Improving Water Quality: State Perspectives on the Federal Water Pollution Control Act on behalf of the National Governors Association
Committee on Transportation and Infrastructure Subcommittee on Water Resources and Environment U.S. House of Representatives
February 28, 2001
Good morning, Mr. Chairman and members of the Subcommittee.
I'm John Hoeven, Governor of the State of North Dakota, and am here today representing the National Governors Association. I currently serve as a member of the National Governors Association Committee on Natural Resources. Governors are looking forward with great enthusiasm to working with this Congress, as well as the new Administration, on a variety of environmental, energy and agriculture issues. I appreciate the opportunity to provide testimony today on Clean Water Act issues and other environmental priorities of the National Governors Association.
Clean Water Act Reauthorization
Clean water is central to the United States' economic and environmental well-being. I think we would all agree that the Clean Water Act is generally considered to be an effective environmental law that has resulted in significant improvements to water quality across the country.
We have achieved a great deal in the last three decades, but our progress has, in some respects, been based on solving the easiest problems - the large industrial facilities, municipal sewage treatment plants, and other point sources. Reaching the remaining sources of water pollution requires a strong state-federal partnership, program flexibility, appropriate timelines, and adequate funding.
A successful partnership must acknowledge the limited resources available today for water resource management and demand improved intergovernmental cooperation in order to maximize existing resources. Additionally, the federal/state/local relationship must be refined to streamline requirements in a way that removes unnecessary and unproductive burdens on state and local governments in the implementation of clean water act requirements.
Reauthorizing the Clean Water Act is among the important goals for the nation's Governors, but we recognize that achieving such an ambitious feat in this Congress is probably not possible. Nevertheless, we believe that there are important issues that can be addressed short of reauthorization, and we are committed to working with this Subcommittee and others to accomplish that end.
I would like to discuss some clean water programs that present opportunities to effectively enhance water quality, afford states significant flexibility to manage our water resources, and improve the state-federal partnership.
Watershed Management
The Governors are committed to managing the quality of the nation's water through holistic, community-based watershed plans that are designed to meet water quality standards. The most effective management of water resources requires recognizing all the interconnections within the watershed, including surface and groundwater as well as wetlands.
The holistic watershed approach utilized by many states that focuses on water supply, water quality, water conservation, flood protection, land use, and protection of fish and wildlife resources, we believe, is the best way to achieve water quality standards.
We know that Congress recognizes the role that states play in bringing impaired waters in watershed into attainment with water quality standards. Most states are developing watershed programs to guide the identification of impaired waters, establishing methods for identifying sources of impairment, allocating responsibility to both point and nonpoint sources, setting milestones of progress, and determining how federal funds are utilized by public entities implementing water programs to achieve the milestones.
States must remain responsible for pollution prevention and priority setting. States must also have the flexibility to set appropriate standards and utilize alternative management programs that provide equivalent water quality protection. The Governors believe that watershed programs can allow states to tailor their efforts to best suit their environmental circumstances and conditions. We should be allowed to direct resources toward priority needs at the local level.
Nonpoint Source Management
The Governors are committed to developing effective strategies that will reduce nonpoint source pollution caused by runoff from agricultural, commercial, and residential sites. However, unlike industrial sources that can be regulated at the point of discharge to demonstrate measurable reductions in pollution, nonpoint source runoff requires the highest degree of innovation and flexibility to achieve progress. Overcoming the complexity and variety of existing nonpoint source control problems will clearly take significant funding, time, and education.
The Governors believe that nonpoint source pollution controls should be handled on a watershed basis. The decision to implement voluntary or enforceable mechanisms must be left up to the state.
State Revolving Funds
The State Revolving Funds (SRFs) - the Clean Water State Revolving Fund, and the Drinking Water Revolving Loan Fund - are essential tools to cost-efficiently address water quality and drinking water needs. As envisioned by Congress, the SRFs are state programs driven by priority concerns that vary among states. Funding of the SRFs is vital and allows states to allocate funds to a diversity of projects and communities. Many states have used the SRF to establish loan programs targeted to farmers for controlling agricultural nonpoint sources, such as animal manure and septic system rehabilitation, and for the abatement of leaking underground storage tanks.
In the past year, reports have emerged from the Environmental Protection Agency (EPA) and municipal groups outlining the future crisis facing the nation as the useful life of wastewater and drinking water infrastructure begins to expire. Additionally, the cost of meeting numerous clean water and drinking water regulations is predicted to be considerable for municipalities, particularly for smaller communities. Several municipal and industry organizations have attempted to quantify future infrastructure needs, with estimates ranging from $200-330 billion over the next 20 years. In order to continue to provide constituents with clean water and safe drinking water, the Governors recognize that solutions to this problem will be advanced.
Proposals offering visions and specific plans to rectify the situation must be thoroughly reviewed. Congress should evaluate these options to determine their scope, recognition of the states' leadership role, and administrative simplicity. Any solution adopted by Congress should provide states with flexibility in the use of water program money, eliminate set-aside requirements, allow states to shift grant funds among programs, and provide states the flexibility to recognize communities with special needs.
TMDLs
Unless Congress or EPA acts, this fall, regulations will go into effect that require states to develop Total Maximum Daily Loads (TMDLs) for impaired water bodies. The Governors are concerned that the regulations will lead to a shift in the traditional relationship between states and the federal government beyond what was intended by Congress in the Clean Water Act.
Legislation may be necessary to provide states additional technical, scientific, and funding resources; more flexibility; and adequate time to implement the TMDL program. Given the great diversity of water resources among states and regions in the nature of water resources a uniform national approach is incompatible with attaining state water quality standards. There simply must be more than one acceptable method with which to improve water quality.
Governors believe TMDLs can be valuable tools used to achieve the Clean Water Act's goals, but they should not be the primary tool. The TMDL program should focus on results, not process. The failure of the current regulation to allow for alternative programs that can achieve water quality standards is a significant flaw and should be rectified either through legislation or by a revised regulation.
Creating TMDLs based on sound science, appropriation load allocations, and public participation requires a significant investment of time and resources. The Governors believe that all states should have a comparable timeframe to develop and implement scientifically credible and practical TMDLs. Congress should adopt an amendment to the Clean Water Act that gives states at least fifteen years to comply with the TMDL mandates. Each state should be provided the flexibility to establish its own priorities and associated milestones within the timeframe provided.
The most significant role the federal government can play is to assist states by providing funds needed to achieve water quality goals. We know that the new Administration is sensitive to the unfunded mandate implications of the TMDL regulation, and we hope we can work with EPA and the Congress to address our concerns. Resource needs for improving and maintaining the quality of the nation's waters are a shared responsibility between the federal government and the states. Historically, federal funding for state implementation of water quality goals has been extremely limited and, when adjusted for inflation, actually has been dramatically reduced during the last twenty years.
Congress should also recognize that some watersheds have insufficient scientific and technical information to accurately assess nonpoint source contributors to impaired water bodies. Legislation is needed to provide funding for scientific studies to demonstrate the most effective methods to assess water quality, gather scientific and technical information, and bring impaired waters into attainment with water quality standards.
CAFOs
NGA is a strong proponent of controlling run-off from nonpoint sources to improve water quality. While the Governors believe that the federal National Pollutant Discharge Elimination System (NPDES) permit program has an important role to play, NGA's policies regarding concentrated animal feeding operations (CAFOs) endorse the flexibility for Governors to design functionally equivalent programs best suited to their states' needs to bring water bodies into compliance with water quality standards, including voluntary and incentive-based state programs. Many states have developed or are implementing nutrient management and non-NPDES permitting programs that address animal feeding operations, some of which may qualify as models for the nation.
Our concerns about the proposed EPA regulation on CAFOs include the definition of a CAFO, elimination of 25-year, 24-hour exemption, permits, and assumption on state government impacts.
The most significant change proposed by the regulation is revising the definition of CAFO by decreasing the number of animal units that trigger the definition. Such a change will dramatically increase the number of NPDES permits that states will be required to issue, monitor and, if necessary, enforce. Some states have noted that the proposed change in definition may triple the number of animal feeding operations that are subject to an NPDES permit. States have reported that current backlogs of existing CAFO permits, as well as other NPDES permits, have yet to be eliminated. A new regulation that increases the number of NPDES permits will only add to the paperwork burden, imposing more costs and personnel needs.
An equally significant change under consideration would eliminate the current exemption from permitting for a feedlot that may potentially discharge only in the event of a 25-year, 24-hour storm. Under the option proposed, feedlots would be required to obtain an NPDES permit, even if a discharge never occurs. Again, the burden on state permitting programs is likely to be exceedingly large if every feeding operation must obtain a permit.
Lastly, we take issue with the cost analysis in the proposed CAFO regulation that the changes being considered will result in only incremental average annual costs that will not impose a significant burden on states. This conclusion is based in part on the assumption that only a small number of facilities will be required to obtain individual permits. As we have outlined above, general permits, will in all likelihood be inappropriate for most facilities, requiring states to issue individual permits in the wide majority of cases.
Additionally, the regulation assumes that state programs are presently issuing CAFO permits. Many states, however, are regulated under a non-NPDS state permit program or utilize voluntary programs. Because the proposed regulations would not allow such programs to serve as functional equivalents to an NPDES permit program, states would be required to dismantle successful programs and institute a new regulatory framework, imposing new costs and staff resources, or subject the regulated community to two redundant permitting programs.
The regulation's cost analysis also assumes that the cost of increased state oversight and enforcement requirements for facilities that fall under the regulation as a result of the proposed changes will be minimal. Under the proposal, states would be mandated to implement a variety of new activities, including monitoring ambient water, both upstream and downstream from animal feeding facilities, establishing a reporting system, and initiate the inspection of land application sites in addition to facility operations. The increase in the states' field workload, in fact, would be significant.
For all of the above reasons, Governors believe that the proposed CAFO regulation will have a substantial direct effect on state costs. We urge that the assumptions expressed be carefully reexamined, and that Congress conduct a hearing to determine the actual impact of the proposed changes to the CAFO requirements and to evaluate the burden to states of implementing a regulation that adds significant permitting and monitoring requirements.
Superfund and Brownfields
States currently address 90 percent of all contaminated waste sites and EPA addresses the other 10 percent on the National Priorities List. States use successful and innovative state cleanup laws and voluntary cleanup and brownfield programs to cleanup sites quickly, efficiently, and fairly.
The states have had a strong interest in Superfund reform and believe that a few critical changes are needed to improve the Superfund program's ability to clean up the nation's worst hazardous waste sites quickly and efficiently. We recognize that a comprehensive Superfund bill is unlikely to achieve bipartisan support in this Congress, but we stand ready to work toward cooperatively with this Committee and others toward that end whenever the Congress is ready.
The possibility for brownfields legislation appears to have a better chance this year, and like many others, the governors believe that brownfields revitalization is critical to the successful redevelopment of many contaminated former industrial properties. It is important that any brownfields legislation supports and encourages successful state programs by providing the clear incentives and flexibility states need to continue them.
There is no question that voluntary cleanup programs and brownfields redevelopment are currently hindered by the pervasive fear of federal liability under the federal Superfund law. Many potential developers of brownfields sites have been deterred because even if a state is completely satisfied that the site has been properly addressed, and even if the site is not on the National Priorities list, there is the potential for EPA to take action against the cooperating party under Superfund's liability scheme.
We support legislation that, with limited exceptions, will preclude enforcement by anyone (other than by a state) at sites where cleanup has occurred or is being conducted under state programs and by providing needed liability protections for innocent owners and owners of property contiguous to contaminated sites. Governors recommend that at brownfields sites there be assurance that a release of liability under state cleanup laws protective of human health and the environment constitutes, by operation of law, a release from federal liability. In addition, CERCLA should be amended to give credit, in the form of a legal release, to those who have cleaned a site to protection standards in accordance with a state voluntary cleanup law protective of human health and the environment. These changes would greatly encourage voluntary cleanup and thus increase the number of cleanups completed.
Another provision that we believe is very important to include in any brownfields bill is a requirement that the Governor's concurrence be obtained before a site in his or her state can be added to the National Priorities List. It is currently EPA policy to seek the concurrence of a governor before listing a site, and we believe that this practice should be codified.
Lastly, we would like to see a bill that includes a waiver of sovereign immunity for federal facilities, so that states can enforce state environmental laws. Such authority has already been provided in the Clean Water Act, the Clean Air Act, and the Resource Conservation and Recovery Act. Congress confirmed its commitment to state enforcement of environmental laws at federal facilities in 1992 under the Federal Facility Compliance Act, but the authority under the Superfund law is less clear. States seek clear authority to require and oversee response activities at federal facilities. As you may know, federal facilities and former federal facilities are among the worst contaminated sites in the nation. We seek to hold the federal government to the same standard of compliance as other parties in our states.
Nonpoint Source Pollution Aspects of the Coastal Zone Management Act
Since it was enacted in 1972, the Coastal Zone Management Act (CZMA) has been instrumental in assisting coastal states to manage growth and conserve resources. The CZMA provides a national framework to efficiently consider and balance an array of critical and sometimes conflicting activities, including fisheries development and enhancement, commerce and industrial port development, energy exploration and production, public access and recreation, waterfront restoration and housing, and wetlands preservation and coastal preservation.
The CZMA is also a model for state and federal partnerships. It is the only federal statute that requires federal activities to be consistent to the maximum extent practicable with state policies.
The CZMA's consistency provisions have reduced conflicts between states and federal agencies by establishing processes to ensure regular communication and participation in project planning.
The Governors support reauthorization of the CZMA.
Again, thank you, Mr. Chairman, for this opportunity to share our views with the Subcommittee.
