[Senate Hearing 106-590]
[From the U.S. Government Publishing Office]
S. Hrg. 106-590
CLEAN WATER ACT ISSUES
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HEARING
BEFORE THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
ON
S. 188, A BILL TO AMEND THE FEDERAL WATER POLLUTION CONTROL ACT TO
AUTHORIZE THE USE OF STATE REVOLVING LOAN FUNDS FOR CONSTRUCTION OF
WATER CONSERVATION AND QUALITY IMPROVEMENTS
S. 669, A BILL TO AMEND THE FEDERAL WATER POLLUTION CONTROL ACT TO
ENSURE COMPLIANCE BY FEDERAL FACILITIES WITH POLLUTION CONTROL
REQUIREMENTS.
S. 1706, A BILL TO AMEND THE FEDERAL WATER POLLUTION CONTROL ACT TO
EXCLUDE FROM STORMWATER REGULATION CERTAIN AREAS AND ACTIVITIES, AND TO
IMPROVE THE REGULATION AND LIMIT THE LIABILITY OF LOCAL GOVERNMENTS
CONCERNING CO-PERMITTING AND THE IMPLEMENTATION OF CONTROL MEASURES
__________
OCTOBER 13, 1999
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Printed for the use of the Committee on Environment and Public Works
_______________________________________________________________________
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC
20402
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
one hundred sixth congress
JOHN H. CHAFEE, Rhode Island, Chairman
JOHN W. WARNER, Virginia MAX BAUCUS, Montana
ROBERT SMITH, New Hampshire DANIEL PATRICK MOYNIHAN, New York
JAMES M. INHOFE, Oklahoma FRANK R. LAUTENBERG, New Jersey
CRAIG THOMAS, Wyoming HARRY REID, Nevada
CHRISTOPHER S. BOND, Missouri BOB GRAHAM, Florida
GEORGE V. VOINOVICH, Ohio JOSEPH I. LIEBERMAN, Connecticut
MICHAEL D. CRAPO, Idaho BARBARA BOXER, California
ROBERT F. BENNETT, Utah RON WYDEN, Oregon
KAY BAILEY HUTCHISON, Texas
Jimmie Powell, Staff Director
J. Thomas Sliter, Minority Staff Director
(ii)
C O N T E N T S
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Page
OCTOBER 13, 1999
OPENING STATEMENTS
Boxer, Hon. Barbara, U.S. Senator from the State of California... 48
Chafee, Hon. John H., U.S. Senator from the State of Rhode Island 1
Letter, National Association of Attorneys General............ 12
Hutchison, Hon. Kay Bailey, U.S. Senator from the State of Texas. 43
Thomas, Hon. Craig, U.S. Senator from the State of Wyoming....... 2
Voinovich, Hon. George V., U.S. Senator from the State of Ohio... 6
Wyden, Hon. Ron, U.S. Senator from the State of Oregon........... 32
WITNESSES
Burns, Hon. Conrad, U.S. Senator from the State of Montana....... 3
Prepared statement........................................... 49
DeGrazia, Bruce, Deputy Assistant Under Secretary of Defense for
Environmental Quality, Department of Defense................... 10
Prepared statement........................................... 57
Fleischli, Steve, executive director, Santa Monica Baykeeper, on
behalf of the Clean Water Network.............................. 35
Prepared statement........................................... 65
Fox, J. Charles, Assistant Administrator for Water, U.S.
Environmental Protection Agency................................ 7
Prepared statement........................................... 51
Responses to additional questions from Senator Wyden......... 56
Harrison, Doug, general manager and secretary, Fresno
Metropolitan Flood Control District, on behalf of the National
Association of Flood and Storm Water Management Agencies....... 33
Prepared statement........................................... 62
Lee, Jan, executive director, Oregon Water Resources Congress.... 39
Prepared statement........................................... 69
Sweeney, Mary Rosewin, Assistant Attorney General for the State
of Maryland, on behalf of Attorney General J. Joseph Curran,
Jr. and the National Association of Attorneys General.......... 37
Prepared statement........................................... 67
Walker, Hon. Helen, county judge, Victoria County, Texas, on
behalf of the Texas Association of Counties and the Texas
Counties Storm Water Coalition................................. 31
Prepared statement........................................... 60
ADDITIONAL MATERIAL
Letter, National Association of Attorneys General................ 12
Statements:
Coverdell, Hon. Paul, U.S. Senator from the State of Georgia. 50
Sovereign Immunity and CERCLA, National Association of State
Attorneys General.......................................... 15-27
Texts of bills:
S. 188, Water Conservation and Quality Incentives Act........ 71
S. 669, Federal Facilities Clean Water Compliance Act of 1999 78
S. 1706, Water Regulation Improvement Act of 1999............ 87
CLEAN WATER ACT ISSUES
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WEDNESDAY, OCTOBER 13, 1999
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The committee met, pursuant to notice, at 10:04 a.m. in
room 406, Senate Dirksen Building, Hon. John H. Chafee
(chairman of the committee) presiding.
Present: Senators Chafee, Thomas, Voinovich, Hutchison, and
Wyden.
OPENING STATEMENT OF HON. JOHN H. CHAFEE,
U.S. SENATOR FROM THE STATE OF RHODE ISLAND
Senator Chafee. Good morning, everyone. I would like to
welcome all to this committee, and thank all the witnesses for
testifying. The purpose of today's hearing is to learn more
about three bills that seek to amend different sections of the
Clean Water Act.
The Clean Water Act has been one of our most successful
environmental laws. Many of us are familiar with the statistics
that before the Act was passed, two-thirds of our water bodies
in the U.S. were not suitable for fishing and swimming. Now
after almost three decades of hard work, roughly two-thirds of
our water bodies are fishable and swimmable.
We have made outstanding progress under the Act, but there
is still a lot of work to be done. EPA estimates that over the
next 20 years, our country faces $200 billion--that is a lot of
money--$200 billion in waste water infrastructure needs. The
threats to our water bodies are also becoming more complicated
and difficult.
Our first bill is S. 188, introduced by Senators Wyden and
Burns. Last week, we held a hearing to discuss the appropriate
funding levels for the SRF. Today, we will discuss a proposal
to use the SRF, that is a revolving loan fund, to finance an
expanded list of activities.
The SRF is currently restricted to the construction of
publicly owned treatment works, the implementation of nonpoint
source management programs under Section 319, and the
development and implementation of estuary management plans
under Section 320.
S. 188 would broaden that list to include projects that
result in water conservation benefits or water quality
improvements. Loans for these projects would be available to a
wide range of entities, including water users, associations,
non-profit private organizations, and lending institutions.
The second bill is S. 1706, a bill by Senator Hutchison of
Texas, relating to storm water regulation. EPA is in the
process of completing a rulemaking to expand the scope of the
agency's storm water regulations.
S. 1706 would limit the scope of EPA's rule by providing
statutory exemptions for certain categories, including
vegetated ditches, construction sites under five acres, and
routine road maintenance activities.
In addition, the bill would limit the liability of local
governments with respect to the action of co-permittees, and
the implementation of control measures.
The final bill is one by Senator Coverdell, S. 669. The
bill would waive the Federal Government's sovereign immunity
under the Clean Water Act, and hold Federal facilities to the
same standards of compliance as States, local government, and
private entities.
S. 669 would subject non-complying Federal facilities to
the same administrative orders, penalties, and fines that are
used against other violators.
Senator Thomas, do you have some comments?
OPENING STATEMENT OF HON. CRAIG THOMAS,
U.S. SENATOR FROM THE STATE OF WYOMING
Senator Thomas. Yes, sir, thank you, Mr. Chairman. I am
glad you are having this series of committee hearings on the
Clean Water Act. It is one of the most important things we deal
with.
Reviewing innovative proposals to improve water quality or
to provide resources is increasingly important. Undoubtedly, we
will need additional resources to do the things that we have
set our mind to do. However, we need to continue to address the
proposals and have oversight to ensure that we have regulations
that are not overly burdensome to our States and local
communities and landowners.
Along these lines, Mr. Chairman, and for the information of
the committee, I intend to request an extension of the comment
period on EPA's Guidance Manual and Examples and NPDES Permit
for Concentrated Animal Feeding. I realize that is not on this
morning, but I want to make this point to the agency.
I am disappointed that the Guidance Manual has been issued
for public comment at the same time the agency is revising the
underlying regulations. I think you have to question how
interested parties can possibly provide comments on a guidance
manual, when the agency is currently revising those
regulations.
It seems to me that the process is a little backward
there. I hope that the members of the committee will agree.
I am also interested in two of the bills that will be
discussed today, S. 669, which would require Federal facilities
to operate in compliance with pollution control requirements.
I am chairman of the Parks Subcommittee, and we have had
some experience with that. Local folks feel pretty put out when
Federal facilities can do the same things they do, and get by,
when they can not.
Also we have S. 1706, with exclusions to the Storm Water
Phase II regulations.
So I think these are useful, Mr. Chairman, and I hope we
can move forward after having the hearing.
Senator Chafee. Thank you, Senator.
Senator Voinovich?
Senator Voinovich. Mr. Chairman, with your permission, I
would like to reserve my opening comments until we give Senator
Burns an opportunity to testify.
Senator Chafee. Sure, and then you would like to speak
after him?
Senator Voinovich. Yes.
Senator Chafee. All right, fine.
All right, Senator Burns?
Senator Thomas. I might want to speak after him, too, Mr.
Chairman.
Senator Chafee. You are on. You and Senator Wyden have
introduced S. 188. Please proceed.
STATEMENT OF HON. CONRAD BURNS, A UNITED STATES SENATOR FROM
THE STATE OF MONTANA
Senator Burns. Thank you, Mr. Chairman. Why do I feel like
I have moved into the crosshairs, here?
[Laughter.]
Senator Voinovich. We thought you might have something else
to do, and we are giving you a chance.
Senator Burns. That is exactly right. Well, I thank you,
and I thank the committee this morning.
I want to thank you for your consideration of S. 188, the
Water Conservation and Quality Incentives Act, which I
introduced with my colleague from Oregon, Senator Wyden.
The bill is designed to do a couple of things, to improve
water supplies and water habitats, and create incentives to
conserve our nation's water resources.
One does not have to look around this nation very long to
see that its most precious resource is fresh water. It is now,
and the demand for it in future years will continue to
increase.
From the very first year that I moved from the Midwest to
the West into a watershed State, I said at that time, and that
was a long time ago, that fresh water that comes out of my
State of Montana will be her greatest resource. That has turned
out to be true.
In the West, whiskey is for drinking and water is for
fighting. It is a most precious commodity to those of us who
live there. We are concerned not only with the quality of the
water, but also the quantity of our water and who controls it.
Not surprisingly, the largest group of water users there
are farmers and ranchers. These are the people that provide the
American people with the safest and most abundant food supply
in the world. They need water to grow their crops and to feed
their livestock.
A good deal of water out West is provided through
irrigation systems, which divert waters from reservoirs and
from rivers, and even from aquifers. However, substantial
quantities of water diverted for irrigation do not make it to
the fields and ranches. A large portion of that water is lost
due to evaporation and seepage within canals and ditches in
which the water flows.
Although the water is not lost, since it seeps into the
soil and assists the overall soil moisture and also charges the
aquifer that follows our alluvial valleys, it is not
immediately available to the producer.
Water supplied through irrigation systems could be
increased through improved water conservation measures. With
improved water delivery, less water will be wasted, resulting
in more water remaining in our rivers and our streams and
aquifers; in other words, increasing in-stream flow.
Irrigation water is an economic factor in today's market.
In most irrigation districts, farmers and ranchers pay for any
water released to them. Any displacement or reduction of this
water does not help that producer's financial bottom line.
Today, when food and meat prices are low and markets are
questionable, and in fact, we have quite a lot of stress in the
ag community today, it is important that we provide the tools
to these producers to make sure that they have every
opportunity to stay in business.
States encourage water conversation measures by recognizing
the rights of those who conserve water. Irrigators and other
water users who conserve water are afforded rights to use the
water they conserve. Water supply problems are also addressed
in some States by financial incentives, which encourage water
users to implement cost effective water conservation measures
consistent with State law.
However, States are not the only ones who can create such
incentives. The Federal Government can play a key role by
creating incentives such as providing greater flexibility to
the States to loan Clean Water Act funds for water conservation
projects. Also, allowing water users to apply a portion of the
water they save for further use encourages more water
conservation.
This is the approach that my colleague Senator Wyden and I
have chosen this bill.
Our bill will authorize the States to make Clean Water Act
revolving fund loans available to irrigation districts. They
can construct pipelines and develop additional water
conservation measures.
Any water conservation project could be structured to allow
participating users to receive a share of the water saved
through their conservation efforts and more efficient use,
which they could use in accordance with State law.
This type of an approach would create a win/win situation,
with more water available for both the conservers and for
rivers and streams.
By using State SRF program funds, the loan money would be
repaid over time, to become available in the future to fund
other water conservation measures, to solve water quality and
quantity problems in other areas.
The key underlying feature of this legislation is that
water saved under this bill would not only help the producer in
water and cost savings, but it would also save many of the
rivers and streams.
For example, water conserved could be made available to
increase the volume of water in our rivers, or in-stream flow,
thereby facilitating fish habitat and migration routes.
This is especially critical out West, where two fish
species, the northwest salmon and the bull trout, are listed as
endangered and would greatly be helped.
To illustrate how this bill would work, I would like to
share a real-life problem in Racetrack Creek, located in
western Montana. It is a tributary of the Clark Fork River
within an EPA Superfund site, due to historic damage from
copper mining and milling.
Racetrack Creek is a spawning ground of bull trout and it
has had problems maintaining its water level since the turn of
the century.
A local watershed management group, the Upper Clark Fork
Steering Committee, is working on this problem with a wide
cross section of representation from the Clark's Fork River
basin.
The Upper Clark Fork Steering Committee and the Montana
Department of Fish, Wildlife, and Parks are working to line
Morrison Ditch, which diverts water for irrigation into the
local area.
A portion of the water rights salvaged by lining Morrison
Ditch under this bill would be leased by the Montana Fish,
Wildlife, and Parks from the Ditch Association to benefit the
fishery.
I would like to point out that this bill has broad support
by senators on both sides of the aisle, as well as from the
Farm Bureau and the Environmental Defense Fund. Such a diverse
range of interests in support of this bill makes for a
favorable consideration of this bill.
It addresses the problem of adequate water supplies for
agriculture producers. It addresses the problem from nonpoint
source runoff. It creates new incentives for water users to
conserve water. It provides the States greater flexibility to
make loans from the Clean Water State Revolving Fund for water
conservation projects, and does not increase the budget, since
it recovers money provided for water conservation projects
through loan repayments to State revolving loan funds.
I believe S. 188 deserves our attention. If it can be
changed to be better, we are open to those suggestions.
I would like to thank Senator Wyden and this committee for
showing interest in this piece of legislation. I thank the
Chairman.
Senator Chafee. Well, thank you very much, Senator Burns. I
think it is an intriguing idea. I appreciate very much your
having proposed this, you and Senator Wyden.
Senator Voinovich, do you wish to make some comments?
Senator Voinovich. Not in regard to Senator Burns'
legislation.
Senator Chafee. OK. Yes, Senator Thomas?
Senator Thomas. My understanding, Senator, is that this
would be discretionary, this use to the States.
Senator Burns. That is exactly right.
Senator Thomas. I understand it also would not affect the
distribution among the States that were not involved?
Senator Burns. It would not.
Senator Thomas. Thank you, sir.
Senator Burns. If you have any suggestions, and I know you
and I have a common interest of that 45th parallel that
separates us--we have some common water problems with Wyoming.
So we appreciate your interest.
Senator Thomas. It runs, generally, from Wyoming toward
Montana, fortunately.
Senator Burns. Yes.
Senator Chafee. All right, thank you very much, Senator.
Senator Voinovich. Mr. Chairman, could I give my statement?
Senator Chafee. Yes.
Senator Voinovich. Thank you.
Senator Chafee. Go to it.
OPENING STATEMENT OF HON. GEORGE V. VOINOVICH,
U.S. SENATOR FROM THE STATE OF OHIO
Senator Voinovich. Yes, I would like to make a couple of
comments in regard to Senate 669, that some of these witnesses
were going to be talking about.
Senator Chafee. I could not quite hear you.
Senator Voinovich. I would like to refer to Senate Bill
669, which some of our witnesses will speaking about.
Senator Chafee. All right.
Senator Voinovich. I am pleased that I am a cosponsor of
the Federal Facilities Clean Water Compliance Act. Mr.
Chairman, this bill would ensure that the Federal Government is
held to the same enforcement mechanism under the Clean Water
Act as private entities, States, and localities.
Something that is troublesome to me is that in this
particular case, the Federal Government is not held to the same
standards as others.
Under current law and order for the Federal Government to
be sued, it must first waive its sovereign immunity. If there
is any question as to what extent the Federal Government has
waived its sovereign immunity, courts must rule in favor of the
Federal Government. This bill waives sovereign immunity for the
Federal Government.
In 1992, the U.S. Supreme Court ruled in Department of
Energy versus Ohio that Congress had not waived Federal
immunity for liability for civil punitive fines imposed by a
State for past violations of the Clean Water Act. As a result
of this ruling, States can not obtain penalties for past
violations of the Act from Federal agencies.
It is important to note that in almost every other
environmental statute, Congress has waived sovereign immunity,
and allows States to enforce State environmental laws at
Federal facilities. This bill would make the Clean Water Act
and State and local water pollution laws enforceable for
Federal agencies.
I have supported the same position in regard to Superfund,
that Federal agencies, such as the Department of Energy, should
be held accountable to the same clean-up standards that private
entities and State and local governments are required to
follow.
All Federal agencies should be held to the same
environmental compliance standards are everyone else. It is
really disturbing to me that in so many Federal facilities
around this country, Mr. Chairman, they are not held to the
same standards.
If a private sector was doing what the Federal Government
has been doing around this country, people would be up in arms.
Environmental groups would be on the steps of the Congress. I
think that we need to have the same kind of aggressiveness with
our Federal facilities.
In my State, we have Piketon, where we have got some real
problems dealing with plutonium, phenol. We have a site up in
Marion, Ohio, where a school is probably going to ultimately
have to be maybe moved because of a Federal dump that was
there, and people neglected it.
Up in the northern part of the State, there is the Toussant
River, where the Department of Defense last year had 5,000
pieces of ordinance on a beach, 20 percent of them, live. We do
not seem to be concerned about this.
But, again, if it was a private company that was involved,
you know what would be happening. We would have every Federal
agency down on their back like a hawk, threatening to put them
out of business, threatening to sue them.
I think that we need to apply the same standards to the
Federal Government as we do everyone else in this country. That
is why this legislation is so important.
Senator Chafee. Well, we are going to hear from the
Assistant Secretary of Defense on this subject. You will
certainly have an opportunity to quiz him.
All right, now, Mr. Fox, if you will come forward, and Mr.
deGrazia, from the Defense Department. We will start with you,
Mr. Fox, and go to it.
STATEMENT OF HON. J. CHARLES FOX, ASSISTANT ADMINISTRATOR FOR
WATER, U.S. ENVIRONMENTAL PROTECTION AGENCY
Mr. Fox. Thank you, Mr. Chairman.
Good morning to you and members of the Committee. It is a
pleasure to be here, again. It is my understanding I might be
here a few times in coming weeks, too. It is good to spend some
time with you.
Next Monday, October 18, is the 27th anniversary of the
enactment of the Clean Water Act. Twenty-seven years ago, the
Potomac River was too dirty to swim in, Lake Eerie was dying,
and the Cuyahoga River was so polluted that it burst into
flames.
Senator Chafee. I think that Cuyahoga River bursting into
flames was the--I do not know what the exact word is I am
seeking--but in any event, that was it, when the river caught
fire. I think that really gave the incentive for the Clean
Water Act to be enacted.
Mr. Fox. I think that is right.
Senator Voinovich. Mr. Chairman?
Senator Chafee. Yes.
Senator Voinovich. You might be interested that while I was
Mayor of Cleveland, we suspended a police officer who, on his
official time, was fishing in the Cuyahoga River.
[Laughter.]
Senator Voinovich. Things have improved.
Mr. Fox. Well, in fact, that was my point, that enactment
of the Clean Water Act under your leadership, Mr. Chairman, and
members of this committee has dramatically improved the health
of the rivers, lakes and coastal waters in this country.
It has stopped literally billions of pounds of pollution
from fouling our waters and doubled the number of waterways
that are safe for fishing and swimming.
Before commenting on the several bills before the committee
today, I want to briefly take a moment to look a the broader
issue of the Clean Water Act reauthorization.
Last week, I testified before this committee on bills to
amend the Clean Water Act SRF program, introduced by Senator
Voinovich, and to address overflows from combined sewers.
Today, I am testifying on bills related to storm water
permits, expanded use of the SRF and expanded enforcement of
Federal facilities, and additional legislative hearings that
are planned.
Although this Administration is pleased to provide comments
on the specific provisions of each of these narrowly crafted
bills, I want to encourage the committee to consider the need
to strengthen the Clean Water Act in several critical areas
that are not now the subject of proposed legislation.
For example, the Administration proposed in 1994 to call
for strengthened authority to reduce polluted runoff, to better
protect wetlands, and to reduce toxic pollution to improve
compliance and enforcement.
In addition, a recent court decision allowing the draining
of wetlands threatens literally the loss of tens of thousands
of acres around the country. I hope the committee will give
attention to some of these critically needed changes in the
Act.
Turning to the legislation pending before the committee
today, I will first direct my attention to bill S. 1706,
introduced by Senator Hutchison and Senator Graham, to make
amendments to the Storm Water Pollution Control Program
authority under the Clean Water Act. The Administration has
significant concerns with several provisions of the bill, and
is opposed to the bill as drafted.
As you recall, Congress established the Storm Water Program
in 1987. EPA published regulations addressing discharges of
storm water from large cities, industrial facilities, and
construction sites in 1990. We will shortly publish a second
round of regulations called the Phase II Storm Water Program,
addressing smaller cities and construction sites.
As we developed the Phase II Program, we solicited input
from stakeholders by convening a Federal Advisory Committee,
which met 14 times. We developed three preproposal public
drafts and received 40 to 50 sets of comments on each one.
We also convened a SBREFA panel to solicit input from
potentially regulated small entities. After proposal, we held
six public hearings and received 550 comments, roughly half of
which were in fact from the State of Texas.
We are now in the final stages of development, and expect
to propose the final rule on October 29, consistent with a
court order deadline.
We have several objections to the proposed bill, which
would modify the Storm Water Program. First, the bill would
provide that when a permittee relies on a second governmental
entity to carry out storm water related actions, the permittee
is not subject to enforcement action if the second governmental
entity does not do its job.
Because the second governmental entity is not officially
part of the permit, it too, is not subject to enforcement
action. This approach would create cases where no one is
legally responsible for storm water pollution control.
Without effective enforcement response, compliance with
storm water permits and control of storm water pollution will
be significantly reduced.
Second, the bill would also waive the requirement that a
local government obtain a permit for storm water discharges
from above ground vegetated ditch or a drainage way. This
provision would substantially narrow the scope of the program
and reduce water quality benefits.
Above ground conveyances can carry pollutants to waters of
the United States, as do underground storm sewers, albeit a
slower and perhaps more controlled rate. Many of the management
measures provided for in the Phase II Rule are equally
appropriate for above ground and underground conveyances.
Finally, the bill would exempt any storm water discharges
associated with construction activity of less than five acres
from the permit requirements of the Clean Water Act. The bill
would undercut the existing Phase I regulations, as well as the
construction provisions of Phase II. These construction
activities are a significant source of water pollution in
meeting the goals of the Clean Water Act.
Turning to the Federal Facilities Clean Water Compliance
Act of 1999, S. 669, I would simply say that the Administration
supports this legislation. My colleague from the Defense
Department will be adding more detail on that in his testimony.
Finally, turning to S. 188, introduced by Senators Wyden
and Burns, it would specifically authorize SRF loans for water
conservation activities outside of municipal sewer systems for
nonresidential water conservation, specifically, conservation
of water used in agriculture. The bill would also make private
organizations and individuals eligible for the loans.
Conservation of agricultural water can have dramatic
benefits for water quality. The Administration supports using
SRFs to finance such projects under specific circumstances. For
example, water conservation projects that would make more water
available to augment flow in a water body that the State has
identified as a priority should be eligible for SRF funding.
As presently drafted, however, the bill would allow States
to use SRF loans for water conservation projects with limited
environmental benefits.
Senator Chafee. I could not hear that last part.
Mr. Fox. As presently drafted, the bill would allow the SRF
loans to go to projects with limited water quality benefits. We
would like the opportunity to work with the committee and the
bill sponsors to better define the circumstances under which
SRF loans could be available for these purposes.
That concludes my prepared remarks.
Senator Chafee. All right, Mr. Secretary, will you proceed?
STATEMENT OF HON. BRUCE DE GRAZIA, DEPUTY ASSISTANT UNDER
SECRETARY OF DEFENSE FOR ENVIRONMENTAL QUALITY, U.S. DEPARTMENT
OF DEFENSE
Mr. deGrazia. Thank you, Mr. Chairman.
Good morning. My name is Bruce DeGrazia. I am the Assistant
Deputy Under Secretary of Defense for Environmental Quality in
the Office of the Secretary of Defense.
I would like to thank you for the opportunity to speak
before this committee on the proposed bill Senate 669, the
Federal Facilities Clean Water Compliance Act of 1999.
The Department of Defense already complies with the Clean
Water Act. Our installations have permits, comply with
discharge standards, and submit regular monitoring reports,
just like any other entity subject to the Clean Water Act.
In addition, we are subject to enforcement actions and
compliance agreements, just like any other entity subject to
the Clean Water Act.
The Department has almost 1,900 clean water permits
throughout the United States. These permits cover domestic
waste water industrial waste water, and storm water. In fiscal
year 2000, the Department will invest $215 million in upgrading
and replacing waste water treatment infrastructure.
On top of these investments, the Department spends millions
of dollars each year, complying with the day-to-day
requirements of these permits, operating treatment plants,
sampling of water, repairing and maintaining of the plants, and
submitting regular monitoring reports to the regulators.
Our compliance record in the area of clean water is
excellent. In 1998, the Department received only 46 enforcement
actions. Ninety-eight percent of our almost 1,900 permits were
in compliance.
Still, we can do better. The military departments are
making great strides to reduce enforcement actions to reach a
state of full and sustained compliance.
The Department of Defense has supported a limited expansion
of the waiver of sovereign immunity that would subject us to
penalties for all Clean Water Act violations for which a
private person would be liable. Whenever possible and
consistent with our other statutory obligations, we should be
held to the same standards as other private or public entities.
The proposed bill tracks closely the language used in
recent years to amend the Resource Conservation and Recovery
Act and the Safe Drinking Water Act to expand the waiver of
sovereign immunity. The Administration, including the
Department of Defense, has supported both of these efforts.
Although the Administration supports the goals of Senate
669, we are concerned with one of the provisions in the bill.
This provision, in rare circumstances, could interfere with our
ability to carry out critically important responsibilities in a
manner protective of national security.
The proposed bill would eliminate the Presidential
exemption provision currently included in Section 313 of the
Federal Water Pollution Control Act. This provision is
carefully circumscribed, and allows the President to exercise
his authority only in the paramount interest of the United
States.
Similar provisions are in the Clean Air Act, the Safe
Drinking Water Act, the Resource Conservation and Recovery Act,
and the Comprehensive Environmental Response Compensation and
Liability Act. Historically, Presidents have used these
provisions infrequently, and the standard required is difficult
to meet.
These exemptions are essential tools to ensure that the
President has the flexibility he needs to act quickly and
decisively to protect the national interests when strict
compliance with these environmental laws could jeopardize the
overall interests of the United States.
I would like now to turn to the implications of the
sovereign immunity waiver in the Comprehensive Environmental
Response, Compensation and Liability Act.
The Department of Defense, with the support of the
Administration, has consistently opposed efforts to change the
waiver of sovereign immunity in CERCLA. Given that strong
opposition, the question arises why the Department can support
the changes in the waiver proposed in Senate 669.
I would like to take this opportunity to clarify before
this committee the differences in our positions, and explain
the rationale for opposing the waiver under CERCLA.
The Department of Defense already complies with
environmental laws to the same extent as private parties
conducing a cleanup under CERCLA. We follow the procedural
requirements of CERCLA, and comply with the substantive
requirements of State and Federal environmental laws and
regulations.
CERCLA exempts all parties from many purely procedural
requirements of other State and Federal laws, such as the
requirement to obtain permits, so the cleanups can be
implemented as quickly as possible.
There already is a waiver of sovereign immunity in CERCLA,
which we believe works very well. The current waiver encourages
the Department of Defense and States to reach consensus on
disputed issues at the negotiating table, rather than resorting
to litigation.
Also, CERCLA addresses a different type of situation than
the other laws, where the Department supports waivers of
sovereign immunity. The Clean Water Act is prospective and
seeks to control or limit pollution from occurring. Waiting for
approval of a new water permit discharge permit should not
impact public health or the environment, because a discharge
can not occur until the proven permit is approved.
However, at CERCLA sites, the contamination already at the
site can spread during the wait, with the potential for
impacting public health and the environment, and increasing
costs significantly.
In summary, the Department supports most of the entire
bill. However, we believe the bill should be amended to retain
the President exemption provision in the present law.
I would be happy to answer any questions from the
committee. Thank you.
Senator Chafee. Thank you very much, Mr. Secretary.
I must say, I am a little bit confused here. As I
understand what you are saying, you are opposed to changes to
the Superfund waiver of sovereign immunity.
Mr. deGrazia. That is correct, Senator.
Senator Chafee. You state that the Clean Water Act is
different from Superfund, and you say Superfund's existing
waiver is working well. Now the people who are in charge with
enforcing this, namely, the Attorneys General in the various
States, do not agree with you.
I have got a copy of a letter here that was signed by 41
State Attorneys General that refutes the argument that DOD
makes that changing CERCLA's sovereign immunity provision will
result in delays and excessive costs for the Department of
Defense. In other words, they argue that that is not so.
I would like to make that letter part of the record.
[The material from the State Attorneys General follows:]
Senator Chafee. Now how come there is such a difference of
opinion here on the consequences in the change in Superfund's
sovereign immunity waiver?
Mr. deGrazia. Well, Mr. Chairman, the Department of Defense
believes that the waiver of sovereign immunity currently in
CERCLA worked very well because it happens to encourage
negotiation, rather than litigation.
We believe that our paramount interest is protecting the
health of the people and the public and the environment. If
litigation is allowed to occur under a new waiver, under an
expanded waiver, we believe that this could cause delays that
could, in fact, impact the health of the public, or damage the
environment further. We think that negotiation here, rather
than litigation, is really the important way to go.
Now the States may feel differently. The States have
particular ideas of how they think a cleanup should proceed. We
think that under the current system, the Department of Defense
can sit down with the State regulators and work something out.
We think that, by and large, that ultimately what we ended up
with is something that is amenable to both parties.
Senator Chafee. Well, I have trouble understanding how the
Federal Government can hold private parties to certain
standards. But, I mean, why should not the Federal Government
be held to the same standards as private parties? You know, you
talk about negotiations and so forth.
Mr. deGrazia. Well, Mr. Chairman, we already must meet the
State substances requirements through the ARAR process. We just
believe that to impose a State's procedural process on top of
the CERCLA scheme that we are already required to follow could
result in delay and confusion and possible litigation, and just
generally believe it would not contribute to the protection of
human health and the environment.
Senator Chafee. Well, currently, as I understand it, the
States have no legal resource, if DOD does not conform. In
other words, States can not seek judicial relief. They can only
negotiate, because DOD has the final say.
I must say, if I were in your position, I would have the
same position you have got. You have got a pretty strong hand
here. But I am not sure that looking at it objectively here, I
can totally agree with you.
Mr. Fox, you note in your testimony, you are prepared to
work with this committee to strengthen the Clean Water Act.
What is your top priority?
Mr. Fox. Given the changes that I have seen around the
country in wetlands protection programs, as a result of that
recent court case, that would have to be tops on my list.
We are still trying to get good data on this, Mr. Chairman.
But as a result of this court case, we are now estimating that
probably in excess of 30,000 acres of wetlands have been lost
since the court ruling a little bit over a year ago.
Basically, the effect of the court ruling is to take a
whole range of activities that would otherwise be permitted out
of the program, so that not only do they not get permits, we do
not have the mitigation requirements and such.
This is the result of the so-called Tulloch decision. That
would have to be tops on my list of priorities. I can give you
a list of some others.
Senator Chafee. Yes, I must say, the Tulloch decision was a
body blow. Where does it stand? Was it appealed, or what
happened?
Mr. Fox. This was an appellate court, as is my
understanding, if my memory serves me right. The Government has
decided at this point not to appeal it. We will be doing
additional rulemaking, trying to limit the impact of the court
case. But, fundamentally, we are going to need a statutory
change to be able to protect these wetlands.
It has to do with the way the Clean Water Act is
structured. It regulates only the discharge of materials to
waters of the United States, as opposed to activities that
result in impacting waters of the United States
The fundamental problem here is some of these wetlands are
being drained without discharging significant amounts of
pollutants. So we would have to start approaching this from
regulating the activity, like draining wetlands. That is the
fundamental challenge.
Senator Chafee. Senator Voinovich?
Senator Voinovich. In terms of waiver of immunity for
CERCLA, obviously, the States Attorneys General have got a
difference of opinion with the Department of Defense.
I only can conclude that one of the reasons why the Defense
Department is opposed to this is because of the cost involved
in cleaning up these facilities throughout the country.
I know I have had some experience recently in terms of the
appropriations. Basically, the answer I got when we wanted some
money to clean-up the problem we had in our State was, we can
not give you the money for that, because we need the money for
readiness and for other priorities of the Defense Department.
I think that that is of real concern to all of us. We are
all interested in readiness and doing an adequate or more than
adequate job in that area. But I think that incumbent with that
responsibility is the past activity of the Department of
Defense, and the environmental problems that it has created
throughout this country.
It seems to me that the Department ought to go forward with
a major initiative to do an inventory of all of these sites
throughout the country.
I mean, I would be interested in knowing, for example, do
you have an inventory of the various defense facilities in this
country, and the condition of those facilities, or are we going
to continue to have these things popping up like we have in
Marion, Ohio?
Mr. deGrazia. Well, Senator, I would like to take that
particular question, for the record, if I may.
Senator Voinovich. Yes.
Mr. deGrazia. But I would like to respond, if I may, to
your comment on cost. Certainly, cost is an issue. But it is
not the only issue with regard to the expansion of the waiver
of sovereign immunity.
The Department of Defense conducts cleanups by working with
the communities to decide what the cleanup remedy should be.
The States are part of that dialog. In fact, local communities,
including the public, are part of our restoration advisory
boards, at the various cleanup sites that the Defense
Department has.
What we would like to do is keep everyone working together.
We believe that under the current system, this is a way by
which everybody gets an opportunity to be heard, and we get to
work out something that results in having everyone have a
result that is satisfactory.
Senator Voinovich. Well, I suspect, and I have been on this
committee and I am new to the Senate, but I will bet you that
the Chairman of this committee has heard that, the same
statement, made by one business organization after another,
saying, if we did not have this, we could work it out, and so
on.
The issue is, why should you be different than everyone
else? If we are going to grant you the waiver, why should not
we do it with the private sector? Why are you different than
private sector people that would be sitting at the table,
asking for the same thing that you want?
Mr. deGrazia. Senator, unlike private partners, the
Department of Defense is required by law to follow the CERCLA
process at all sites, regardless of whether they are on the
National Priorities List or not. In that regard, we are
different, in any event.
But you are right, Senator, in that the Department of
Defense has a large number of cleanup sites. We are trying to
get them cleaned up as quickly as possible. Also, many of our
sites tend to be fairly large sites, and have a great impact on
the community.
What we are trying to do is, we are trying to work with a
system that enables the community and the public to have more
of a voice. We simply believe that if we were treated in such a
way that we would have to deal with and have to comply with a
number of the procedural requirements, that we would not be
able to serve the public the way that we feel that we are
doing.
Senator Voinovich. I would like to ask another question to
Mr. deGrazia and to Mr. Fox. To your knowledge, do we have an
inventory of compliance with the Clean Water Act at Federal
facilities in this country?
Mr. deGrazia. Mr. Senator, every year, the Defense
Department facilities send to the Environmental Security
Department in the Department of Defense a list and rendition of
all of the compliance actions that have been brought against
the Department of the Defense. So the short answer to your
question is, absolutely, yes.
Mr. Fox. I would confirm that, Senator.
Senator Voinovich. This is a list of the ones where actions
have been brought, or an overall list of all of the facilities
and the status of their compliance?
Mr. deGrazia. It is both.
Mr. Fox. Right.
Senator Voinovich. The latter?
Mr. deGrazia. All of the above.
Senator Voinovich. So if I asked for a list of all of the
Federal facilities that are under your jurisdiction in terms of
their compliance with the Clean Water Act, you would have that
information available?
Mr. deGrazia. Yes, sir, and we would be happy to provide
that to you.
Senator Voinovich. OK, thank you.
Senator Chafee. Are you all set?
Senator Voinovich. Yes.
Senator Chafee. All right, thank you very much, gentlemen.
Mr. deGrazia. Thank you, Mr. Chairman.
Senator Chafee. Now the next panel has the Honorable Helen
Walker, Mr. Doug Harrison, Mr. Steve Fleischli, Ms. Sweeney,
and Ms. Lee. If you could all come forward.
We will take you in the order that we called them off,
starting with the Honorable Helen Walker, County Judge,
Victoria County, Texas. You can proceed, please.
STATEMENT OF HON. HELEN WALKER, COUNTY JUDGE, VICTORIA COUNTY,
TEXAS, ON BEHALF OF THE TEXAS ASSOCIATION OF COUNTIES AND THE
TEXAS COUNTIES STORM WATER COALITION
Judge Walker. Thank you, Mr. Chairman and members of this
distinguished committee for the opportunity to speak to you
today.
I am Helen Walker, Victoria County, Texas Judge and cochair
of the Texas Counties Storm Water Coalition, made up of 115
counties united due to our concern about our ability to perform
under the EPA's proposed Storm Water Phase II rules. You each
have written materials which supplement this statement.
Although we are from Texas, this is not a Texas problem.
Counties in most of your States and others will be similarly
impacted. Phase II would regulate two types of storm water
discharges, those from small municipal storm sewer systems and
those from constructions activities that disturb one acre or
more of land.
Most of Texas' 160,000 miles of county roads, have ditches
with grass on either side. EPA's own strategies use vegetated
areas to improve water quality; yet, they choose to regulate
such ditches. Those should be exempt, we feel.
The construction activities have been broadly define to
include linear construction; in other words, roads. If one of
my commissioners needs to blade about a third of a mile of
county road, gravel, or caliche, introducing no unnatural
materials, he has got to get an EPA permit. On 160,000 miles of
roads, gentlemen, that is a lot of permits.
To make matters worse, the county has become both the
regulated and the regulators. In Texas and many other States,
we lack the authority to permit and to assess an environmental
fee for that permit, so the entire burden of cost falls on the
counties. We have no choice except the ad valorem tax system,
adding to the burdens of our local taxpayers.
San Antonio, Texas, a Phase I city, states that their cost
was between $7 and $10 per capita, per year. That is with the
infrastructure already in place to do the program. Texas
counties and those of many of your States have no such
infrastructure, so it is logical that the cost would be even
higher.
Both the MS4 requirements and the one acre threshold for
construction are proposed without adequate data to show that
they would, in fact, enhance water quality.
Senator Hutchison has filed legislation which address many
of our concerns. Senate bill 1706 would exclude from
consideration as regulated MS4s the thousands of miles of
vegetated county road ditches, which already serve as a natural
treatment system, and should not be covered by this Act.
Second, to eliminate permitting of construction sites less
than five acres, in the Phase I regulation, EPA itself chose
the five acre threshold for permitting.
Third, it would exclude routine road maintenance from being
considered as a construction activity.
Fourth, it would protect the county from liability for not
complying with regulations that require actions exceeding the
authority vested in counties under State law. Many counties
across the Nation do not have ordinance making or enforcement
authority. Our choice would be, do we break State law or
Federal law in trying to do our duties?
Fifth, it would enhance the ability of counties to rely
upon another governmental entity's implementation of MS4
measures. By protecting us from liability, if the implementing
entity fails to comply with Phase II, we are not trying to make
no one responsible for that compliance. We are saying one or
the other should be responsible.
If we contract with a builder to build a building for the
county, we receive a performance bond. Therefore, if one entity
contracts with another and pays for that privilege, we feel
that we should be, in effect, bonded. The entity who takes on
that responsibility should be the responsible party.
As a local elected official, I know better than most that
clean water is a precious commodity. I am not only responsible
to the 80,000-plus people in my county, but I am also telling
you that my kids and my grandkids live in my county. I am going
to make sure that they have clean water for the future.
Clean water is the key to a successful community. That is
why Congress, in its wisdom, passed the Clean Water Act. But we
believe that the proposed rule goes well beyond the Act and
does not truly target improving water quality. Otherwise, this
would not be based strictly on population thresholds.
We know that there are areas of the country that have
severe water problems. Some of those are in Texas. We feel that
they should be singled out.
Senator Hutchison's bill takes a logical alternative to
correcting the broad brush approach. We believe the
legislation, if passed, will help local governments throughout
the nation, and that this is an opportunity for Congress to
make clear to EPA the intent of the Clean Water Act, and to
further the goal of cleaning up our water.
Texas counties are committed to clean water. Senator
Hutchison's proposed bill serves that goal faithfully,
addressing water quality concerns, while acknowledging the
local legal and practical realities of county government.
Again, thank you for this opportunity. I will be happy to
answer questions.
Senator Chafee. Thank you very much, Ms. Walker.
Senator Wyden has joined us. Do you have a statement you
would like to make at this time?
OPENING STATEMENT OF HON. RON WYDEN,
U.S. SENATOR FROM THE STATE OF OREGON
Senator Wyden. Well, Mr. Chairman, I think it would be the
height of bad manners to just come on in now and interrupt
this. We have been all tied up this morning on the assisted
suicide issue, which Rhode Island physicians have been very
involved in. I would ask that my statement be part of the
record.
As you know, Senator Burns and I have introduced a bill
that has managed to bring together the Environmental Defense
Fund and the Farm Bureau, which is a coalition that you do no
see every single day in Washington, D.C. We are very grateful
to have their support.
You and your staff have been just extraordinarily kind and
gracious to us in putting together this legislation, as has
Senator Baucus'. I will have some questions when we get done.
But I just want to let you know, I feel badly about my manners
this morning.
Senator Chafee. No, no, no, do not worry.
Senator Wyden. I am anxious to hear the witnesses.
Senator Chafee. OK, that is fine. Well, thank you very
much.
Now Mr. Doug Harrison, General Manager and Secretary, from
the Fresco Metropolitan Flood Control District. You may
proceed, Mr. Harrison.
STATEMENT OF DOUG HARRISON, GENERAL MANAGER AND SECRETARY,
FRESNO METROPOLITAN FLOOD CONTROL DISTRICT, ON BEHALF OF THE
NATIONAL ASSOCIATION OF FLOOD AND STORM WATER MANAGEMENT
AGENCIES
Mr. Harrison. Thank you, Mr. Chairman and members of the
committee. It is my pleasure to appear on behalf of the
National Association of Flood and Storm Water Management
Agencies. A brief profile of our association is included in our
written statement. My remarks will supplement that statement,
and hopefully provide some insights.
First, I would like to comment on Senate bill 188. NAFSMA
supports the use of SRF on water quality related capital
projects. We would just note that as the list of authorized
uses of SRF increases, the amount of money needs to increase,
as well.
Second, as to Senate bill 669, NAFSMA supports the
obligation of Federal agencies to comply with the same
obligations imposed on local government. Even now, though,
various agencies are exempting themselves from the storm water
quality programs and from participating in their fair share of
the local cost of the BMPs that we are required to implement.
I would like to focus the balance of my comments on Senator
Hutchison's bill, and would note that we appreciate the
Senator's efforts to bring the storm water problem, as we know
it, to the Congress.
The bill addresses three proposals: one, to limit
copermittee liability, which we support; second, it proposes
protections against Federal mandates, which exceed State law
authority. Again, NAFSMA has worked to support that concept, as
well.
Third, the bill proposes exclusion of certain specific
facilities and activities. Among those is routine road
maintenance. Again, NAFSMA agrees that the regulations need to
be clarified to exempt nonimpact maintenance activity.
The bill also proposes to exclude from the Storm Water
Program construction sites less than five acres and communities
that are served by vegetated drainage ditches. These latter two
exclusions are difficult, because they can not be excluded
simply on a presumption of no impact.
NAFSMA has consistently urged recognition that storm water
is a unique form of Clean Water Act discharge. If it is to be
regulated, the regulations must be based on sound science,
technological, and financial feasibility, and on watershed
principles that recognize that storm water is a nonpoint source
and not a controllable point source.
In the case of construction sites, NAFSMA has proposed that
sites less than five acres only be regulated if there is an
important resource water at risk.
In the case of the vegetated ditches, we believe that the
issue is not the type of conveyance, but rather the quality of
the water going through the conveyance, and the location of the
discharge.
A community of 50,000 served by ditches can have as serious
an impact as a community served by pipelines. It simply does
not appear possible to us to create equitable categorical
exclusions. This tends to reinforce our belief that the effort
to regulate a nonpoint source such a storm water through the
point source based NPDES program is unworkable for all
agencies, Phase I and Phase II, alike.
While local agencies have received significant help in the
recent Ninth Circuit Court decision, there is still much in the
character of storm water that warrants a new approach for all
communities. The science is not yet sound. We still can not
define the relationships between episodic discharges and
impacts on the ecosystem. The science still can not demonstrate
the value of most of our BMPs, with perhaps the exception of
detention.
Technological feasibility is still in doubt. Many of our
BMPs simply relocate pollutants to new locations. Many of our
urban runoff pollution sources are beyond the control of local
agencies; for example, air quality, and the design of
automobiles.
Financial impacts are still beyond the capability of our
local agencies. Our storm water program compliance efforts,
based on BMPs alone, will be in the $100 to $200 billion range.
Also, there is a continuing avalanche of new regulations,
related to storm water, stacked on top of the existing, flawed
stormwater regulatory framework; efforts to use the Federal
storm water regulations to intervene in local land use
decisions; the pending TMDL regulations that would impose
numeric discharge limits; a pending anti-degradation rule that
would mandate stormwater discharge reductions in growing
communities for storm water; pending effluent limitations on
construction sites; and just flat out inconsistent
regulations--for example, the sale and use regulations on
pesticides being more liberal than the discharge standards for
the same constituent, if it comes out the end of the storm
drain.
In summary, Mr. Chairman, absent a fundamental change in
direction, municipalities will spend hundreds of billions of
dollars on storm water programs, without any reasonable hope of
achieving the objective, as it is currently stated. All
communities generate runoff. All runoff is dirty; some more so
than others. But rather than creating categorical exclusions
from a poorly structured mandate, NAFSMA continues to believe
that the better course is the fundamental repair of the storm
water portions of the Clean Water Act and its programs.
We thank you for the opportunity to bring our comments to
you, Mr. Chairman and members of the committee.
Senator Chafee. Well, thank you very much. I see we are
joined by Senator Hutchison. Senator, if you would like to have
a statement, you could do it now, or you could wait, and we
could accommodate you a little later, if you would like.
Senator Hutchison. Are they making their opening statements
at this time, or are you into questions?
Senator Chafee. No, we are not up to the questions, yet.
Senator Hutchison. OK.
Senator Chafee. Ms. Walker has spoken.
Senator Hutchison. I hope you gave her a great welcome, my
constituent.
Senator Chafee. Well, she has referred to your legislation.
If you would like to make some comments now, or what would you
prefer?
Senator Hutchison. We can finish with the panel.
Senator Chafee. Fine.
Senator Hutchison. Then I would love to, thank you.
Senator Chafee. Fine. All right, Mr. Steve Fleischli,
Executive Director, Santa Monica BayKeeper.
STATEMENT OF STEVE FLEISCHLI, EXECUTIVE DIRECTOR, SANTA MONICA
BAYKEEPER, ON BEHALF OF THE CLEAN WATER NETWORK
Mr. Fleischli. Good morning, Mr. Chairman and members of
the committee. My name is Steve Fleischli. I am the Executive
Director of the Santa Monica BayKeeper, here today on behalf of
the Clean Water Network, a coalition of environmental groups
from across the country concerned with water quality issues.
The bulk of my comments will focus on S. 1706. But just
briefly, I will go through the other two bills. On S. 669, with
regard to its waiver of sovereign immunity, we support the
concept very much. We do think Federal facilities need to be
held accountable to the same standards, and we would encourage
that.
There are some minor changes that we would like to see in
the bill to ensure that there is clarification that it is not
only a waiver for administrative penalties, but also for civil
penalties.
Also, we would like to see a waiver with regard to
enforcement of settlement agreements or consent decrees that
may have been entered into, pursuant to the Clean Water Act,
down the road. I think there is some debate about whether or
not those are contractual agreements that would need waivers or
not.
With regard to the S. 188 SRF bill, we applaud Senator
Wyden's efforts to try to find a solution to the problem of
water conservation. It is certainly a serious issue on the West
Coast, as is water quality.
We would like to see additional funding. We would like to
see, also, some sort of categorization, so that we know that
water quality is not being undermined for this other lofty
goal. I am sure we can work together on that.
With respect to the remaining issue, S. 1706, we have heard
a lot about the improvements that have been in clean water over
the last 27 years, and everyone seems to agree that there is
still a long way to go.
In the environmental community, many of us believe that
many of our waterways are dying a death of 1,000 cuts, and
something must be done. This is through control of storm water.
Many areas of the Clean Water Act clearly state that the
goal of the Act is to achieve water quality standards and to
have fishable, swimmable waters across the country. In the end,
the Act's goal is to eliminate the discharge of pollution to
waters of the United States.
Unfortunately, the Clean Water Act's stormwater provisions,
as written, leave much room for debate, and thus allow
municipalities to escape responsibility for many violations of
water quality standards.
What makes most sense for the Federal Government right now
is to move forward and set the overall goals in a very strong
way to protect beneficial uses; to establish meaningful numeric
limits on storm water controls. Part of this will be achieved
through the TMDL program, but we need to go further in terms of
clarifying language in the Clean Water Act.
What is being proposed today with S. 1706, however, falls
very short of this goal. Among other things, this bill proposes
to eliminate the requirement that construction sites less than
five acres be subject to storm water permits.
This comes despite the fact that EPA has recognized that
construction sites can pollute waterways with sediments,
phosphorous, nitrogen, nutrients from fertilizers, pesticides,
petroleum products, construction chemicals, and solid wastes.
EPA has long recognized that, over a short period of time,
construction sites can contribute more sediment to streams than
was previously deposited over several decades.
Indeed, short term loadings may have shock loading effects
on receiving water, such as low dissolved oxygen. It is also
acknowledged that erosion rates from construction sites are
much greater than from almost any other land use.
Evidence suggests that in some areas of the country, there
may be as many as five times as many construction sites under
five acres as there are over five acres. Based on this
evidence, it makes little sense for Congress to now back off
this requirement to regulate sites greater than one acre, and
in essence, reduce the effectiveness of the 1987 amendments.
The proposed exemption under 1706 on vegetated road ditches
creates a similar situation. This type of blanket exemption
fails to recognize that even vegetated drainage ways can convey
storm water pollution, much the same as ordinary streams or
channelized storm drain conveyance systems that run along the
surface.
Moreover, many drainage ways are operated in connection
with a roadway or street. Arguably, this proposal could allow
the exemption of miles upon miles of polluted storm water
conveyance systems.
In addition, municipalities--and I know this, in my area, I
am sure this will come up--will try to argue that modified
river beds in our area would fall under the exemption language
that is being proposed today.
Finally, this bill also attempts to exempt from storm water
requirements liability for municipalities which contribute to
violations of water quality standards. This bill does so under
the guise of one co-permittee's reliance upon another co-
permittee or another entity's willingness to act.
This is entirely unworkable, as it simply creates a
scenario where one municipality will point the finger at
another, saying that something needs to be done. Then the other
municipality will simply point back and say, well, you were
supposed to do it; no you were supposed to do it.
This is what we see in Los Angeles, constantly. We have 85
cities under one permit. Every time, they point their fingers
back and forth, saying, ``It is not my responsibility. It is
the county's responsibility, or it is the city's
responsibility.'' Therefore, we oppose that.
With regard to the issue that was raised by Ms. Walker,
that they need this sort of protection, it seems like it is an
issue that can be dealt with locally, through contracts,
through indemnification provisions in the contract. It does not
need to be dealt with at the Federal level.
In closing, concerned citizens have worked for years for
strong action to address numerous sources of pollution that
contribute to impairment of our waterways. For every person who
says that storm water is an impossible problem to conquer,
there is another person finding a way to get there.
Technological development in this area is flourishing right
now. There are simple technologies such as silt fences and sand
bags which, when properly used, will help reduce sediment
loading from construction sites.
Numerous different types of other catch basin inserts are
being developed. Storm drain treatment systems are being
installed. New methods of landscape architecture are being
designed. Scientists around the country have demonstrated the
effectiveness of these technological developments, despite what
has been said this morning, in reducing contamination of the
nation's waterways.
The Federal Government should move forward to set standards
to which everyone should be held accountable. There should be
baseline standards.
The waters of the United States belong to everyone and to
no one. As such, they must be protected in a way that does not
allow any individual, municipality, or corporation to
jeopardize that well-being.
Thank you.
Senator Chafee. All right, fine, thank you very much.
Ms. Sweeney, Assistant Attorney General for the State of
Maryland.
Ms. Sweeney. Thank you, Senator.
Senator Chafee. You may proceed.
STATEMENT OF MARY ROSEWIN SWEENEY, ASSISTANT ATTORNEY GENERAL
FOR THE STATE OF MARYLAND, ON BEHALF OF ATTORNEY GENERAL J.
JOSEPH CURRAN, JR. AND THE NATIONAL ASSOCIATION OF ATTORNEYS
GENERAL
Ms. Sweeney. Mr. Chairman and members of the committee, I
am Rosewin Sweeney, an Assistant Attorney General from the
State of Maryland. I am here on behalf of Attorney General Joe
Curran, a member of the National Association of Attorneys
General, to testify in support of S. 669, a bill amending the
Federal Water Pollution Control Act, to ensure compliance by
Federal facilities with pollution control requirements.
I would like to thank Senator Coverdell and the bill's
cosponsors for their attention to this issue. I would also
applaud Senator Voinovich's comments here today in support of
the waiver of sovereign immunity.
The waiver of sovereign immunity has been a key issue for
the National Association of Attorneys General for many years.
The Attorneys General adopted a resolution in support of
similar legislation in 1993. I have provided a copy of that
resolution with my testimony.
The Attorneys General support for this bill is based
essentially on the same reasons that they had in 1993 to
support the similar legislation.
First, there is a need for clear authority for Federal,
State, and local officials, with regard to the enforcement of
water pollution control laws at Federal facilities.
Second, Federal agencies and facilities should be subject
to the same service charges and enforcement provisions as are
applied to State and local governments and to private industry.
They should be held equally accountable for their noncompliance
with water pollution laws.
Third, the passage of this legislation will enhance water
pollution control practices at Federal facilities in the future
by requiring those facilities to fully comply with Federal,
State, and local water pollution requirements.
This bill makes the waiver of sovereign immunity in the
Clear Water Act essentially the same as the waivers presently
contained in RCRA and in the Safe Drinking Water Act.
The language of S. 669 differs in minor but appropriate
respects from the waiver language contained in RCRA and the
Safe Drinking Water Act, with only one difference in language
that the committee may wish to correct.
That was mentioned by Mr. Fleischli in his remarks. That is
to change paragraph (a)(3)(D) of the bill to make it clear that
immunity is waived for judicially imposed penalties and fines,
as well as for those imposed in administrative proceedings.
This change would make the Clean Water Act's waiver
language more consistent with RCRA and the Safe Drinking Water
Act, and would avoid any confusion over whether the waiver of
immunity for penalties or fines includes penalties and fines
imposed by State courts.
The State of Maryland's experience has been that the waiver
of sovereign immunity in RCRA and the Safe Drinking Water Act
resulted in an improvement in Federal compliance under those
laws in recent years. I believe Mr. Fox's testimony indicated
that Maryland's experience is typical among the States.
Federal compliance with the Clean Water Act has not seen a
comparable improvement. By way of example, Federal
laboratories, research facilities, hospitals, and military
installations in Maryland have been repeatedly responsible for
a variety of violations of water pollution laws, including
overflows from waste water treatment plants; unauthorized
discharges of pollutants; thermal pollution; and the discharge
of sediments from many construction sites.
In preparation for my testimony, I asked my client for some
examples of recent violations from Federal facilities within
Maryland. In the space of 2 hours, they were able to provide me
with a dozen examples of violations at Federal facilities,
occurring recently, within the last 2 years to 18 months. Seven
of those examples were at Department of Defense installations.
Because of sovereign immunity, Federal facilities have been
able to drag their feet when responding to the State's
complaints about water pollution problems.
In our experience, the managers of some of these facilities
are reluctant to enter into agreements with the State with
regard to corrective action, not because of the terms proposed
by the State were unreasonable, but because the managers were
fearful of how such agreements would reflect on their
performance at those facilities--their management skills.
If the Clean Water Act is amended as proposed, Federal
facilities will be more likely to identify and promptly correct
pollution problems. There is simply no reason for Federal
facilities to continue to be held to a lower standard than
private industry or State and local government.
I appreciate the opportunity to appear before you today.
Senator Chafee. Thank you very much, Ms. Sweeney.
Now, Ms. Lee.
STATEMENT OF JAN LEE, EXECUTIVE DIRECTOR, OREGON WATER
RESOURCES CONGRESS
Ms. Lee. Thank you, Mr. Chairman, committee members.
I am Jan Lee, Executive Director of the Oregon Water
Resources Congress, which represents local governments who
provide nonpotable water, water mainly for agriculture water
supply.
We strongly support Senate bill 188 as an additional tool
for enhancing water quality. Our testimony will reflect that we
have over 13,000 miles of Oregon streams on the 303(d) list of
EPA's TMDL listings for water limited bodies.
Most of those streams are listed because of cold water fish
habitat. That, combined with the Endangered Species Act,
provides a nexus that will consistently require Oregon water
users and water suppliers to have additional tools for water
quality enhancement.
There has been a considerable success so far with the non-
point source plan, of course, with $96 billion dedicated to
those resolutions. Certainly, no commitment to that level has
been made at this point on non-point sources. Currently, the
SRF funding programs in the State of Oregon do not allow for
those kinds of projects to be funded from EPA's moneys for the
revolving funds.
The State program provides infrastructure potential loans
for waste water facilities. But for irrigation canals within
the irrigation districts, which are also local governments,
there is no such source. Yet, there is potential of saving up
to half of the water which is now lost, due to
evapotransportation and conveyance in those systems.
There have been projects done around the State where water
has been saved in these conveyances for a public investment of
some amount of the project cost. That amount of water has been
returned in stream.
In Deschutes County in the Deschutes Basin of Central
Oregon, for example, two miles of canal were lined, returning a
significant amount of water, half of the water saved to the
stream to benefit water quality in Oregon's fishery.
Our State program would be able to incorporate irrigation
district and local governments into the SRF funding programs if
you made the change defined in Senate bill 188.
We also agree with EPA that there should be a nexus to the
public benefit for water quality. We would be glad to work with
EPA and the committee and staff to find language to develop
that.
For example, if water impaired bodies were to be enhanced
by a project under this fund, perhaps that should be a
requirement of this particular bill.
Currently, there is over $250 million in projects for waste
water facilities in Oregon. We did have an irrigation district
who attempted to secure a loan under that program. Even with an
innovative project that would match some waste water facilities
with the district, the waiting list is over two decades. So it
is not viable that something will occur there in the near
future, without additional funding.
Oregon's law, since 1987, has allowed for in stream water
rights the protection of water in stream for fishery and other
purposes. We also, in the same year, in 1987, encouraged the
legislature and the legislature enacted the Water Conservation
Incentive Program.
That means, if you are to save or conserve water, then 25
percent or more of that conserved water must go in stream.
Perhaps more than that can go in stream, if that is negotiated
between the conserver and the State and the other parties. That
has been a successful way for us to get some more water in
stream to protect fishery.
There is a very considerable potential in Oregon for these
kind of projects in canal systems. Many of my association's
members are irrigation districts. They are committed to making
these kind of changes, but they do need some public investment
to assist in that area.
This is a loan program, not a grant program. We are just
asking for the opportunity to take advantage of the loan
program, itself. I think if you were to pass this law, we would
receive the required flexibility to make the program workable
for more.
I would like to thank the other interests who have worked
with us on this bill, with Senator Wyden, the Environmental
Defense Fund, and the American Farm Bureau Federation.
The Oregon Farm Bureau, Mr. Pete Test, asked me to reflect
their comments as matching their own, today. We also work very
close with Zach Willey, who is the Northwest Environmental
Defense Fund representative.
Our three groups have worked together on projects.
Specifically, in the Deschutes, with EDF, we have worked on
putting water in stream on a number of projects.
Thank you for the opportunity.
Senator Chafee. Well, thank you very much.
Ms. Sweeney, you spoke about the sovereign immunity. In its
testimony previously to this panel, the Department of Defense
witness talked about the waiver of sovereign immunity at
Superfund sites.
I know this is an issue important to the Attorneys General
of the United States, although we did not ask you to address
that particularly, today.
What is the position of the National Association of
Attorneys General on Superfund immunity? Is there any
information you would like to transmit to us now?
Ms. Sweeney. It is my belief, Senator Chafee, that the
association is very much in favor of there being comparable
waivers of sovereign immunity in all environmental statutes,
regardless of the media that is dealt with. That would
certainly apply in the Superfund context.
Senator Chafee. Well, I suspect that is also true, and you
are right on that.
Mr. Harrison, you indicated that 75 percent of the Phase II
communities do not have public educational outreach, and 46
percent currently do not spend money on any of the storm water
activities. What should they be doing, these communities?
Mr. Harrison. Senator, that information came from a survey
that we took of communities that were going to be impacted by
the pending Phase II rule, to see where they were in terms of
their current storm water programming, and to try to measure
the impact of the Phase II rule on those communities.
The question of what Phase II communities should be doing,
ultimately will depend on the final definition of what a Phase
II community is: Assuming that it is urbanizing areas, as is
currently proposed in the draft regulation, we believe that
there are a variety of management practices that have been
demonstrated in the Phase I communities that will be applicable
in the Phase II communities, as well.
Our problem is that we do not have the ability to prove
that those BMPs produce a particular amount of improvement in
the quality of the receiving water. What we can demonstrate is
that we can remove pollutants from many of the sources in the
urban community, through those management practices.
Senator Chafee. Now are you for categorical exemption for
the vegetative drainage ditches, or should it be based on water
quality?
Mr. Harrison. Well, we believe that water quality is
ultimately the test that has to be applied relative to the
regulation, and the practices that are to be applied.
Categorical exemptions run the risk of having unequal impacts
on local communities, in terms of regulatory requirements, and
produce an array of related problems.
Senator Chafee. Ms. Walker, I have some trouble with the
five acre exemption you are talking about. That does not give
you problems?
Judge Walker. Well, basically, I think that our goal is
drop it back to the one acre.
Probably our biggest problem with that is in the linear
construction or in roads, because the basic county road of
approximately a third of a mile is acre. So anytime my
commissioner wants to go out and blade a road, or realign a
drainage ditch of a very, very small area, we have hit the one
acre limit.
So that was the basis of our feelings on that. That one
acre of linear construction, since there is no--although EPA
has indicated that they are willing to exclude routine road
maintenance, as the rule is written, as is my understanding,
there is no exclusion of routine road maintenance.
So the expense to a county or any other entity in the one
acre on routine road maintenance is extremely onerous to local
governments.
Senator Chafee. Senator Voinovich?
Senator Voinovich. Yes, Ms. Walker, the proposed rule--one
of the other responsibilities of this committee is that we are
concerned about road building in this country, and the 1309
provisions of the Act in terms of speeding things up, and at
the same time being consistent with good environment.
Do you have any comment on what the proposed rule would
have in regard to road construction and maintenance in your
area?
Judge Walker. It is my belief that we would not be against
road building being a construction activity. Our main problem
is with routine road maintenance.
Senator Voinovich. In other words, you believe that it
would really interfere with your ability to do your routine
maintenance?
Judge Walker. Yes, sir, it would, because many of the roads
we are talking about are gravel roads, caliche roads, or simply
some other kind of dirt road.
Disturbing that dirt, that dirt is going into the ditches
and going into the water, as it is, every day, any time it
rains. So we have a problem. Those types of roads require more
maintenance than the paved roads.
So it is an extremely onerous burden to local governments
to have to get a permit every time we do that routine road
maintenance. It would cost a great deal, and cost a lot of time
lost to the counties or the local entities.
Senator Voinovich. Thank you.
Ms. Lee, I am the sponsor of the reauthorization of the
State revolving loan fund. Congress appropriates about $1
billion, $300 million under that program today for waste water
infrastructure, while the need is $200 to $300 billion.
One of my concerns is that if we expand SRF eligibility,
that will intrude upon our ability to do the basic job that the
SRF is supposed to do.
Do you have any idea of how much money you would spend in
your State if we expanded the areas that that money could be
used?
Ms. Lee. Senator, I believe that the record of these
projects that have gone forward would show we are using around
$1 million a year, which would be less than 10 percent of the
current SRF funding resources in Oregon.
Right now, the Clean Drinking Water Act fund, under SRF,
just received a letter from EPA indicating that there is $10.5
million that would have to be returned to EPA if not used for
projects. Project sponsors are being looked for, but that would
be money that could be moved to the Waste Water Program for
these instances.
I think what we would like to see in Oregon would be a
demonstration portion of the SRF fund, perhaps a 5 percent, or
some constructed amount, looked at as a repository for these
kinds of projects, where there would be specific State and
Federal benefits for water quality. We will work with the State
to try to do that, if this legislation can key in that these
projects definitely can be financed under the structure.
Senator Voinovich. Thank you.
Mr. Harrison, you cited Cincinnati, Ohio, and the refusal
of the National Institute of Occupational Safety and Health to
pay the local storm water fee. Would you like to elaborate on
that a bit?
Mr. Harrison. Certainly, Senator. This was a case where the
Federal agency took the position that they were not obligated
to participate in the cost of the local Storm Water Program,
even though their storm water from their site was discharged
into the municipal system.
All landowners were sharing in an apportioning of that
cost, through an annual charge. The Federal Government took the
position they were not subject to that charge. They took it to
court and succeeded, at least in the early rounds of that
litigation.
That case is not an uncommon experience. We have had
others. I recently received a letter on the new Federal
Courthouse in our city, indicating that they would really like
to cooperate with us, but they did not have to. So it is a
problem that we are seeing throughout the country.
Senator Voinovich. So it comes about as a result of the
immunity aspect of this. If we waive that, that problem would
not exist?
Mr. Harrison. Well, we certainly think there would be a
dramatic improvement in the attentiveness of the Federal
agencies to work with local communities on these compliance
efforts.
Senator Voinovich. Thank you.
Thank you, Mr. Chairman.
Senator Chafee. Senator Hutchison?
OPENING STATEMENT OF HON. KAY BAILEY HUTCHISON,
U.S. SENATOR FROM THE STATE OF TEXAS
Senator Hutchison. Thank you, Mr. Chairman.
First, let me thank you for holding a prompt hearing on my
bill, as well as the others. You kept your word, and I
appreciate that very much. I think most of my bill has been
discussed. certainly, I am sure that Judge Walker addressed the
major issues.
I am very pleased that the EPA has said exempting routine
road maintenance would be acceptable, although they do not
think it is necessary. I would like to ask them to consider,
and will do that in a formal way, putting that exemption in the
final rule.
Because I believe that would go a long way toward
alleviating the pain that many of the counties are feeling, for
exactly the reason that Judge Walker mentioned. That is, their
biggest concern is not being able to do routine maintenance on
a third of a mile road that would make them have to go through
a permitting process. So I would hope that that would be looked
at in the final rule.
But the other issues that I would just like to point out
for the record are that the regulation has really focused on
these counties, based on population and proximity to urban
areas. I would hope that the EPA would look at water quality,
and look at areas where there are problems. Because you are
looking at counties that are 50,000 people, 25,000 people, that
do not have budgets like urban counties do.
An outside consulting firm that was asked to look at the
cost to these small counties by the National Association of
Counties estimated that a town or county with a population of
50,000 estimated that they would be looking at an initial cost
of $216,000 a year, and then an annual cost of $300,000, as the
regulation is now perceived.
Many of counties think it would be much more than that. But
that is a big hit for a very small community. I think, once
again, routine road maintenance exemptions would alleviate much
of that.
Second, I wanted to mention a study done by the University
of Texas Center for Research in Water Resources, the Bureau of
Engineering Research, that concluded that a grassy swell was
found to be effective for reducing runoff volumes and pollutant
concentrations, and that they provide a low maintenance
alternative to structural controls, where sufficient land is
available and the topography is appropriate.
This is one of the reasons that we are trying to exempt the
ground vegetated road ditches, because that has been cited as
an example of one way to help the environmental run-off.
Then the other issue that I just wanted to deal with, and I
would like to ask Judge Walker about this, and that is my bill
protects counties from liability for failing to comply with
measures requiring actions exceeding their authority under
State law.
Under the EPA's proposal, they are mandating regulations
that some counties do not have the power to address, because
they do not have ordinance making power, such as in Texas. I am
told that other States that have counties without ordinance
making power include Oklahoma, Wyoming, Illinois, Ohio,
Pennsylvania, and New York.
I would just like to ask Judge Walker if she believes that
counties in Texas would have the ability to adhere to these
rules without ordinance making power.
Judge Walker. Thank you, Senator. No, I really do not. As I
stated before, we do not have that authority. In Texas,
counties can only do those things that they are allowed to do,
or are empowered to do, by the State legislature.
So, as I have noted, we would be put in the position of
either breaking Federal law or breaking State law. We do not
have any mechanisms to permit or to assess a fee. The cities
normally would assess an environmental fee, put it on the water
utility bills, whatever, across the board to gain the funds
with which to do these programs.
Counties in Texas and in many other States do not have that
capability. So we would have to revert to the ad valorem tax
base. We, as every other State in the Union, have taxpayers who
are overburdened already, and who have a real problem with
that.
As we talked before, we would simply ask that on several of
these issues, they be based on water quality, rather than just
on population. We are willing to accept our responsibility for
clean water in our communities.
To do those things, we just do not want them based strictly
on, if you have got 50,000 people, you must have a problem. You
must be creating a problem. Let us talk about quality.
Then we would certainly be willing to work with the
Senator, and with the EPA and the committee, in finding a way
to resolve those differences.
Senator Hutchison. Thank you. That was another issue, the
inability to assess fees to cover these costs, which means that
the only avenue a county in Texas has is the ad valorem tax.
You are not able to levy a sales tax. You can not assess a fee.
So your only avenue is to add to property taxes. Of course,
that is the major funding source for schools. So property tax
owners are pretty heavily hit. Since it is the only thing that
counties can do, that would be a pretty tough burden.
Judge Walker. That is entirely correct.
Senator Hutchison. Just one last question, do you have an
estimation of what it would cost counties to implement Phase
II?
Judge Walker. There have been estimates all the way from
very low estimates, up to--we use the San Antonio Phase I, it
cost them, each year, between $7 and $10 per capita, per year.
We think that would be even greater for counties who do not
have the infrastructure in place to do those. San Antonio
already had an environmental and a permitting department. So
they have that structure in place. We feel that the cost would
be even larger than that.
With the increased problem that in many small counties,
there simply is nobody who is qualified to be an environmental
engineer, or to carry out those duties. So they would actually
be looking at contracting with someone from a larger town, in
many cases, 150 to 200 miles away, to enable them to even put
the program into place.
Senator Hutchison. Let me just mention, too, that in many
of the rural counties that might be next to an urban area, and
this is very common in Texas, where you would have contiguous
rural counties to an urban area, they actually do farm and
raise livestock in these counties. An added ad valorem tax is
very harmful to farmers and people trying to raise livestock.
So I just think if we could address some of the major
issues, which is that the vegetated ditches do work, and they
are shown to work in many instances. If the exemption for
routine road maintenance would be an area that we could
explore, that would help a lot.
Then, of course, the exemption from liability where a
county just does not have the legal authority to do what the
Federal Government is requiring, I think those three things
should be fairly noncontroversial. I would like to try to work
on some of the other areas, as well. But I think we do have a
nugget where we could give relief here.
Then, of course, I would say the last thing is judging the
area, rather than an arbitrary population or proximity test;
but actually see if there is a need for these kinds of
permitting requirements, based on the actual potential for
pollution.
So thank you very much.
Senator Chafee. Thank you, Senator.
Mr. Fleischli, how do you react to--I know there are a
series of exemptions that are suggested here, five acres, under
five acres, and so forth. But the routine road maintenance
activity, that seems like a sensible provision. What do you say
to that?
Mr. Fleischli. When I hear the term ``routine road
maintenance,'' it does not insult me. I think it is how you
define that and what you look at.
If you are talking about grading even a quarter mile of
roadway, you can have serious environmental impacts from that.
I do not know if I would call that road maintenance. Road
maintenance, in my mind, means going out there and mowing,
things like that.
So if it is going to be the grading or clearing, where you
are going to have sediment exposure of more than an acre, I
think it needs to be dealt with.
This is not rocket science. I was driving down from
Baltimore, yesterday. I saw about a third of an acre site,
probably, very small. They had silt fences around it; not a big
deal.
In terms of this issue of having to get so many different
permits for this, and every little site is going to have to
deal with this, in California we have a system under the
construction permit, where we have a State-wide general permit.
When you do a construction project, you fill out a one-page
piece of paper that says you are going to comply with that
permit. That lays out what your restrictions are, and what you
need to do.
So it is not like someone is going to have to go through
this huge, lengthy process to deal with this for every site.
They are going to have to simply send in these forms saying
that they intend to comply. I do not know how Texas does it.
But they certainly could look into those types of ideas.
There are a couple of other issues I would like to respond
to, if you would not mind, Mr. Chair. On the issue of funding,
in the Clean Water Act right now, under some of the enforcement
provisions, there is language that says if the local entities
do not or have certain restrictions within their States on how
they can raise funds for certain projects, the State then can
be held liable for the violations of the Act.
That is designed mostly in the sewage context, I think. But
it is designed to ensure that that participation occurs, and
that the State does not hold up people at the local level from
doing what needs to be done.
Senator Chafee. OK. Senator Wyden?
Senator Wyden. Thank you, Mr. Chairman, and again, my
apologies.
Senator Chafee. There is no need.
Senator Wyden. There has been a kind of frenzy back and
forth with the Assisted Suicide Hearing.
Mr. Chairman, what Senator Burns and I were trying to do
was deal with this situation where millions of gallons of water
are being wasted, every single day.
It is in the West, obviously. But it is not just in the
West. It is all over the country.
You know, what you have is these old irrigation systems.
They are sort of like ditches. We lose a tremendous amount of
water due to evaporation or leakage, and then we do not have
the water for the fish. We do not have the water for the crops.
We do not have the water, either, for environmental issues or
agricultural kind of purposes.
We have got one district in Oregon, the Tumalo District,
where about 70 percent of the water is diverted, where it just
does not go for any valuable use such as fish or the crops or
the like. Frankly, we are seeing this all over the West.
So with the help of your staff and Senator Baucus', we were
able to bring together the Environmental Defense Fund and the
Farm Bureau behind this legislation.
We really appreciate your having Jan Lee, particularly,
here today. I am sorry, with the Assisted Suicide Hearing
which, as you know, is so controversial at home, that I could
not be here for the entire presentation.
But I wonder if you could give us an example of a water
quality problem in Oregon that could be solved by a
conservation project that puts saved water into a stream, but
could not be addressed by any of the existing uses under
today's State revolving fund program?
Ms. Lee. Yes, thank you, Senator Wyden, Mr. Chairman.
The North Unit Irrigation District actually piped 1,200
feet, or about two miles of canal, and was able to return over
a CFS or equitable to 350 acres of water use, one acre foot per
acre, to the stream to benefit the fishery.
These are the kinds of projects that we see as those that
would both benefit water quality, return water to the stream,
and also help farmers in reducing their costs and providing
maximized benefits.
Senator Wyden. That is the irrigation project over, I
think, in Madras?
Ms. Lee. Yes, Senator Wyden, in Madras in Central Oregon in
the Deschutes Basin.
Senator Wyden. Very good. Now one of the issues that we
have been dealing with is that the Environmental Protection
Agency has said, to some extent, that it is possible to use
State revolving funds for water conservation projects.
But what we have found, when we have talked to people, not
just in Oregon, but around the country, is that there are all
kinds of bureaucratic hoops and obstacles in terms of trying to
actually use these State revolving funds.
Have you all found that there have been bureaucratic
obstacles in terms of trying to use the money for these kinds
of projects?
Ms. Lee. Yes, Senator, we have. When Senate Bill 2189, the
predecessor to this bill, was introduced, we talked with the
SRF folks in Oregon. We actually had an irrigation district
submit an application to see if the process would work.
What we found is that application is in a long cue of
applications, and it would be 27 years before it would rise to
the top of the stack, so to speak, to be possibly funded.
At the same time, our drinking water at SRF has $10.5
million which has gone unused, and could be moved over to waste
water, and used for these types of projects.
So we think that if this legislation were passed, we could
get the State to amend its rules for the SRF programs to look
at these kind of projects, perhaps setting aside some amount as
a demonstration project, if nothing else.
Senator Wyden. Twenty-seven years is a long time, even by
Federal Government standards.
[Laughter.]
Senator Wyden. You know, just know that we will work with
you. I mean, our motivation, and I think what was the
motivation for the Environmental Defense Fund and the Farm
Bureau on this is that conservation projects are not clearly
identified as an eligible use of the State resolving funds. So
the States really have had difficulty trying to figure out
exactly how these projects would fit.
So I think the value of this to clearly make this a
priority, and to say, we are going to bring environmental folks
and farmers and irrigators together and say, when we have a
chance to save millions of gallons of water--I mean, millions
of gallons of water is being wasted every single day--let us
stop putting projects in the queue for 27 years, and go out and
try to have it right now.
So you have been really helpful. The environmental
community has been very helpful, and took note of some of the
suggestions. We are anxious to work with you on this. With the
leadership of Chairman Chafee and Senator Baucus, I think we
can get there.
I just thank you for your thoughtfulness, Mr. Chairman.
Senator Chafee. Thank you very much, Senator. I want to
thank all the panel. You have come a long ways, and we
appreciate that, from Texas and Oregon, and different places.
So we are very, very grateful to you.
That concludes the hearing. It has been very helpful.
[Whereupon, at 11:45 a.m., the committee was adjourned, to
reconvene at the call of the Chair.]
[Additional statements submitted for the record follow:]
Statement of Hon. Barbara Boxer, U.S. Senator from the State of
California
Good morning, Mr. Chairman. Thank you for holding this hearing
today on Clean Water Act issues.
I am particularly interested in hearing more from the Environmental
Protection Agency about its proposed stormwater rule to control
polluted runoff. I have very serious concerns about Senator Hutchison's
proposal which, in my view, would weaken that long awaited for rule.
The problem of polluted runoff, and the viruses and toxic
pollutants it often carries into our rivers, lakes, streams and oceans,
is the last and most difficult clean water problem we face.
Today, nearly 40 percent of our waters do not meet the goals of the
Clean Water Act of keeping our waters fishable and swimmable.
The leading reason for our failure to meet those goals is polluted
runoff.
While polluted runoff affects nearly every corner of the country,
the Los Angeles area suffers some of the worst runoff problems in the
nation.
According to the Southern California Coastal Water Research
Project, the amount of polluted runoff flowing from L.A. area rivers
and streams to the ocean has dramatically increased since the Clean
Water Act was passed in 1972.
They estimate that in that year about 65 billion gallons of runoff
made it into the ocean. Today, they estimate that the amount has
skyrocketed to nearly a half a trillion gallons.
When it comes to polluted runoff, we are looking at a clean water
problem that's getting worse, not better. Polluted runoff clouds our
waters and threatens our fisheries by smothering the eggs of fish.
It also closes beaches.
This past summer, state officials closed practically all of
Huntington Beach waters in Orange County, California, in the face of
high bacteria counts.
Further investigation showed that the water contained human viruses
capable of making swimmers sick. These viruses are believed to be so
hearty that they can remain capable of causing infection for weeks, and
may disproportionately affect children who are more vulnerable to such
infections.
The pollution that was responsible for the Huntington Beach
closures was ultimately traced to polluted runoff coming from, in part,
a nearby construction site.
The Huntington Beach incident isn't an isolated one.
A 1995 study by the University of Southern California of 14,000
beach goers in Santa Monica and Malibu found that one of every twenty-
five people who swam within 400 yards of storm drains came down with
gastrointestinal viruses or infections.
The Centers for Disease Control estimates that nationwide up to
900,000 cases of illnesses occur each year due to the pathogens in
drinking and recreational waters.
Mr. Chairman, approximately 60 million people visit the 50 miles of
shoreline in Santa Monica area each year.
If we don't control polluted runoff, we will either have to turn
those people away, or tell them that they and their children swim at
their own risk.
That's the wrong answer.
The right answer, it seems to me, is to adopt strong regulations to
control this pollution.
I am concerned, however, that EPA's proposal to control this
pollution may be weak in certain respects.
In particular, I am interested in hearing from EPA why its proposal
fails to provide that stormwater permits contain actual numerical
pollution limits in the permits. Wouldn't the inclusion of numerical
limits bring certainty to implementing the stormwater program?
In addition, I am seriously concerned that Senator Hutchison's
proposal would further take the rule in the wrong direction.
For example, the proposal would exempt construction activities
affecting five or less acres from the stormwater program.
This would reinstate a reading of the Clean Water Act that was
invalidated by the Ninth Circuit in 1991. It would also effectively
exempt most construction activity--a leading cause of polluted runoff-
from the stormwater rule.
In my view, Mr. Chairman, we need to toughen EPA's proposed rule to
combat the problem of polluted runoff, not weaken it.
Thank you.
__________
Statement of Hon. Conrad Burns, U.S. Senator from the State of Montana
s. 188--water conservation and quality incentives act before the senate
environmental and public works committee
Mr. Chairman and members of the committee, thank you for your
consideration of S. 188, the Water Conservation and Quality Incentives
Act, which I introduced with my colleague from Oregon, Senator Wyden.
This bill is designed to improve water supplies, water habitats, and
create incentives to conserve our nation's water resources.
In the West, whiskey is for drinking and water is for fighting! It
is the most precious commodity to those of us who live out West. We are
concerned not only with water quality but also water quantity and those
who control the water.
Not surprisingly the largest group of water users is farmers and
ranchers. These people, who provide the American people with the safest
and most abundant food supply in the world, need water to grow their
crops and feed their livestock.
A good deal of water out West is provided through irrigation
systems which divert waters from reservoirs, rivers, and aquifers.
However, substantial quantities of water diverted for irrigation do not
make it to the fields or ranches. A large portion of the water is lost
due to evaporation or seepage within the canals and ditches in which
the water flows. Although the water is not lost, since it seeps into
the soil and assists in the overall soil moisture, it is not
immediately available to the producer. Water supplied through
irrigation systems could be increased through improved water
conservation measures. With improved water delivery, less water would
be wasted, resulting in more water remaining in our rivers, streams,
and aquifers.
Irrigation water is an economic factor in today's market. In most
irrigation districts, farmers and ranchers pay for any water released
to them. Any displacement or reduction of this water does not help that
producer's financial bottom line. Today when food and meat prices are
low and markets are questionable, it is important that we provide tools
to these producers to make sure that they have every opportunity to
stay in business.
States encourage water conservation measures by recognizing the
rights of those who conserve water. Irrigators and other water users
who conserve water are afforded rights to use the water they conserve.
Water supply problems are also addressed in some states by financial
incentives which encourage water users to implement cost effective
water conservation measures consistent with state law.
However, states are not the only ones who can create such
incentives. The Federal Government can play a key role by creating
incentives such as greater flexibility to the states to loan Clean
Water state revolving funds for water conservation projects. Also,
allowing water users to apply a portion of the water they save for
further use encourages more water conservation. This is the approach
that my good colleague, Senator Wyden, and I have chosen in this bill.
Our bill will authorize the states to make Clean Water state
revolving fund (SRF) loans to irrigation districts. They can construct
pipelines and develop additional water conservation measures. Any water
conservation project would be structured to allow participating users
to receive a share of the water saved through conservation or more
efficient use, in accordance with state law. This type of approach
would create a win/win situation with more water available for both the
conservers and for river and stream flows. By using state SRF program
funds, the loan money would be repaid over time to become available to
fund other water conservation measures to solve water quality problems
in other areas.
A key underlying feature of the legislation, is that the water
saved under this bill will not only help the producer in water and cost
savings, but will also save many rivers and streams in the West. For
example, water conserved could be made available to increase the volume
of water flowing through our rivers and streams thereby facilitating
fish habitat and migration routes. This is especially critical out
West. Two fish species, the Northwest salmon and bull trout listed as
endangered would greatly be helped.
To illustrate how this bill would work, I'd like to share a real
life problem in Racetrack Creek located in western Montana. It is a
tributary of the Clark Fork River within an EPA Superfund site due to
historic damages from copper mining and milling. Racetrack Creek is a
spawning ground for bull trout (a listed threatened species) and it has
had problems in maintaining its water levels since the turn of the
century. A local watershed management group, the Upper Clark Fork
Steering Committee, is working on this problem with a wide cross
section of representation from the Clark Fork River basin. The Upper
Clark Fork Steering Committee and the Montana Department of Fish,
Wildlife, and Parks (FWP) are working to line Morrison Ditch which
diverts water for irrigation in the local area. A portion of the water
right ``salvaged'' by lining Morrison Ditch, under this bill, would be
leased by Montana's FWP from the ditch association to benefit that
fishery.
I would like to point out that this bill has broad support by
Senators on both sides of the aisle, as well as from the Farm Bureau
and the Environmental Defense Fund. Such a diverse range of interests
in support of this bill begs favorable consideration of this bill. It:
1. addresses the problem of adequate water supplies for our
agricultural producers;
2. addresses the problem from nonpoint source runoff;
3. creates new incentives for water users to conserve water;
4. provides the states greater flexibility to make loans from their
Clean Water state revolving fund for water conservation projects; and
5. does not increase the budget since it recovers money provided
for water conservation projects through loan repayments to state
revolving loan funds.
I would like to thank Senator Wyden for his work on this measure
and am pleased to work with him on this issue of great importance. If
there are any suggested changes, we are open to them.
I thank you Mr. Chairmen, for the Committee's consideration of this
bill.
__________
Statement of Hon. Paul D. Coverdell, U.S. Senator from the State of
Georgia
I would like to thank the distinguished Chairman for holding a
hearing on this important piece of legislation, the Federal Facilities
Clean Water Compliance Act; my distinguished colleagues, Senators
Breaux, DeWine, Grams, Chafee and Voinovich, for cosponsoring this
bill, and the witnesses that have come today to help illustrate the
need for this legislation. This legislation will guarantee that the
Federal Government is held to the same full range of enforcement
mechanisms available under the Clean Water Act as private entities,
states, and localities. Each Federal department, agency and
instrumentality will to be subject to and comply with all Federal,
State, and local requirements with respect to the control and abatement
of water pollution and management in the same manner and extent as any
person is subject to such requirements, including the payment of
reasonable service charges.
It has been over 26 years since the enactment of the Clean Water
Act. This Act has been an effective tool in improving the quality of
our nation's rivers, lakes, and streams. Over that period of time,
however, states have not had the ability to impose certain fines and
penalties against Federal agencies for violations of the Clean Water
Act. This is a double standard that should not be continued.
In 1972, Congress included provisions on Federal facility
compliance with our nation's water pollution laws in section 313 of the
Clean Water Act. Section 313 called for Federal facilities to comply
with all Federal, state, and local water pollution requirements,
However, in 1992, the U.S. Supreme Court ruled in U.S. Department of
Energy v. Ohio, that States could not impose certain fines and
penalties against Federal agencies for violations of the Clean Water
Act and the Resource Conservation Recovery Act (RCRA). Because of this
decision, He Federal Facilities Compliance Act (H.R. 2194) was enacted
to clarify that Congress intended to waive sovereign immunity for
agencies in violation of RCRA. Federal agencies in violation of the
RCRA are now subject to State levied fines and penalties. However, this
legislation did not address the Supreme Court's decision with regard to
the Clean Water Act. The Federal Facilities Clean Water Compliance Act
of 1998 makes it unequivocally clear that the Federal Government waives
its claim to sovereign immunity in the Clean Water Act.
The Federal Government ovens hundreds of thousands of buildings,
located on millions of acres of land, none of which have to abide by
the same standards as a private entity does under the Clean Water Act.
This legislation simply ensures that the Federal Government lives by
the same rules it imposes on everyone else.
I would like to thank Senator Chafee, Senator Breaux, Senator
DeWine, Senator Voinovich and Senator Grams for cosponsoring this
important legislation, and look forward to working with them and my
other colleagues in the U.S. Senate on its speedy consideration.
__________
Statement of J. Charles Fox, Assistant Administrator for Water, U.S.
Environmental Protection Agency
Introduction
Good morning Mr. Chairman and members of the Committee. I am Chuck
Fox, Assistant Administrator for Water at the U.S. Environmental
Protection Agency (EPA). I am pleased to be able to talk with you this
morning about the Nation's clean water program and several bills that
would amend the Clean Water Act.
Next Monday, October 18, is the 27th anniversary of the enactment
of the Clean Water Act (CWA). Twenty-seven years ago, the Potomac River
was too dirty to swim in, Lake Erie was dying, and the Cuyahoga River
was so polluted it burst into flames. Many rivers and beaches were
little more than open sewers.
Enactment of the CWA, under the leadership of this Committee,
dramatically improved the health of rivers, lakes and coastal waters.
It stopped billions of pounds of pollution from fouling the water and
doubled the number of waterways safe for fishing and swimming. Today,
many rivers, lakes, and coasts are thriving centers of healthy
communities.
In my testimony today, I want to describe the work EPA is doing to
carry the clean water program forward to the next century and comment
on several bills to amend the CWA that are before the Committee today.
clean water for the future--the clean water action plan
Despite tremendous progress, almost 40 percent of the Nation's
waterways assessed by States still do not meet water quality goals.
Pollution from factories and sewage treatment plants, soil erosion, and
wetland losses have been dramatically reduced. But runoff from all
sources, including that from city streets as well as from farmland and
rural areas continues to degrade the environment and puts drinking
water at risk. Fish in many waters still contain dangerous levels of
mercury, polychlorinated biphenyls (PCBs), and other toxic
contaminants. Beach closings are increasingly common.
Several years ago, after taking a hard look at the serious water
pollution problems around the country, the Administration concluded
that implementation of the existing programs was not stopping stop
serious new water pollution threats to public health, living resources,
and the Nation's waterways, particularly from polluted runoff. We
concluded that clean water programs lacked the strength, resources, and
framework to finish the job of restoring rivers, lakes, and coastal
areas.
In response to this concern, President Clinton and Vice President
Gore announced, in February 1998, a major new effort to speed the
restoration of the Nation's waterways. The Clean Water Action Plan
builds on the solid foundation of the Clean Water Act and describes
over 100 actions--based on existing statutory authority--to strengthen
efforts to restore and protect water resources.
The Action Plan is built around four key tools to achieve clean
water goals.
A Watershed Approach The Action Plan envisions a new,
collaborative effort by Federal, State, Tribal, and local governments;
the public; and the private sector to restore and sustain the health of
the over 2,000 watersheds in the country. The watershed approach is the
key to setting priorities and taking action to clean up rivers, lakes,
and coastal waters.
Strong Federal and State Standards The Action Plan calls
for Federal, State, and Tribal agencies to revise standards where
needed and make programs more effective. Strong standards are key to
protecting public health, preventing polluted runoff, and ensuring
accountability.
Natural Resource Stewardship Most of the land in the
Nation's watersheds is cropland, pasture, rangeland, or forests, and
most of the water that ends up in rivers, lakes, and coastal waters
falls on these lands first. Clean water depends on the conservation and
stewardship of these natural resources. This Action Plan calls on
Federal natural resource agencies to support State and local watershed
restoration and protection.
Informed Citizens and Officials Clear, accurate, and
timely information is the foundation of a sound water quality program.
Informed citizens and officials make better decisions about their
watersheds. The Action Plan calls on Federal agencies to improve the
information available to the public, governments, and others about the
health of their watersheds and the safety of their beaches, drinking
water, and fish.
We are making good progress in implementing the over 100 specific
actions called for in the Clean Water Action Plan. Congress has
provided vital support to this work by appropriating critical funding,
including almost doubling funding for State grants to reduce polluted
runoff to the level of $200 million per year.
Some key accomplishments include unified assessments of watershed
health by States, initiation of several hundred Watershed Restoration
Action Strategies, a new BEACH action plan, a response plan for
pollution threats to coastal waters, new efforts to support development
of riparian buffers, and a contaminated sediment strategy. Many other
critical projects are underway at EPA, the Department of Agriculture,
the Department of Interior, the National Oceanic and Atmospheric
Administration, and other agencies, as well as in States, local
governments, and the private sector.
The Clean Water Action Plan is a sound blueprint that takes clean
water programs into the next century. I ask, Mr. Chairman, that a copy
of the first annual report of progress to implement the Clean Water
Action Plan be included as part of my testimony in the hearing record.
proposed clean water act amendments
Before commenting on the several bills before the Committee today,
I want to take a moment to look at the bigger picture of CWA
reauthorization.
As you know, Mr. Chairman, key funding authorization and several
clean water SRF provisions of the CWA expired in 1994. At that time,
the Administration saw this as an opportunity to release a detailed
proposal for comprehensive amendments to strengthen the CWA.
Last week, I testified before this Committee on bills to amend the
Clean Water State Revolving Loan Fund program and to address the
challenging problem of controlling overflows from combined storm and
sanitary sewers. Today, I am testifying on bills related to storm water
permits, expanded use of the State Revolving Loan Funds, and expanded
enforcement at Federal facilities. I gather that additional legislative
hearings are likely to be scheduled.
Although the Administration is pleased to provide comments on the
specific provisions of each of these narrowly focused bills, I want to
encourage the Committee to consider the need to strengthen the CWA in
several critical areas that are not now the subject of proposed
legislation. For example, the Administration's proposal in 1994 called
for strengthening statutory authority to reduce polluted runoff, better
protect wetlands, reduce toxic pollution, and improve compliance and
enforcement. The clean water program has evolved over the past 5 years,
but most of the recommendations we made in 1994 are still appropriate
today.
In addition, there is a relatively recent development that poses a
serious threat to water quality in coastal and other waters that should
be addressed quickly. Congress should act to close a regulatory gap
that threatens the loss of tens of thousands of acres of wetlands to
drainage and excavation each year. This gap--which resulted from a
court decision invalidating the U.S. Environmental Protection Agency
and Army Corps of Engineers ``Tulloch'' rule requiring permits for
drainage and channelization that affect our Nation's wetland
resources--promises to defeat wetlands protection efforts unless
Congress takes prompt action.
The Administration is ready to work with this Committee and
Congress to strengthen the CWA.
Let me now comment on the pending bills to amend the CWA, including
bills to clarify the storm water program, strengthen enforcement
against Federal facilities, and expand eligibility of the clean water
State Revolving Loan Funds.
Legislation to Revise Storm Water Programs
The Committee asked that I comment on a bill--S. 1706--to make
amendments to the storm water pollution control authority of the CWA.
The Administration has significant concerns with several provisions of
the bill and is opposed to the bill as drafted.
In 1987, Congress added subsection 402(p) to the Clean Water Act to
requiring EPA to develop a phased regulatory program to control
contaminated discharges associated with storm water runoff. Congress
was responding to scientific evidence that storm water discharges
contributed to the impairment of one-third of all assessed surface
waters in the United States.
In the first phase of the program, the most significant sources of
storm water were to be controlled. EPA finalized Phase I storm water
regulations in November 1990. Those regulations generally required CWA
permits for storm water discharges associated with certain industrial
activities, medium and large municipalities, and large construction
sites. Permits generally give sources flexibility to implement various
management practices to reduce pollution levels in storm water. Today,
the existing Phase I storm water program is resulting in significant
improvement of surface water quality in the United States.
In response to statutory requirements to identify a second tier of
storm water sources, EPA developed, and is now working to finalize,
Phase II storm water regulations. As we developed the Phase II
regulation, EPA solicited input from stakeholders by convening a
Federal advisory committee which met 14 times. EPA developed 3 pre-
proposal public drafts and received 40-50 sets of comments. EPA
received additional input by convening a SBREFA Panel to solicit input
from potentially regulated small entities.
On January 9, 1998 EPA proposed Phase II storm water regulations
that address storm water discharges associated with small municipal
storm sewer systems and small construction sites. Small municipal storm
sewer systems include incorporated places, counties, and other places
under the jurisdiction of a governmental entity that are located in an
urbanized area but not included in Phase I. Small construction sites
are defined as sites that disturb between 1 acre and 5 acres of land.
The proposed rule, however, included several waivers of the permit
requirement for these construction sites (e.g. construction that occurs
in low rainfall periods).
The Phase II regulations are modeled after the Phase I rule and
would establish a cost-effective, flexible approach for reducing
environmental harm by storm water. The management measures in Phase II
reflect Phase I management measures which are well-accepted, common-
sense practices that many local governments and other stakeholders
agree are cost-effective and appropriate for controlling water
pollution.
Core storm water management measures include:
public education and outreach;
public participation and involvement;
illegal discharge detection and elimination;
control of construction site runoff;
post construction runoff control; and??
pollution prevention and good housekeeping.
The proposed rule also conditionally excludes discharges from those
industrial facilities that have ``no exposure'' to storm water, thereby
significantly reducing the current Phase I requirements. the rule
proposed to extend from August 7, 2001 until 3 years and 90 days from
publication the deadline by which certain industrial facilities owned
by small municipalities must obtain CWA permit coverage.
EPA received 550 comments on the proposal, held 6 public hearings
to gather additional information from stakeholders and adopted many
recommendations in the final rule. The Phase II rule is scheduled to be
promulgated on October 29, 1999.
The legislation before the Committee today would amend section
402(p) of the CWA in ways that would both seriously weaken existing
storm water pollution controls and dramatically restrict the water
pollution controls to be promulgated in Phase II regulations.
The proposed Phase II regulations provide that a municipality
holding a storm water permit may rely on another local government to
carry out specific permit conditions without establishing a co-
permittee relationship. EPA believes that this provision gives local
governments flexibility in addressing storm water problems and will
reduce overlap of program effort. In this case, the permittee, however,
is still responsible for assuring that permit conditions are met and is
subject to enforcement action if a permit condition is violated.
The bill would create a new subparagraph 402(p)(3)(B)(iv) to
provide that when a permittee relies on a second governmental entity to
carry out storm water related actions, the permittee is not subject to
enforcement action if the second governmental entity does not do its
job. Because the bill would not require the second governmental entity
to be officially part of the permit (i.e. not a ``co-permittee'') it
too would not be subject to enforcement action. The bill would create
cases where no one is legally responsible for storm water pollution.
Without an effective enforcement response, compliance with storm water
permits, and control of storm water pollution, will be significantly
reduced.
EPA recognizes that various municipal governments around the
country have different authorities and capacities and that in many
areas, implementing storm water permit requirements will require a
cooperative effort among diverse local agencies. EPA expects that when
a Phase II storm water permit provides for implementation by several
parties, that permit will specifically assign duties to ``limited co-
permittees'' that are liable for permit compliance. Where a Phase II
storm water permit makes clear assignments, EPA will, in the event of
noncompliance, direct enforcement to the party that has failed to do
its job. In this respect, the Phase II storm water program is unlike
other permit situations (e.g. situations where one party has
substantial operational control over another party and both entities
are jointly liable ``co-permittees.'') The waiver of liability in the
draft bill for any ``co-permittee'' is inappropriately broad.
Proposed section 402(p)(7)(A) would waive the requirement that a
local government obtain a permit for storm water discharges from an
``above-ground vegetated drainage ditch or a drainage way owned or
operated in conjunction with a road or street under the jurisdiction of
a local government.'' This provision would remove any ``above ground''
storm water conveyance (as opposed to an underground conveyance) from
the Phase II permit program, thereby substantially narrowing the scope
of the program and reducing water quality benefits.
Above ground conveyances convey storm water pollutants to waters of
the United States as do underground storm sewers, albeit sometimes at a
slower or more controlled rate. Many of the management measures
provided for in the Phase II rule are equally appropriate for above
ground and underground conveyances (e.g. control of dumping of non-
storm water pollution into storm sewers).
Proposed section 402(p)(7)(B)(i) would exempt any storm water
discharges associated with construction activity of less than 5 acres
from the permit requirements of the CWA. These construction activities
are a significant source of water pollution and meeting clean water
goals will be virtually impossible without the effective control of the
substantial sediment and nutrient pollutants form these sources.
Under current Phase I storm water rules, storm water discharges
from construction activity disturbing more than five acres is subject
to regulation under the clean water permit program as ``storm water
associated with industrial activity.''
In addition, Phase I rules provide that a discharge from activity
disturbing less than five acres is subject to regulation if (1) the
activity it is part of a larger common plan of development or sale or
(2) the permitting authority designates discharges from the activity as
a contributor to a violation of a water quality standard or a
significant contributor of pollutants. The bill could be interpreted to
overturn these existing water pollution controls.
Authority to require permits for small construction sites that are
part of a larger plan of development or sale is important because
construction typically occurs in stages. Regardless of the individual
lot size in a development of many small lots, the cumulative water
quality impact of this work can be equivalent to a larger development.
Case-by-case designation of small construction sites as needing a
clean water permit is an essential tool for protecting sensitive water
bodies. In addition, States and EPA need designation authority to
assure that measures to restore impaired waters identified in a ``total
maximum daily load `` analysis are effectively implemented.
The bill would, of course, also overturn the provision of the soon
to be promulgated Phase II rule requiring small construction sites to
have a clean water permit. There is extensive evidence of the serious
water pollution problems caused by small construction sources. We
believe the Phase II rule strikes the right balance in responding to
this problem by requiring permits for these sources but also waiving
the permit requirements where the likelihood of pollution is shown to
be limited (e.g. in low rainfall periods).
Proposed section 402(p)(7)(B)(ii) would codify previous EPA
statements about interpretation of ``land disturbance'' as it relates
to storm water associated with construction activity. EPA distinguishes
road construction (initial disturbance) from road maintenance
(subsequent regrading and leveling) to exclude the latter. EPA does not
oppose this section, but believes it is unnecessary.
Legislation to Strengthen Federal Facilities Enforcement
In April 1992, the Supreme Court ruled in Department of Energy v.
Ohio that the United States has not waived its immunity from liability
for civil ``punitive'' penalties for violations of the CWA. As a
result, neither States or citizens can obtain punitive penalties for
violations of the Act.
The Federal Facilities Clean Water Compliance Act of 1999--S. 669--
would explicitly waive Federal sovereign immunity for all penalties for
violations of the CWA and would create new authority for administrative
penalties against Federal facilities. This legislation is consistent
with Administration proposals for amendments to the CWA made in 1994
and amendments to the Act reported by this Committee the same year.
The Administration supports the legislation. However, the Agency
would like to work with the Committee to clarify several issues. Most
importantly, the CWA should continue to provide the President with the
authority to exempt Federal facilities from compliance with certain
requirements where it is in the paramount interest of the United States
to do so; S. 669 may operate to remove this existing authority.
Amending the CWA as proposed in S. 669 would continue the precedent
of clearly waiving sovereign immunity in other reauthorizations of
environmental laws. In October 1992, partially in response to the
Department of Energy v. Ohio decision, Congress passed the Federal
Facility Compliance Act.
That legislation (1) waived the Federal Government's immunity from
penalties for violations of the Resource Conservation and Recovery Act
(RCRA) and (2) provided EPA with RCRA administrative order authority
against Federal facilities under RCRA. Likewise, the 1992 amendments to
the Toxic Substances Control Act (TSCA) gave EPA order and penalty
authority for violations of the lead-based paint notification
provisions of TSCA.
In the 1996 re-authorization and amendment of the Safe Drinking
Water Act (SDWA), Congress provided EPA with enforcement authorities
against Federal facilities similar to those applicable to RCRA.
In 1997 the Justice Department Office of Legal Counsel issued a
decision clarifying EPA's administrative penalty authorities under the
Clean Air Act (CAA).
The clear message here is that, with the help of Congress, we are
beginning to ``level the playing field'' for Federal facilities.
By enhancing enforcement authorities, Congress has sought to ensure
that EPA would be an independent force to keep environmental compliance
a high priority for the Federal community. EPA and the States have been
taking this role seriously. Since the Federal Facility Compliance Act
was passed in 1992, EPA and the States have issued over 200 RCRA
administrative orders to Federal Facilities with assessed penalties of
over $20 million. Last year, EPA issued its first ever administrative
penalty orders at Federal facilities under the SDWA, CAA, and TSCA
(lead-based paint).
Perhaps more important than penalty or order numbers is the fact
that, since 1993, we have seen an increase in RCRA compliance rates by
Federal facilities. In the same time period, CWA compliance rates by
Federal facilities have not followed that same pattern. While it is too
early to see any Federal facility compliance rate trend associated with
the recent penalty authorities under SDWA, CAA, and TSCA, the
correlation between penalty authority and increased compliance rates
under RCRA as compared to the lack of penalty authority and current
compliance rates under CWA cannot be dismissed.
Legislation to Expand SRFs Use for Water Conservation
S. 188 would amend the CWA to make an expanded group of
organizations and persons eligible for loans from the Clean Water State
Revolving Loan Funds (SRFs) to implement water conservation projects
and other projects with water quality benefits.
Today, the clean water SRFs are able to make loans to publicly
owned treatment works to finance projects to conserve water including
``structural'' approaches (e.g., publicly owned water meters, water
saving or recycling devices, and grey-water separation systems) and
``non-structural'' measures (e.g., public education and incentive
wastewater service charges). These conservation measures reduce flows
to sewage treatment works, reduce capital expansion needs, and thereby,
provide significant public benefits.
In addition, under current law, when a nonpoint pollution plan
approved by EPA under section 319 or an estuary plan approved by EPA
under section 320 provide for water conservation, projects to implement
these plans are currently eligible for SRF loans. Diverse public and
private parties (i.e. parties other that publicly owned treatment
works) can be eligible to receive the loans, depending on State law.
The proposed legislation would specifically authorize SRF loans for
water conservation activities outside of a municipal sewer system for
non-residential water conservation activities, specifically,
conservation of water used for agriculture. The bill would also make
private organizations and individuals eligible for the loans.
Conservation of agricultural water can have dramatic benefits for
aquatic life and water quality and the Administration supports using
SRFs to finance such projects under specific circumstances. For
example, water conservation projects that would make more water
available to augment flow in a water body where the State has
identified low flow as a cause of nonattainment of a designated use
should be eligible for SRF funding.
We are concerned that, as presently drafted, the bill would allow
States to use SRF loans for water conservation projects with limited
environmental benefits, and would expand eligible loan recipients. New
authority for use of SRFs for projects with a ``water quality benefit''
is vague and needs to be better described and discussed. The
Administration intends that the primary focus of clean water SRFs
remains infrastructure investments to help municipalities meet water
quality goals. We would like the opportunity to work with sponsors of
the bill and the Committee to better define the circumstances under
which SRF loans could be made to public and private entities for water
conservation or other purposes.
conclusion
Thank you, Mr. Chairman and members of the Committee for this
opportunity to testify on proposed amendments to the CWA. EPA stands
ready to provide additional technical assistance on issues related to
these bills.
I will be happy to answer any questions.
______
Responses by Charles Fox to Additional Questions from Senator Wyden
Question 1. The Administration's Clean Water Action Plan identifies
polluted runoff as the leading water quality problem today. Yet, in
your testimony, you stated that ``The Administration intends that the
primary focus of clean water SRF's remains infrastructure investments
to help municipalities meet water quality goals. Aren't you essentially
saying that the SRF program, which is EPA's largest water quality
program, is not going to be used primarily to address the biggest
current water quality problem? Shouldn't Clean Water SRF funds be
available to meet the biggest water quality needs and hasn't it been
the case that 5 percent or less of SRF funds have gone toward runoff
projects?
Response. The fiscal year 2001 President's budget proposes
appropriations language that will allow States discretion to use up to
19 percent of their annual capitalization grants for the Clean Water
State Revolving Fund for grants, rather than loans, to finance projects
to reduce nonpoint source pollution and protect estuaries. This new
authority would give States much needed flexibility in designing
financing packages for nonpoint source control projects that are
viable. This proposal was also included in the fiscal year 2000
proposal. Congress did not pass an appropriations bill that included
this new authority for fiscal year 2000.
States began issuing loans from their Clean Water SRF's in 1988,
and in the first 2 years, the loans went exclusively toward
construction, expansion, and/or upgrading of publicly owned treatment
works. SRF loans for treatment works have greatly assisted
municipalities in meeting human health and water quality goals, and we
are very proud of the success of the SRF's and what they have
contributed toward improved water quality across the nation.
The SRF's began to issue nonpoint source (i.e., runoff) loans in
1990, and since then, there have been significant increases in the
number of states funding nonpoint source projects (25 states to date
with another 6 expected in 2000) and in the variety of nonpoint source
projects being funded (agricultural cropland and animal best management
practices, silviculture, urban runoff, ground water protection,
brownfields remediation, underground storage tank remediation, landfill
remediation, septic tank replacement, hydromodification, and estuary
improvement). The amount of money going to nonpoint source projects is
still relatively small compared to the amount going toward publicly
owned treatment works, because nonpoint source projects tend to be much
smaller and less expensive than traditional wastewater treatment plant
construction projects. To illustrate, 6 percent of funds loaned in 1999
went to nonpoint source projects, corresponding to 36 percent of all
loan agreements for nonpoint source projects.
EPA encourages states to identify their water quality concerns
across the state, both point source and nonpoint source, and to direct
the funds in their SRF's toward the highest-priority water quality
projects, whether they be point source or nonpoint source.
Question 2. You say in your testimony that you're concerned that my
bill would allow States to use SRF loans for water conservation
projects with limited environmental benefits. The SRF provisions of the
Clean Water Act already include language assuring there must be water
quality benefits for any funds used in the SRF program. Specifically,
Clean Water Act Section 602(b)(5) requires all SRF funds to be used
``to assure maintenance of progress, as determined by the Governor of
the State, toward compliance with the enforceable deadlines, goals, and
requirements of the [Clean Water] Act. . . '' A State must demonstrate
that all SRF funds it receives from EPA will meet this test. This
requirement is already in the law and my bill doesn't change it, so
this requirement would continue in effect for any funds used for water
conservation projects. Why does EPA think making progress toward
achieving Clean Water Act goals and requirements is not sufficient
assurance that there will be environmental benefit from water
conservation projects when this is the same test currently applied to
other uses of SRF funds? If EPA thinks additional assurance of
environmental benefits is needed for water conservation projects, what
language would EPA propose including in S. 188 to provide this
assurance?
Response. The Administration intends that the primary focus of the
Clean Water SRF remains infrastructure investments to help
municipalities meet water quality goals. We would like the opportunity
to work with the sponsors of the bill and the Committee to better
define the circumstances under which SRF loans could be made to public
and private entities for water conservation or other purposes.
Water conservation is already an eligible purpose for the CWSRF in
many cases. The clean water SRFs are able to make loans to publicly
owned treatment works to finance projects to conserve water including
``structural'' approaches (e.g., publicly owned water meters, water
saving or recycling devices, and gray-water separation systems) and
``non-structural'' measures (e.g., public education and incentive
wastewater service charges). These conservation measures reduce flows
to sewage treatment works, reduce capital expansion needs, and thereby,
provide significant public benefits.
In addition, under current law, when a nonpoint pollution plan
approved by EPA under section 319 or an estuary plan approved by EPA
under section 320 provide for water conservation, projects to implement
these plans are currently eligible for SRF loans. Diverse public and
private parties (i.e. parties other that publicly owned treatment
works) can be eligible to receive the loans, depending on State law.
As noted in the testimony, there are several important policy
changes in S. 188 about which the Administration is concerned. Without
minimizing the need for additional dialog, in response to your
question, we would suggest some slight modifications to S. 188, Section
3 (2) ``Financial Assistance'' so as to ensure that the projects funded
contribute to water quality improvements as well as water conservation.
__________
Statement of Bruce DeGrazia, Assistant Deputy Under Secretary of
Defense (Environmental Quality)
S. 669, Federal Facilities Clean Water Compliance Act of 1999
Good morning. My name is Bruce deGrazia. I am the Assistant Deputy
Under Secretary of Defense (Environmental Quality) in the Office of the
Secretary of Defense. I would like to thank you for the opportunity to
speak before this Committee on the proposed bill S. 669, ``Federal
Facilities Clean Water Compliance Act of 1999.''
Secretary Cohen stresses the importance of Defense preparedness so
the United States can lead the world into a new, more peaceful century.
Our National Security Strategy works to foster a stable international
order, allowing critical regions to be stable and free from domination
by hostile powers, where the global economy and trade are free to grow,
where democratic norms are widely accepted, and where nations freely
cooperate to prevent and also respond to natural and political
calamities.
The three elements of the Secretary's defense strategy are: Shape,
Respond and Prepare. Environmental Security is active in each of these
categories helping:
SHAPE the international security environmental in ways
favorable to U.S. interests, promoting regional stability through
military-to-military cooperation
RESPOND by supporting critical environment and health
requirements of military operations
PREPARE by sustaining access to land, air, and sea for
training through responsible management of our installations and
training lands.
I'm here today to discuss how Environmental Security is protecting
our waters while supporting the Secretary's priorities and defense
strategy.
environmental security vision and goals
Recognizing the Secretary's top priorities--people, readiness, and
modernization within the context of the hierarchy of the National
Security Strategy Environmental Security prepared a new vision
statement this year. The new vision statement emphasizes the importance
of integrating environmental, safety and health activities into DoD
operations, protecting readiness through wise environmental management
of ranges, and supporting modernization by improving the quality and
reducing the costs of defense acquisition and procurement.
VISION: To have fully incorporated environmental, health and safety
values into the culture of the Department of Defense. These core values
are recognized by the uniformed and civilian customers throughout the
Department of Defense and its external stakeholders. They are vital
parts of all operational and business decisions whereby the safety and
health of our people, protection of weapons systems, facilities, and
the environment are integrated into all worldwide national defense
activities.
We have identified five specific goals within the Environmental
Security program to meet the safety, health, and environmental needs of
the new millennium.
Support readiness of U.S. Forces by ensuring access to
air, land and water for training and operations
Improve quality of life by protecting military personnel
and families from environmental, safety and health hazards and by
providing recreational opportunities (e.g., hunting, fishing, camping,
hiking)
Ensure weapons systems, logistics, installations, et al.,
have greater performance, lower lifecycle costs, and minimal health and
environmental effects
Serve customers, clients, stakeholders through public
participation and advocacy
Enhance international security through military-to-
military cooperation.
These goals are the underpinnings for current activity at
Environmental Security. The second goal improving quality of life is
especially relevant to today's hearing.
department of defense clean water program
The Department of Defense has long had a policy of full and
sustained compliance with environmental laws and regulations. We take
our commitment to protecting the men, women, and children living and
working on our installations and the surrounding communities very
seriously. A significant part of that commitment is protection of the
waters of the United States.
The Department of Defense already complies with the Clean Water
Act. Our installations have long worked closely with the Federal,
state, and local regulators to ensure that our facilities comply with
the Federal Water Pollution Prevention Control Act (FWPCA), commonly
known as the Clean Water Act. Our installations have permits, comply
with discharge standards, and submit regular monitoring reports, just
like any other entity subject to the Clean Water Act. In addition, we
are subject to enforcement actions and compliance agreements, like any
other entity subject to the Clean Water Act.
We are not above the law. The Department of Defense abides by the
same standards and regulations as states, local governments, and the
private sector. We have been complying for decades.
The Department has almost 1,900 Clean Water permits throughout the
United States. These permits cover domestic wastewater, industrial
wastewater, and storm water. In addition, some of our installations
discharge wastewater to municipalities and cities. In Fiscal Year 2000,
the Department will invest $215 million in upgrading and replacing
wastewater treatment infrastructure. On top of these investments, the
Department spends millions of dollars each year complying with the day-
to-day requirements of these permits operating treatment plants,
sampling the water, repairing and maintaining of the plants, submitting
regular monitoring reports to the regulators, etc.
Our compliance record in the area of Clean Water is excellent. In
1998, the Department received only 37 enforcement actions. 98 percent
of our almost 1,900 permits were in compliance. This is significant.
Most of these actions were administrative, such as paper work and late
reporting. Still, we can do better. The Military Departments are making
great strides to reduce enforcement actions and to reach a state of
full and sustained compliance.
Senate 669, Federal Facilities Clean Water Compliance Act of 1999
The Department of Defense is committed to complying with all
provisions of the Clean Water Act. In addition, the Department has
supported a limited expansion of the waiver of sovereign immunity that
would subject us to penalties for all Clean Water Act violations for
which a private person would be liable. Whenever possible and
consistent with our other statutory obligations, we should be held to
the same standard as other private or public entities.
The proposed bill tracks closely the language used in recent years
to amend the Resource Conservation and Recovery Act and the Safe
Drinking Water Act to expand the waiver of sovereign immunity. The
Administration, including the Department of Defense, has supported both
of these efforts.
Although the Administration supports the goals of S. 669, we are
concerned with one of the provisions the bill. This provision, in rare
circumstances, could interfere with our ability to carry out critically
important responsibilities in a manner protective of national security.
Presidential Exemption
The proposed bill would eliminate the Presidential Exemption
provision currently included in Section 313 of the Federal Water
Pollution Control Act. This provision is carefully circumscribed and
allows the President to exercise his authority only ``in the paramount
interest of the United States.'' Similar provisions for exemption are
found in:
the Clean Air Act, 42 USC 7418;
the Safe Drinking Water Act, 42 USC 300j-6;
the Resource Conservation and Recovery Act, 42 USC 6961;
and
the Comprehensive Environmental Response, Compensation,
and Liability Act, 42 USC 9620j.
Historically, Presidents have used these provisions infrequently,
and the standard required is difficult to meet. These exemptions are
essential tools to ensure that the President has the flexibility he
needs to act quickly and decisively to protect the national interests
when strict compliance with these environmental laws would jeopardize
the overall interests of the United States. The Presidential Exemption
has not been abused.
In fact, the use of the Presidential Exemption can protect our
waters. This exemption has only been used twice. In October 1980,
President Carter directed the Department of Defense to rapidly
construct housing for the Haitian refugees at Ft. Allen in Puerto Rico.
An integral part of this housing was a system to collect and treat
wastewater. Because the process of obtaining a permit would not allow
us to meet the pressing needs of the Haitian refugees in a timely
manner, President Carter issued an exemption to the permitting aspects
of the Clean Water Act in this specific situation. President Reagan
renewed the Exemption for another year in October 1981. The result was
that we were able to protect the health of the Haitian refugees. Had we
not been able to invoke this Presidential Exemption, the collection and
treatment of the wastewater would not have been possible.
The Administration opposes the elimination of the Presidential
Exemption provision.
Comprehensive Environmental Response, Compensation and Liability Act
Implications
The Department, with the support of the Administration, has
consistently opposed efforts to change the waiver of sovereign immunity
in the Comprehensive Environmental Response, Compensation and Liability
Act (CERCLA). Given that strong opposition, the question arises why the
Department can support the changes in the waiver proposed in Senate
669. So you can clearly understand why the Department of Defense has
differing positions on waiver of sovereign immunity for these two Acts,
I would like to clarify the differences and explain our rationale for
opposing the waiver under CERCLA.
Compliance with Environmental Requirements under CERCLA
You may have heard the allegation that the Federal Government does
not comply with environmental laws to the same extent as private
parties. The truth is that the Department of Defense already complies
with environmental laws to the same extent as private parties
conducting a cleanup under CERCLA. CERCLA already requires the Federal
Government to cleanup to state standards. The Department of Defense
follows the procedural requirements of CERCLA and complies with the
substantive requirements of state and Federal environmental laws and
regulations. This means that the Department follows the process
prescribed by the Environmental Protection Agency for CERCLA and that
we meet all the applicable or relevant and appropriate requirements
(ARARs) in state and Federal laws. CERCLA exempts all parties from many
purely procedural requirements of other state and Federal laws, such as
the requirement to obtain permits. This is to speed up the process so
that cleanups can be implemented as quickly as possible.
CERCLA is Different from Other Environmental Regulations
Some may perceive that because we support a waiver of sovereign
immunity for the Federal Water Pollution Control Act, but do not
support an amendment to the current waiver of sovereign immunity in
CERCLA that we are being inconsistent. This is far from the case for
two important reasons. One there already is a waiver of sovereign
immunity in CERCLA, which we believe works very well. The current
waiver encourages the Department of Defense and states to reach
consensus on disputed issues at the negotiating table rather than
resorting to litigation. The negotiation process has worked to change
planned cleanups, without increasing the costs of those cleanups by
orders of magnitude as, on occasion, a state has sought. Second, CERCLA
addresses a different type of situation than the other regulations
where the Department supports waivers of sovereign immunity. Our job is
to determine what contamination is present, if it presents a threat and
then to take appropriate action. The Department of Defense is required
by provisions of Title 10 to follow the CERCLA process at all of our
sites, whether they are on the National Priorities List or not. The
Clean Water Act is prospective and seeks to control or limit pollution
from occurring. Waiting for approval of a new water permit discharge
permit should not impact public health or the environment, because the
discharge cannot occur until the permit is approved. However, at CERCLA
sites, the contamination already at the site can spread during the wait
with the potential for impacting public health and the environment and
increasing costs significantly. Similarly, imposing other processes
under state law to cleanup actions required by Federal law to be
performed under CERCLA would slow down the cleanup process, and create
duplication of effort and confusion.
The Department of Defense believes that a waiver of sovereign
immunity for the Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA) modeled after the Federal Facility Compliance
Act of 1992 (FFCA) is inappropriate. For a more complete discussion, we
will be pleased to provide a copy of a Report to Congress on the
Potential Impacts of the Proposed Amendment to the CERCLA Waiver of
Sovereign Immunity we prepared with the Department of Energy in
February of this year.
conclusion
In summary, the Department supports almost all of the entire bill.
However, we believe the bill should be amended to retain a Presidential
Exemption provision in the present law.
We would be happy to meet with your staff to discuss our concerns
with this proposed bill.
Thank you.
__________
Statement of Judge Helen Walker, Victoria County, Texas
Chairman Chafee and other distinguished Senators, I am Helen
Walker, Victoria County Judge, in Victoria Texas and co-chair of the
Texas Counties Storm Water Coalition which currently represents 115
counties in Texas. The Coalition was formed in early 1998 because of
the concern Texas counties had with the burden of the Phase II rules
and the ability to comply with many of the regulations.
I am here today to voice our concerns with the EPA proposed Storm
Water Phase II rules and to explain why this is not a manageable rule.
Although I am from Texas, this is not solely a Texas problem. Counties
in your home states will also be severely impacted by these rules.
As you are aware EPA, initially proposed Phase II in January 1998
to regulate two types of storm water discharges: (1) those from small
municipal separate storm sewer systems and (2) those associated with
construction activities that disturb between one and five acres of
land.
The EPA has made population the basis for the Phase II regulatory
scheme, which means that ``urbanized'' areas (as defined by the census)
will be covered by the rule whether or not they present any water
quality concerns. In the proposed rules EPA automatically identifies 38
counties in Texas as owners and operators of small municipal separate
storm sewer systems (MS4s) based on this population definition. We
anticipate that 10 more counties, in Texas, will meet the ``urbanized''
definition after the 2000 census. Several of these counties are in West
Texas, which is very arid and receives little precipitation. However,
because the rule is based on population and not water quality, these
arid counties will be required to administer the same type of program
as those entities which might truly have water quality impairments.
In these approximately 48 Texas counties, roadside vegetated
ditches will be considered MS4s under EPA's current definitions.
Counties and cities with identified MS4s will be required to enact
ordinances and enforce those ordinances to comply with the six minimum
control measures, required for MS4s entities. Counties in Texas as well
in many other states lack the authority to enact these ordinances and
implement all of the regulatory requirements that Phase II requires.
Further, these vegetated ditches serve as a natural treatment system
and should not be considered an MS4.
The proposed rule does provide for co-permitting among entities. In
Texas we can see this as a real advantage. Since the ``urbanized'' area
is not the entire county, but a donut around the city, co-permitting
could be advantageous to the city and the county. The city in many
areas has the capability to meet all the necessary permit requirements
and therefore, the county, which does not, would be interested in co-
permitting. The problem with the proposed rule is that liability for
noncompliance remains with all entities. For example, if a county
contracts with the city to co-permit and the city obtains the permit
and has agreed to comply with all necessary Best Management Practices
requirements, but the city fails to do so, the liability remains with
both the city and the county. In this instance the county relied on the
city to administer the program, but could be subjected to fines and
penalties along with the city.
All 254 counties in Texas as well as counties in other states with
the responsibility of road construction and maintenance of county roads
will be impacted by the construction provision of the rule. As the rule
is proposed counties would be required to obtain permits for a
multitude of core county activities, such as routine road maintenance,
drainage ditch clearance, and pothole repair. In Texas alone there are
thousands of county road miles. An acre threshold is not very large and
would include almost every county road project. Many of these roads are
gravel roads and again many of these counties are located in arid areas
of the state Mat receive little rain. They would be required to obtain
the permits and comply with the requirements regardless of the water
quality impacts.
Senator Hutchison has filed legislation, which addresses many of
our concerns. S. 1706 would:
1) Exclude from consideration as regulated MS4s, the thousands of
miles of vegetated county road ditches which already serve as a natural
treatment system and should not be covered by the Clean Water Act;
2) eliminate permitting of construction sites less than five acres;
EPA chose the five acre threshold for permitting under the Phase I
regulation.
3) exclude routine road maintenance from being considered as a
construction activity;
4) protect counties from liability for not complying with Phase II
regulations that require actions exceeding the authority vested in
counties under State law. (Many counties across the Nation do not have
ordinance making or enforcement authority); and
5) enhance the ability of counties to rely on another governmental
entity's implementation of MS4 measures by protecting counties from
liability if the implementing entity fails to comply with Phase II.
As a local elected official I know better than most that clean
water is a precious commodity. Clean Water is the key to a successful
community and that is why Congress in its wisdom passed the Clean Water
Act. However, we believe that this proposed rule goes well beyond the
Act and is not aimed at truly improving water quality. If it was, then
it would be based on areas -with water quality problems, instead of
being based on population thresholds. The EPA has opted to paint with a
broad brush and in loose language that assumes that everyone is the
same. Everyone is not the same. Cities and counties across the Nation
have different regulatory and statutory authorities.
I am certain there are areas of the country that have severe water
quality problems. Accordingly, those areas should be singled out with a
proven solution to address those problems. We believe that these rules
are based largely on assumptions. The rule assumes that if you have a
population of 50,000 you must have water quality problems; it assumes
that if you are involved in a construction activity of one acre you
must be contributing to water quality problems. These assumptions are
evident because EPA is issuing a Phase II rule without ever analyzing
the Phase I data. The Phase I rule was issued in the early 1990's and
applied to large cities of 100,000 or more as well as large industrial
sites. Was Phase I program successful in improving water quality? This
question has not been answered with any proven data other than the
assumption that if you have a program it must work.
Senator Hutchison's bill takes a logical approach at correcting the
broad brush approach. We believe that if this legislation is passed, it
will help local governments throughout the nation. This is an
opportunity for Congress to make clear to EPA the intent of the Clean
Water Act and to further the goal of cleaning up our water.
Again, I thank you for this opportunity and will be glad to answer
any questions.
__________
Statement of Doug Harrison, General Manager/Secretary, Fresno
Metropolitan Flood Control District
On behalf of the National Association of Flood and Stormwater
Management Agencies, I am pleased to submit testimony on the Water
Regulation Improvement Act of 1999, introduced by Senators Hutchinson
and Gramm. NAFSMA represents more than 100 flood control and stormwater
management agencies serving a total population of more than 76 million
citizens. Many of our members are participants in the Phase I NPDES
Stormwater program and also administer water resources projects with
the Corps of Engineers and work closely with the Federal Emergency
Management Agency, as well as participating in the National Flood
Insurance Program. NAFSMA also served on the Federal Advisory Committee
convened to help design the Phase II Stormwater Program and
participated on the Urban Wet Weather Federal Advisory Committee.
NAFSMA's membership includes public agencies whose function is the
protection of lives, property and economic activity from the adverse
impacts of storm and flood waters. As a national association whose
mission is to advocate public policy, encourage technologies and
conduct education programs to facilitate and enhance the achievement of
the public service functions of its members, NAFSMA appreciates the
Committee's attention to the stormwater issue and looks forward to
continued work with you on this important priority.
Background on the Stormwater Issue
In adopting the Clean Water Act Amendments in 1987, Congress
clearly recognized the differences between stormwater and wastewater
discharges and required stormwater permitters to reduce the discharge
of pollutants in urban stormwater to the ``maximum extent practicable''
or ``MEP.'' It is the MEP standard and best management practice
approach that drive the Federal stormwater program.
A requirement to include numeric effluent limits in NPDES
stormwater permits has been alleged by various environmental groups. In
a suit against five public agencies in Arizona responsible for
administering the stormwater program, the Ninth Circuit Court upheld
the Arizona permits and rejected the position of both petitioners, the
Defenders of Wildlife and the Sierra Club that the Clean Water Act
402(p) is ambiguous and that compliance with water quality
standards is required for municipal stormwater permits. NAFSMA joined
the National League of Cities, the National Association of Counties,
the American Public Works Association and the Association of
Metropolitan Sewerage Agencies in filing as amici curiae in support of
the Arizona permitters in this case.
Although the decision was favorable on the water quality standards
issue, such litigation needlessly ties up local staff and resources
that could otherwise be directed to stormwater management activities.
We urge Congress to clarify its intent to recognize that municipal
stormwater systems and the related NPDES permits are not adaptable to
traditional NPDES requirements and that the goal of improved water
quality is to be achieved through municipal stormwater management
programs, not the application of nonachievable, nonpracticable numeric
limits. Even the U.S. Environmental Protection Agency in the interim
guidance for the Phase I stormwater program issued in the summer of
1997 clearly states that numeric limits are not necessary or
appropriate in NPDES stormwater permits.
Our members with NPDES permits have also had to face citizen suits
for failing to meet water quality standards, which in most cases are
technologically unattainable. A number of our members are also facing
legal action over the imposition of stormwater utility fees, which for
many localities is the only approach available for funding their
stormwater activities. In Cincinnati, Ohio, the Federal Government's
National Institute of Occupational Safety and Health facility refused
to pay the local stormwater fee and at least one other Federal agency
in the area has also expressed its intent not to pay the municipal
stormwater fee.
Additional Research on Water Quality Impacts on Phase I is Needed
NAFSMA is encouraged by language currently attached to the VA-HUD
Independent Agencies Appropriations bill that calls on the U.S.
Environmental Protection Agency to report to Congress on the actual
water quality gains brought about nationwide as a result of the Phase I
NPDES stormwater program. However, in order for Congress to clearly see
the stormwater Phase I impact, we urge that the report examine both the
costs and benefits of the Phase I program to date. We also support the
request that EPA report to Congress on the successful and unsuccessful
best management practices that have been used in the NPDES stormwater
program to date.
The lack of research on the impacts of the Phase I stormwater
program has long been an issue for NAFSMA members. A few years back,
NAFSMA surveyed communities over 100,000 in population to determine the
average amount spent at the local level on NPDES stormwater permits. We
reported to Congress and U.S. EPA at that time that our individual
members had expended on average $650,000 per community on the
application process alone.
In a recent survey of Phase II communities undertaken by NAFSMA,
nearly 75 percent of the respondent communities indicated that they do
not currently have a public education or outreach program on stormwater
and 46 percent of the respondents do not currently spend money on any
of the stormwater activities identified in the survey. It is also
significant to note that 39 percent of the respondent communities
believe they will need to hire a consultant to assist them in preparing
the application. The 54 percent of Phase II communities that currently
fund stormwater programs or activities spend upwards of $4,000 per
square mile or on an average of $2.76 per capita on these programs. It
is clear that the economic impacts of the Phase II program will be
significant.
S. 1706--Water Regulation Improvement Act
NAFSMA commends the committee for looking at ways to improve the
Federal stormwater program and the Phase II regulation. However, it is
important to note that S. 1706 only gets to the tip of the iceberg. The
problems with the stormwater regulation are not limited to Phase II,
but include the Phase I program as well. Problems such as the potential
inclusion of numeric effluent limits in NPDES stormwater permits have
critical national impacts and should be considered by the committee as
part of legislation to improve the Federal stormwater regulation. The
lack of research on the impacts of Phase I, both cost and benefits, is
another issue that merits national attention.
Also looming are the impacts of current regulatory proposals such
as Total Maximum Daily Loads (TMDLs), a tool for attaining water
quality standards, and the parallel NPDES regulation that modifies the
antidegradation rule. NAFSMA appreciates the committee's efforts to
provide additional time for review of these regulations as well as
scheduling an oversight hearing on the proposal. The impacts of the
proposed TMDL and antidegradation rule on NPDES stormwater permit
holders throughout the country (whether Phase I or Phase II) will be
great and we appreciate your attention on this issue. We also urge that
even more attention be given and a thorough review the impacts of this
program be carried out over the upcoming months.
The inadequacy of funding for wet weather programs is also an
extremely important issues. There has been very little Federal funding
provided to implement the Federal stormwater program. The regulatory
requirements have continued to grow while funding to carry out these
wet weather activities has been reduced. Congress needs to look at
providing adequate resources to conduct the requisite research,
demonstration projects and to implement the national environmental
mandates.
The most recent estimates of the costs of compliance with Clean
Water Act mandates are staggering--more than $330 billion over the next
20 years. No locality, no matter how large, how well off, or how
committed--can find or generate the resources required to finance needs
of this magnitude. This estimate does not include anticipated mandates
to meet TMDLs, which has the potential to require extraordinarily
costly or unattainable reductions of pollutants from municipalities
and/or industry, further straining limited resources.
S. 1706--Section 2. Waiver of Liability of Co-Permittees
NAFSMA supports protection for a co-permittee in compliance with
their NPDES stormwater permit from liability for the failure of another
co-permittee or other governmental entity to implement a specific
control measure required under the NPDES permit. NAFSMA also supports
and urges protection for NPDES stormwater permit holders who are in
compliance with their NPDES permits from citizen suits for failure to
meet water quality standards.
Vegetated Road Ditches
NAFSMA understands this provision to exclude vegetated road ditches
in rural areas from NPDES Phase II requirements. This language could be
clarified to ensure that the exemption does not apply to those Phase II
MS4s that are located in urbanized areas, which are automatically
designated for Phase II regulations. Many communities around the
country have expressed concerns that the donut holes (currently
unregulated small cities surrounded by Phase I cities) need to be
brought into the Federal stormwater program since these currently
excluded cities have similar discharges and frequently impact the Phase
I city's stormwater system and stormwater quality program efforts.
Of central importance is not the structural nature of the
stormwater conveyance, but the quality of the waters flowing therein
and their point of disposal. (Discharges which do not reach waters of
the United States are already exempted.) This point well supports the
need for stormwater systems to be seen as more typically non-point
sources requiring a reasonable watershed based approach.
Construction Activities and Routine Road Maintenance
NAFSMA and other organizations involved with the Stormwater Phase
II Federal Advisory Committee were concerned with the reduction from
the five acres requirement down to one acre in the proposed Phase II
regulation. This change will greatly increase the workload on the
permitting agencies, be it either the states or U.S. EPA and will
probably result in significant stormwater permitting delays. NAFSMA
proposed during the Phase II FACA process that construction sites below
5 acres not be included in the regulatory framework unless sensitive
resource waters were at risk.
NAFSMA also wishes to highlight its concern as to the current and
proposed Federal regulation of routine local stormwater system
maintenance issues. The regulatory burden on state and local government
agencies to carry out their routine maintenance activities has
intensified in recent years and has created a public safety threat in
many cases. Our members have experienced great delays in carrying out
routine maintenance not only because of NPDES requirements, but because
of Section 404 regulatory requirements implemented by the U.S. Army
Corps of Engineers. The general regulatory move from environmental
protection to environmental perfection has left our agencies unable to
carry out their local maintenance responsibilities. In many cases it
has taken months, and in some cases years of work, to obtain necessary
Federal permits to carry out local maintenance activities due to
section 7 consultations and water quality certification reviews that
are required as part of the permitting process.
NAFSMA recently commented on the Corps proposed nationwide permit
regulations which have been designed to streamline the wetlands
permitting program and we would be pleased to submit those comments as
part of the record. The combined effect of the nationwide proposals
will put many of our flood control activities into the individual
permits. By adding restrictions such as limiting our flood control and
stormwater management projects in the 100-year floodplain and reducing
acreage limitations in the program, many of our public safety
activities will now fall into the individual permitting process. NAFSMA
therefore also urges the Committee to delay implementation of these new
nationwide permits until some of these significant problems are
addressed.
We would be pleased to work with the Committee to provide language
to address local exemptions for routine maintenance activities.
We appreciate the opportunity to address the Committee and would be
pleased to answer any questions at this time.
__________
Testimony of Steve Fleischli, Executive Director, Santa Monica
BayKeeper
Introduction
Good morning Members of the Committee. My name is Steve Fleischli.
I am the Executive Director of the Santa Monica BayKeeper, a non-profit
organization dedicated to the protection of Santa Monica and San Pedro
Bays near Los Angeles, California. Thank you for the opportunity to be
here to discuss important issues addressing national water quality.
The good news is that over the last 27 years water quality across
the Nation has improved because of the adoption of the Federal Water
Pollution Control Act. At the time of the Act's adoption, nearly two-
thirds of the nations waters failed to meet their intended beneficial
uses. This number has been reduced because national efforts to reduce
pollution from sewage treatment plants and large industrial facilities.
Meanwhile, however, more diffuse sources, such as runoff from
municipalities and construction sites, have remained a significant
source of pollution.
The Current Problem
Today nearly 40 percent of the nations waters still do not meet the
objectives of the Act. These polluted waters not only present a public
health problem, but also contribute to economic losses and threaten
important aquatic habitat. In Los Angeles and Ventura Counties alone,
more than 156 rivers, beaches and lakes do not meet the objectives of
the Clean Water Act.
According to the Natural Resources Defense Council, during 1998,
there were at least 7,236 days of closings and advisories nationwide.
Polluted runoff and stormwater--accounting for more than 1,541
closings/advisories plus 8 extended closings and 10 permanent.
Rain or preemptive closings accounted for more than 1,110 closings/
advisories.
Almost every coastal and Great Lakes state reported having at least
one beach where stormwater was a known source of pollution at or near
bathing beaches. New Jersey, California, Florida, and Connecticut are
among the states that reported having numerous beaches where stormwater
is a known pollution source.
With tourist expenditures in just portions of only 10 coastal
states total over $77 billion, the impacts from this type of pollution
are far too real.
For example, in Huntington Beach, California--one of California's
most popular surfing areas--beaches were closed much of this summer.
One suspect was a construction site where dredging material was
illegally discharged to a storm drain. Unfortunately, the source of the
problems has not been identified and local businesses suffer to the
tune of millions of dollars in lost revenues.
Meanwhile, as beaches are closed, many lakes and streams are also
impaired because of excessive sediment and nutrient loading and metal
deposition.
Sediment can smother fish larvae. Sediment loading can obscure
sunlight that is necessary for aquatic vegetation growth, upon which
fish and other species depend. Sediments can also act as the transport
mechanism for harmful pollutants such as nutrients or heavy metals.
These nutrients can contribute to algal blooms, the decomposition
of which requires extensive amounts of dissolved oxygen. This often
depletes dissolved oxygen levels for other aquatic life in coastal
waters. In recent years, a number of coastal waters and their
tributaries have experienced frequent hypoxic (low dissolved oxygen
levels) and occasional apoxic (no dissolved oxygen levels) conditions
leading to massive fish kills. It is also believed that excessive
nutrients can trigger outbreaks of the toxic microbe Pfiesteria
piscicida.
Finally, Heavy metals can also create toxic conditions for juvenile
as well as adult organisms, and present threats to those who consume
them.
What's Presently Being Done
While some problems still exist at sewage treatment plants and
large industrial facilities, it is now widely accepted that storm water
and non-point source pollution is the No. 1 threat to water quality
across the country. These sources were essentially left unregulated for
decades because of, as one Federal court put it, perceived
``administrative infeasibility.''
Fortunately, in 1987 the Clean Water Act was amended to include
certain provisions designed to reduce or eliminate pollution from
various classes of storm water. This includes pollution from
municipalities as well as industrial activities, including construction
activities. In many cities and states, permits have been in effect for
years. In other areas, these permits are just being considered, with
EPA slated to issue new regulations this fall.
As part of the proposed regulations for Phase II storm water
control, EPA has once again concluded that ``storm water from a variety
of sources including separate storm sewers, construction sites, waste
disposal and resource extraction are major causes of water quality
impairments.]'' 63 Fed. Reg. 1356 (January 9, 1998).
What Needs to Occur
In the environmental community, many of us agree that our waters
are dying a death of a thousand cuts. Something must be done.
Many areas of the Clean Water Act clearly state that the goal of
the Act is to achieve water quality standards, and to have fishable
swimmable waters across the country. In the end, the Act's goal is to
eliminate the discharge of pollutants to waters of the United States.
Unfortunately, the Clean Water Act's storm water provisions, as
presently written, leave much room for debate, and thus, allow
municipalities to escape responsibility for violations of water quality
standards. In Los Angeles, for example, many municipalities subject to
the Act have managed to evade responsibility because of weak provisions
in the law and poor implementation. Too much time is taken developing
plans and strategies which lose focus on the overall objectives of
cleaning local waters through the achievement of water quality
standards.
What makes the most sense is for the Federal Government to move
forward and set the overall goal that is desired--i.e. protection of
beneficial uses. This should be accomplished through the mandatory
setting of meaningful numeric limits for all discharges--which would
guarantee that everyone knows what is expected.
What is being proposed today with S. 1706, however, falls far short
of this need.
Among other things, this bill proposes to eliminate the requirement
that construction sites less than five acres be subject to a storm
water permit.
This comes despite the fact that EPA has recognized that
``[c]onstruction sites can pollute with soils sediments, phosphorous,
nitrogen, nutrients from fertilizers, pesticides, petroleum products,
construction chemicals and solid wastes.'' Natural Resources Defense
Council v. EPA, 966 F.2d 1292,1305 (June 4,1992), citing 55 Fed. Reg.
at 48,033. EPA has also long recognized that ``[o]ver a short period of
time, construction sites can contribute more sediment to streams than
was previously deposited over several decades.'' NRDC v. EPA, at 1306,
citing 55 Fed. Reg. at 48,033.
Indeed, short term loadings may have shock loading effects on
receiving water, such as low dissolved oxygen. See, 63 Fed. Reg.1539
(January 9,1998). It is also acknowledged that ``erosion rates from
construction sites are much greater than from almost any other land
use. `` Id. at 1540. Numerous scientific studies support this
conclusion. These sites can threaten drinking water supplies, increase
the need for dredging of coastal sediments for navigation, damage
habitat of fish and aquatic species, and even lead to the destruction
of coral reefs.
Further, the Ninth Circuit Court of Appeal found that the concept
that a less than five acre exemption is ``de minimum'' is contradicted
by [EPA's] admission that even small construction sites can have a
significant impact on local water quality.'' NRDC v. EPA, at 1306.
Evidence also suggests that in some areas of the country there may be
as many as five times as many construction sites smaller than five
acres for every site larger than five acres. See, 63 Fed. Reg. at 1542.
Based on this information, it makes little sense for Congress to
now back off this requirement, and, in essence, reduce the
effectiveness of the 1987 Amendments. To do so will only serve to
worsen water quality, rather than improve it.
The proposed exemption under S.1706 of vegetated road ditches
creates a similar situation. This type of blanket exemption fails to
recognize that even vegetated drainage ways can convey storm water
pollution, the same as a concrete channel or a river. Moreover, many
drainage ways are operated in ``connection with'' a road or street.
Arguably, this proposal could allow the exemption of miles upon miles
of polluted storm water conveyance systems. Again, the overall
objective of the Act should remain the protection of water quality.
Finally, this bill also attempts to exempt from storm water
requirements liability for municipalities which contribute to
violations of water quality standards. The bill does so under the guise
of one co-permittees ``reliance'' upon other co-permittees to act. This
is entirely unworkable as it will simply create a scenario wherein one
City will point its finger at another, while the other will simply
point right back. Municipalities will then argue about who is
``causing'' the problem. Thus, no one will ever accept responsibility
for the fact that water quality is impaired, leading to endless debate
and an intentional diversion away from the true intent of the Act: that
those who cause--or contribute to--the water quality problems are held
accountable. Requiring otherwise is a direct attack on the Act's
overall objective of improved water quality.
Conclusion
Concerned citizens have worked for years for strong action to
address the numerous sources of pollution that contribute to the
impairment of our nation's waters. We don't want any more delays or
rollbacks.
For every person who says that storm water is an impossible problem
to conquer, there is another person who is finding a way to get there.
Technological development in this area is flourishing. There are simple
technologies such as silt fences and sand bags, which, when properly
used, help reduce or eliminate sediment loading from construction
sites. Numerous different types of catch basin inserts are being
developed. Storm drain treatment systems are being installed. New
methods of landscape architecture are emerging. Scientists around the
country have demonstrated the effectiveness of these developments in
reducing contamination of our nation's waters.
The Federal Government should move forward to set the standards to
which everyone should be held accountable.
The waters of the United States belong to everyone and to no one.
As such, they must be protected in way that doesn't allow individuals,
municipalities or corporations to jeopardize the well-being of these
resources at the expense of the public trust.
__________
Statement of Mary Rosewin Sweeney, Assistant Attorney General of the
State of Maryland, on Behalf of Attorney General J. Joseph Curran Jr.
Mr. Chairman and members of the Committee, my name is Man Rosewin
Sweeney and I am an Assistant Attorney General for the State of
Maryland. I am here on behalf of Attorney General Joe Curran, a member
of the National Association of Attorneys General, to testify in support
of S. 669, a bill Mending the Federal Water Pollution Control Act to
ensure compliance by Federal facilities with pollution control
requirements.
I would like to commend Senator Coverdell and the bill's co-
sponsors for their attention to this issue The waiver of sovereign
immunity has been a key issue for NAAG for many years and the Attorneys
General adopted a resolution supporting the waiver of Federal sovereign
immunity under the Clean Water Act in 1993. A copy of that resolution
is attached to my testimony.
The Attorneys General support this bill for the same reasons that
they supported similar legislation in 1993. First, there is a need to
provide clear authority to Federal, states and local officials for the
enforcement of water pollution laws at Federal facilities. Second,
Federal agencies and facilities should be subject to He same
accountability, reasonable service charges, and procedural and
substantive enforcement provisions that apply to state and local
governments and private industry. Third, the passage of this
legislation will enhance water pollution control practices at Federal
facilities in the future by requiring those facilities to comply with
Federal, state, and local water pollution laws.
Furthermore, this bill makes the waiver of sovereign immunity in Me
Clean Was Act essentially the same as the waivers present!' contained
in the Solid Waste Disposal Act, or RCRA, and in the Safe Drinking
Water Act. The language of S. 669 differs in minor but appropriate
respects from the waiver language contained in RCRA and the Safe
Drinking Water Act. However, there is one difference in language that
the Committee may wish to correct. That is to change paragraph
(a)(3)(D) to make it clear that immunity is waived for judicially
imposed penalties and fines as well as for those imposed in
administrative proceedings. This change would make the Clean Water
Act's waiver language more consistent with that of PCKA and the Safe
Drinking Water Act and would avoid any confusion over whether the
waiver of immunity for penalties or fines includes penalties and fines
imposed by state courts.
The State of Maryland's experience has been that the waiver of
Sovereign immunity in RCRA and the Safe Drinking Water Act resulted in
an improvement in Federal compliance under those laws in recent years.
Federal compliance with the Clean Water Act has not seen a comparable
improvement. Federal facilities in Maryland have been responsible for:
overflows from wastewater treatment plants; unauthorized discharges of
pollutants from laboratories, research facilities, hospitals, and
military installations; thermal pollution; and the discharge of
sediments from many construction sites. Because of sovereign immunity,
these facilities were able to drag their feet when responding to the
State's complaints about these water pollution problems The managers of
some Federal facilities have refused to enter into agreements for
corrective action with the State, not because the terms were
unreasonable but because the managers feared that such an agreement
reflected poorly on their performance. Maryland also encountered
reluctance on the part of Federal agencies to take effective measures
to control contractors that were causing pollution.
If the Clean Water Act is amended as proposed in S. 669 and Federal
facilities become subject to penalties for water pollution, Hey will be
more likely to identify and promptly correct pollution problems. There
is simply no reason for Federal facilities to continue to be held to a
tower standard than private industry or state and local governments.
I appreciate the opportunity to appear before the Con mitten and
would be happy to respond to arty questions you might have.
______
NATIONAL ASSOCIATION OF ATTORNEYS GENERAL
adopted--spring meeting march 28-30, 1993 washington, dc
resolution urging the congress to clarify the wager of federal
sovereign immunity under the clean water act
WHEREAS, a significant number of the most dangerous sources of
water pollution in the United States that pose a significant threat to
public health and the environment are located at Federal facilities;
and
WHEREAS, Federal facilities are among the worst violators of
Federal and state water pollution laws; and
WHEREAS, Executive Order 12088 requires all Federal agencies to
comply with all applicable pollution control standards; and
WHEREAS, the states have experienced significant problems in
bringing Federal facilities into compliance with Federal and state
water pollution laws because the Federal facilities refuse to
acknowledge state regulatory authority over their facilities; and
WHEREAS, disputes over state environmental authority at Federal
facilities has caused costly, time-consuming and acrimonious litigation
between the states and the Federal agencies; and
WHEREAS, the U.S. Environmental Protection Agency's and the states'
lack of clear enforcement authority has eroded the public confidence in
the Federal Government's willingness and ability to address the serious
water pollution problems at the Federal facilities; and
WHEREAS, the states' role in enforcing Federal and state water
pollution laws against recalcitrant Federal agencies has become more
important because of the U.S. Department of Justice contention that the
Constitution prohibits EPA from enforcing water pollution laws at
Federal facilities and from imposing sanctions against Federal
agencies; and
WHEREAS, Federal agencies must be subject to the same sanctions as
private industry, states, and local governments for violations of
Federal and state water pollution laws to deter violations of and
ensure compliance with these laws; and
WHEREAS, the U.S. House of Representatives is considering H.R. 340,
which would clarify the Federal sovereign immunity waiver under the
Clean Water Act;
NOW, THEREFORE, BE IT RESOLVED THAT THE NATIONAL ASSOCIATION OF
ATTORNEYS GENERAL:
1) urges Congress to adopt H.R. 340 or similar legislation which
would:
a) provide clear authority to Federal, state and local officials,
to enforce water pollution programs at Federal facilities;
b) subject Federal agencies and Federal facilities to the same
accountability, procedural, and substantive enforcement provisions and
reasonable service charges that apply to state and local governments
and private industry; and
c) enhance proper water pollution control practices at Federal
facilities in the future by ensuring that Federal agencies comply with
Federal, state and local water pollution laws; and
2) authorizes the NAAG Environment Legislative Subcommittee to
represent the views of the Association on this matter before the
Congress and Federal agencies.
3) authorizes the Executive Director and General Counsel to
transmit this resolution to the President and EPA Administrator Carol
Browner and appropriate members of her staff; Secretary Les Aspin of
the Department of Defense; Secretary Hazel O'Leary of the Department of
Energy; Congress; and other interested associations.
__________
Statement of Jan Lee, Executive Director, Oregon Water Resources
Congress
s. 188, water conservation and quality incentives act
Introduction
Thank you for the opportunity to testify today. I am Jan Lee,
Executive Director of the Oregon Water Resources Congress. OWRC
represents water suppliers in Oregon, those who operator reservoirs and
delivery systems for non-potable water. The majority of the water is
for agricultural supply, but we also represent some cities, counties
and ports who supply water for other than domestic or human
consumption. Our association has represented water interests in Oregon
since its formation in 1912. I am also Vice President of the Western
Coalition of Arid States (WESTCAS).
Need for S. 188
We strongly support S. 188 as an additional tool for enhancing
water quality in Oregon. There are over 1300 Oregon stream segments
listed on the 303(d) TMDL (total maximum daily load) exceedance list
approved by EPA. The majority of these streams are listed based on the
need to meet a lower temperature standard (64 degrees statewide) to
protect cold-water fish habitat. A significant portion of Oregon
streams are either listed under the Endangered Species Act (ESA) or are
being considered for listing in the near future. With the convergence
of the ESA and the CWA (Clean Water Act), the need to reduce water
temperatures for habitat protection will be the focus of challenge to
water suppliers and water users and to Oregon's future growth and
economy.
Oregon's 303(d) TMDL list for the year 1998:
1,067 streams and rivers listed
32 lakes listed
1,168 stream segments listed
A total of 13,892 stream miles, not including lakes
The nation has witnessed success with the point-source program as
the result of funding that has now exceeded $96 billion. We have not
committed that level of funding toward reducing non-point sources for
water pollution. If we can invest resources in reducing non-point
sources in a similar fashion with the same kind of incentive programs,
both point source and non-point source water users will benefit, as
well as our prized Northwest fishery resource.
SRF Funding Capability
Currently Oregon receives the following SRF (State Revolving Fund)
moneys distributed by the Environmental Protection Agency (EPA).
Clean Water State Revolving Fund, Oregon Department of
Environmental
Quality (water pollution control facilities)
$12-15 million approximately annually
Safe Drinking Water Revolving Loan Program, Oregon Health Division
$12 million approximately annually
Neither of these loan programs currently provide funding for local
governments supplying agricultural water supply to participate at the
state level and no loans have been granted for such purposes.
The Clean Water State Revolving Fund provides money for wastewater
facility infrastructure. While the Federal program may allow more
flexibility, the state program does not accommodate the needs of local
government borrowers who are not investing in wastewater
infrastructure. If the legislation before the committee is passed, it
will clearly indicate that conservation and water quality projects, in
addition to municipal wastewater infrastructure, are projects for which
SRF funding can be expended. This will then enable Oregon to draft
rules that puts these projects on equal footing with infrastructure
projects. With the passage of S. 188, innovative water quality projects
can move forward through Oregon's loan program.
There are requests totaling over $250 million for wastewater/sewer
infrastructure projects. The longer term need identified by Oregon in
1996 was approximately $1.63 billion by the year 2010. Since Oregon
receives an average of about $13 million annually from EPA for the
wastewater program, there is in essence a line that has formed that
will require 2 decades to complete before any of the other projects are
addressed.
In the drinking water project program, there is currently $10.5
million which has not been committed to projects in Oregon. Recently
EPA sent a letter indicating the $10.5 million may be called back by
EPA if not used. The state has the ability to move the $10.5 to the
wastewater program but would only do that as the very last resort prior
to EPA pulling the funding.
These examples show that it is almost impossible at the state level
to access SRF dollars for the additional Federal purposes (non-point
source control) Congress originally designated, e.g., allowing for
conservation and water quality projects other than those that represent
project infrastructure dollars for wastewater or drinking water
facilities.
Reduction of Non-Point Sources
How are we reducing non-point sources in Oregon?
First, placing water instream for fishery protection is a policy of
the state and has been since 1987 when the Legislature enacted the
instream water right law (ORS 537.332 to .360). In the same legislative
session, the state also enacted the ``water conservation incentive
program'' (ORS 537.455 to .500 as attached). This program allows water
users to conserve water, dedicate 25 percent or more to instream
benefits for fishery protection, water quality and recreation, while
the conserver retains a portion of the conserved water to store to
stabilize their own water supply or to apply to additional use.
The transfer statutes generally also allow for the transfer of
water to instream benefits. The state also provides a temporary leasing
program to allow for beneficial uses instream on an annual basis (ORS
537.348).
In some circumstances, additional flow will reduce water
temperature. Conservation projects that transition water delivery from
open canals subject to evapotransportation water losses reap instream
benefits when the delivery systems are piped and thus withdraw less
water to deliver the same crop need. If there can be public investment
in such projects, the public can receive a share of the benefit by
receiving additional water flows instream.
Many of my association's members are irrigation districts.
Irrigation withdrawal is the second largest use of water in the state
of Oregon. (Hydropower use is the largest beneficial use.) While our
association does not support taking agricultural lands out of
production, we do support conserving water that results in a new net
supply made available. We have cooperated with the Bureau of
Reclamation and other interested groups in developing water-
conservation projects which result in placing additional water
instream. Several of these projects have been in Central Oregon, in the
Deschutes Basin.
The Oregon Water Trust is leasing and purchasing conserved water in
small amounts to place instream in key sections of stream where water
is needed for fishery migration and protection. The Trust has been in
place since the late 1980's and has acquired over 300 leases and a
limited number of permanent water right transactions for instream
benefit.
Other Tools
We believe that the language of this bill will also provide the
opportunity to develop other kinds of water-quality related projects
that will benefit water users and instream needs.
Conservation practices that result in less runoff to streams, that
minimize discharges to streams, could be funded under this program.
Flexibility for the State Operated SRF Programs
By providing language to make it clear that conservation and water
quality projects for other than drinking water and wastewater
infrastructure were intended by the law to be funded from SRF moneys,
the states would be provided the flexibility to use SRF funding for a
mix of projects.
Coalition of Interests
We have worked with Senator Wyden's office on this legislation with
the Environmental Defense Fund and the American Farm Bureau Federation.
The Oregon Farm Bureau supports this legislation. Mr. Pete Test of the
Oregon Farm Bureau asked me to include his support in my remarks to you
today. Our association in Oregon has worked closely with Zach Willey of
the Environmental Defense Fund, Northwest Headquarters in Bend, Oregon,
and with the Oregon Farm Bureau and our own local government members to
effect conservation projects in Oregon. This legislation will enhance
those opportunities by providing a funding resource. We strongly urge
your passage of S. 188 to achieve those goals.