[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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                    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

                              ----------                              
                                                                   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

                              ----------                              


                        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:]

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    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:]

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    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:]

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    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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