disagree with that number.
The question becomes how many of them would be subject to this
rule? It's a much smaller universe.
Mr. Ross. Well, I think if you are going to have a rule,
anything would be subject to that rule. So all 30,000 would be
subject to that rule.
Ms. Keyes Fleming. Only if they're inland waters or are
encompassed in the definition.
Mr. Ross. All right. Mr. Budell indicates that it is nearly
$1 million in order to go through the process. Are we not doing
anything but furthering litigation and putting a greater burden
on our economy and our State in order to have to apply for
these to seek some type of variance?
Ms. Keyes Fleming. I think one of the things that perhaps
hasn't been taken into account is that when you talk about the
cost or millions, what you're looking at is about $4,000 to
$5,000 cost per acre to be able to fix one of these challenges
if we do nothing.
Mr. Ross. But you, yourself, said that really standing
doesn't matter. Anybody has standing. And so, all they have to
do is file a petition objecting to any SSACs being issued, and
therein lies the problem and the constant litigation that is
going to follow.
Ms. Keyes Fleming. Well, I think let's step back----
Mr. Ross. I guess what I am saying is the unintended
consequences of this rule does nothing to ultimately affect the
water quality in the State of Florida. What it does is to
further the administrative burden on businesses and residences
in the State of Florida and to further create greater tax
burden for the State of Florida to even try to defend this.
Ms. Keyes Fleming. I think what this rule does is allow
families to be able to enjoy water without having to worry
about suffering from diarrhea, from sore throats, from any of
the other adverse impacts. And when you talk about litigation,
there have been plenty of times that EPA has been sued and not
done whatever it is the petitioners want, including the
Mississippi River basin, which we just denied.
Mr. Ross. Now you talk about a 15-month compliance. Is that
correct? I mean, once----
Ms. Keyes Fleming. Delayed effective of 15 months.
Mr. Ross. Delayed effective. And in that 15 months, a
business would have to do what? Whatever is necessary to
comply. Correct?
Ms. Keyes Fleming. I think it gives them the opportunity to
come in, talk with us, ask us questions. Our best to be able to
answer their questions, to look at the schedule because,
obviously, that business might not have a TMDL or permit that
is expired in March.
Mr. Ross. And do whatever is necessary to comply means
either complying with the regulation, laying off people, or
going out of business?
Ms. Keyes Fleming. No. I think what it means is making sure
that we protect the water that is so vital to Florida's economy
and the well-being of its citizens.
Mr. Ross. Mr. Chairman, if I could just have 30 seconds to
ask one follow-up to Mr. Budell?
Mr. Stearns. Sure.
Mr. Ross. Mr. Budell, what did Florida do wrong? Why are we
where we are today? We have got probably the most clean water
of any State out there, the most aggressive water control
program out there. What have we done wrong to receive the wrath
of the EPA?
Mr. Budell. I don't believe we've done anything wrong. I
believe we were the unfortunate victims of litigation and the
settlement agreement.
Mr. Ross. Thank you. I yield back.
Mr. Stearns. I thank the gentleman, and I thank the first
panel for your patience.
Ms. Brown. I have one----
Mr. Stearns. Do you want a third round?
Ms. Brown. Well, we can have a third round, but I need a
third question.
Mr. Stearns. I think we have got a second panel who has
been waiting patiently, and there are six of them. So I would
like to get them up. Do you have something in 30 seconds?
Ms. Brown. One minute?
Mr. Stearns. How about 45?
[Laughter.]
Ms. Brown. OK. Let me just say that for the Texas, you need
to know that the Democrats won, what was it, 8 to 2 on the
baseball game. But let's go on.
Mr. Barton. That is a fact.
Ms. Brown. That is a fact.
[Laughter.]
Mr. Barton. I will stipulate that you all lucked out this
year.
Ms. Brown. Lucked out, 8-2.
Ms. Fleming, thank you very much. Let me just be clear, I
would not be in favor of doing away with the clean water. Now I
do think it should be balanced, that we need opportunities. I
mean, Florida, 6 years we didn't weigh in. We didn't come up
with our rules, and so, basically, now we are trying to work
through it.
But my understanding what Florida had implemented or
proposed is pretty much the same as what EPA has done. So can
you--just in closing, I want to give you the 45 seconds to
close.
Ms. Keyes Fleming. Hopefully, it won't take that long. Yes,
the science is very similar between the State and what EPA is
proposing.
Mr. Stearns. Thank you.
Ms. Brown. Thank you very much.
Mr. Stearns. And now we will ask the second panel to come
forward. Paul Steinbrecher is president of the Florida Water
Environmental Association Utility Council and Director,
Environmental Services for JEA, Jacksonville.
Mr. Steinbrecher has been with the JEA since 2001. Prior to
that, he was a process engineer and a project manager for CH2M
HILL. He has a bachelor's degree in science and civil
engineering and earned his master's in civil engineering at the
University of Arkansas in Fayetteville.
William Dever is president of the Florida Gulf Coast
Building and Construction Trades Council, whose affiliated
unions represent thousands of working men and women in
Florida's Gulf Coast region.
Ron St. John is a dairyman and the managing partner of
Alliance Dairy in Trenton, Florida. He is testifying on behalf
of the dairy industry of North Central Florida, Suwannee basin,
and the Florida Farm Bureau Federation.
Kelli Hammer Levy is the watershed management section
manager for the Department of Environment and Infrastructure
for Pinellas County in Florida. The county's watershed
management protection improves the environmental aesthetics,
quality of county surface water, such as creeks, streams,
lakes, bays, and coastal waters.
David Guest is a managing attorney and director of the
Florida regional office of Earthjustice. Mr. Guest has tried
environmental cases in Florida for the past 20 years. He had
the least notification. So I thank him for his patience in
coming to testify this morning.
And David Richardson, lastly, is the assistant general
manager for water and wastewater systems. He administers all
aspects of the water and wastewater utilities for Gainesville
Regional Utilities, including water and wastewater planning and
engineering, water treatment, water distribution, wastewater
treatment, wastewater collection, operation of lift stations,
distribution of reclaimed water, and administration of the
environmental laboratory industrial pretreatment and cross-
connection program.
Welcome, all of you, this morning.
You are aware that the committee is holding an
investigative hearing and, when doing so, has had the practice
of taking testimony under oath. Do any of you object to
testifying under oath?
[All witnesses answered in the negative.]
Mr. Stearns. The chair then advises you that under the
rules of the House and the rules of the committee, you are
entitled to be advised by counsel. Do you desire to be advised
by counsel during your testimony today?
[All witnesses answered in the negative.]
Mr. Stearns. In that case, if you would please rise and
raise your right hand, I will swear you in.
[Witnesses sworn.]
Mr. Stearns. You are now under oath and subject to the
penalties set forth in Title 18, Section 1001 of the United
States Code.
I now welcome you and ask you each to give a 5-minute
summary of your written statement. And Mr. Steinbrecher, we
will start with you.
STATEMENTS OF PAUL STEINBRECHER, PRESIDENT, FLORIDA WATER
ENVIRONMENT ASSOCIATION UTILITY COUNCIL; WILLIAM DEVER,
PRESIDENT, FLORIDA GULF COAST BUILDING AND CONSTRUCTION TRADES
COUNCIL; RON ST. JOHN, MANAGING PARTNER, ALLIANCE DAIRIES;
KELLI HAMMER LEVY, WATERSHED MANAGEMENT SECTION MANAGER,
PINELLAS COUNTY DEPARTMENT OF ENVIRONMENT AND INFRASTRUCTURE;
DAVID G. GUEST, DIRECTOR, FLORIDA REGIONAL OFFICE,
EARTHJUSTICE; AND DAVID RICHARDSON, ASSISTANT GENERAL MANAGER,
WATER/WASTEWATER SYSTEMS, GAINESVILLE REGIONAL UTILITIES
STATEMENT OF PAUL STEINBRECHER
Mr. Steinbrecher. Thank you, Mr. Chairman and committee.
I'm pleased to be here this morning still. My name is Paul
Steinbrecher. I'm the director of environmental permitting for
JEA, the second-largest utility in Florida, water, wastewater
utility, one of the largest in the Nation. We serve the
Jacksonville area.
I am speaking to you today, however, in my capacity as the
president of the Florida Water Environment Association Utility
Council. The utility council is a State-wide organization of
your community wastewater treatment utilities.
Our members collect and treat the wastewater produced by
Floridians, and then we safely return that treated reclaimed
water to the environment or we provide it to our citizens to
beneficially reuse for irrigation or other purposes. Because
the raw wastewater that comes to us and that we treat is rich
in nutrients, we have extensive experience with implementing
nutrient control programs.
Everyone, of course, wants clean water. As an environmental
services director for a regional wastewater utility and a
former consulting engineer, I have dedicated my own career to
cleaning water. When utilities undertake a new project, the
decisions have to be based on sound science. EPA should be held
to the same standard.
Unfortunately, EPA's nutrient rule is rooted in poor
science and in litigation. In order to settle a lawsuit, EPA
committed to developing numeric nutrient standards for
Florida's diverse rivers, lakes, and springs on a wholly
unrealistic timeframe. To then try to meet their self-imposed
deadline, EPA had to resort to taking shortcuts in their
science, ultimately using crude averaging techniques, rather
than the dose-response techniques you've heard people speak of.
As a result, their standards absolutely fail to acknowledge
that the level of nutrients that water bodies need for
biological health, as well as the level of nutrient loads that
create problems, vary quite significantly from one water body
to another water body.
The utility council provided extensive and detailed
technical commentary questioning the scientific basis of EPA's
draft rules. Unfortunately, EPA ignored our input in their
draft--in their rule.
The utility council also urged EPA not to supersede
existing EPA-approved, site-specific nutrient standards. We
have those in Florida already with this rule. They're called
nutrient total maximum daily loads, nutrient TMDLs. We wanted
to ensure that the existing public projects that were designed
to achieve scientifically vetted and already federally approved
nutrient goals in Florida were not rendered obsolete by the new
litigation-driven rulemaking.
Again, however, EPA declined. Instead, EPA is now requiring
Floridians to resubmit these already EPA-approved TMDLs for
reevaluation and potential re-adoption. Especially in these
economic times, we need more surety in the investments we make
with the public's dollars. It absolutely makes no sense for EPA
to discard or ignore existing EPA-approved, site-specific
standards and the millions of dollars of associated public
investments in favor of generalized and poorly derived
criteria.
Lastly, the costs of EPA's rule have been grotesquely
understated by them. The utility council commissioned a
reputable environmental consulting firm, Carollo Engineers, to
perform a cost analysis of just EPA's freshwater rule. There's
a marine rule coming as well.
That professional analysis estimated that the effect on
customers whose utility is impacted by this rule--we hope
everybody gets exemptions, too, but we doubt it--will be an
average utility bill for those that are affected of over $700
per household per year. EPA's cost estimate, in stark contrast,
assumes ridiculously that nearly all utilities will get
variances or exemption from their rule.
If all these exemptions were even possible, at a minimum,
it would call into question the underlying need for the rule in
the first place. How can EPA possibly assert that these
standards are necessary for Florida, yet then claim that
virtually no one is going to actually have to meet those
numeric criteria?
In closing, EPA's intrusion into the State's water quality
program sets unscientific standards, derails many existing
effective programs, and absolutely has tremendous cost
implications that will needlessly burden our already
economically stressed communities. Rather than discount these
concerns, we would urge EPA to rethink its intervention into
Florida's water policy.
Protecting the water environment is absolutely our core
business. We are your community utilities. Florida deserves a
nutrient water quality program that is focused on cost-
effective, measurable environmental programs that will continue
to protect our pristine waterways that so many people come here
and enjoy every year, as well as our residents, and improve our
impaired waters as we grow.
Thank you.
[The prepared statement of Mr. Steinbrecher follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Stearns. Thank you.
Mr. Dever?
STATEMENT OF WILLIAM DEVER
Mr. Dever. Thank you, Chairman Stearns.
My name is Bill Dever, and I'm the president of the Florida
Gulf Coast Building and Construction Trades Council. Our
affiliated unions represent thousands of working men and women
whose jobs often depend on investment in construction and
maintenance in Florida's Gulf Coast region.
Thank you for the opportunity to speak about this issue
that is so important to so many Floridians. Water is perhaps
Florida's most precious and abundant resource, and we all agree
that promoting clean and responsible water usage is important.
But it's just as important to promote balanced approach to
water policy, one that also recognizes our need for good-paying
jobs, a healthy economy, and a lower economic burden,
especially during this difficult economy.
Recent decisions by the EPA threaten to increase the burden
on hard-working Floridians by unfairly singling Floridians out
as the only Americans subject to new erroneous numeric nutrient
criteria that will have an unwanted impact on many in Florida's
building and construction trades community. In other words, Mr.
Chairman, the people of Florida need both clean water and good
jobs, and this should not be an either/or proposition.
But that is what the EPA's proposal is--water quality
standards so expensive to achieve that any new job growth and
even existing jobs would be lost. This is not the time, and
Florida is not the place.
Based on projections made by Florida agencies and private
sector industries, we are extremely concerned that the high
cost of implementing these new regulations will lead directly
to a reduction in new investment and construction jobs in our
State. In my capacity as president of the Florida Gulf Coast
Building and Construction Trades Council, I submitted a letter
in June to President Obama that was signed by 14 leaders of our
affiliated trade organizations.
In the letter, we warned the President about the negative
economic impact these new mandates would have on our jobs and
our way of life, and we urged the EPA to work in cooperation
with the State of Florida to find an achievable solution that
would not harm jobs and investments, which the people of
Florida need.
I think the President would agree that this isn't a
Republican or Democratic issue. Florida congressional
delegation Members on both sides of the aisle are united
against the imposition of these new EPA regulations. I thank
Chairman Stearns and other Members of the Florida delegation
for finding common ground and reaching consensus on this issue.
We are proud to have the support of both Senators Bill Nelson
and Marco Rubio, as well as support from nearly the entire
Florida congressional delegation.
With about 1 in every 10 Floridians out of work, now is not
the time for the EPA to impose costly new water mandates for
Florida that will increase the cost of living and doing
business in Florida. These mandates will impede our State's
economic recovery, force Florida businesses to cut jobs, and
increase the price of utilities, food, and other necessities
for Florida businesses, families, and consumers.
I urge all Members of Congress to join us in our opposition
to these new mandates. The future of Florida's economic
recovery depends on it.
Once again, thank you, Chairman Stearns, for your
leadership on this issue. I look forward to working with you,
as we continue to urge the EPA to stand down on the
implementation of these mandates and allow Florida to manage
its own waters. I would be happy to answer any questions you
may have.
Thank you, sir.
[The prepared statement of Mr. Dever follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Stearns. Thank you, Mr. Dever.
Mr. St. John?
STATEMENT OF RON ST. JOHN
Mr. St. John. Thank you, Chairman Stearns, for inviting me
today.
Mr. Barton, my mother was from Texas. So there's at least
two people in this room that have a soft spot in their heart
for Texas.
Mr. Barton. Good.
Mr. St. John. Depending on which year you want to pick,
agriculture is Florida's number-one industry. I think it's gone
unrecognized as we move forward and the population of the globe
continues to expand, I believe agriculture is going to be more
important than Wall Street.
The comments that I make today are germane to north
Florida, specifically the Suwannee River basin. I do represent
the dairy industry. Today, we are regulated by the DEP of
Florida. The regulations are in place to protect the surface
and groundwater. But in our area, groundwater is the main
issue.
These regulations are science based and require the
dairies, through a nutrient management plan, to either recycle
the effluent nutrients through plant uptake and feed those
plants back to the cows or remove the nutrients offsite to
replace commercial fertilizer, i.e., organic fertilizer
replacing commercial fertilizer, for crops grown by others. We
report quarterly, and our report card is the readings from
monitor wells located down gradient from areas where the
effluent is applied.
Today, the EPA of the U.S. is attempting to force through
the DEP of Florida a much more stringent nutrient standard on
surface waters, which in our area could mean new groundwater
standards. The intent is to protect our rivers and springs from
further degradation of water quality.
The Suwannee River starts in the Okefenokee Swamp in
Georgia but is mostly spring fed from where it originates to
the Gulf of Mexico. As part of their nutrient program, the EPA
has already set TMDLs, total maximum daily loads, for several
springs that contribute much of the Suwannee River's water.
These springs are from groundwater, not surface water. So
the next logical move--not that logic has anything to do with
this topic--is to change the groundwater standards from 10
parts per million, which is the national standard, to 0.35
parts per million, which is the proposed springs total maximum
daily load standard.
The 10 parts per million standard today with good
management is a realistic level for industry to comply with. A
rule change from 10 parts to 0.35 is not attainable under any
science-based model for any industry--power plants,
agriculture, or even the thousands of septic systems in north
Florida. Short of turning the Suwannee basin into a national
park devoid of people, this is a completely unrealistic
standard with no economic or science-based modeling in these
decisions.
If the EPA should prevail, then our businesses will be put
out of business. Even though we are protected by our existing
National Pollution Discharge Elimination System permit we have
with the DEP, these permits are renewable every 5 years and,
therefore, do not provide long-term protection because at the
end of each permit cycle, the DEP can change the rules.
Please note that the current attempt by EPA to force such
low nutrient standards across the entire State will cause
similar impacts to other dairies and businesses like we are
experiencing in the Suwannee water basin.
Thank you.
[The prepared statement of Mr. St. John follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Stearns. Thank you.
Ms. Hammer Levy, welcome.
STATEMENT OF KELLI HAMMER LEVY
Ms. Hammer Levy. Chairman Stearns--can you hear me? I am
sorry. Is it on?
Mr. Stearns. I don't know. Just put it a little closer
maybe?
Ms. Hammer Levy. Is it on?
Mr. Stearns. There you go.
Ms. Hammer Levy. OK. Chairman Stearns and distinguished
members of the committee, thank you for this opportunity to
testify before you today on the impact of EPA's numeric
nutrient criteria in Florida.
Florida is a national leader in water resources management,
and a few key points to consider are that 34 percent of the
water quality data in EPA's STORET database comes from the
State of Florida. There are more stormwater utilities provided
dedicated funding for water quality improvements in Florida
than in any other State.
Florida has had State-wide policies on stormwater runoff
for over 25 years, and each year, local governments spend
around $1 billion on water quality and flood control measures.
Pinellas County has been active in protecting our aquatic
resources since the 1970s, when we began our stormwater master
planning process. And from 2000 through to 2014, we have spent
or encumbered $40 million for water quality improvement
projects and programs, and these funds do not include the
millions of dollars that we spend annually to implement the
conditions of our stormwater NPDES permit.
Local governments, private business, and citizens around
the State understand the importance of a healthy water
environment to Florida's economy and our quality of life.
However, it is critically important that water quality criteria
are correct to avoid wasting public resources towards the
development of site-specific alternative criteria, or SSACs, to
correct deficiencies in the rule or towards meeting a numeric
goal that results in no meaningful improvement.
So I want to talk a little bit about unresolved problems
with EPA's criteria, building on what is right in Florida and
suggestions for a path forward. EPA used two approaches to
develop criteria in Florida's streams and lakes--the reference-
based approach and the stressor response approach.
Unfortunately, neither of these approaches alone can identify
cause and effect.
The State of Florida advised for allowing for biological
monitoring, and the advantage of this recommendation is that
you can determine a clear link to actual impairment of use.
EPA's own guidance states that a primary strength of biological
criteria is the detection of water quality problems that other
methods may miss or underestimate.
And further, the EPA's science advisory board cautioned
that without a clear, positive link between nutrient levels and
impairment, there is no assurance that managing to a number
will lead to water quality improvement and that if the numeric
criteria were not based on well-established causative
relationships, the scientific basis for the water quality
standards would seriously be undermined.
And just as an example, in considering all the best bass
fishing spots in the State, as determined by the Florida Fish
and Wildlife Conservation Commission, excluding lakes not
affected by the rule, those without data, and rivers that were
on the list, we have 10 lakes remaining on that list. And of
those 10 lakes, 6 would be impaired under this rule.
The EPA has advised communities with naturally high
phosphorus in their soils to apply for a SSAC. But based on
local SSAC development costs, this effort could cost Pinellas
County over $20 million without accomplishing any benefit to
the environment.
If we build on what is right in Florida, we need to look at
our successes, and Tampa Bay is a great example of that. To
meet the requirements of an EPA-established TMDL, the Tampa Bay
Nitrogen Management Consortium, comprised of more than 45 local
governments, business, and agencies, developed voluntary
nitrogen limits for 189 sources within the watershed and
provided those limits as recommendations.
EPA and the State participated in this effort, but they did
not lead it. The State and EPA have accepted those recommended
nitrogen limits as meeting water quality requirements for Tampa
Bay.
Key benefits identified by the consortium members included
that the nitrogen allocations were equitable and based on sound
science and that the collective process was cost effective for
all the participants. And the result has been dramatic. Water
quality is meeting the regulatory targets, and our seagrasses
have expanded by more than 8,000 acres since 1999.
So, suggestions for a path forward. With this type of
controversy brings courageous conversations. And while we may
not hold the same opinions on EPA's rule, this controversy has
brought us together. We have a responsibility to be good
stewards of Florida's environment. There is a path forward if
we can continue to work together.
The State has restarted their rule development process and
is addressing many of the concerns with EPA's criteria echoed
State wide and here today.
The State is actively soliciting feedback on the draft rule
and will hold more public workshops in September. As a
community, we can support our State environmental agency during
this rule development process, be part of the conversation, and
ask our legislators to help bring this effort to a successful
conclusion that protects our natural resources, our quality of
life, and our economy.
Thank you.
[The prepared statement of Ms. Hammer Levy follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Stearns. Mr. Guest?
STATEMENT OF DAVID G. GUEST
Mr. Guest. Thank you. Thank you, Chairman Stearns.
I want to make it clear for the record here that I was
invited to appear here yesterday about 10:30. I dropped my
litigation practice. We put together our comments, filed by
4:00, and got in the car and drove here.
Mr. Stearns. No, I recognize you are here, and I thank you
for your patience because we wanted to get your testimony. So I
am glad you took the time to come.
Mr. Guest. And I want to emphasize to this committee that
you guys can't really get the whole picture by listening only
to the polluting industries and to the folks that are opposed
to this rule. I think it's a good thing that you're bringing
one person that believes that this is a good idea and can give
you some background that is a really different story.
I think it would be highly advisable for this committee to
listen to the members of the public that have appeared here so
you can hear their stories about how they have been victimized
by this pollution.
Now let me start out by saying toxic algae is a major
problem in this State, and it's getting much worse as time
passes. It is a threat to our families. It's a threat to our
children. It's a public health threat. It's a threat to the
safety of our drinking water.
There was a drinking water plant that was shut down because
the water was poisonous in the last 4 months. There was a toxic
algae outbreak on the Caloosahatchee River that was so severe
that there were signs all over the river that said it was
dangerous for people to get in the water. This is the United
States, and it's dangerous to get in the water.
People's property values are being destroyed by this. We
got a call 2 weeks ago from a lady on the Caloosahatchee River
during that outbreak. She is broke. She's in financial trouble.
She is selling her house because she can't pay for it anymore.
She got right up to the closing, and what happened? The
buyer came up. They looked at the slime in the water, and they
said, ``Whoa. I'm not buying that house.'' That's what's
happening from the slime here. It has a real economic
consequence.
And you think about the tourists that come to Florida. They
come here from all over the country. They come over from all
over the world. They come out there, and they see a lake or a
river that's covered with stinking green slime with a sign that
says it's dangerous to get in it. Do you think they are going
to come back? They're not even going to leave, they're going to
go back and tell everybody around them that Florida is not a
safe and clean place to go.
This is having a catastrophic effect on our economy, and
it's killing employment. And you really can't just say let's
let it go for a while.
My office manager went out to the Suwannee River 3 weeks
ago, and she said that they went out to Fanning Springs, the
springs that we've heard about. There is a sign at the spring
that says if you get in the water, there is a risk you would
get a rash. They didn't pay much attention to it. And the kids
went in, and one of them got this terrible rash all over them.
This is the United States. That shouldn't be happening
here.
Now let me clarify one big point here: This is not a
Federal takeover of any sort. What happened actually was the
Bush administration made the decision that these were needed
for Florida. It was made by Ben Grumbles from the Bush
administration. He made a finding that what Florida was doing
was inadequate and that numeric standards were needed.
The State didn't think it was a takeover because what
happened was immediately following that, the State itself, the
State Department of Environmental Protection, enthusiastically
endorsed this determination. And they worked cooperatively.
What they ended up doing was they ended up with their own
standards and their own process. It was ready to be adopted in
August of 2009, and I was at the hearing. And what happened is
our settlement agreement came out, and it said unless the State
adopts within 15 months, the Federal Government will have to
step in.
And what happened was instead of just approving it that
day--it was on the agenda to be approved that day--they decided
to throw the hot potato to the Federal Government. And what the
Government did was they looked at the same data the DEP looked
at. They used the same science because the DEP has great
scientists, and they came up with almost exactly the same rule
that the State did.
In fact, we heard the story about the springs; they're
identical. In fact, the DEP, the Florida rule, is a little more
stringent in its enforcement. That's really what happened here.
This isn't a Federal takeover of any kind. What happened
was they got good science. They got good numbers. They got
almost exactly the same rule as the EPA did, but they ran into
a buzz saw of political opposition from polluters within the
State, and they threw the hot potato to EPA so that they would
take the heat and they wouldn't have to get sued by the
polluters.
I'm in the litigation with the polluters. There are over 25
lawyers on every conference call representing the polluter
under the sun. That's where the litigation is coming is from
them. That's what's going on here.
And that's why I think you folks should look harder at this
and give us a chance to let the public explain what's happening
to them in this problem.
[The prepared statement of Mr. Guest follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Stearns. Thank you.
Mr. Richardson?
STATEMENT OF DAVID RICHARDSON
Mr. Richardson. Good afternoon. I'm David Richardson. I'm
the assistant general manager for water and wastewater systems
at Gainesville Regional Utilities. I'm responsible for all
aspects of the water and wastewater system serving Gainesville
and the surrounding area.
Thank you, Congressman Stearns and members of the
Subcommittee on Oversight and Investigations, for holding this
field hearing.
The recently adopted numeric nutrient criteria rule is
undermining our widely supported environmental restoration
project by introducing unnecessary regulatory burden, risk, and
uncertainty. The new regulatory requirements will cost our
customers up to $120 million in compliance costs or, if we are
lucky, a minimum of 1 million customer dollars to pursue highly
uncertain regulatory relief.
Unfortunately, EPA's nutrient criteria rule will provide no
additional environmental benefit for this project. I'm sure you
must be wondering if this rule results in customer expenditures
with no environmental benefit, why have we not worked with EPA
during rule development to prevent this from happening?
We have. We've provided lengthy written comments and met
personally with representatives from EPA's Office of Science
and Technology during rule development. The essence of our
comments to EPA was this. Our community already has an EPA-
approved, site-specific numeric nutrient rule, known as the
Alachua Sink nutrient total maximum daily load. And Gainesville
Regional Utilities is participating in a $26 million project,
called the Paynes Prairie Sheetflow Restoration Project, to
comply with that EPA-approved rule.
No environmental benefit will result from overlaying new
generalized nutrient criteria rules on waters already subject
to the science-based, site-specific nutrient rule. Only
needless economic expenditures will result.
In spite of our extensive comments and requests, the
numeric nutrient criteria rule adopted on November 14, 2010,
provides no meaningful solution. At a minimum, the rule
requires that we spend $1 million demonstrating once more that
our sophisticated wetland restoration project comports with
EPA's new generalized mandates.
We feel whipsawed. Gainesville Regional Utilities has
already demonstrated the appropriateness of this project to DEP
and EPA through the total maximum daily load process and the
National Pollutant Discharge Elimination System permitting
process. The Paynes Prairie Sheetflow Restoration Project is a
major environmental restoration project, which will improve
water quality, protect drinking water, and restore 1,300 acres
of natural wetlands within Paynes Prairie Preserve State Park.
The $26 million project is a partnership among Gainesville
Regional Utilities, City of Gainesville Public Works, DEP, the
St. Johns River Water Management District, and the Florida
Department of Transportation and is broadly supported in our
community. The project reflects thousands of hours of effort by
local stakeholders.
To date, $3.8 million has been spent on this project.
Design is continuing, and construction is scheduled to start in
2012. When completed, the project will cost $26 million. We
must proceed with this project to comply with DEP and EPA
permit conditions.
This project is incorporated in a National Pollutant
Discharge Elimination System permit that EPA approved and DEP
issued in 2010. Now, barely a year later, new regulations have
been adopted that put this project in jeopardy. No site
conditions have changed. No additional data suggests a
different approach is needed. None of the underlying science
that led to the development of this project has changed.
The only change is that EPA has adopted a new set of
generalized nutrient rules that don't acknowledge or allow for
the wide range of naturally occurring nutrient levels or allow
solutions that are tailored to site-specific conditions. DEP
and EPA still support this project, but demonstrating that this
project meets the newly adopted numeric nutrient criteria
regulation is costly and uncertain.
Gainesville Regional Utilities greatly appreciates the
opportunity to provide these comments. We ask that this
subcommittee please help us avoid spending customer money on
activities that will not result in an environmental benefit.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Richardson follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Stearns. Thank you.
I will start with my questions. It is nice to have two
constituents really from Trenton, Gilchrist and from
Gainesville. So I am also--very rare do I have two constituents
on a panel.
Mr. St. John, you made the pretty dramatic statement that
your industry could be out of business I think you said in
perhaps 5 years if these were implemented. And that is a pretty
strong statement. Because the EPA and their nutrient standards
for phosphorus and nitrogen would make it more difficult for
the farms and for the people milking cows and things like that
because how would this--because their runoff would be so
regulated that they couldn't implement?
Is that----
Mr. St. John. It was mentioned that the EPA does not
control agriculture. But inadvertently, they do. If they were
to change----
Mr. Stearns. That is what I want to get at. How does it
inadvertently----
Mr. St. John. Well, if they were to change the 10 parts per
million to 0.35----
Mr. Stearns. OK.
Mr. St. John [continuing]. We would then, through a change
of permit, be asked to comply with the 0.35.
Mr. Stearns. And a typical farm, Gilchrist County, that has
cows, how would this specifically impact it?
Mr. St. John. Bottom line, if that's moved to 0.35, we
cannot comply because we recycle our nutrients through plants.
I like to think we are the ultimate recyclers.
Mr. Stearns. You recycle your nutrients through the plants?
Mr. St. John. That's right, feed the plants----
Mr. Stearns. And you couldn't comply?
Mr. St. John. No. No, sir. It's such a small limit of
nitrogen that would escape, and it does, with these 3-inch
rains. You know, that's why it's 10 parts per million and not
less. Our alternative would be haul all our effluent to a
landfill or move it out of State.
Those are cost prohibitive, and we would not be able to----
Mr. Stearns. So you would go to another State that doesn't
have that high requirement?
Mr. St. John. I would hope the Federal Government would buy
us out for a large sum of money, and I would retire and live
happily ever after.
[Laughter.]
Mr. Stearns. You wouldn't have to deal with it.
Now you say, you know, I agree with agriculture is
extremely important to the State of Florida, and people think
of tourism as the number-one industry. But agriculture
oftentimes is considered the number one in Florida.
But you have heard Mr. Guest talked about the Suwannee
River, and he has talked about other things where this
pollution is in such a dire strait that people don't feel
comfortable they can go swimming. Or if they do, they get a
rash. So, in your mind's eye, is there a way to compromise on
this, either through technological advancement, or you just
think the standard is too strict and it should be less? That
would be your opinion?
Mr. St. John. Well, first, let me comment on the Suwannee
River. We have a place on the Suwannee River. And of course, in
our litigious society, the State put posts up at every major
spring to avoid some litigation if someone gets hurt jumping
into the spring. My family, everyone that comes to visit us,
swims in the Suwannee.
Mr. Stearns. You have no trouble?
Mr. St. John. We don't get a rash. But anyway, I'm not--I'm
not here to--I just--when someone talks about the Suwannee, I
get a little defensive.
Mr. Stearns. Yes, I understand.
Mr. St. John. I think the 0.35 is no place in this country
can that comply, even septic systems.
Mr. Stearns. It is not even--it is not the State of
Florida. It is just, it is an unreasonable statute?
Mr. St. John. Yes, I believe that.
Mr. Stearns. OK. Mr. Steinbrecher, you heard the first
panel. Is there anything that you heard in the first panel,
either from Keyes Fleming or from Mr. Budell that you would
like to comment on?
Mr. Steinbrecher. Thank you, Chairman, I would.
Mr. Stearns. You know, one of the things I got concerned
about is this litigation in which Mr. Budell said that no
variances will ever be provided because there will be suits.
And for all intents and purposes, either for nitrogen or for
phosphorus, there will be no settlements. And so, I mean, you
might----
Mr. Steinbrecher. I would exactly like to hone in on that.
EPA's assurances to us this morning, unfortunately, are not in
the rule. None of those things related to you are in the rule.
What's in the rule is certain numbers.
And so, Ms. Keyes Fleming says but they'll--utilities and
others will be allowed to meet some other number. But some
other number, using some other technology, isn't in the rule.
They're just not there.
So we're supposed to believe that these new rules that
displace existing EPA-approved rules are desperately needed on
one hand, and then, on the other hand, we're supposed to
believe that almost everybody is going to get an exemption from
them somehow. That's what their cost estimate is based upon. It
doesn't make sense.
Mr. Stearns. Mr. Dever, you had indicated you represent the
Florida Gulf Coast Building and Construction Trade Council, and
that represents a lot of the affiliated unions, right?
Mr. Dever. Yes, sir.
Mr. Stearns. How many unions does that represent?
Mr. Dever. We've got 14 that signed on right now.
Mr. Stearns. OK.
Mr. Dever. Carpenters, laborers, et cetera.
Mr. Stearns. Right. And in your experience then, you don't
think this is a partisan matter in any way, do you? Or----
Mr. Dever. No, sir. I don't.
Mr. Stearns. And I think as Mr. Guest pointed out, some of
this got started under the Bush administration. But what you
are saying is that the impact of this on the regional
construction will be pretty dramatic?
Mr. Dever. It certainly can be. Yes, sir. This is a fragile
industry. We are already at 10 percent unemployment, just
slightly higher than that. We need to create ways to create
more jobs, not create the fear of losing them. I think----
Mr. Stearns. But tell me specifically how the EPA would
affect these construction workers? Can you make it more
personal?
Mr. Dever. Yes, sir.
Mr. Stearns. Take some of your unions and----
Mr. Dever. Based on what I've read----
Mr. Stearns. Yes.
Mr. Dever [continuing]. The EPA is showing a total cost
right now between $135 million and $206 million, and----
Mr. Stearns. OK. We hear figures like that, but tell me
specifically what would happen. Would it be the cost for the
building materials, or would it be the cost for complying with
the regulation for the home or environmental standards----
Mr. Dever. Just the creation of----
Mr. Stearns [continuing]. Dealing with nitrogen and
phosphorus? How would----
Mr. Dever. Yes, sir. Creation and investment of new jobs in
the State could be diminished. For example, in the industrial
sector, we do a lot of work in the phosphate industry. The
phosphate covers central Florida, where we're at. We have a lot
of competition right now from other geographical parts of the
world, down in South America----
Mr. Stearns. Where there are not these----
Mr. Dever. They have no criteria of this nature.
Mr. Stearns. OK.
Mr. Dever. So this will have an impact.
Mr. Stearns. All right. My time has expired.
Mr. Barton is recognized. He is on the committee.
Mr. Barton. I don't mind letting Ms. Brown go first, if she
would rather?
Ms. Brown. OK.
Mr. Stearns. It is your call, Mr. Barton, because you are
on the committee, and you certainly have the choice to decide.
Mr. Barton. Well, I think to be balanced, we ought to let--
--
Mr. Stearns. OK. Ms. Brown is recognized for 5 minutes.
Ms. Brown. I am glad you mentioned the word ``balance.''
Because in looking at the committee, I want to say that may be
what Mr. Guest thinks, it is not balanced. It is like 5-to-1.
But I think it is about equal, Mr. Guest, with your testimony.
So we are doing good.
But no one wants to be called a polluter, and calling names
is not going to help us get where we need to go. And so, I
would--I mean, I am not--I am saying what it is that we need to
do to move forward. Basically, the State of Florida had 6
years, did nothing.
So, in some cases, you are saying it doesn't make any sense
in agriculture. What can we do as we move forward to work out
this situation, or if it is no reason, I am not going to sit
here and tell you that I am going to support doing away with
clean water. I am not. What I am going to tell you is I will
work with you and work with the communities, and I am very
grateful that the chairman has called this meeting together.
What can we do to move our State forward? The reason why we
don't have construction in many different areas is a variety of
reasons. If you think about high-speed rail, we sent back $3
billion, which is 60,000 jobs. So don't get my blood pressure
up for no reason.
So let's talk about what we can do together as one team,
moving the State of Florida forward, and I want to start with
you, Mr. Guest, because you think you are outnumbered. Not
true.
Mr. Guest. Well, thank you, Congresswoman Brown.
I think that the short answer to that is that we need to
get away from the hysteria about this and start working
together as a team. We need to acknowledge the truth that there
is this nightmarish problem that's growing. We also need to
acknowledge that you can't have a compliance cost that's going
to break the bank.
We need to be truthful about the law. This is a State
responsibility. The State produced a rule, and it's essentially
identical to what the State--to what EPA came up with.
The springs rule--actually, the springs rule is the State
rule. The State rule is actually more stringent than the EPA
rule, and for good reason. Because the kids that go in those
springs do get rashes, and if you let them testify, they'd be
telling you that today.
So we need to get people together to talk about how we can
implement this in a practical, reasonable, timely way that
doesn't break the bank. And that will protect our economy, that
will increase jobs, that will protect property values. It will
protect the public. That's how to do it.
Ms. Brown. Mr. Guest, let me ask you a quick question
before we go on. Have you been involved in any of the
discussions with the State? Because EPA said they have been
talking to the State.
Have the State been--since they are not here, I have to ask
you.
Mr. Guest. Yes. Oh, absolutely. We are in constant
communication with the State. And we have reached out to the
industry, to the sewage folks, to the farming people. We've
reached out and said how can we work together to make this
system work and end this problem?
And we just haven't gotten enough traction to get those
folks to say, yes, let's sit down and work this out. And that's
what we really need to do.
Ms. Brown. So probably what you think needs to happen is we
need to have another meeting that is more of not a hearing, but
maybe a roundtable discussion, get everybody in the room, lock
the door, and say you can't leave until we solve it?
Mr. Guest. I think it would be better to do it industry by
industry. But, yes, absolutely. This problem is solvable. You
know, agriculture, to be--people need to be totally honest
about this. The Clean Water Act doesn't regulate agriculture.
The State does that, other than the exotic factory farm things,
which there are very few of those.
The Clean Water Act doesn't do that; the State does that.
And so, when the State says, well, the price tag is this much,
it can't possibly be true because it's the State that
implements the regulations. The State sets the regulations.
This act and this rule doesn't actually affect agriculture at
all.
Ms. Brown. Right. But I understand what they were saying.
They were saying if the State adopts certain standards, it is
going to affect agriculture eventually?
Mr. Guest. Well, hope so. But it's going to take a change
of law to get there. It's going to take a new statute, and I
think it'd be a great idea for you all to think about amending
the Clean Water Act so it applied to agriculture. That's
something you should consider because of the gravity of this
problem. But it doesn't do it now.
And I hope the State legislature does it sometime, too. But
unless they do, it won't.
Ms. Brown. My understanding is hearing from certain
Members, they want to do away with the Clean Water Act
completely, which is ludicrous. We got here because the States
weren't doing what they were supposed to do.
Now we need to have a procedure that we could work together
to move it forward. My time is out, but I need a response from
one of the other participants.
Yes, sir?
Mr. Steinbrecher. Ms. Brown, thank you.
I appreciate everything you said. My opinion is that it
wasn't because the State wasn't doing it. I think Florida--I've
spent my career in this field, and I think the State of Florida
has one of the most outstanding water quality control programs
in the entire Nation. This was about settling a lawsuit, and it
was done badly. I really appreciate your question about how do
we get beyond this because we got a mess now.
I would suggest, as actionable items, that EPA adopt all
existing formerly EPA-approved nutrient TMDLs for the State of
Florida, unless there is some overriding reason that maybe the
science on a couple of them wasn't up to snuff for some reason.
But if they've already looked at the issue, we've spent
millions and millions of dollars on many of these and they
exist, and we've got hundreds of millions of dollars of public
infrastructure in our own area based on those scientific
endpoints.
So, one, adopt those. Two, agree to do exactly what you're
talking about, which is put the flowing waters portion of the
rule in abeyance. They talk about lakes and springs as well.
But the flowing water portion of the rule is the most
objectionable scientific part, and agree to spend the
appropriate time to go and set more scientifically based
standards.
Those would be my suggestions.
Ms. Brown. Thank you.
Mr. Chairman, I yield back.
Mr. Stearns. Yes. Mr. Barton is recognized for 5 minutes.
Mr. Barton. Thank you. Thank you, Mr. Chairman.
Mr. St. John, my uncle owned a dairy. He is retired now.
And my other uncle was an inspector of dairies, and he is
retired now. So I have some family history in the dairy
industry. And of course, I like dairy products quite a bit.
Mr. Guest, we do appreciate you being here. I think it is--
although you are outnumbered, it certainly doesn't mean you are
outmanned, so to speak, because of the issue. I would like to
ask you a few questions.
Are you one of the plaintiffs in the lawsuit, or are you an
attorney that represents the plaintiffs?
Mr. Guest. I apologize for not clarifying that,
Representative Barton. I'm counsel for the conservation
organizations that brought this matter to the court back in
2008, I guess it was.
Mr. Barton. OK. So you are a professional representative,
although it is clear by your testimony that you share the views
of the plaintiffs that you represent, that you think that they
are carrying the gospel in terms of their message.
Mr. Guest. The short answer to that is yes. We've been
counseled, our firm has served as legal counsel, protecting
clean water for communities for over 20 years. And yes, we
concur with our clients that public health should come first.
Mr. Barton. Now you heard my questions in the second round
about requiring some standing to sue. I am not for revocation
of the citizen lawsuit. I do think all of our environmental
laws could stand a review, given when they were passed and what
the society was then and what they are now. But I am not for
revocation or repeal of Safe Drinking Water Act or the Clean
Water Act or the Clean Air Act.
In fact, I am, along with Mr. Stearns, a co-sponsor of the
Clean Air Act amendments of the mid 1990s. But I do think it is
a fair question whether it is time to put some cost-benefit
analysis into these laws, to set some requirements for standing
to sue, to consider putting in some loser pay requirements,
things of this sort.
In your case in this lawsuit, the plaintiffs that brought
the suit, my guess is, aren't sharing in the cost of the
litigation, that that is being borne by some national or State
group. Am I right about that?
They have to give their names, and they have to live in the
State. I mean, they are obviously involved, and they are named
in the suit. But in terms of defraying the cost of it, I would
think they probably don't have to do that.
Mr. Guest. Well, no, actually, they do. How it works is
that the Sierra Club is a national organization, I believe the
biggest one by far. And of course, they share in the cost
because it's national, and this is their local chapter. The
Florida Wildlife Federation is a State-wide group with, I
think, 13,000, 14,000 members, and they share in the cost.
And so, there is the Conservancy of Southwest Florida.
That, quite frankly, doesn't pay very much. They don't have
very much money. But the cost is shared that way. So people
have major contributions, to make it clear. But the litigation
itself isn't terribly expensive, although it costs us a lot. It
costs a lot in time.
Mr. Barton. And I would assume that you don't do it pro
bono, although it is possible that you do.
Mr. Guest. No. We don't charge our clients. We're
nonprofit. We are a nonprofit organization. And we would be
prohibited----
Mr. Barton. But somebody pays you some money?
Mr. Guest. People that care about the cleanliness and the
safety of our environment make donations so that we can protect
the community and protect the public health.
Mr. Barton. And all these people that have testified, they
are just wrong? The young lady next to you is just a gross
polluter, and the gentleman next to you, and these people don't
care about Florida water quality. And they just, they want to
dump every bit of phosphorus they can into the lakes and rivers
of Florida and all that?
It is just the only people between them and absolute
disaster is your law firm and the people that back you up?
Mr. Guest. No. No, these are good people. They are honest
corporate citizens, and we hold them in high respect. But we
believe that they are misinformed. They've gotten whipped up by
the hysteria, and a perfect example of that is the stuff that
you folks are talking about today, that this is a Federal
takeover.
If you actually read the settlement agreement that brought
us here this day, if you look at paragraph 7 of that agreement,
what it says is that the EPA does not have to even propose,
propose any standards if the State has acted in several
months----
Mr. Barton. Now, the EPA regional administrator and the
gentleman from the Florida Department of Agriculture both
agreed that the lawsuit that your group brought was based on
timing. Do you disagree with that?
That the State wasn't acting quickly enough? That was my
understanding.
Mr. Guest. That's not quite exactly right. Without giving
you a complex answer, the answer is, yes, there was a timing
component to it certainly. In short, the State was--had a set
of standards, but they were basically the same as the EPA
standards.
In August of 2009, they were agenda'd for approval. They
ran into a buzz saw about this issue from industries that were
adversely affected by the rules. The State then declined to go
through with the agenda item and approve it and threw the hot
potato to EPA for them to get stuck with it----
Mr. Barton. OK.
Mr. Guest [continuing]. With the State data, the State
time----
Mr. Barton. My time has expired. But I want to go to Mr.
Steinbrecher and give him--the Region 4 EPA said, the
administrator, that the cost of compliance to utilities would
be 11 cents a day, which would add, that is about 30 bucks a
month. I mean, about 3 bucks a month, which would be around
$36, $40 a year.
Your number is $750 a year, which is basically 60-70 bucks
a month. What is the big difference there? Why is your number
so much higher than the EPA's number?
Mr. Steinbrecher. EPA didn't cost out the cost of
compliance with their rule. They actually assumed--they passed
rules that say, I'll give you just the nitrogen standard.
The nitrogen standard varies throughout Florida in those
five regions from something like 0.6 or 0.7 milligrams per
liter to 1.7. That's what's in their rule.
But what they costed out was advanced wastewater treatment
at existing wastewater treatment plants, which is what most of
us do now. That gets you to 3 milligrams per liter. So they did
not, in fact, calculate the cost of compliance. You have to add
other technologies to meet their numbers.
Mr. Barton. Do you think your group would support a
modification of the Clean Water Act to require or at least
allow for a true cost-benefit analysis?
Mr. Steinbrecher. I think we've absolutely got to start
doing that, and I've been ashamed by what I've seen here. I'm a
professional engineer. This isn't rocket science.
In my field, we know how to cost out the technologies to
get you virtually any number you want between where you are at
and zero. We have been doing that for a long time now. So this
is established professional practice, and it simply was not
done in this case and recorded properly.
Mr. Barton. I am no longer a professional engineer, but I
was licensed in Texas until I got elected to Congress. So I
still am an engineer, but I am not registered at this point in
time.
I yield back, Mr. Chairman.
Mr. Stearns. Thank you.
The gentleman, Mr. Bilirakis, is recognized for 5 minutes.
Mr. Bilirakis. Thank you, Mr. Chairman. I appreciate it.
Mr. Richardson, I know you mentioned this in your
testimony. You indicated that the Paynes Prairie Sheetflow
Restoration Project is a major environmental restoration
project that is $26 million--it is a $26 million endeavor with
partners, of course, the utilities, certain entities like
Gainesville Regional--go Gators, by the way--and the FDEP and,
of course, the Florida Department of Transportation.
You said that you have already spent--the project has
already spent $3.8 million. Again, you may have mentioned this,
but pardon me. I want to get this clear. It is worth repeating.
Did you think you would be able to complete the project if
these rules went into effect?
Mr. Richardson. Well, what we know is that the project as
designed will not strictly meet the numeric nutrient criteria.
So our two choices are to pursue this uncertain variance
process, and we are estimating that that will cost us at least
$1 million.
We heard from Mr. Budell earlier that it's unlikely that
SSACs--that any of these variance processes will be granted. So
that's extremely discouraging. If we have to strictly meet the
numeric nutrient criteria on Paynes Prairie, we would do
something very different than this restoration project. We
would build facilities at a cost of about $120 million instead
of $26 million.
And unfortunately, the Paynes Prairie Restoration Project
is not in increment. Like I say, we would go a different
direction from the beginning. We received a permit in 2010 that
requires us to do this project. Unfortunately, the project does
not meet the newly established generalized nutrient criteria.
Mr. Bilirakis. Thank you very much.
And I want to welcome my fellow Pinellas County resident,
Ms. Hammer Levy. And I also want to commend and thankful--I am
very thankful to Pinellas County and the Department of
Environment and Infrastructure for their prudence, their
stewardship of taxpayers' dollars.
My guess is Pinellas County would be hard pressed to come
up with the extra $20 million to develop specific alternative
criteria that will not result in meaningful improvement. Is
that correct?
Ms. Hammer Levy. Yes. When we submitted comments back to
EPA and actually had the opportunity to speak with staff on why
certain areas of the State where there is phosphorus-rich soil
that impacts our streams and our lakes, why those areas outside
the Bone Valley were not considered, and unfortunately did not
get much of an answer back, but that we should apply for a
site-specific alternative criteria in order to address that
deficiency.
When we looked at the cost of doing a site-specific
alternative criteria in the State of Florida, they have been
done for developed oxygen, we utilized the cost for that
process, and it ranged between, I believe, around $80 to $400
per acre, dependent on how urban you were. And obviously, we
are very urban, but we still chose the middle number, which is
about $200 per acre, which is where the $20 million comes from.
So, you know, when you look at a Pinellas County, you know,
we have $20 million to spend, I would rather do projects to
restore Lake Tarpon, many of our streams, work on the Anclote
River, work on Lake Seminole, which we have over $20 million
invested in Lake Seminole, than to go and try to apply for a
criteria, a site-specific alternative criteria, which these
gentlemen and others have said that it's not a guarantee. It's
a very laborious process. It takes a lot of data.
I'm a scientist, mind you. This is my bread and butter.
This is what I do for a living. This is my passion. So I want
to do the right thing. And I want to use the public's money in
a wise manner. And I don't want to waste it----
Mr. Bilirakis. And we are grateful for that.
Ms. Hammer Levy. I don't want to waste it on trying to go
through a process that doesn't need to happen.
Mr. Bilirakis. Thank you very much.
I yield back, Mr. Chairman.
Mr. Stearns. All right. Mr. Ross is recognized for 5
minutes.
Mr. Ross. Thank you, Mr. Chairman.
Mr. Steinbrecher, you raised an interesting point in your
opening statement when you said that the numeric nutrient
criteria is rooted in poor science and litigation. And I think
it is important that litigation has as some unintended
consequences that for the sake of settlement certain policies
are made, not for the sake of the good, but rather for the sake
of the settlement.
And as Ms. Keyes Fleming testified to here today about
reverse osmosis, that it is not going to be required. In fact,
it is the preamble. But would it not be just as likely that
litigation, yes, ensued by any group, anybody with standing,
could result in the imposition of having reverse osmosis being
made a part of the compliance?
Mr. Steinbrecher. Every--I'm the director of environmental
permitting for the second-largest utility in the State. Every
Clean Water Act legal opinion I've gotten on this effort says
you absolutely have to meet the standards, not some other
number.
Mr. Ross. In other words, if you were told by the EPA
because we put in our preamble that you don't have to use
reverse osmosis, but their standards require it to meet that,
the only way you could meet that standard is reverse osmosis,
do you think that would be a solid defense to say, hey, we
don't need to do reverse osmosis?
Mr. Steinbrecher. No. The fact that that's in the preamble
or that the Region 4 administrator says we are not going to----
Mr. Ross. Is suggestive?
Mr. Steinbrecher. Is suggestive. It is not the law. We
asked--Mr. Ross, I'm glad you asked this. The utilities asked
them to put that in the rule. We asked them to also adopt
existing formerly EPA-approved, site-specific nutrient
standards that have millions of dollars of science behind them,
adopt that in the rule. They did not do that. They chose not
to.
Mr. Ross. Why is that? Do you have any idea?
Mr. Steinbrecher. I would only be speculating on it, Mr.
Ross.
Mr. Ross. Would it be your opinion also that of the
estimated amount of $750 per household may be a correct or
accurate amount that may be borne by each household for the
implementation?
Mr. Steinbrecher. It is absolutely the proper order of
magnitude. If you said--and it's an order of magnitude
estimate. If you said to me, well, maybe it's $400. I would say
that's right. Maybe it's $1,000. But it's not $10 or $20 or
$50. No, it's hundreds of dollars per year per resident if your
utility is affected by this rule.
Mr. Ross. Mr. Richardson, would you agree?
Mr. Richardson. Yes, I would. And as a matter of fact, in
our case, we are--currently, our customers are paying about $32
a month. We would project to strictly comply with the numeric
nutrient criteria, it would increase that to about $55 a month,
a $22 per month increase.
We need to point out about 23 percent of our county is
below the poverty level. We're always very, very concerned
about any rate increases. Rate increases to meet standards that
don't improve the environment are particularly troublesome to
us.
Mr. Ross. Thank you.
Ms. Levy, any comment? I worked with your agency back when
I was in the legislature, served part of the Tampa Bay area. I
remember going through the reverse osmosis project that they
had there with Tampa Bay water. Rather exciting, but
fortunately, everything worked out for the best.
Any cost estimates that you think compliance might have in
your constituency?
Ms. Hammer Levy. Well, I think one of the problems that I
saw with EPA's analysis is that they only looked at those
waters that would be newly impaired under this rule. OK? So
they assumed that those waters that the State had already
deemed impaired would not need additional reductions, and
that's a leap. That is--that was not validated.
So that could account for millions of dollars in load
reductions that were not considered in EPA's evaluation.
Mr. Barton. Could you allow Mr. Guest to answer the
question to Mr. Steinbrecher about why they didn't put the
specific standard in----
Mr. Ross. Yes, please, Mr. Guest, you may answer.
Mr. Guest. Yes. I would. I'm delighted that you asked me
that question because it's a great question.
I have gone to the utility people more than once and said
let us get together and go to DEP and EPA just to get a rule
change so that you can't possibly imagine a lawsuit anymore. So
we'll just put it right down in black and white that there will
be no reverse osmosis anytime, anywhere, ever, period.
I want those folks to join us and get that in writing in a
rule, and I can't get ``yes'' out of them. Now let's try it
here. Can I get ``yes'' today?
Mr. Steinbrecher. I would like that in the rule.
[Laughter.]
Mr. Ross. But Mr. Guest, let me make sure I understand. In
your opening testimony, you talked about the DEP's numeric
nutrient quality criteria standards, and you were OK with
those?
Mr. Guest. Yes.
Mr. Ross. In fact, like you said, that they were pretty
much the same as EPA's, but for biological verification, I
think some of the TMDLs that were taken into consideration. But
they were pretty much identical?
Mr. Guest. More or less.
Mr. Ross. And today, they would have been implemented, but
for one thing--a lawsuit that was filed by you?
Mr. Guest. Nope, that's not right. They weren't implemented
because of a lawsuit that was going to be filed by them. That's
why the DEP didn't adopt it.
Mr. Ross. It was going to be----
Mr. Guest. They were issuing lawsuits going right down
their throat with every lawyer in Tallahassee, ripping them to
shreds. And that's what they----
Mr. Ross. But they didn't file a lawsuit, did they?
Mr. Guest. They didn't file it because they didn't get a
chance to because DEP saw that wave attacking them, and they
threw that hot potato to DEP. And those same lawyers that were
going to shred those good guys at DEP are now on EPA. And I see
25 of them at a time. If you want to slow down litigation----
Mr. Ross. But you would have been OK with the Florida's----
Mr. Guest [continuing]. That's the where--that's where to
do it.
Mr. Ross. You would have been OK with Florida's NNC
standards?
Mr. Guest. They are the same as EPA's. Absolutely.
Mr. Ross. Exactly. I see my time is up.
Mr. Barton. Let him answer. What he just said, that it was
the threat of your lawsuit that caused the Florida EPA--the
Florida Department of Environmental Protection to back away. Do
you agree with that?
Mr. Steinbrecher. These are matters of fact. In January of
2009, then-EPA Administrator Grumbles made a need determination
to settle a lawsuit. That's what started all this. It's not
based on science.
Mr. Barton. So his group's lawsuit?
Mr. Steinbrecher. Correct. To settle his group's lawsuit.
That is a matter of fact.
We do need the right standards, and we agree on that. Well,
I don't know if we agree on that part. We need the right
standards.
Mr. Barton. You all agree you need a standard.
Mr. Steinbrecher. We are not--the utilities are not opposed
to standards. We want the right standards, not litigious.
Mr. Stearns. All right. The gentleman's time is expired.
I think we will go a second round here. So----
[Disruption in room.]
[Laughter.]
Mr. Stearns. Mr. Barton, you participated so well, I hope
you will make it quick here.
Mr. Barton. You all don't have lunch in Florida?
Ms. Brown. No, no lunch.
[Laughter.]
Mr. Stearns. We are going to go through here. Ms. Levy, Mr.
Ross asked you a question where you talked about the diverse
ecosystem in Pinellas County. The criteria that was used by EPA
to show a cause-and-effect relationship between the pollutant
and biological response, you gave one example. Do you have any
more examples that you can think of here?
Ms. Hammer Levy. I can go back to the example, actually,
the one that you used, the Cross Bayou system.
Mr. Stearns. OK.
Ms. Hammer Levy. Where the State's--the Florida Fish and
Wildlife Conservation Commission's Florida Wildlife Research
Institute down in St. Petersburg has ranked the oyster bed
system at the south end there as nearly pristine, but the water
quality does not meet----
Mr. Stearns. EPA standards?
Ms. Hammer Levy [continuing]. EPA's stream criteria.
Mr. Stearns. Right.
Ms. Hammer Levy. Now if we look ahead to the draft rules
that DEP are working on right now, they would allow for the
inclusion of such biological criteria, which could affect a
determination whether it be impaired or not. So if the nutrient
levels were a little higher, but the biology was healthy, then
it would not be deemed impaired.
And so, that's something that I think everyone needs to
understand and start to be involved in, in reviewing the rule
that DEP is working on right now. Because they are starting to
allow for those types of considerations that would affect how
this rule is implemented at the State level.
Mr. Stearns. Mr. Steinbrecher, you have mentioned four
things that you would like done, and you said adopt rules that
are more appropriate. You said something about the flow of
water put in abeyance, specify the time set, and then talked
about more science.
Do you want to just reiterate those? Because I think those
are four of a breakthrough, which at least your side would
think would solve this problem, going to Ms. Brown indicated
how do we solve this problem? And Mr. Guest is saying he is
trying to solve the problem, too.
Mr. Steinbrecher. Thank you, Chairman Stearns.
I would say, I guess, three things. Take the time to get
the right standards. If we're going to have numeric standards
to augment what the State's narrative program already does,
let's take the time and get it right.
One of those things is adopt existing TMDLs that are EPA-
approved TMDLs. They've already vetted many water bodies. The
three Ms. Keyes Fleming mentioned at the beginning--the St.
Johns, the Caloosahatchee, and the St. Lucie--have existing
EPA-approved nutrient standards. They should adopt those rather
than have this generalized rule supersede them.
So that's a simple thing that could be done quickly and
commit to continuing to work on the flowing waters portion of
the rule. That is the portion that most parties agree they have
not been able to bring cause-and-effect science to at all. So
those standards are particularly arbitrary.
Could I follow up with something for Mr. Barton?
Mr. Stearns. Sure. Sure.
Mr. Steinbrecher. He asked a minute ago, and I wish I had
read, I have a law memorandum going back to 2009, and this is
from an EPA administrator. And it makes much clearer my answer
to your question is the administrator writing, when they are
contemplating settling this lawsuit, they say in the beginning
of the memo, ``We are being sued.''
Then they go on and say, and this is the quote, ``EPA does
not agree with the plaintiffs' allegation that we made a Clean
Water Act determination in our 1998 strategy that numeric
nutrient criteria are necessary for Florida to meet the
requirements of the'' Clean Water Act.
Boom. To me, this is the smoking gun memo. They go on and
say there is----
Mr. Stearns. Mr. Steinbrecher, can you provide that for the
record?
Mr. Steinbrecher. I will.
Mr. Stearns. Yes. By unanimous consent.
[The information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Steinbrecher. ``There is, however, some risk that the
court could agree with the plaintiffs that the 1998 strategy
constitutes a [Clean Water Act] determination that nutrient
criteria are necessary in Florida. Such a ruling could spur
similar litigation in other States.''
And then they go on to discuss why don't we just settle
this. A colloquialism some have used would be ``Throw Florida
under the bus. That will settle the issue so we can do other
things elsewhere.''
Voice. Sounds good to me.
[Laughter.]
Mr. Stearns. Mr. Dever and Mr. St. John, you have heard Mr.
Steinbrecher this morning propose what he is saying would be a
solution to this problem. Do you have any suggestions or
anything else that you might suggest that--he outlined three or
four things that he felt should be done. Do you want to add to
that?
Mr. Dever. No, sir. Just a balance, just a good balance.
Mr. Stearns. OK.
Mr. Dever. I'm sure he is--I'm sitting between some
intelligent folks here. Again, just a good balance. This thing
is not balanced.
Mr. Stearns. Mr. St. John?
Mr. St. John. I don't like the word ``balance.'' But I
think there is a lot of common ground that from where the both
sides seem to be.
One thing that I would point out, Mr. Barton, you mentioned
food. I think in our society there is a complete disconnect
between water and food. Here we are talking about recreation.
We are talking about people swimming. We are doing all this.
I'll tell you what. Everything you eat has water in it. If
it doesn't, it did, and there is a complete disconnect in
Washington. And these scientific parts and research, they are
disconnecting water and food, and just think about----
Mr. Barton. Well, my stomach is not getting any food
because of this hearing so I am just----
[Laughter.]
Mr. St. John. When you mentioned food, that rang the bell
about water and food.
Mr. Stearns. All right. I will keep under my time. My time
is expired.
Ms. Brown, you are recognized for 5 minutes. You are up.
Ms. Brown. Yes, let me be quick. Mr. Richardson, Mr.
Stearns and I both represent Alachua County, and they are the
most environmental conscious areas, period, and you know it and
I know it. So the point of the matter is we need to make sure,
as we move forward, that we take that into consideration
because the council or the city commission, they are going to
be harder than probably any other area that we represent.
So, I mean, you know that as you come and talk with us
about what we can do as we move forward. I would like to know
your recommendations, and I would like all of the
recommendations in writing as to what we could do. I personally
would like to know those recommendations.
Mr. Guest, we have seen that we have found some areas that
we could agree on. I would like that--you talked about the
utilities. I met with all of them, well, a lot of them all over
Florida, as to what we could do.
But keeping in mind facts are facts, the committee punted.
The committee could not pass the recommendation so they kicked
it. And that is when the court came about. I would like to know
and basically what I am hearing is the State is stronger than
the EPA.
Now are there vows, a way that we could deal with the
State? Because if I am hearing what the EPA administrator said
to us earlier--and I am not an attorney, and I am not a
scientist. But I was a counselor in my previous life. What I
would like to know what it is that we could do?
I think the EPA said if the State came up with the rules
and regulations, then they would back out. But we need to make
sure that the State have this vow that we are talking about
also. Because in certain areas, maybe they want to be stronger
in Alachua County, but you may need special provisions. We all
understand food and water, but also the fertilizer, and I
mentioned what happened with the Everglades.
So there are certain areas like the Tampa Bay area that is
a major problem because of some of the phosphate and other
stuff that we do in that area. So the question is how do we
come up with the solution that we can all agree on and move
forward and make those recommendations to EPA and the State of
Florida?
We have a problem. The State of Florida is not in the room.
So we don't know where they are. We don't know what they are
negotiating. So, with that, any response from Mr. Guest, since
you are outnumbered, and anybody else?
Mr. Guest. Well, yes, absolutely. I think that----
Mr. Stearns. Can you put the mic closer to you? That would
be helpful.
Mr. Guest. Yes, I think there is three or four really big,
important things that we could do. One is, as I said, let's get
the parties together.
Ms. Brown. I agree with that.
Mr. Guest. Let's get it in black and white that we are not
using reverse osmosis. Let's get it in the rule in whatever
form we need to do to satisfy those folks. Let's just do that.
And I urge you folks to try to get them to get that on the
table and write it down so that this doesn't come up again.
That is where the $700 a month comes from, and that goes away
when you fix that problem.
Two is, I think, that a point is well, well taken. A huge
amount of work has been done already. There are about 250 TMDLs
for nutrients around the State, and all but a handful of those
are really good science. And we need to just get those done and
move past that quickly and easily.
There is a handful of those that are not faithful to
science and need to get fixed. Let's just get it down to those
and not worry about the rest.
And the big thing that I would like you all to consider is
that agriculture really just isn't regulated, other than the
CAFOs, the factory farms. And it's a problem. They're a major
source of this.
So I would like you all to try to think of something
creative, work with the agricultural industry, work with the
States, work with the people that live on rivers, work with the
health people, and come up with some practical way to get
agriculture into the Clean Water Act. That's really what we
need.
Ms. Brown. No, I want a response from others. Yes, Mr.
Richardson, I pointed him out. I know you might want to say
something.
Mr. Richardson. Absolutely agree that Alachua County is
environmentally very conservative. We worked through the TMDL
process, total maximum daily load, involved stakeholders. We
had wide involvement, and this project that we are trying to
construct is widely supported by the community.
So a key to solving this is recognizing the TMDLs that have
been appropriately established. And I've heard that theme many
times on this panel. It's fair to say that we originally
requested that of EPA during the rulemaking.
So while I'm extremely optimistic and hopeful that they
would be recognized, we've made that comment before, and they
have not been recognized.
Ms. Brown. Mr. Richardson, where is the State of Florida on
this issue?
Mr. Richardson. The State of Florida, their original
regulation did recognize TMDLs.
Ms. Brown. OK. So what we are seeing is maybe this is an
area that we could work to get this particular issue addressed?
Mr. Richardson. I think recognizing the TMDLs and TMDL
process would be very helpful to where we are right now. As I
indicated, however, GRU and many other agencies have already
made that request of DEP--I'm sorry, EPA during the rulemaking,
and they were not adopted.
Ms. Brown. OK. But what I am also saying is what is the
State of Florida saying? Have you talked with them? You see,
they are the ones to implement it. And as what was told to us
this morning, and we all heard it, that if the State comes up
with their own adoption, then the EPA won't take over.
Mr. Richardson. Well, it is my understanding that the
original DEP rule did acknowledge the TMDL process and
recognize TMDLs.
Ms. Brown. Do you have that in writing?
Mr. Richardson. I don't have it in writing. I do not have
it in writing.
Ms. Brown. We are dealing with people that you have got to
have it in writing and approved by the courts and reviewed by
the attorneys, and then the judges and everything else.
Ms. Hammer Levy. There was a discussion about adopting
existing TMDLs as SSACs. But there were some, including
Pinellas County, that were concerned because we actually have
well over a dozen TMDLs in abeyance because we are very
concerned about the science that was used to adopt them.
But if a process could be used where, as Mr. Guest said, we
have stakeholder buy-in to move forward with those TMDLs that
have been scientifically vetted and are accepted by the
community, the Tampa Bay TMDL is one of those, the 1998 EPA-
promulgated TMDL is one of those that we have moved forward as
a community to adopt and to implement.
Ms. Brown. Thank you.
Thank you, Mr. Chairman.
Mr. Stearns. Mr. Barton is recognized for 5 minutes.
Mr. Barton. I don't think I will take 5 minutes, Mr.
Chairman.
I do want to compliment you on holding this hearing. It is
obviously of great importance to not only Florida, but to the
country. Unless all these folks in the audience are paid
staffers of the congressmen and women up here, they are very
interested in it, and they are voluntarily here. Unlike myself
who can't leave until the hearing is over because your staffer
is taking me back.
Mr. Stearns. I have got you captured here.
Mr. Barton. Which means you are going to get to buy me
lunch, Mr. Chairman.
Mr. Stearns. I have got to buy you lunch.
Mr. Barton. Yes, and it is not going to be at McDonald's.
Mr. Stearns. Right here on the campus.
Mr. Barton. All right. But I am not an expert on this, but
just listening, it appears to me that, one, and I was being
facetious about throwing Florida under the bus. We don't want
any State thrown under any bus.
We have an issue where these nutrients and phosphorus, the
primary emitters or generators apparently are the utilities,
agriculture, and municipalities. And the State of Florida has
over time developed site-specific, but non-numeric criteria for
addressing the problem. And the environmental groups feel like
the timing has not been as quick as it should be, and perhaps
the standards are not as tight as they should be.
And so, they have brought this lawsuit, and it has national
consequences because apparently Florida is a prototype or a
leading indicator for the rest of the country. So we are where
we are. But this proposed numeric standard that the Federal EPA
has put out has got huge economic consequences, and I don't
think that is being made up.
I don't think you could have this many groups saying what
they are saying unless they believe that there are real world
consequences. But the regional administrator who was here and
the groups, the stakeholders, that have testified appear to
believe that there still can be, if I understand Mr. Guest, who
represents most of the plaintiffs, an agreement, and I think
that is a good thing.
So what we need to do is continue your oversight. Bringing
the publicity and transparency of the oversight role puts if
not pressure, it puts the spotlight on both the Federal, State,
and stakeholders, and that is a good thing.
So this has been a worthwhile field hearing, and it has
kept me out of the heat of Epcot Center for about 6 hours. So
that is a good thing on my part.
[Laughter.]
Mr. Barton. It just means when I get back, I will have to
buy my son some great trinket. For those of you that don't know
my son, he is 5 years old. He will 6 in September. He comes to
Washington a couple of times a year.
He loves going to the floor of the House. He loves going to
the receptions, but he hates going to the committee because he
says it is boring. And I will say had he come to this hearing,
he would have said it is not boring because it has been
informative.
So I am going to yield back, and thank you again. And I
want to compliment the non-committee congressmen and women that
are here. They don't have to be here. And to have Congresswoman
Brown here and both Congressman Bilirakis and Congressman Ross
shows how serious they take the issue, too, that they will
spend their time at a hearing that they don't have to come to.
And all three would be good committee members. So if you
and I don't do a good job, we are probably going to get booted,
and they are going to be put on in the next Congress.
But thank you for holding the hearing, Mr. Chairman.
Mr. Stearns. All right. Thank you for your participation.
Mr. Bilirakis, for 5 minutes.
Mr. Bilirakis. Thank you. Thank you, Mr. Chairman.
Briefly, I want to thank you for inviting us and allowing
us to sit on the committee. I really appreciate it very much.
This is a very important issue to us, obviously, our
constituents and the stakeholders, and I think we have
accomplished a heck of a lot today. It has been very
productive.
So I really appreciate you holding this hearing, and I
would like to sit on other hearings in Washington, D.C., with
regard to Energy and Commerce, but particularly on this issue.
So maybe we can address that a little later.
But this is very--the unintended consequences could be
drastic for our constituents, and we have to stay on this
issue. So thanks for inviting me here today.
I want to thank all who testified as well, and it was very
productive. Appreciate it very much, and I yield back.
Mr. Stearns. Thank the gentleman.
Mr. Ross is recognized for 5 minutes.
Mr. Ross. Thank you.
And in light of everyone in this room, including my
colleague Mr. Barton's nutritional content criteria, I will be
brief.
One of the things that you spoke of, Mr. Steinbrecher, that
I have to address and it has to do with we take our water as we
find it in the State of Florida. And we are very much
interconnected with Alabama and Georgia when it comes to our
waterways. And yet we can't control what they send downstream,
and we are responsible for that. Would you agree?
Mr. Steinbrecher. Many of our utility members that are in
those regions where waters are flowing from those States
believe that, yes, that the rule would have to back up into
those States as well and that somehow we would also, at the
same time, be responsible for cleaning the waters in Florida
that flow from those States.
Mr. Ross. Correct. Because as you talked about, one of the
hardest things to identify is the flow criteria. And if all of
a sudden, we have to look at the source of the flow and the
source of the flow is somewhere in Tennessee for the
Chattahoochee River or wherever, we are responsible for that as
a State, and that is an illogical application of this NNC, is
it not?
Mr. Steinbrecher. It is an actual legal end result of this
rule, that entities in Florida will be held responsible for
waters flowing into the State.
Mr. Ross. And Mr. Dever, as a man who represents businesses
and trades, would it not be then an unfair competitive
advantage for those in the northern States, which are still
southern, of course, but such as Alabama and Georgia, to
consider relocating there instead of Florida because of such a
water criteria?
Mr. Dever. Absolutely. The cost, that's a major issue. Job
creation, all of that is tied to it. There is a lot of unknowns
in this. That's got our interest up.
Fixed-income folks, you know, this cost, these numbers that
we're tossing around here today, it's going to land somewhere.
A lot of those folks can't afford that, and that's what's
resonating through our halls.
Mr. Ross. And finally, Mr. Guest, as I understand it, your
main objection to the rule is the SSAC, the proposed rule?
Mr. Guest. Well, no. The issue is a very narrow one, which
is having certain regions--let me clarify----
Mr. Stearns. Let me just put the mic up to you so we can
get you recorded.
Mr. Guest. Sorry. I apologize. No, it was the region wide.
It was like a quarter of the State becomes one SSAC. We are
fully endorsing the SSAC process.
Let me, if I may, just----
Mr. Ross. It is a regional SSAC is what you are saying, not
site specific.
Mr. Guest. Yes, exactly. That's the issue.
Mr. Ross. That is what you are objecting to?
Mr. Guest. Exactly.
Mr. Ross. And so, as long as that stays in the rule, you
will continue to object?
Mr. Guest. As long as, yes, regional SSACs only. But let
me, if I may answer a legal question----
Mr. Ross. Yes, sir.
Mr. Guest [continuing]. Because I think I can help you out.
As far as the streams, the rivers that come from Alabama and
Georgia, the Clean Water Act does allow the Governor of Florida
to make the point sources subject to clean water permitting in
those upstream States to comply with Florida standards. So they
are not responsible.
Mr. Ross. But they have enforcement powers to do so?
Mr. Guest. Yes. Yes, yes. You go to Federal court. The
statute says that, Section 42. The other piece of it is that
there are a few. There are a handful of those. And that's
something you might want to look at, for the Governor to look
at.
The other piece is that most of that, most of the damaging
pollution is actually coming from agriculture upstream, and
that's not regulated by the Clean Water Act. And that's a
reason for you to think about how you can bring agriculture
into the act and make them a full participant.
Mr. Ross. Thank you.
Mr. Chairman, I thank you for the opportunity and thank you
for holding the hearing. I yield back.
Mr. Stearns. Mr. Ross, thank you very much for being here.
And I would like to thank all of the witnesses for
participating in our hearing today, and I remind Members that
they have 10 business days to submit questions for the record,
and I ask the witnesses to all agree to respond promptly if any
of the Members have further questions.
Mr. Stearns. And I ask unanimous consent that the contents
of the document binder that we have provided here be introduced
into the record and to authorize staff to make any appropriate
redactions.
Without objection, so ordered. The document binder will be
entered into the record with any redactions that staff
determines are appropriate.
[The information appears at the conclusion of the hearing.]
Mr. Stearns. And with that, the Oversight Subcommittee is
adjourned.
[Whereupon, at 1:15 p.m., the subcommittee was adjourned.]
[Material submitted for inclusion in the record follows:]
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