[Congressional Record Volume 146, Number 47 (Thursday, April 13, 2000)]
[Senate]
[Pages S2729-S2732]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. CRAPO (for himself and Mr. Smith of New Hampshire):
  S. 2417. A bill to amend the Federal Water Pollution Control Act to 
increase funding for State nonpoint source pollution control programs, 
and for other purposes; to the Committee on Environment and Public 
Works.


            Water Pollution Program Enhancements Act of 2000

  Mr. CRAPO. I am pleased to introduce today, with my colleague Senator 
Smith of New Hampshire and Senator Gordon Smith of Oregon, the ``Water 
Pollution Program Enhancements Act of 2000'' in response to a fast 
track rulemaking process undertaken by the Environmental Protection 
Agency with respect to the total maximum daily load, or TMDL, and 
National Pollutant Discharge Elimination System, NPDES, permit programs 
under the Clean Water Act. The concerns over this rule are far too 
great and EPA is moving far too quickly for Congress to stand aside and 
allow this regulation to move ahead. My disagreement with the proposed 
rule is not its basic objective, which is aimed at cleaning up our 
Nation's waters--but the hurried approach EPA has elected to take, and 
their refusal to address the very numerous, very real concerns of 
states, cities, and stakeholders.
  Huge strides have been made in cleaning up our nation's waters since 
the Clean Water Act was passed in 1972, particularly in the area of 
point source pollutants. But clearly, our work is not finished in 
trying to make our lakes, rivers and streams ``fishable and 
swimmable.'' More must be done to improve water quality, and more must 
especially be done to provide additional resources to address nonpoint 
source pollution, which, so far, has not received anywhere near the 
kind of funding that has been focused on discharges from point sources.
  In the past month and a half, we have held two hearings on the 
Environmental Protection Agency's proposed rule with respect to total 
maximum daily loads and the NPDES permit programs. The same subject has 
been examined in four other Congressional hearings by three separate 
committees. What we have collectively learned in these hearings about 
EPA's proposed rule is nothing short of alarming. States have responded 
with universal concern to this proposed rule that saddles them with 
enormous regulatory burdens and exorbitant costs in carrying out their 
water quality management programs. Not only is this proposed onerous 
and costly to implement, but States have testified that it is not 
likely to improve water quality, and, in fact, may have a detrimental 
effect on States with existing programs that have proven to be 
successful.
  We would prefer not to be introducing this bill today. We have been 
holding hearings. I have been communicating with EPA--as have dozens of 
other Members of Congress expressing their grave concern with the 
proposed rule. We would prefer that Congress be working through these 
very important and challenging issues in collaboration with EPA. But 
holding hearings and attempting to work with EPA to resolve issues of 
concern, or urging them to take a more thoughtful, even-handed approach 
is no longer a reasonable course of action when the EPA steadfastly 
continues to insist on fast tracking a rule that has been the subject 
of such widespread concern and criticism.

[[Page S2730]]

  When EPA issued this proposed regulation last August, we were all 
surprised at the boldness of the agency to publish the rule:
  During the Congressional recess; and
  Provide only a 60-day comment period on such as massive and complex 
rulemaking.
  Not only did the Chairman and Ranking Member of the Environment and 
Public Works Committee request an extension of the comment period, but 
Congress was actually forced to enact legislation to compel EPA to 
listen. The EPA was forced to extend its comment period. EPA received 
more than 30,000 public comments on the proposed rule, and, as I said 
earlier, this rule has been the subject of six Congressional hearings.
  To date, I do not see any evidence that EPA is listening. As recently 
as last week, EPA communicated that it had negotiated a 60-day OMB 
review--what is usually at least a 90-day review on major rulemaking 
efforts--and that it intends to finalize the rule by June 30.
  The intransigence of the EPA is both unexplainable and unacceptable. 
If EPA is serious about ramming this regulation through by June 30, it 
is our intention to send them a loud message--Congress insists instead 
that they take a deep breath with respect to this rule.
  The bill Senator Smith and I are introducing today--the Water 
Pollution Program Enhancements Act--takes important steps toward 
achieving additional reductions in water pollution now, and providing 
the science necessary for better implementation of the TMDL program in 
the future.
  In the hearings I held, witnesses raised three main concerns with 
respect to the proposed rule. They cited:
  States' lack of reliable data for developing their 303(d) list of 
impaired waters;
  The scarce public resources available for addressing nonpoint 
pollution in particular; and
  EPA's overreach of its statutory authority under the Clean Water Act 
in controlling water quality management programs administered by 
States.

  This bill addresses those three issues without amending current law 
or regulation.
  The Water Pollution Program Enhancement Act authorizes significantly 
increased funding for sections 106 and 319 under the Clean Water Act. 
Funding under section 106 would be made available to the States and 
specifically directed to:
  Collect reliable monitoring data;
  Improve their lists of impaired waters;
  Prepare TMDLs; and
  Develop watershed management strategies.
  Of the $500 million available for implementation of section 319, $200 
million is required to be made available by the States for grants to 
private landowners to carry out projects that will improve water 
quality. These funds are specifically being made available to farmers, 
ranches, family forestland managers and others, to conduct activities 
on their lands that contribute to cleaning up rivers, lakes and 
streams.
  These significant increases in funding will achieve on-the-ground 
results and have a very real effect in improving our nation's water 
quality.
  Second, the bill directs the Environmental Protection Agency to 
contract with the National Academy of Sciences to prepare a report on:
  The quality of the science used to develop and implement TMDLs;
  The costs associated with implementing TMDLs; and
  The availability of alternative programs or mechanisms to reduce the 
discharge of pollutants from point sources and nonpoint source 
pollution.
  If there is one message I have heard loud and clear, it is that we 
lack basic and necessary data about TMDLs and how to implement the TMDL 
program that achieves the goal of improving water quality, provides 
States flexibility in administering their programs, and is cost 
effective. It is irresponsible of EPA to push ahead in finalizing this 
regulation when we do not have the answers to such basic questions 
about this program.
  Third, the bill provides for innovation and collaboration by 
establishing a pilot program in which five states are selected to 
implement a three-year program that examines alternative strategies and 
incentives to reduce the discharge of pollutants and TMDLs. This pilot 
program will provide us with valuable information about how we might 
think outside the box to solve our water quality problems.
  Finally, this legislation requires EPA to postpone its rulemaking and 
review the National Academy of Sciences study before publishing its 
final rule on the TMDL program. Despite EPA's assertions to the 
contrary, we know that the proposed rule would have enormous 
implications for States, cities and stakeholders. It is absolutely 
critical that we know more about the science of TMDLs before finalizing 
this rule, and EPA has given Congress no other choice but to compel 
them to do so. Congress has an obligation to intercede and resolve 
these issues crucial to the health of our people and our environment.
  I urge my colleagues to join me in cleaning up our nation's waters 
through the reasonable and balanced provisions included in the Water 
Pollution Program Enhancements Act of 2000.
  I yield the floor.
  Mr. SMITH of New Hampshire. Mr. President, I am pleased to introduce 
today with my colleague from Idaho, Senator Mike Crapo, the ``Water 
Pollution Program Enhancements Act of 2000.'' I believe this bill will 
significantly improve water quality and, over the long term, reform the 
way the Environmental Protection Agency and the States implement the 
Total Maximum Daily Load, TMDL, program for impaired waters.
  I emphasize at the outset that I strongly support the goals of the 
Clean Water Act. I believe all Americans should be able to enjoy clean 
water to drink, and that our rivers and lakes should be ``fishable'' 
and ``swimmable.'' And we have made substantial progress over the past 
25 years since the Clean Water Act was enacted in cleaning up our 
nations rivers, lakes and streams. According to EPA, 60-70 percent of 
our nation's waters are now safe for fishing and swimming. Certainly, 
there's more work to be done. How we control runoff from agricultural 
and urban areas, and forests--so-called nonpoint source pollution--is 
our challenge for the future.
  I also support the original concept underlying the TMDL program of 
helping ensure that water quality standards are met on all of our 
nation's rivers and streams and lakes. However, I believe that there 
may be other tools to help us achieve those laudable goals; TMDLs are 
not the only answer. We should be looking to the States for 
alternative, innovative solutions, particularly in the area of 
controlling nonpoint source pollution. And I believe that if we look, 
we will find that the States have better, more cost effective solutions 
to improving water quality. Is there a role for the Federal Government 
in addressing nonpoint source pollution? Absolutely. The Federal 
Government--EPA--should work in partnership with States and the private 
sector to achieve our shared goal of fishable and swimmable water.
  EPA's approach to solving the nation's remaining water quality 
issues, however, continues to be based on more ``top-down'' regulations 
from Washington, D.C.; more confrontration, instead of collaboration; 
and more interference with State programs. We are taking the step of 
introducing this legislation today because EPA has made it clear that 
it plans to expedite the process for finalizing two controversial rules 
that it proposed last August that would make a number of significant 
changes to the existing programs to control the discharge of pollutants 
and to improve water quality. The first rule would significantly expand 
the requirements for establishing the total amount of pollutants that 
can be discharged to a waterbody--so-called ``total maximum daily 
loads.'' The second rule would expand EPA's authority to revoke or 
reissue state-issued permits under the Clean Water Act to implement the 
new TMDL requirements. The combined effect of these rules would be to 
dramatically expand EPA's authority over issues that have traditionally 
been within the jurisdiction of the States, such as farming, ranching 
and logging operations, and additionally to give EPA a potential new 
role in local land management use decisions.
  I have serious concerns about the substance of these rules. But I am 
also

[[Page S2731]]

deeply troubled by the process that EPA has adopted here. It began last 
summer when EPA initially proposed the rules. At that time, it stated 
that it would only accept public comments on the proposed rules for 60 
days. Such a short period of time for public review was obviously 
inadequate given the length of the proposed rules and their complexity. 
Congress intervened and EPA was ultimately compelled to extend the 
comment deadline for an additional 90 days.
  Even before the comment period had closed, however, EPA indicated 
that nothing would stop it from pushing the proposed rules through the 
process as quickly as possible. Over the past month, EPA has announced 
its plans to issue final rules before the end of June in spite of the 
fact that it received over 30,000 comments in February, at least 27,000 
of which were critical of the rule, and can hardly have had an 
opportunity to give these comments serious consideration. There have 
been at least six hearings on the proposed rules in both the House and 
Senate in which serious concerns were raised about: the legality and 
practicality of the rules; the lack of reliable science underlying the 
existing TMDL program, not to mention any proposed expansion; the 
potential impact on successful State programs; the burdens that an 
expanded TMDL program would impose on individual landowners and small 
businesses; and the lack of a completed cost assessment of the proposed 
rules.
  Senator Crapo has held two hearings so far on EPA's proposed TMDL 
rules. Through that process, and in many meetings with stakeholders, I 
have heard about all of the problems with EPA's proposed rules--the 
lack of science, the overly broad scope, practical problems in 
implementing the rule, trampling of state programs, and the cost. Let 
me detail just a few of the comments that I heard.
  On the question of the science underlying the TMDL program, GAO 
recently issued a report, and provided testimony on the basis of the 
report, that States do not have the data they need to accurately assess 
the pollution problems in their waters and further, do not have the 
data they need to develop TMDLs. In his statement to Senator Crapo's 
subcommittee, Peter Guerrero noted specifically that the ``ability [of 
the States] to develop TMDLs is limited by a number of factors. . . . 
[S]hortages in funding and staff [were cited] as the major limitation 
to carrying out [the States'] responsibilities, including developing 
TMDLs. In addition, states reported that they need additional 
analytical methods and technical assistance to develop TMDLs for the 
more complex, nonpoint sources of pollution.'' He went on to state that 
only three states have the data they need to identify nonpoint sources 
of pollution, and only three States have the majority of the data they 
need to develop TMDLs for nonpoint sources. To me, this information 
from GAO sends a clear signal that TMDLs are not the answer for 
nonpoint source pollution. The science just isn't there.
  We also heard from a variety of businesses and landowners who told us 
of other substantive problems with EPA's proposed rules. For example, 
Tom Thomson, a certified Tree Farmer from my home State of New 
Hampshire and the owner of the Outstanding Northeastern Tree Farm of 
1997, testified that EPA's proposal to regulate tree farming as a point 
source and impose TMDLs would just make it harder to do the job of 
improving water quality. He explained that through aggressive, private 
and voluntary stewardship, private woodlot owners all over the country 
are doing a good job to address water quality issues related to 
forestry. Compliance rates now approach 90 percent in many of the 
States where forestry best management practices, BMPs, are in place. 
Total river and stream miles impaired due to silviculture declined 20 
percent just between 1994 and 1996. The number of miles deemed to have 
``major impairment'' from silviculture fell 83 percent. In 1996, EPA 
dropped silviculture from its list of 7 leading sources of river and 
stream impairment. That same year, silviculture contributed only 7 
percent of total stream impairment. In Tom's word's this seems to be a 
classic case of ``if it ain't broke, don't fix it.'' In this case, it 
would seem clear that water quality issues related to forestry are 
being addressed and progress is being made through State BMP programs 
and other voluntary, non-regulatory measures undertaken by landowners.

  To his credit, EPA Assistant Administrator for the Office of Water, 
Chuck Fox, has recognized that the proposed rule caused confusion and 
does have many problems. I met with Mr. Fox last week and was pleased 
to learn from him that EPA has heard at least some of the concerns that 
were raised and is ready to make some changes to their rule. He 
indicated that in any final rule, EPA would ``drop threatened waters; 
allow more flexibility in setting priorities; drop the offset 
requirements for new pollution; and revise the approach for forest 
pollution.''
  Some of the changes may be significant and that's good news, but as 
always, ``the devil is in the details.'' I am still concerned that many 
of the major problems have not been addressed. I also wonder why, if 
EPA is willing to acknowledge that many of the concepts included in the 
proposed rule were indeed flawed, it hasn't been willing to withdraw 
the August draft and reissue a new proposed rule that reflects its 
current thoughts. Surely doing that and seeking public comment on a 
revised rule would result in a better, more informed end product. It 
would almost certainly enhance public confidence in EPA's process. 
However, EPA has consistently declined to consider this approach.
  In my opinion, EPA simply hasn't done the work that must be done to 
justify and explain the rule to the public. States and the regulated 
community deserve to have their comments and concerns considered 
seriously by EPA, as well as to have an opportunity to review and 
provide comment on the cost assessment in the context of the proposed 
rule. Now apparently, EPA may be making significant changes that will 
never have been subject to public comment. In its desire to rush to 
judgment on a final rule, EPA is effectively neutering the role of 
public participation in the rulemaking process.
  Therefore, Senator Crapo and I have drafted legislation that will 
address several of the key problems with EPA's proposed rules and, in 
addition, defer any further EPA action on the rules until the National 
Academy of Sciences has conducted a study of the scientific issues 
underlying the development and implementation of the TMDL program.
  Senator Crapo and I are taking the first step to not only address 
some of the problems raised by EPA's proposed rules, but also to 
improve water quality on the ground right now.
  Our bill will do three fundamental things. First, it significantly 
increases federal funding to $750 million for States to implement 
programs to address nonpoint source pollution, to assess the quality of 
their rivers and streams, and to collect the data they need to develop 
better TMDLs. This will represent a significant increase from current 
funding levels for Fiscal Year 2000 of $155 million for nonpoint source 
programs under section 106 and section 319 of the Clean Water Act. More 
money now will enable landowners, businesses, and States to do things 
now on the ground to improve water quality--things like putting in 
buffer strips and water retention ponds. With this approach, we won't 
have to wait 10 or 15 years for EPA to impose new regulatory 
requirements on landowners after a lengthy and onerous TMDL process.
  Second, the bill directs the National Academy of Sciences to conduct 
a study on the science used to develop TMDLs and make recommendations 
about how to improve it. The NAS will also evaluate existing State 
programs to look at what works, particularly for nonpoint sources. 
Better science will make for better TMDLs.
  Third, it includes a pilot program for EPA to compare different State 
approaches to improving water quality. TMDLs should not be the only 
tool that we rely on to meet our water quality goals; they may be 
appropriate and effective for a chemical company, but not for a farmer 
or woodlot owner. There are better solutions out there, particularly to 
deal with the problems associated with nonpoint source pollution. For 
example, States are using their own authority and incentive-based 
programs under the Safe Drinking Water Act and the farm bill to work 
together with farmers, ranchers,

[[Page S2732]]

loggers and their cities to substantially reduce runoff.
  The bottom line is that States, public utilities, landowners, and 
businesses now are spending billions of dollars to improve water 
quality. If we are going to ask them to spend billions more--and we 
are--Congress and EPA have a responsibility to make sure that the 
programs we create are based on good, reliable science, and make the 
best use of limited resources.
  Again, it's not a question of challenging the goals of the Clean 
Water Act; it's a question of seeking the best way to achieve them.
  The bill also includes a provision to defer the finalization of EPA's 
proposed TMDL and related permit rules. We're serious when we say that 
we want EPA to base its regulations on good science. And we're serious 
when we say that we want EPA to respect the role of the States in 
solving the problem of nonpoint source pollution. That's why the bill 
provides for the National Academy of Sciences to look into those 
issues. We believe that EPA also should welcome the NAS Study and look 
forward to the opportunity to use that Study to improve its rule. 
Therefore, the bill directs EPA to review the NAS Study and take into 
consideration the recommendations of the National Academy of Sciences 
before it finalizes any new TMDL rule. We believe that in the long run, 
waiting 18 months for the NAS analysis will only improve the rule and 
increase public confidence in it.
  Mr. President, I know our critics will charge that we are undermining 
the Clean Water Act. They could not be more wrong. This legislation 
will enhance the Clean Water Act. By seeking better science and 
increasing needed Federal funding, this bill will strengthen programs 
on the ground that work--programs that improve water quality and help 
us achieve the fundamental goals of fishable and swimmable waters.
  I commend Senator Crapo for his leadership on this issue. I believe 
that in crafting this legislation, he is taking an important step in 
the right direction. I urge my colleagues to support this bill.
                                 ______