[Congressional Record Volume 140, Number 76 (Thursday, June 16, 1994)]
[Extensions of Remarks]
[Page E]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


[Congressional Record: June 16, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                 THE CLEAN WATER ACT FACTS FOR FARMERS

                                 ______


                       HON. SHERWOOD L. BOEHLERT

                              of new york

                    in the house of representatives

                        Thursday, June 16, 1994

  Mr. BOEHLERT. Mr. Speaker, I rise today to set the record straight on 
what the reauthorization of the Clean Water Act will, and will not, 
mean for America's farmers. Since the introduction of the Water Quality 
Act of 1994 on March 4 by Chairman Mineta and myself, there has been a 
flood of misleading and in many cases erroneous information on the 
effects of this legislation. As a founder and co-chairman of the 
Northeast Agriculture Caucus, I have worked very hard to ensure that 
the agriculture community is not unduly burdened in legislation 
reauthorizing the Clean Water Act. Outlined below are answers to the 10 
questions most often asked by farmers regarding the reauthorization of 
the Clean Water Act. We must deal with facts, not fiction, when we are 
discussing our Nation's most valuable natural resource--water.

     Top 10 Questions Re: Agriculture and Nonpoint Source Pollution

       1. Question: Will farmers be required to obtain permits 
     under the bill's amendments to the nonpoint source pollution 
     provisions?
       Answer: No. The Clean Water Act divides the universe of 
     pollution sources into two categories--point sources (such as 
     pipes, ditches and channels) and nonpoint sources (diffuse 
     sources such as runoff from agricultural activities, mining, 
     silviculture and construction, and urban runoff). Under 
     current law, National Pollution Discharge Elimination System 
     (NPDES) permits are required only for discharges from point 
     sources. H.R. 3948 does not expand the scope of the permit 
     program to reach nonpoint sources such as agricultural 
     runoff. Polluted runoff is addressed in the nonpoint source 
     provisions of Section 319 of the Clean Water Act (Section of 
     H.R. 3948).
       2. Question: Will the bill's provisions that address 
     discharges to ground water require farmers to obtain permits 
     for agricultural runoff, and will surface water have to be 
     ``drinkable''?
       Answer: No. Again, the permitting program applies only to 
     discharges from point sources. The fact that chemicals in 
     pesticides may be present in runoff that seeps into ground 
     water does not trigger the point source discharge permitting 
     requirements.
       The bill does not add a requirement that water be 
     ``drinkable.'' One of the national policies under H.R. 3948, 
     as introduced, did use the word ``drinkable''. However, in 
     response to concerns the April 21, 1994 Substitute deletes 
     the word ``drinkable'' and makes clear that it is neither a 
     requirement nor a goal that instream surface water be 
     drinkable. The Substitute provides that ``it is the national 
     policy that the Nation's fresh waters achieve a level of 
     quality appropriate as a source of water for human 
     consumption following appropriate treatment [emphasis 
     added].'' This policy recognizes the relationship between 
     pollution of navigable waters and the quality of our drinking 
     water, which for a significant portion of the population 
     comes from surface water.
       3. Question: Under the nonpoint source provisions of the 
     bill, will the Environmental Protection Agency (EPA) 
     prescribe farming practices.
       Answer. No. H.R. 3948 specifically recognizes the need for 
     flexibility in addressing water pollution from nonpoint 
     sources. It directs EPA to issue guidance, not regulations, 
     on best management practices and measures. The purpose of the 
     guidance is to assist states in developing nonpoint source 
     programs, to disseminate information and thereby avoid the 
     expenditure of resources that would be necessary if each 
     state had to reinvent the wheel. The guidance does not create 
     prescriptive, minimum technology-based standards; in fact, 
     the practices and measures are not technology-based, and 
     are to be economically achievable. Moreover, the guidance 
     does not purport to limit the universe of potential 
     approaches to controlling nonpoint pollution--states are 
     free to provide for practices that are not identified in 
     the EPA guidance.
       4. Question: If I am already participating in an 
     agricultural program to control polluted runoff, will H.R. 
     3948 impose additional requirements--which are potentially 
     duplicative or inconsistent--in this area?
       Answer: No. H.R. 3948 specifically avoids this potential 
     situation, by giving credit to persons complying with 
     nonpoint provisions in qualified programs for at least 10 
     years. Qualified programs include: (1) the Conservation 
     Reserve Program established under section 1231 of the Food 
     Security Act of 1985; (2) the Agriculture Water Quality 
     Protection Program established under section 1238B of the 
     Food Security Act of 1985; (3) the Integrated Farm Management 
     Program Option established under section 1451 of the Food, 
     Agriculture, Conservation and Trade Act of 1990; (4) the 
     Organic Certification Program under title XXI of the Food, 
     Agriculture, Conservation, and Trade Act of 1990; and (5) the 
     Coastal Zone Act Reauthorization Amendments of 1990.
       5. Question: One of the policies in the bill is that 
     ``pollution of navigable waters should be prevented and 
     reduced at the source of the pollution whenever feasible''. 
     Does this mean a reduction or limitation on the amount of 
     farming, or a ban on farming?
       Answer No. The reference to reduction of pollution ``at the 
     source'' is intended to heighten society's focus on practices 
     that may reduce pollution in the first instance, rather than 
     focussing entirely on treatment of water after it has become 
     polluted. Pollution prevention is addressed in section 314 of 
     the bill, which adds a new section 321 to the Clean Water 
     Act. The Pollution Prevention provisions of the bill apply 
     only to municipal and industrial point source dischargers. 
     Thus, they would not apply to agricultural runoff. Many 
     industrial dischargers who have instituted pollution 
     prevention programs have found that it is actually more 
     economical to modify practices that create polluted water, 
     than to treat water after it has become polluted.
       6. Question: Will the bill prevent the use of pesticides 
     that contain particular chemicals? Will it ban any chemicals?
       Answer: No. The bill does nothing to restrict the use of 
     any particular chemical, including any pesticide used in 
     agriculture. Nor does the bill ban or restrict the discharge 
     of particular pollutants into the Nation's waters. The 
     provisions under current law relating to effluent standards 
     for the discharge of toxic and other pollutants apply to 
     point source discharges. For example, EPA already has the 
     authority to designate, through rulemaking, pollutants as 
     toxic and to promulgate standards for or prohibit the 
     discharge of such pollutants from point sources. The bill 
     does not expand this to provide for bans or numeric 
     limitations on runoff of particular pollutants from 
     nonpoint sources.
       7. Question: Can the Federal government sue me under the 
     nonpoint source provisions of the bill? For example, what if 
     water quality does not attain standards--can the government 
     sue me then? And, can EPA send an inspector to my farm and 
     sue me if the inspector concludes that I have not implemented 
     best management practices?
       Answer: No. There is no Federal enforcement of the nonpoint 
     source program. If a state program proves not to be making 
     progress toward meeting water quality standards by 2010, then 
     the state will have to modify its program. The bill leaves to 
     the states the determination of how to enforce the 
     requirements of the state-developed nonpoint program where a 
     particular source is not complying with the management 
     practices. The requirement that states have in place 
     mechanisms to enforce their nonpoint programs will protect 
     those who are complying, by ensuring that they do not end up 
     with water polluted by their upstream neighbors who were 
     allowed to escape nonpoint source pollution control.
       8. Question: What about citizen suits? Can citizens sue me?
       Answer. No. There is no citizen enforcement of the nonpoint 
     source provisions of the bill. The citizen suit provision in 
     current law allows citizens to sue only point source 
     dischargers. The bill does nothing to extend the authority of 
     citizens to sue to nonpoint sources.
       9. Question: The bill provides for citizen monitoring of 
     water quality--does that mean that citizens can trespass on 
     private property to monitor water quality or be paid for 
     conducting monitoring, and can citizens use the results of 
     their monitoring to sue me if standards are not met?
       Answer: No. The potential impact of the citizen monitoring 
     provision has been dramatically overblown. The bill does 
     nothing to authorize citizens to enter private property. It 
     simply allows, without requiring, states to use a small 
     portion of their nonpoint funds for a citizen monitoring 
     program. The citizens would be unpaid volunteers (the funds 
     would be used for programmatic purposes such as training), 
     and the data would not be collected for enforcement purposes. 
     The bill specifies the purposes for which data may be used--
     to compliment the governmental monitoring programs aimed at 
     long-term trend analysis (thereby filling some data-gaps and 
     complimenting limited state resources), and to involve 
     citizens groups. The bill makes clear that any data must 
     satisfy stringent quality assurance/quality control 
     requirements.
       The provision does nothing novel--citizen monitoring 
     programs are well-established in some states, and often 
     include girl scout and boy scout troops, local soil and water 
     conservation districts, and high school science and social 
     studies classes.
       10. Question: Does the bill give citizens awards for 
     turning in polluters? I have heard that there is a ``bounty-
     hunter'' provision.
       Answer: The misnomer ``bounty-hunter'' has been used by 
     some to refer to a provision which allows a budget to award a 
     limited portion of a fine in a criminal case to a citizen or 
     state that provides information that leads to the criminal 
     conviction of a violator. The provision is limited to cases 
     brought by the United States, since citizens are not 
     authorized to sue for criminal violations. Moreover, as noted 
     above, there is no federal enforcement of the nonpoint source 
     provisions. Anyone who reads the posters hanging in the local 
     Post Office will recognize that it is common practice to 
     offer an award for information leading to a criminal 
     conviction. The characterization as ``bounty-hunter'' 
     demonstrates a lack of understanding of the provision and, I 
     frankly believe, was coined for the purpose of causing alarm 
     and engendering opposition to the bill based on a suggestion 
     that the bill contains an extreme provision that those who 
     coined the phrase know to be nonexistent.

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