[Senate Hearing 106-699] [From the U.S. Government Publishing Office] S. Hrg. 106-699 WATER QUALITY ======================================================================= HEARING before the COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY UNITED STATES SENATE ONE HUNDRED SIXTH CONGRESS SECOND SESSION ON WATER QUALITY __________ FEBRUARY 23, 2000 __________ Printed for the use of the Committee on Agriculture, Nutrition, and Forestry U.S. GOVERNMENT PRINTING OFFICE 67-026CC WASHINGTON : 2000 _______________________________________________________________________ For sale by the U.S. Government Printing Office Superintendent of Documents, Congressional Sales Office, Washington, DC 20402 COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY RICHARD G. LUGAR, Indiana, Chairman JESSE HELMS, North Carolina TOM HARKIN, Iowa THAD COCHRAN, Mississippi PATRICK J. LEAHY, Vermont MITCH McCONNELL, Kentucky KENT CONRAD, North Dakota PAUL COVERDELL, Georgia THOMAS A. DASCHLE, South Dakota PAT ROBERTS, Kansas MAX BAUCUS, Montana PETER G. FITZGERALD, Illinois J. ROBERT KERREY, Nebraska CHARLES E. GRASSLEY, Iowa TIM JOHNSON, South Dakota LARRY E. CRAIG, Idaho BLANCHE L. LINCOLN, Arkansas RICK SANTORUM, Pennsylvania Keith Luse, Staff Director David L. Johnson, Chief Counsel Robert E. Sturm, Chief Clerk Mark Halverson, Staff Director for the Minority (ii) C O N T E N T S ---------- Page Hearing: Wednesday, February 23, 2000, Water Quality...................... 1 Appendix: Wednesday, February 23, 2000..................................... 53 ---------- Wednesday, February 23, 2000 STATEMENTS PRESENTED BY SENATORS Lugar, Hon. Richard G., a U.S. Senator from Indiana, Chairman, Committee on Agriculture, Nutrition, and Forestry.............. 1 Fitzgerald, Hon. Peter G., a U.S. Senator from Illinois.......... 23 Harkin, Hon. Tom, a U.S. Senator from Iowa, Ranking Member, Committee on Agriculture, Nutrition, and Forestry.............. 5 Lincoln, Hon. Blanche L., a U.S. Senator from Arkansas........... 6 Thomas, Hon. Craig, a U.S. Senator from Wyoming.................. 3 ---------- WITNESSES Adler, Robert, Professor, University of Utah, College of Law, Salt Lake City, UT............................................. 37 Barrett, John, Cotton and Grain Producer, Edroy, TX.............. 40 Browner, Carol, Administrator, Environmental Protection Agency, Washington, DC................................................. 9 Glickman, Dan, Secretary of Agriculture, United States Department of Agriculture, Washington, DC................................. 12 Johnson, Paul, Director, Iowa Department of Natural Resources, Des Moines, IA................................................. 32 Kraft, James A., Vice President, General Counsel and Secretary, Plum Creek Timber Company, Inc., Seattle, WA................... 28 Savage, Roberta, Executive Director, Association of State and Interstate, Water Pollution Control Administrators, Washington, DC............................................................. 34 ---------- APPENDIX Prepared Statements: Lugar, Hon. Richard G........................................ 54 Baucus, Hon. Max............................................. 80 Adler, Robert................................................ 116 Barrett, John................................................ 143 Browner, Carol............................................... 56 Glickman, Dan................................................ 74 Johnson, Paul................................................ 95 Kraft, James A............................................... 81 Savage, Roberta.............................................. 100 Document(s) submitted for the record: Statement of the American Farm Bureau Federation............. 150 Statement of the American Society of Civil Engineers......... 213 Letter to Hon. Max Baucus, submitted by Ms. Carol Browner, EPA Administrator.......................................... 245 Letter to Hon. Richard Lugar, submitted by James A. Kraft, Vice President, General Counsel and Secretary, Plum Creek, Timber Compant............................................. 247 Comments of the Society of American Forester's, submitted by Michael T. Goeryan, Jr., Director, Forest Policy........... 253 Comments of the National Pork Producers Council, submitted by John McNutt................................................ 273 Testimony for the record, submitted by National Association of State Foresters......................................... 287 Statement of the National Association of State Departments of Agriculture................................................ 297 Letters from LSU Ag Center, the Glenn-Colusa Irrigation District, and the Northern California Water Association, submitted by Cleveland H. Marsh, Vice President, Domestic Policy, USA Rice Federation................................ 302 Questions and Answers submitted for the record............... 334 WATER QUALITY ---------- WEDNESDAY, FEBRUARY 23, 2000 United States Senate, Committee on Agriculture, Nutrition, and Forestry, Washington, DC. The Committee met, pursuant to notice, at 9:02 a.m., in room SR-332, Russell Senate Office Building, Hon. Richard Lugar, (Chairman of the Committee), presiding. Present or submitting a statement: Senators Lugar, Coverdell, Fitzgerald, Harkin, Baucus, and Lincoln. OPENING STATEMENT OF HON. RICHARD G. LUGAR, A U.S. SENATOR FROM INDIANA, CHAIRMAN, COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY The Chairman. This hearing of the Senate Agriculture Committee is called to order. Before we commence our hearing on the issues before us this morning, the chair would like to announce, before we get into those issues, some of the pending business of the Committee in coming days. Members of staff will hopefully inform senators who are not here and those of the press who are following these issues may want these heads-ups. The Crop Insurance Risk Management mark-up will occur on March 2, which is a week from tomorrow, and that day of mark-up may very well include consideration of Senator Allard's bill on interstate shipment of birds in the cockfighting situation. We may also consider approval of a Texas watershed project. Because of the size of the Federal contributions, it requires at least some scrutiny and thought by our committee. The issue of interstate shipment of state-inspected meat will not be considered during the mark-up of March 2, but we will have a hearing scheduled on that matter. A number of senators wish to be heard, as do other parties. So, as opposed to a more immediate action by the Committee, we will have a hearing in the near time frame. In January, after a hearing which we had on consolidation, I wrote a letter to the Justice Department which conveyed many of the themes of that hearing, asking for their clarification. Specifically, we asked about the Hart-Scott-Rodino premerger applications filed over the last 5-years, a five-year trend line of useful resources, both financial and personnel, which the Antitrust Division has allocated to these agribusiness cases, allocation and use of the premerger fee and a number of issues of this variety. We are advised that the Justice Department will respond now within the next 10-days. So for those following the consolidation merger issue, that will be a timely response and we will proceed from there. Finally, I would mention that there is interest in the Committee on the soybean sign up, which of course came about in the farm legislation of last year. We are advised that the sign up will continue until March 31. Once the sign up period is complete, USDA will determine the exact payment amounts for each producer who has signed up. Currently it is estimated that a producer with about 100 acres of soybeans would receive a check approximately of $333 if all 850,000 soybean producers sign up. So this is still pending, an aspect of unfinished business from the last farm bill. I will give a short opening statement. Senator Thomas has asked to be heard and if he appears, he will then give a statement just after mine. Then we will have a distinguished administration panel for extended testimony following that, and then finally a panel of states and local industry witnesses. The Committee meets today to discuss the issue of water quality as it pertains to agriculture and forestry. Our particular focus this morning is the Environment Protection Agency's proposed changes with regard to the Total Maximum Daily Load Program and the subsequent changes in the National Pollutant Discharge Elimination Systems Program. Many in the agriculture and forestry community have concerns about how these proposed regulations will affect their businesses, as well as their involvement in ongoing watershed restoration. Under the Clean Water Act, states have utilized voluntary programs and approaches to protect water quality. We want to hear today about the effectiveness of this approach. The states are concerned that the proposed EPA regulations represent a major significant shift away from historic voluntary and collaborative efforts toward watershed-based approaches. These collaborative watershed strategies are the basis for voluntary incentive-based solutions to control nonpoint source pollution. State water quality agencies, the Defense Department's Clean Water Act Services Steering Committee, the Department of Agriculture and the United States Chamber of Commerce, representing more than 3-million U.S. businesses, along with many forestry and agricultural groups, question EPA's proposed revisions. They claim the proposals would exceed EPA's authority, undermine states' rights, and impose exceptional costs and impede economic development. We also want to address today EPA's legal authority to regulate nonpoint source pollution. The Congressional Research Service, in a legal memo prepared for the Agriculture Committee, has stated it does not appear that EPA has legal authority to regulate nonpoint sources under the Clean Water Act. EPA appeared to concede this point at a House hearing last week, but we shall hear more about that this morning. Meanwhile, the water quality challenges remain, and agriculture and forestry's downstream neighbors will, with justification, expect progress. The question then is how can we best work together to improve our nation's water quality? Is it best done by command and control or by further commitment to incentive-based watershed approaches, which may not have had either the time or the investment to work thus far? This Committee has offered leadership on incentives for water quality efforts. The 1996 farm bill was one of the most environmentally responsive and responsible farm bills in our nation's history. It included the Environmental Quality Incentives Program [EQIP]. Senator Leahy and I were co-authors of that in a bipartisan push. Now, this is a highly successful program that is targeted to states with environmentally sensitive areas. EQIP provides producers with flexibility needed to address nonpoint source problems, which vary within a state, from state to state and from watershed to watershed. These problems can also vary from season to season and from year to year. nonpoint source pollution is very site-specific and EPA should incorporate maximum flexibility into any revision of the proposed regulations. It is my hope that this hearing, in addition to being a forum for the airing of concerns about these particular proposed rules, will also be the start of a dialogue on how we can make progress in an incentive-based system to address water quality challenges associated with agriculture and forestry. This may involve more funding for our nonpoint source programs, such as EQIP, the Wetland Reserve Program, and the Conservation Reserve Program. We should also examine how to increase the use of other market-based approaches. It is through a combination of well-funded and innovative strategies that we will best address agriculture's water quality challenges. [The prepared statement of Senator Lugar can be found in the appendix on page 54.] I note the presence of the distinguished senator from Wyoming, Senator Thomas. Would you please approach the podium and we look forward to your testimony, as always, Craig. You are a good friend of the Committee. STATEMENT OF HON. CRAIG THOMAS, A U.S. SENATOR FROM WYOMING Senator Thomas. Thank you, Mr. Chairman. I appreciate the opportunity to be here. I appreciate the Committee holding this hearing and allowing me the opportunity to participate. I applaud the Committee for examining how the Environmental Protection Agency [EPA] actions will impact agriculture producers and foresters. EPA's water quality proposal of total maximum daily loads [TMDLs], is an issue of great concern to me and to people in Wyoming and, I am sure, also of this Committee. The most pressing threat considered by our farmers and ranchers in Wyoming is not the commodity price or market concentration as much as it is being regulated out of business. As a member of the Environment and Public Works Committee, which has jurisdiction over the Clean Water Act, we have followed the administration's executive order initiating the Clean Water Action Plan. Many of us strongly are concerned and opposed to the use of executive orders to launch efforts as broad and far-reaching as the Clean Water Action Plan, essentially one-hundred-eleven ``key actions'' affecting Federal agencies, state and local governments. Several of these key actions are incorporated into the TMDL proposal, including key action number forty-three, restoration through enforcement, key action seventy-one, anti-degradation guidance for pollution run-off, and key action number seventy-six, link total maximum daily loads to air disposition. Since the Clean Water Act leaves nonpoint sources largely unregulated, it is our responsibility to ensure that the action plan does not become a mechanism for agencies to overstep their statutory authority. However, based on how EPA has revamped the TMDL program, their actions explicitly seek to bypass the Congress. Congress has spoken on how nonpoint source pollution should be addressed in the 1972 passage of the Clean Water Act and again in 1987 with respective amendments. Congress specifically limited EPA's authority to covering pollution stemming from point sources. Moreover, Congress created the TMDL program to reduce water impairment problems caused by point sources, and an alternative approach was taken for nonpoint source pollution, one focussed on voluntary and incentive-based measures. Over the past 2-years, I have challenged the statutory authority of EPA to regulate run-off pollution for nonpoint sources. The EPA has responded by stating that Congress did not expressly prohibit the Agency from regulating nonpoint source pollution. Mr. Chairman, we have nonpoint source programs in place that have achieved significant environmental benefits and should be duly credited. I firmly believe that Congress should stop this aggressive and unwarranted approach. If EPA wants to make program changes, the Agency should work with the Congress. I assure you the EPW Committee would not have endorsed this type of top-down prescriptive plan. None of us disagree with the importance of improving our nation's water resources, of course. Nor would we disagree that some nonpoint pollution sources are impairing water bodies. However, we do not have sound water quality data that would provide an accurate portrayal of water bodies impaired by nonpoint source pollution. Unfortunately, what EPA and many states are using--nonquantitative assessments--are subjective evaluations. Without using sound, creditable science to assess the health of our waters, we can be sure this initiative and the taxpayers dollars will be questioned. Will they, in fact, reduce pollution? Instead of forcing such an immense program on our states, I propose EPA would first accurately identify the problem. After collecting scientific data, if nonpoint sources are found to be a significant obstacle to clean water, I would urge the Congress and the administration to make funding for voluntary and incentive-based programs a priority, as was done with point sources, to assist landowners with pollution reduction efforts. I believe the letter Under Secretary James Lyons sent to Administrator Browner could not have been more accurate in articulating how the EPA rules would adversely affect agricultural producers and foresters. Attempting to regulate agricultural and silvicultural activities in the same manner as point sources demonstrates a lack of understanding or a complete disregard for the industry's production practices. I am disappointed to see USDA abandoning its position on the proposed rule. USDA, through its Natural Resource Conservation Service, has done a commendable job, as a matter of fact, in reducing run-off and improving water quality with their limited resources. It is frustrating to watch the department fail to defend its own programs but instead, apparently sort of cave in to political pressure. Certainly if funding for nonpoint source programs was given as high a priority as point source programs, it is safe to say there would be a vast improvement in the quality of water. More importantly, through NRCS's functions in a facilitory role with producers by providing on-the-ground technical assistance, these people have formed true partnerships with producers to resolve water impairment problems. But the EPA believes improved water quality is best achieved through regulation. It is my strong belief these types of problems are more effectively addressed at local and state levels, rather than through the Federal mandates. Certainly we all have a responsibility to improve the water quality. The question is the approach and how do we approach the problem without placing an unfunded mandate on our states and landowners? So, Mr. Chairman, that is the point of view that I hold and have expressed in other committees and thank you very much for the opportunity of sharing those views here with you. The Chairman. Well, we thank you for coming to the Committee to make that presentation. I will call upon Senator Harkin, first of all if he has questions of Senator Thomas and, if not, we will excuse Senator Thomas and Senator Harkin then will proceed with his opening statement. Senator Thomas. Thank you, Sir. I appreciate it. Senator Harkin. Thank you. I have no questions. I just want to thank my colleague for coming and testifying and for his long-time interest in water quality. I appreciate it very much, Craig. The Chairman. Thank you. Senator Harkin? STATEMENT OF THE HON. TOM HARKIN, A U.S. SENATOR FROM IOWA, RANKING MEMBER, COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY Senator Harkin. Thank you very much, Mr. Chairman. I apologize for being slightly late. I again ask that my full statement be made a part of the record. The Chairman. It will be published in full. Senator Harkin. I just want to thank you for holding these hearings. It is a very critical issue. We are facing some very critical problems in water quality in Iowa. It has been estimated that about 20,000 or about 40-percent of our waters are impaired. I am sorry; about 150-waters in Iowa are listed as impaired; about 20,000 nationwide or about 40-percent of the total. We established the Clean Water Act 25-years ago. Great strides have been made but it is obvious from even the most casual observer that we have a long way to go. I am again pleased to see that our director of EPA, Carol Browner, is here, our distinguished Secretary of Agriculture, and I also want to point out that I think one of the foremost experts in this whole area is with us today, Mr. Paul Johnson, who is director of the Iowa Department of Natural Resources. He is former chief of the USDA's Natural Resource Conservation Service. He is a former state representative and a long-time, well-known conservationist throughout the Nation, again also a long-time personal friend. I just wanted to make those opening statements, Mr. Chairman. This is an issue that again I think a lot of people thought we just passed the Clean Water Act and we could move on. But there are all new sources of pollutants and nutrients entering our water that we had not anticipated 25-years ago. I believe we have to come up with comprehensive new approaches to some of these point source and nonpoint source pollutions. I believe we have to put more incentives in for farmers to practice better conservation practices. That is why I have introduced the Conservation Security Program that would provide direct payments to farmers on a voluntary basis to encourage them to practice better conservation methodologies. I think the voluntary approach is one that has worked in the past with the Water Quality Improvement EQIP program. Both of them have shown their worth. And, I think this is going to be one very major element. The second is to provide, I think, some national standards for run-off from some of our large feedlots. We still have a patchwork quilt from state to state and area to area as to what we are allowing in terms of run-off from these large confinement operations. I have been watching the growth of these large animal feeding operations and they use the word ``confinement.'' I think that is a pretty loose term. They do not really confine the run-off that much and we are seeing a lot of it polluting our waterways, our underground water, some of our underground wells, and I think we are going to need some national standards on that, which we still do not have. So those are just my thoughts on that. Again, Mr. Chairman, I appreciate your having the hearing and again ask that my statement be made a part of the record. The Chairman. Thank you very much, Senator Harkin. Senator Lincoln, do you have an opening comment? STATEMENT OF THE HON. BLANCHE LINCOLN, A U.S. SENATOR FROM ARKANSAS Senator Lincoln. I do, Mr. Chairman. Thank you so much and thank you for allowing us to have this hearing today. I will really cut right to the point. In this issue, as it has evolved in my state, it just does not seem to make a whole lot of common sense to add an unnecessary regulation on our nation's private landowners, who are already conducting responsible harvesting of their own private timber. And this is in regard obviously to the timber industry. I know you have been talking about some of the agricultural aspects of it, as well. It is not economically sound and it is not good for the environment we are seeking to protect. There are already many, many state and Federal regulations, as well as best management practice guidelines in place, to limit and control nonpoint sources of pollution. I fully support the Best management practice(s) [BMP] guidelines already instituted in many industries across the Nation and especially in our private forestry industry and think we should be promoting them as much as possible. In fact, I believe I am correct in saying that the Environmental Protection Agency supports these programs, as well. They have approved forestry BMP programs in Arkansas and in many other states as an acceptable solution to the problems of nonpoint source pollution. They have been working effectively in our state and in many other states. In Arkansas over 85-percent of our private forest landowners voluntarily follow these BMPs to strictly limit and in many instances eliminate the discharge of pollutants from forestry activities. I just would like to reiterate that point. Eighty-five percent of Arkansas's private landowners are voluntarily spending time and money to ensure that when they harvest their timber, they do not unnecessarily disturb or harm the environment. That is a pretty good track record--85-percent participation on a voluntary basis. It simply makes sense to do so. I mean after all, they have to live on that land and drink the water, too. So they are interested in making sure that they are preserving and operating under good conservation measures. I have introduced a bill that takes these facts into account. My bill, S. 2041, promotes the continued voluntary implementation of BMPs by eliminating any potential new Federal regulatory burden from being placed on private forest landowners. Many silviculture activities that benefit the environment, such as conducting responsible harvesting and thinning, voluntarily following best management practices, and promoting reforestation, will actually be discouraged by the proposed regulations. I wish we did not have to resort to legislation to statutorily enforce what the Congress originally intended in the Clean Water Act, that the EPA has jurisdiction over point sources of pollutants but not nonpoint sources. But, Mr. Chairman, it seems that we have no other choice or that this is one action we have to take in order to find a resolution elsewhere. Simply put, my bill statutorily exempts forestry nonpoint sources of pollutants from the EPA's point source regulations. Having said all that, I want to reiterate that I want to find a sensible solution to the problems of maintaining clean water. I have introduced my bill to statutorily ensure that forestry sources of nonpoint pollution remain so and there should be an easier way to go about this. Certainly we can come up with a better solution than to have to step in and statutorily limit the EPA's authority. I think it has been shown through the good work of the forestry industry what they have done with the BMPs, that we can reach the goal of maintaining clean water through education and implementation of voluntary programs for nonpoint sources and not through mandatory permitting for nonpoint sources of pollution. Why would we want to implement what has been described at best as a confusing, unpredictable extension of the TMDL regulations? The Arkansas Department of Environmental Quality, which I might add has full EPA delegation for all of its water permitting programs in Arkansas, has stated publicly that they do not have the capability or the manpower to implement these new TMDL regulations. Furthermore, they have also negotiated with the EPA and the forestry industry to create an agreement on implementing nonpoint source pollutant controls. I would just like to restate that the state of Arkansas has an EPA-approved method of limiting nonpoint sources of water pollution. I would think that, that would be enough for us. I would hope that it could be. In trying to encourage, as oppose to mandating what we want to see happen in terms of conservation, it is certainly going to, in the long term, come up with better results. To exacerbate things, there is a lawsuit currently pending in Arkansas by the Sierra Club that would expand Arkansas's 303(d) listed waters to around one-hundred-ninety waters. That would almost quadruple Arkansas's current fifty-one-stream segments on the 303(d) list covering eighteen different rivers and streams. So it would seem to me that this lawsuit, along with this regulation, would essentially require a point source water permit for normal timber operations over almost our entire state of Arkansas. This just seems to be a bit excessive. It does to me and I hope that others with EPA and the Department of Agriculture and the Chairman and my colleagues might see some of that excessiveness so that we could come about with a solution. Mr. Chairman, I am sorry to have taken so much time and I will finish by saying that I agree that we need to do all that we can to ensure that our nation's waters remain clean and usable for many generations to come. I am a mother, as well, and I want to see that happen for my children, too. But I do not believe that attempting to regulate nonpoint sources of pollutants as a point source is the way to do that. Simply requiring point source permits for nonpoint sources of pollutants will do nothing but overburden the state and Federal regulatory agencies, as well as the farmers and foresters required to follow the new regulations. In the end, Mr. Chairman, these new rules get us nowhere closer to a cleaner environment than we would get from a voluntary program. They become unnecessary and certainly unreasonable in the entire scheme of what we are trying to accomplish. So thank you, Mr. Chairman, for holding the hearing and I appreciate and look forward to visiting with my colleagues who will be witnesses and testifying. Thank you. The Chairman. Thank you very much, Senator Lincoln. The chair would like to call now our distinguished witnesses from the administration, first of all, Ms. Carol Browner, Administrator of the Environmental Protection Agency. She will be accompanied by the EPA Assistant Administrator for Water Chuck Fox. Let me ask Ms. Browner, I am not certain of the arrangements made with staff. Do you wish to testify by yourself or would it be permissible to have the Secretary of Agriculture--in that case I will call the Secretary of Agriculture simultaneously. Deputy Secretary Richard Rominger, as often is the case, is accompanying him, and the Under Secretary for Natural Resources and Environment James Lyons. Let me just take this moment to say that the last time we were all assembled, as I recall, was at the USDA. It was a summer program involving the President of the United States and on that occasion he was generous in commending an article which James Woolsey, former Director of the CIA and I had written for Foreign Affairs Magazine of a year ago January in which we, in essence, said that OPEC might strike again and that we really ought to try to take some thoughtfulness about biomass research. Our committee has taken favorable action on that bill. We are hopeful the Senate as a whole may do so soon because this does offer an avenue, not for a solution of the current problem or the future ones that may be before us, but a significant way in which the agricultural and environmental communities, both parties, the President and the Congress could participate in a constructive solution. So I appreciated your asking me to be with you on that occasion and we are grateful that you are with us today. At this point I would like for you both to testify. Because your testimony is very important, we will not put a limit on it. You have had this process before and know that it is helpful to some extent to summarize your comments because I know there will be questions and maybe even some dialogue between the two of you. First of all, Administrator Browner. STATEMENT OF CAROL BROWNER, ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY, WASHINGTON, DC., ACCOMPANIED BY CHUCK FOX, ASSISTANT ADMINISTRATOR FOR WATER, ENVIRONMENTAL PROTECTION AGENCY Ms. Browner. Thank you, Mr. Chairman and members of the Committee. We are very pleased to be here today. I am particularly pleased to be joined by Secretary Glickman and his colleagues, with whom we work very closely on any number of important issues, issues important to the agricultural community, the forestry community, and environmental and public health protections for the people of this country. We appreciate the opportunity to talk to you about what we believe is one of the most important steps that we can take to ensure the goals of the Clean Water Act, actually goals that were anticipated by the Congress in a bipartisan manner almost 30-years ago now. Those goals, quite simply put, were to ensure that the people of this country would have clean water, they would have water that is drinkable, fishable and swimmable. We have made a lot of progress and it is progress we should all be very, very pleased with. When the Clean Water Act was first passed in 1972 and working with this committee and other members of the Congress over the last 7-years, we have made tremendous progress. Behind us are the days of rivers catching on fire, of lakes dying slowly. Today, without a doubt, our waters are cleaner, thanks to a team effort--Federal, state, local governments working with industries, individual stewards of the land, farmers, ranchers and forest managers. But it does not mean that all of our problems have been solved. An overwhelming majority of Americans--218-million-- still live within 10-miles of a polluted water body. Over 20,000 water bodies do not meet water quality standards, standards that have frequently been set by the state government. We certainly still have work to do and, Mr. Chairman, I appreciate your comments and other members of this committee recognizing that there is still work that remains to be done. As we all know, the proposed revisions to the water pollution control program that EPA has put forward were designed to help us solve the remaining water quality challenges and problems that we face. The program is called the TMDL program and I think everyone knows but I think it is worth reminding all of us what TMDL stands for--total maximum daily load. As a practical matter, what a TMDL is, is a pollutant budget for a specific river, lake or stream. It looks at the individual river. Not all rivers are treated the same but individual rivers, individual lakes, individual streams, and it determines how much more pollution needs to be removed from that river, lake or stream to ensure that water quality standards are met. It is a very, very sensible way to do the final work necessary to ensure clean water for all people in this country. A TMDL is essentially a quantitative measure of what it takes to achieve water quality goals. The TMDL program is led by states and communities because they are in the best position to make the decisions as to how to reduce the remaining pollution, how best to achieve the water quality standards and the water quality goals. The proposal which EPA put out was many, many years in development. While the public comment period has closed recently, we have not yet made any final decisions. And Mr. Chairman, again let me thank you for calling this hearing at this point. This is extremely valuable to us as we review all of the comments we have received, as we continue in the dialogue with USDA and others. And we do hope to finalize this proposal sometime this summer. Let me give you my personal assurances that we are going to do everything we can to incorporate many of the ideas that we have heard from these hearings so that we can produce a program that will best serve the interests of all of the American people. Now the concept of TMDLs or the concept of a quantitative approach is not untested. Recent history tells us that the quantitative approach will, in fact, achieve significant results. I just want to give you one example. I have others, but let me give you one example--the Great Lakes. In the late 1970s our fresh water treasure known as the Great Lakes were in tremendous danger. That was widely accepted, both in the Great Lake states but across the country. And so our Nation, our friends in Canada, the Great Lake states, we all came together and we developed quantitative pollution targets. How much pollution did we need to get out of the Great Lakes to restore the Great Lakes?--very, very similar to what a state would do in a TMDL program. What has happened? The Great Lakes are absolutely on the rebound. We have a plan. We are working in partnership with states, with communities, with industry, with farmers, and the Great Lakes are on the rebound. Similar efforts are reviewing the Chesapeake Bay, the Long Island Sound. Successes like these led EPA to convene an advisory committee several years ago to take a hard look at the TMDL program and to develop recommendations for improving it, to look at what we had learned and to see if we could not incorporate those tools, that knowledge, into a program that other states could then take advantage of. The advisory group was a diverse group and I will tell you something--they did not agree on everything. There was lots of discussion, lots of different points of view. But it is their recommendations that formed the basis for the program proposed by EPA last summer. Mr. Chairman, I look forward to discussing with you and the members of the Committee these changes in more detail, but let me just say one thing in closing. This proposal was intended to honor and reflect what makes this program so effective to begin with. And, as Senator Lincoln pointed out, it is the work of the states that has made this program so successful thus far. Nothing in our proposal should be construed to change that and if it has created that impression, then we will fix it because we know that this work, at the end of the day, will best be done state by state. When we finalize this program this summer, I think it will be very clear to make sure that everyone understands what the program will not include. Very quickly, our proposal, nor will the final program require a Clean Water Act permit for nonpoint sources of pollution. Let me say that again. No Clean Water Act permit for nonpoint sources of pollution. This means that there will not be a Clean Water Act permit for the vast majority of silviculture operations--not all, but the vast majority. It will not create a program run out of Washington. It will allow the states to set the goals, to write the plan, to implement the plan. Finally, let me mention that the administration does have a budget pending before Congress that seeks additional funds for the states, as Senator Thomas spoke to the need for funding. We are specifically asking in the EPA budget for an increase of $45 million for TMDL development by the states. This would be a base of $110 million, so a significant increase in funding for the states. In addition, we are seeking an increase in nonpoint source pollution grants of $50 million on a base of $200 million, again money for the states. Mr. Chairman, you have our commitment that we will work with all parties as we seek to finalize this program. The 1972 Clean Water Act set an ambitious national goal of fishable and swimmable. We can achieve it by working together. Thank you. [The prepared statement of Ms. Browner can be found in the appendix on page 56.] The Chairman. Thank you very much, Administrator Browner. Secretary Glickman. STATEMENT OF HON. DAN GLICKMAN, SECRETARY, UNITED STATES DEPARTMENT OF AGRICULTURE, WASHINGTON, DC., ACCOMPANIED BY RICHARD ROMINGER, DEPUTY SECRETARY OF AGRICULTURE; AND JIM LYONS, UNDER SECRETARY OF AGRICULTURE FOR NATURAL RESOURCES AND ENVIRONMENT Secretary Glickman. Thank you, Mr. Chairman, Senator Harkin, Senator Lincoln. I want to thank you for inviting USDA to appear, along with my colleague Carol Browner. With me, today are, if Deputy Secretary Rominger and Under Secretary Jim Lyons. We share EPA's commitment to cleaning the waters of the U.S. and building on successes reducing water pollution over the past several decades. But to some degree, those accomplishments were the easy part. The remaining pollution concerns, as highlighted in the President's Clean Water Action Plan which Administrator Browner and I helped to prepare, are so-called nonpoint sources of pollution such as soil erosion, urban run-off, pollutants from animal feeding operations and other sources that do not come from a single, simply-identified source. Addressing these nonpoint sources of pollution is the great challenge that remains to further improve our waters to make them fishable, swimmable, and potable. To accomplish these next steps in cleaning our waters will take a concerted effort from farmers, ranchers, and forest landowners, as well as urban and suburban residents. Notwithstanding all the work that remains, farmers, ranchers, and foresters have been working for years to reduce the effects of their operations on water quality. Much has been done in this regard using many of the conservation tools that Congress and the department wrote into the previous three farm bills. I do not have to restate them all but we have the Conservation Reserve Program, the Wetlands Reserve Program, and the Conservation Reserve Enhancement Program. They have helped improve the waters of Chesapeake Bay, salmon habitat in Oregon and Washington, and drinking water supplies for New York City. The President's budget has requested $1.3 billion above currently authorized levels to bolster our agriculture conservation programs. I am proud of agriculture's and forestry's contributions to the Nation's efforts to clean our waters, while recognizing that we can and should do more. The question is how should we proceed with our efforts to reduce nonpoint source pollution and what additional tools are needed to realize further gains? I believe we must proceed carefully and thoughtfully. As you know, American farmers and ranchers have for the last 3- years suffered from rock-bottom prices, shrinking global demand, record worldwide production, and a slew of natural disasters. Simply put, as you know, Mr. Chairman and so does Senator Harkin and Senator Lincoln, farmers are under extraordinary financial distress right now and more than ever, they need clear and understandable information about how any new proposed regulation might affect their operation. The proposed rules are for some folks confusing, and in the agriculture community we have heard that--they are confusing. The language of the draft rule is complex and frankly, it would present a challenge to any expert on the issue. By its very nature, these rules are complicated because they deal with technical aspects of pollution control. But first and foremost, farmers need a clear statement of how the proposed rule would affect them. Farmers demand clarity and I think they can deal with a lot of things but what they do not need is more uncertainty out there. And I think this is something that Carol and I are working on very, very closely and she understands that better than almost anybody else that I know. I do want to clarify the situation regarding the department's position on these proposed rules. On October 22, 1999, Under Secretary Lyons sent a letter to Administrator Browner commenting on EPA's proposed rules. Senator Thomas referred to that. The letter had not, however, gone through departmental clearance. And, more importantly, I never reviewed it. Accordingly, it does not represent USDA's official position. Now I will be talking about the content of the letter, which I generally agree with, but the fact is that substantively, that letter did not go through our formal clearence process. And I would have sent a different tone if I had seen that letter. The fact is that we are working together--USDA and EPA--on this issue very closely. Some are using the letter to drive a wedge between USDA and EPA on the issue and the letter unfairly questioned the EPA's interpretation of its own legal authorities. Let me make clear: I have enough problem with USDA's legal authorities, let alone to comment on EPA's legal authorities, particularly as they relate to that agency, which has been charged by Congress to implement the Clean Water Act. So that is something that in the letter I just thought was inappropriate and I thought I would mention it to you. I do have concerns about the proposed rule but I believe adjustments can be made without undermining the intent or the letter of the law. We have formed an interagency group with EPA to work through our concerns. The group has been meeting regularly. It is making progress and I want to make it clear that EPA has been more than willing to work with USDA in dealing with the problems that we are raising and I will talk about today a little bit. For example, number one, and Senator Lincoln talked about this, I believe the rules should recognize the best management practices of America's farmers and ranchers and give necessary credit to those best management practices in the rule. I think the rule should be more clearly constructed and minimize adverse effects, where possible, on agricultural and silvicultural operations. And third, it should allow for reasonable time frames for planning and implementation. I want to take a moment to summarize our major concerns. First, the rules should recognize the voluntary conservation efforts farmers and ranchers and timber companies are practicing on the land. The rule should clarify that a farmer's best management practices, such as a streamside buffer on farm and forest land, will be taken into account when determining how to best meet clean water standards. The fact is over the years, the Natural Resources Conservation Service [NRCS], and other agencies within USDA have been spending millions of people-hours and hundreds of millions of dollars to help farmers and ranchers and foresters do the best job they can to make sure that the soil and water is protected, and those efforts have produced profound positive effects on the country and the landscape. And these practices, which continue with the technical assistance of NRCS, must be continued. I do not want to see farmers confused into believing that those practices would become subordinate to a regulatory approach, except maybe on the most dire circumstances where nothing is being done by anybody. Second, the EPA should provide comprehensive cost projections of the impact of the proposed rule on agriculture and silviculture. Third, the rule should clarify if and when the process would apply to discharges from silvicultural activities. USDA and NRCS knows what works well in implementing, especially the Forest Services does, what works well in implementing TMDLs in forested watersheds and the rules should reflect our field experience. USDA's partnerships have shown that an adaptive and collaborative TMDL process that relies on best management practices and monitoring often has the best chance of efficiently attaining water quality standards. What we have found over the last 50- or 60-years is by actually working with people, giving them the technical assistance and the resources, they will actually do the best job of anybody in maintaining their land. Finally, we are concerned about the science being used in assessing and attributing the effects of nonpoint source pollution. Theoretical models have a high level of uncertainty and there are gaps in the data regarding what is natural background pollution versus what is caused by human actions. So these are issues that we need to work very, very closely together on in order to create rules which are clear and science-based. We believe education and partnerships are going to play decisive roles in efforts to improve water quality. The proposed rule should be fair, clear, and provide farmers particularly with great certainty. With this in mind, we are diligently working with the EPA to resolve our concerns and I am confident, in fact, that we can do this. So Mr. Chairman, I thank you for this opportunity to appear before your committee and we look forward to your questions. [The prepared statement of Secretary Glickman can be found in the appendix on page 74.] The Chairman. Well, thank you very much, Secretary Glickman. Ms. Browner, let me make a comment, to be followed by a question on the legal authority issue that I raised in my opening comments. This comes, and I always hate to reduce these arguments to anecdotal, almost parochial situations, but Senator Lincoln has raised this in her testimony, as have others. During this winter season we have harvested on our farms some poplar trees that apparently were in the way of what we thought were higher value trees. Most people in Indiana know that, that we are interested in this, so when these activities come I have seen forestry people from all over our state who know that I am involved in the business and believe we ought to be concerned about this. The thing that caught their concern especially was this issue that you raise, that most people in silviculture would not be affected by that. Yet in a hearing in the New England EPA Region I at Concord, New Hampshire on December 17, Mr. Kraft said that ``Ultimately, it will be left to the states, but we would have to approach each request for a permit to conduct a logging or logging-related activity to assure it wouldn't harm the water.'' That was very site-specific and rather inclusive. As a followup, in a more general case, essentially some have cited the 1977 DC. Circuit Court opinion of National Rural Development Council [NRDC] versus Costle in which the ruling was that EPA has no authority to pick and choose which point sources to regulate based on whether they are significant contributors. That is a problem. In a way, Mr. Kraft, whether he was right or wrong, was consistent apparently with the 1977 case and, quite frankly, this is what drives much of this argument. One of the reasons we are having the hearings is not only the problems that Senator Thomas raised, and he has some very large foresters. Western state problems are very, very substantial. But in Indiana, we do not have very many large foresters. Maybe Senator Lincoln has some of both, for all that I know. But in any event, this general discussion has struck some fear in the hearts of almost everybody if you have five acres or upward if you are talking about everyone and the inability of EPA to pick and choose, despite the assurances you have given. So with all of that build-up, what do you have to say about the illegal authority? How can you pick and choose? What reassurances can you give to foresters all over the country of various sizes? Ms. Browner. First of all, as Senator Lincoln pointed out, the vast majority of states today run the clean water program on a day to day basis in their state. We are not involved on a day to day basis. We are not involved in permitting decisions on a day to day basis. Nothing in this proposal changes that. States would continue to do the job that they have been doing. The TMDL is an opportunity for a state to develop a plan that reduces the remaining pollution that needs to be reduced. It is up to the state to decide where those cost-effective reductions can be found. We have tried to be clear, and I am now completely convinced that we have failed to be clear, but we tried to be clear that when a state develops a plan, a TMDL plan, they could give credit for BMPs for voluntary--I will read you the language--``voluntary and incentive-based actions may also be acceptable measures of reasonable assurances,'' and it goes on and on. This is in the Federal Register. This is what we said when the proposal went out. So in other words, as a state develops a plan and they know they have to get so many pounds of nitrogen out of the water, out of the stream to make it healthy, they go back and they look at the sources of nitrogen and they say we can get so many pounds from this industrial source, we can get so many pounds from another source, and our best management practices among the forestry efforts in our state will get us this many. No permit would be required in that instance. They have a plan. They have reasonable assurances for getting the pollution reductions. They move forward with implementing the plan. The vast majority of forestry activities would not require permits and I want to be the first to say that we think forests are good for water quality and that we think there are tremendous things going on across the country already in the forestry industry that are enhancing water quality. Can I just give you one example of something that we think is a great success? The Simpson Northwest Timberlands. EPA and the State of Washington reached an agreement with the Simpson Timber Company, a large operation, as I understand it, to develop and approve a TMDL implementation plan for 250,000- acres of private forest land, which includes 1,400-miles of streams. We worked it out. It is doable. Another example is in the Chesapeake Bay. There were some very serious problems in the Chesapeake Bay that were occurring because of some activities upstream. This was actually a program we did, I think, with the State of Maryland and the Forest Service to go back in and restore some riparian forest buffers. And because of this 60-acres of restoration, we are now getting 4,000-pounds of nitrogen reduction, 500-pounds of phosphorus and 100-tons of sediment reduction per year. These are the kinds of best management practices that are already occurring in the country. You probably have them in each of your states. This is what we think should occur. We do not want to do anything that stands in the way of that. And if our proposal somehow or another has confused people, then we will fix it because we think that is one of the best tools we have for cleaner water at this point in time. The Chairman. Well, it is a critical point and a very comprehensive and thoughtful answer. As you say, you are still formulating and you have commended the timeliness of the hearing to hear what you need to consider, and I think this is an area which you recognize as really very, very critical, given the legal precedents as well as the concerns that are persuasive. Secretary Glickman, you have mentioned Secretary Lyons' letter on October 22, and the fact that although you did not sign off, you share many of the views. My understanding is that many professionals in USDA were deeply concerned about EPA's proposals, that Secretary Lyons was not acting simply in a fit of creativity, that he was sort of bringing those concerns to the fore. Secretary Glickman. It was certainly not in a fit, but I do not know about creativity or not. The Chairman. Subsequently they have been more broadly shared. I do not want to berate the issue of why the consultation and coordination between the two agencies did not occur perhaps as much as it might have before then. Your assurance today is that whatever that might have been, it now is very intense and you both are here today, which we appreciate. Secretary Glickman. That is correct. The Chairman. And that is important. At least in your full testimony you have stated that EPA should provide a comprehensive cost projection of the impact of the proposed TMDL rule on agriculture and silviculture. My concern is that probably you and the department ought to produce such a thing, to give at least from the standpoint of American farmers and ranchers, some idea of what you project the problem is. It could be a cooperative one but I just sense that those of us who are involved in the agricultural side of this would like the views of the professionals from the USDA as to what is involved as all this hearing record is finally being put together and we begin to banter this about. Now, it is not an academic problem. As we have collected testimony for this hearing, the cost estimates range so widely as to be almost an astronomical difference, and that is unsettling in terms of a public policy situation. So without going into histrionics about how far apart we are, I would just ask you to zero in on that project. Likewise, with the Conservation Reserve Program, it would appear if USDA accepts more than 1.5-million acres through the recently concluded regular signup, it might encroach on the water quality acreage reserve. Now, this has been an important point with the Committee and with you with regard to the Conservation Reserve Program [CRP] program because the Clean Water Act Action Plan of 1998 was to hold back 4-million acres under the CRP enrollment cap for continuous signup. Now, red flags may be down there at the department sort of understanding that we are getting close, I think, to the limits there but would you review that? Give us some assurance that the plans we already think were in operation that are certainly pertinent to what we are talking about today are not in the breach here. Secretary Glickman. We will. And again this is one of the concerns that has been expressed by our technical people, that here we are bidding in a lot of land in problem areas and taking it out of production for a long time and we do not want to see those efforts unnecessarily disturbed, and I do not think they need to be, but that is part of the review process. The Chairman. One of the reasons that the CRP and the farm bill's aspect of that, that has been widely commended is that there were very important point totals given for these environmental assets that were to be preserved, so this is another one of those points. You have made proposals elsewhere, in other fora, about CRP and additional things we might do. Secretary Glickman. Right. The Chairman. And I have commended many of those thoughts, but even at the same time, we do not want to undo that which seems to be very useful. Let me, for the sake of the record and my enthusiasm over Mr. Kraft's testimony, which is about to occur, I gave him the title of the EPA Administrator Region I. He was not the person who testified in that region but he does mention that testimony in his testimony today, so just for the sake of the record I would like to clear up who said what. Senator Harkin? Senator Harkin. Thank you very much, Mr. Chairman. I will kind of cut to the quick on this perhaps a little bit in terms of silviculture. There is testimony I read that is going to be given later by Mr. Adler--I was reading his testimony and he said obviously the forest industry is fearful that these new proposed regulations, if implemented, would have some economic impact on them. He said clearly that is going to be the case in many instances. Again it seems to me that when you are talking about forestry, just as you talk about agriculture, that there can be point and nonpoint sources of pollution coming from them. I am wondering if you are thinking in terms of the proposed regulations as treating all forest operations as point sources of pollution. I do not know what you are thinking there. Or is this going to be maybe yes in some cases and no in other cases? Maybe you could explain that for me a little bit, Ms. Browner. Ms. Browner. You are exactly right. There are some activities that generate a point source discharge and there are other activities which, quite frankly, do not. The way the statute was set up, and I think the easiest way to think about it is that EPA, nor the states, can require a permit for nonpoint source runoff. A permit can be required for point source, and clearly we would all agree for industry, for large cities, for stormwater, and for those activities that significantly contribute to the detriment or the degradation of a water body. So it is conceivable, and when we talk about the vast majority of silviculture activities would not require any kind of permit, I think we all know there are bad actors. We all know that, in every industry. It is unfortunate. There are the leaders, there are the people who are the visionaries, and then there are the bad actors. I want to be clear. We are quite sure that there will be those out there, the bad actors, who are conducting their business in such a way that it is a point source that is contributing to the degradation of a stream and therefore the state can require them to get a permit. We believe that is a relatively small number of companies and that for the vast majority, the kind of best management practices that are in their own interests, that they are already engaged in, will be what they simply continue to do. But for nonpoint sources, and we will provide, Mr. Chairman, with your permission, for the record a letter we sent to Senator Baucus yesterday in an effort to once again clarify this, we are very clear for nonpoint sources we cannot require a Federal permit, period. The Clean Water Act did not give us that authority. Nor would we be asking for that authority. [The information referred to can be found in the appendix on page 245.] Senator Harkin. I think that outlines and cuts to the quick of what we are talking about. The only thing that is sort of left dangling there is definitions. How will you spell out in the new regulations how you are going to decide what is point and what is nonpoint? I mean obviously there are the clear instances we know of. Ms. Browner. That is right. Senator Harkin. Then there are some that maybe get into gray areas. How are you going to provide some distinct lines so people know whether or not they are engaged in point source- type activities that could contribute to point source pollution? Ms. Browner. I think that your comment is very on target. It is something we agree that we need to make clearer in the final program. I think that it is fair to say, and Secretary Glickman said this is not easy stuff. It will be easy, I think, out in the field, but what we have to write down to jump through all of the hoops that we are required to in creating a program and to try and reflect all of the debate that we heard makes for very difficult reading. I am the first to admit that. I think there are several areas where we have heard repeatedly that we probably could have said it more clearly; we probably could offer more examples so that the states, when they develop their programs--I mean let me remind you, and this is the second point I would simply make--EPA does not write these. The states go out and write the TMDLs. They decide where the best place is to get the reductions from. They decide how much credit they can give to best management practices. That is done by the states, but clearly we need to give better guidance to the states on what they should be giving credit for, on what the definitions are, and I think your point is extremely well taken and it is something that we need to work with USDA and we would be happy to work with this committee and others to try and fix in the coming months. I think we can fix it. I think we have learned a lot in these public hearings and it is something we need to fix. Senator Harkin. I wanted to focus on the forestry issue a little bit because I think that is really where you are going to get a lot of the rub on this. Ms. Browner. Yes. Senator Harkin. Obviously row crop farmers now are fearing that wait a minute; if you can broaden this point source solution that broadly, then maybe they will be affected by it, too. So I think there is more than a little bit of legitimate fear from row crop farmers. Now having said that, to the extent that we can continue down the road that Secretary Glickman has so courageously, I think, structured, and that is a combination of different approaches--the Conservation Reserve Program, extending it along the boundaries of waterways and making those longer-term- type permits--I think that is a great way to go. Extending the strips--I forget what they are called--the waterway strips and things that you have done in the past---- Secretary Glickman. Buffer strips. Senator Harkin. Buffer strips--I could not remember the word--the buffer strips, I think has just done great stuff out there, and that has been very courageous, to take that step forward. Second, implementing the voluntary-type programs. Now, I am not an expert on forestry. I do not know a lick about it. But it seems to me that what we have done in terms of the voluntary programs and what we are trying to do with the large animal feeding operations might have some applicability over there in terms of some standards, some national standards that we are doing in large animal feeding operations but more in terms of providing incentives for farmers to conduct their own conservation practices. I do not know if that is applicable in forestry or not. I just do not know, but it is working in row crop agriculture. I appreciate the department's support of the Conservation Security Program and the money that is in the budget this year for that. I think that is going to go a long way toward again helping our nonpoint sources of pollution in row crop. I am just wondering if there is any such kind of thought in terms of forestry, the type of incentive-based program in forestry that would be voluntary and which again would be in their best interest. I just do not know if that is applicable to forestry or not. Secretary Glickman. Under Secretary Lyons may be able to comment quickly on that. Mr. Lyons. Senator, we do have similar programs to help private forest landowners, private nonindustrial forest landowners in particular, and these are programs actually authorized, in part, by this committee in the 1990 farm bill. One is the stewardship program, the Stewardship Incentive Program, and those programs provide funding to private landowners to help them put in place conservation practices to address water quality concerns, wildlife habitat concerns, and the like. Unfortunately, those programs have been woefully underfunded, worse so than the conservation programs. So we have had a difficult time getting traction, if you will, and getting those in place. But where they have been put in place, we have had some substantial success. Senator Harkin. One last thing, Mr. Chairman. I do not know if I can stay for the entire hearing but I just wanted to say that I am sending a letter to both of you today. ``I just wanted to state that I have strongly supported your agencies' joint efforts on the unified national strategy on animal feeding operations.'' ``However unfortunately, with the release of the Draft Guidance Manual and the Draft Comprehensive Nutrient Management Plans, it appears that USDA and EPA are not fully working together as partners to develop an enforceable approach to address the serious issue of impaired waters from feedlots.'' ``So I am sending a letter to both of you today outlining my concern that your current approach would lead to confusing regulations for large, confined animal feeding operations.'' Again I thought we got off on a great start here a year or so ago. I thought people were working together but I am wondering now if we are starting to diverge here on the regulations that are being developed. As I said, I do not need a comment. I will send the letter to you and I would appreciate your responding to it as soon as possible. Thank you, Mr. Chairman. The Chairman. Thank you, Senator Harkin. Mention has been made of Senator Baucus. He is unavoidably detained in Montana on pressing business today but he has given us a statement and his statement will be placed in the record along with the opening statements of the senators. [The prepared statement of Senator Baucus can be found in the appendix on page 80.] Senator Lincoln? Senator Lincoln. Thank you, Mr. Chairman, and thanks to the witnesses, Secretary Glickman and Administrator Browner, for being willing to come and visit with us, and I appreciate your offer to work with us on this because perhaps there has been a great deal of confusion, to the tune of at the first meeting we had in Arkansas we had 1,500-people show up and the second meeting we had 3,000-individuals show up. Well, we are going to have another meeting in March and you very graciously had your Region-VI EPA folks at the first two meetings and I would encourage both you and the secretary, if you could not attend, that you would send someone from Washington to be in attendance at that next meeting--I think it is March 7--which would be very appropriate to answer some questions, because there is a great deal of confusion. I agree with you that eliminating that confusion is absolutely essential. Secretary Glickman mentioned one of the biggest problems for agricultural producers is uncertainty. The variables that they had to deal with. The fact is that I think that is the biggest problem that we have with your regulation, is the uncertainty and the unpredictability for both agriculture, as well as forestry. I concentrate on forestry because the point, in fact, is forestry has gone certainly in our state a great deal to try and work with EPA and the PCNE, the other groups, to try and come up with some really, really far-reaching opportunities to do best management practices in conservation. You make the comment repeatedly that these are things that the states do. I would just add to that, that the states do not do these, they do not set these regulations, nor do they put them into effect, unless they get your approval. This is not something they act on alone. The states do not go in one direction and EPA in another. When they go through most of setting these standards, they are things that they do in conjunction with EPA. It is not just something the states do, as I said, on their own. So I think it is important to recognize that. As we look at what the regs have put forward, maybe if you could clarify some of the things here, a couple of questions that I have. One, where you have a situation where you have a best management practice in place, has there been any consideration that the regulations would only apply to states who do not have an EPA-approved best management practices? Obviously---- Ms. Browner. You are not the first person to raise this and it is certainly something we are willing to look at. In some ways it fits back a little bit to Senator Harkin's question in that what is a best management practice? I think that is something we would need to work out with the states. Senator Lincoln. You already you. You approve their plans. Ms. Browner. We understand that; I understand that. And that might be one threshold, but you may also have other states coming forward with new types of best management practices; how could we incorporate those? So that is something we are willing to look at. Senator Lincoln. All I am saying is that in each state you either approve or disapprove their environmental programs. They are not acting on their own. Ms. Browner. I am happy to spend some time explaining to you what approve or disapprove means. It is not quite as black and white, I think, as perhaps some may have suggested. It is a complicated process that we go through in making the decision to delegate and then in making sure that within a broad program like clean water or clean air, that all of the components are working. We would be happy to sit down and walk you through it. But I think that the basic thrust of what I hear you asking is in those instances where best management programs have been approved by EPA, how would we incorporate that into the states? Or how would we allow the states to incorporate that into the TMDL program? And I think we are very open to that. We think it is a good idea. We simply need to work with people to understand how best to do it. Senator Lincoln. Well, I just know that if I am trying to teach something to my children, it is much easier if I teach them the benefits that they are going to get out of it and help them work to do it themselves, as opposed to just applying more demands on them. I think that in what you have done in the best management practices has produced an awful lot of goodwill and conservation and reaching the objectives that we all want to reach. I would hate to see an unnecessary, overburdensome-type regulation. And as you clarify it, maybe it will not be that way, and I hope that is the case, and we would like to work with you on that. We would like to just kind of get a few clarifications on the TMDL regulations that you have put forward. Could the regulations that you have out there be extended to encompass all of the activities within the watershed of the listed water body, or will they be limited to the properties adjacent to the list water body? Ms. Browner. I am going to ask Mr. Fox to answer. Mr. Fox. Senator, the way we have proposed the rule, it would be limited only to those landowners and those properties that have a documented water quality problem. In fact, the Agency, the state or Federal agency, would have to make a specific finding that there is, in fact, a problem associated with this landowner. We did not envision at this time that it would be applied on a watershed basis. Senator Lincoln. So it is not your intent to apply it to the watershed basis; is that correct? Mr. Fox. As we propose it, that is correct. Senator Lincoln. OK. The regulation as it deals with waters that are not listed but are considered impaired, will this only apply to the official 303(d) list of waters? Ms. Browner. It only applies--maybe your state has some list that we are not immediately familiar with. This applies to the 303(d) listed waters. Senator Lincoln. Only. Ms. Browner. Some states have their own state processes in addition to the 303(d) and we would be happy to talk to you about Arkansas. They may have something that we, off the top of our heads, do not know. Someone seems to be telling us that, that may be the case. But the intention is 303(d). Senator Lincoln. Your intent is to focus on a 303(d) list. OK. Well, I might want some more clarification on that if it is possible. Just in talking about the point and the nonpoint sources and, as Senator Harkin mentioned, those definitions, in reading your proposed rule and noting that you specifically go back to or specify that certainly agriculture was not focussed in on in terms of definitions until 1977 and 1987, where the specifics on return flows from irrigated agriculture and agriculture stormwater were specified out statutorily, but you go on down and when asked which silviculture discharged would be designed under today's proposal as source subjects to the program, you state for the sources that were categorically excluded previously--nursery operations, site preparation, reforestation and subsequent culture treatment--thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage or road construction and maintenance--that categorical exclusion from the definition of point source would be removed. So in other words, you are leaving it up to a subjective decision by yourself as to whether or not that is going to be a point or a nonpoint source? Ms. Browner. I am going to be very honest with you. We are having a hard time understanding your question. We are happy to try and answer it for you but I am happy--I was trying to make sure I understood which section you were even in and right now we are a little bit confused. So Mr. Chairman and Senator Lincoln, if it would be appropriate, we would happy to answer all of these in writing or to meet with you individually. You just--I cannot understand what you are asking me at this particular moment. Senator Lincoln. Well, I just think it is important for us to know how you have defined and what you have put yourself in the position of being discretionary over in terms of point and nonpoint sources. Ms. Browner. We do not disagree but I think we need to know which section you are in so we understand. Senator Lincoln. OK, I have the Federal Register right here and it is just your answers that you have submitted from your regulations in the Federal Register and I will be glad to offer that to you and have you answer them in writing. I would just again encourage us all to work on something that can be predictable and certain to the individuals that are dealing with it. I would encourage you to come to some of the meetings that we are subjected to so that you can give some of those answers to the people who do feel an uncertainty in what has been prescribed in the rule and regulation. So, I think that is very important as we go through this because there are a lot of people who are alarmed in the definitions that have been provided and what has been done and also, I think just in the past history of what EPA has done in many instances in their interpretations and the way that they go about interpreting the intent of what Congress is out there to do. So I would encourage you to work with us, please. I will, Mr. Chairman, be glad to submit to the administrator my questions in writing so if she would choose to answer them in writing, that is fine. The Chairman. If the senator will put the questions in writing we will ask the administrator to respond in writing on due reflection and have clarification. Ms. Browner. Great. Thank you. The Chairman. I know that you must leave in just a few minutes, Administrator Browner, so as a result, I am going to ask Senator Fitzgerald--he has a couple of questions that he wants to ask whole both you and Secretary Glickman are here. Then Mr. Fox, I understand, could continue onward if necessary. STATEMENT OF HON. PETER G. FITZGERALD, A U.S. SENATOR FROM ILLINOIS Senator Fitzgerald. Thank you, Mr. Chairman. I appreciate both of you being here and I am wondering with the Chairman's dispensation, if I could not shift gears just a little bit. We are so fortunate to have our distinguished Agriculture Secretary and EPA Administrator on the same panel. I wondered if I could talk a little bit about the ethanol program. Administrator Browner, I know you have been kind enough to meet with members of the Illinois delegation on this and we are hoping to have a large meeting with House and Senate members with both of you. I know we sent you a letter. We sent it actually to the President. Maybe he has not sent it down to you. But we would love to have that joint meeting. There are about 40-members from the House and Senate who have requested a meeting with both of you to discuss the reformulated fuel program. But Administrator Browner, I was wondering; I am very concerned about the viability of ethanol in phase two of the RFG program. I was wondering whether the EPA is taking any steps toward providing ethanol with a carbon monoxide credit so that it could continue to remain the choice oxygenate, at least in Chicago where it is heavily used and very popular. I do not know if you would be able to comment on that. Ms. Browner. Senator Fitzgerald, as I think I shared with you and the Illinois delegation in I think it was two meetings we actually had, the administration, EPA was looking at the issue and Senator Harkin, you are well versed on this issue of revapor pressure, and that we would be making a proposal in terms of the revapor pressure in light of a National Academy of Sciences report. We had hoped to get that done a little bit sooner than we have but it is winding its way through the Office of Management and Budget [OMB] review process and will be shortly put out in the Federal Register. So, we have taken into account the Academy's review and all of the issues as we understood them and we will going out on a notice and comment in terms of the revapor pressure issue. Senator Fitzgerald. What you sent to the OMB, I understood you sent something there regarding regulating MTBE as an oxygenate. Is that---- Ms. Browner. I am talking about Reid Vapor Pressure [RVP] right now. I am talking solely about the RVP, which is in the RFG round two program. That is all I am talking about. Senator Fitzgerald. OK. Well, I appreciate that and we look forward to talking to you about that. Secretary Glickman, I understand the USDA has recently been assessing the impacts of an MTBE phase-out and ethanol replacement in the California market and I do not know if you have any results of that assessment that you might be able to share with us. I noted in Illinois, ethanol is 16-percent of the market for our farmers' corn and it is probably not that high in other corn states--Illinois is the leading ethanol producer in the country. But I wonder what effect might that have on farm income at a time, as you pointed out in your testimony, that prices have hit rock bottom and farmers have really been suffering across the country? Secretary Glickman. I do not have a specific answer. I will go back and ask our chief economist whether he has done any economic impact studies. We are working with EPA on the MTBE issue. Obviously USDA has a great interest in the ethanol issue for a lot of different reasons, much of which are compatible with yours. Senator Fitzgerald. So that study is not yet completed, the economic study? Secretary Glickman. Deputy Secretary Rominger will respond. Mr. Rominger. I do not have the figure with me but I think our chief economist did complete that study and it did show that if ethanol did replace MTBE, it would have an effect on the price of corn. Senator Fitzgerald. And the farmers' income. And that would probably, in turn, have effects on the farm programs by reducing the cost of the loan deficiency payments and the like. Do you know if that analysis addressed ethanol's ability to replace--the ethanol industry's ability to replace MTBE in the California market in 3-years, over 3-years? Mr. Rominger. I think, as I recall, that the production of ethanol would have to be increased but they felt that it was possible, would be possible to increase the production of ethanol to be able to fill that market. Senator Fitzgerald. Well, I appreciate that opportunity to switch gears a little bit. Administrator Browner, did you want to add something? Ms. Browner. Yes. I just thought it might be helpful to the Committee--I know this will be an issue of great interest to many. Approximately 2-weeks ago, 3-weeks ago, California did complete a file, a submission to EPA seeking a waiver from the 2-percent oxygenate requirement in the Clean Air Act for the reformulated gasoline program. Independently, California has passed a state law that effectively bans MTBE, which is one of the oxygenates currently available within California within--I might get the year wrong but I think it is two to 3-years. The waiver petition to EPA, the argument that California is seeking to make, it is a very technical, highly modeled type analysis that will have to be done but essentially they are suggesting that the use of an oxygenate in their fuels--and remember, California fuels are somewhat different than fuels in the rest of the country; they have been in a different fuel program, given the nature of their air pollution challenges-- that the use of an oxygenate could actually contribute to increases in some pollution parameters. This is a technical question and they have provided to us all of the modeling that they believe demonstrates that, all of these things that are called inputs and outputs and I do not even understand it after a while, and our technical people are now reviewing it. It will take some period of time for that review. It is a highly complicated computer-type review that has to be done. When we complete that review, which will take us some time--it could be months--we will then go through a notice and comment process--Federal Register notice as to how we read the models that California gave us, how they read them, if there is some disagreement, what we believe the law allows for, and what we would propose to do. Then we will take comment on it and then after the comment period, we would make a final decision on whether or not California's request for a waiver from the 2 percent oxygenate would be granted based on legal and technical grounds. Senator Fitzgerald. Will you be able to take into consideration other factors, like the impact on farm income of the loss of that kind of market, or do you have to do it--will you need some congressional help to think in broader public policy terms? Ms. Browner. I should point out the provision in the Clean Air Act which California is relying on is a provision that has not, to my knowledge--I do not have any air people; these are all water people--to my knowledge is not a provision that has previously been used. I know this for a fact. EPA has never received a request for a waiver from the 2-percent oxygenate. In terms of what factors we are allowed to review, that is obviously something that everyone, I am sure, will have a point of view on and we will be happy to share with us. I should say that we do believe that the Clean Air Act does create that opportunity to seek a waiver, that there is no question in our minds about the right of a state to apply for a waiver, that Congress was clear in that respect. But in terms of what you have to demonstrate and what kind of modeling is sufficient and what kind of factors then get included in that analysis is something we are currently working on. Senator Fitzgerald. Well, we will look forward to continuing our discussions with you. If you could keep in mind that meeting that we are hoping to get--in fact, we wanted to have the Energy Secretary there, as well, and maybe if the three of you could talk with the House and Senate members who requested that meeting, I will follow up on that. I think the letter was actually sent to the White House. So we will follow up with that and we appreciate very much your hard work, both on behalf of the environment and on behalf of our farmers. Thank you. The Chairman. Just to try to bring some simplicity to what just transpired, is it not the case that we had a debate on the Senate floor in which the senator from California, Senator Boxer, and others were talking about MTBE and the fact that this was unhealthy for her state? So the thought immediately arose--Senator Fitzgerald, Senator Harkin and I all sort of shared this thought, that, in fact, if ethanol could replace MTBE, this might be a good thing for clean air in California, as well as farm income. Now to that respect, Mr. Rominger has conducted a study, or his colleagues, and they found that, in fact, it does have a price effect. Predictably, if you send more ethanol to California, more corn goes into ethanol and all the rest. It could relieve LDPs at another level from which we are now talking, so there is another good effect there, too. Now as I understand, however, in this highly modeling effect you are talking about, some people out in California have said hold on; before you send all the ethanol out there, are there some problems in the environment with the ethanol? In other words, as we are replacing MTBE, do we run into some other dilemmas? And we do not know, and this is being studied, among other things. And, of course, those of us who are corn farmers find urgency in the study coming to conclusion as rapidly as possible if the verdict is to be a favorable one so we can move on. Now it seems to me it would be helpful, and this is one value of the senator's question, of having this dual appearance today. This is an EPA question; it is an agricultural question, I think, for the common sense rules I just stated. Probably Secretary Rominger's study, which is there probably, not well known to any of us, we need to exhume and sort of circulate. Likewise, some state of play as to what is going on in California. If it is this consideration by EPA and the modeling and the several months, all of us keep this--we get it in fragments from time to time. We have community meetings of environmentalists, corn farmers, other advocates of ethanol. And I suppose while we are at it on the ethanol situation, and this comes just anecdotally likewise, given the price of corn, which is low, the price of petroleum, which is high, a good number of people have been wondering in a common sense way in America, has the spread between the cost basis of the two narrowed? And the answer is yes but the question is how much? And this is tremendously interesting. We are getting answers all over the place. There are sales in Nebraska that raise questions as to whether almost parity has been achieved. Now, people rushed in to point out no, that has not occurred as yet; there is still a gap. But to the extent the Department of Agriculture can furnish this committee and therefore the rest of the American public some really economist-based facts on this, why, this is going to help the debate immeasurably, I believe, and take it at least a few steps further. Secretary Glickman. We will make sure you get whatever studies we have. Ms. Browner. If I might, Mr. Chairman, just in closing on this particular issue, it is a difficult and a complicated issue. I want to be very clear. For a long time now, EPA has been concerned about MTBE. We commissioned a blue ribbon panel. We have embraced the recommendations of that blue ribbon panel. We have called upon Congress to help us address the problem and we would be--I think everyone in the administration remains very hopeful that, that opportunity could present itself and that we could all work together to find an appropriate solution, given our concerns about MTBE. I do not think there is any administration--President, Vice President, EPA, USDA, Department of Energy--that has done more for ethanol. We are big, big believers in renewal energy sources and in the role of ethanol. We also have a concern about MTBE. They happen to be caught up in the same statute. It would be very, very helpful, I think to all of us, if we could work together. The Chairman. Excellent. Well, we thank the entire panel, especially the Administrator and the Secretary. It has been quite a devotion of your time today but you have been helpful to us and thank you for coming. The chair would like to call now a panel of state and private witnesses, and this will include Mr. James A. Kraft representing forestry. He is vice president and general counsel and secretary of Plum Creek Timber Company, Incorporated. Mr. Paul Johnson, representing state conservation agencies, is the former chief of the USDA Natural Resources Conservation Service, director of the Iowa Department of Natural Resources. Third, Ms. Roberta Savage, representing water administrators, is executive director of the Association of State and Interstate Water Pollution Control Administrators. Mr. Robert Adler, representing clean water network environmental organizations, is professor of law and interim director, Wallace Stegner Center for Land Resources and the Environment of the University of Utah College of Law. And Mr. John Barrett, representing agriculture, is a cotton and grain producer from Edroy, Texas. It is great to have all of you before us this morning. We will ask for the sake of full discussion by you and the Committee, that you try to limit your comments to 5 minutes. This will not be rigorous in the event that this is impossible, because, as you noted, the Committee has been liberal in terms of time to make sure we have a full discussion. Let me start in the order I introduced you. Mr. Kraft has already been mentioned by me mistakenly in a role that he did not take, as EPA administrator in Region I, but he did mention that testimony, which was important, with our dialogue with the first witnesses. Mr. Kraft, would you give your testimony? STATEMENT OF JAMES A. KRAFT, VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY, PLUM CREEK TIMBER COMPANY, INC., SEATTLE, WA Mr. Kraft. Thank you, Mr. Chairman. I appreciate the opportunity to testify today on behalf of the American Forest and Paper Association on EPA's proposed Clean Water Act regulations. While AF&PA represents the manufacturers of wood and paper products, all of whom have serious concerns with a multitude of other program changes contained in this rulemaking, I will confine all of my remarks today on the forestry components of the National Pollution Discharge Elimination System [NPDES] rule. I would like to cover four things today. First I would like to point out the effectiveness of the current programs under Section 319. Second, I would like to point out that this current proposal will impose substantial economic burdens and will be unwieldy and inefficient, as was described by Senators Baucus, Wyden and Murray in a recent letter to the EPA. Third, I would like to go into what I believe is EPA's lack of legal authority to pass this regulation. And lastly, I would like to propose some common sense alternatives. First, I would like to focus on EPA's decision to abandon almost three decades of statutory interpretation of the Clean Water Act and case law by eliminating the designation of forestry as a nonpoint source activity. EPA has contended that because silvicultural activities can be a cause of water quality impairment, that this gives them the discretionary license to label such activities as point sources. However, EPA's citation of silviculture's impact on water quality is selective and runs counter to our own experience throughout our ownership. At Plum Creek we have 3.3-million acres of timberland in the states of Washington, Idaho, Montana, Arkansas, Louisiana and Maine. In every state with significant forest management, those states have forestry best management practices or rules. These programs have been submitted to and approved by EPA as part of the Section 319 nonpoint source program. More than 20-states conduct periodic BMP compliance surveys. Others have even gone further and are conducting statewide BMP effectiveness studies to measure water quality upstream and downstream of forestry activities. The results of these studies demonstrate the general effectiveness of BMP programs and I think Administrator Browner rightly pointed out earlier in her testimony that there are a lot of success stories under the current program, and I think she is right. I think the studies are also helping us to determine how to better improve the BMPs as we go forward. Take the state of Montana, for example, where our company has 1.5-million-acres of timberland. Over the past decade, Montana has developed a pretty rigorous BMP program and a compliance survey. We get audited on our performance. The most recent results found successful implementation statewide of BMPs averaged 94-percent and our company is well over or pretty close to 100-percent; it is in the 98-97 percent range. That is up from 78-percent in 1990. This improvement was achieved not through heavy-handed, top-down regulations but was brought about by locally led efforts to educate loggers and landowners. Even using EPA's most recently available public data, only 11 states listed silviculture as a cause of impairment on their Section 303(d) lists. Further, almost two-thirds of the stream segments listed due to silviculture were from one state-- Montana. However, this list has been found to be highly inaccurate. In 1997 Montana began requiring documentation of the scientific basis for the listing of water quality limited streams. Montana's Department of Environmental Quality has found that credible data was lacking to justify listing in over half the streams on the original list. In my written testimony that I submitted there are a number of other specific statistics but in the interest of time I will not go into that, as to why silviculture and forestry is a relatively minor cause of water quality impairment across the country. I would like now to shift to my second point, which is the economic burdens that would be created by the proposed rules and comment on the ineffectiveness and the unwieldy nature of the proposal. The forestry community is struck by the heavy-handed command-and-control approach that this rule incorporates. It would be imposed upon the states and private landowners throughout the country. EPA's economic analysis that accompanies the proposed rules is inadequate. According to AF&PA assessments supported by the work of five independent economists, the incremental economic burden to landowners, operators, communities and government agencies could easily exceed $1 billion annually nationwide. The administrative costs alone of an NPDES program for silviculture, even in the unlikely event, and I would like to get into that later because I think a very good question was asked earlier that I would like to answer--even in the unlikely event that this rule would be invoked sparingly, only for bad actors, the cost would exceed EPA's estimates by severalfold. Because the economic impact will far exceed $100 million annually, we believe that EPA must conduct more detailed and comprehensive cost-benefit economic analysis of this proposed rule. Not only would the economic burdens be greater than the proposal recognizes but it is hard to comprehend, sitting here, as someone who deals with forestry activities every day, how the EPA would develop and implement a workable NPDES permitting system for the thousands upon thousands of forestry activities that occur every year. Another concern that we would like to share here about the burdens and the inefficiencies of this rule is the impact it would have on voluntary conservation efforts that are today working to protect and improve water quality. And one thing that our company has been very interested in and I think the Simpson HCP was mentioned earlier today, there are millions of acres of private land that are today covered by habitat conservation plans, which, as you know, are approved by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service under the Endangered Species Act to protect fish and wildlife habitat. Many of these plans are designed to protect water quality and fish habitat. Our fear is that this proposed rule would have a great potential to undermine these efforts that are being so successful. Just as an example for our company, we are very near completion of a massive habitat conservation plan in our Northwest ownership covering 17-species of fish, including salmon and trout, for 1.7-million acres of our timberland. If these rules were to go into effect as they are currently proposed, we could be faced with wholly new requirements from another Federal agency for the very same resources that are being protected by our plan. And this is a scary thought for us because we have invested more than $2 million and 2-years in working with the agencies to prepare this plan and I suspect that other landowners who would look at this proposed requirement and the threat that they might have to obtain NPDES permits and comply with a whole new set of TMDL rules would be reticent to expend that kind of resource. As an aside, our company, as we have gone through this process, has kept EPA informed and we are very much interested in a voluntary way, working with EPA, to see how this plan can dovetail with the needs of the Clean Water Act. It appears that EPA is trying to solve all of the perceived problems in the Clean Water Act through radical changes to the 303(d) program and through the designation of silviculture as a point source. However, the 303(d) program, as designed by the Congress, was never designed to take on such a massive role, which leads me to my third topic, that the radical changes called for in this proposal have such policy implications that it is improper for the EPA to act without specific direction from Congress. In fact, the legal analysis that we have done shows or would suggest that there is no legal authority under the current act for this proposed regulation. I go on further to say that we concur with the concerns raised by Senators Baucus, Wyden and Murray, which questioned the legal underpinnings of the proposal and the need for congressional direction on this kind of policy change. Under the current proposal, EPA would turn the Clean Water Act on its head and would redesignate most forestry activities as point sources. I think there was a question there: well, what is going to be a point source under this regulation and what is not going to be a point source? The answer was well, it depends upon whether you are a bad manager or a bad actor. And I guess looking at that, there is no way to determine whether in someone else's opinion you constitute that and there is going to be no way, I think, to figure out if you need a permit. Despite I think the very well-intentioned limitations stated by Administrator Browner that they would use this authority only in limited situations and as a last resort, I am afraid the courts will not let them do that. Selective enforcement of a regulation, in some instances calling it a point source and in other cases for the same activity calling it a nonpoint source, will not be respected by the courts and inevitably I think there would be litigation here that would expand the NPDES portions of this rule to all water bodies where forest management is conducted. The forestry community, many state agencies, governors and others oppose the designation of forestry activities as a point source. We do not believe there is any legal or statutory authority for EPA to revise the regs that would eliminate the long-standing recognition of forestry as a nonpoint source activity merely to address some unidentified, last-resort situations on a case-by-case basis. Before I close, Mr. Chairman, I would like to discuss the reasonable assurances requirement found in the proposed TMDL rule. Setting aside the scientific difficulty of actually calculating a daily load from nonpoint sources, the proposed rule requires states to build in and have an implementation plan for every TMDL. We do not believe that Section 303(d) provides EPA with this authority; nor does it provide, as EPA contends, that the implementation plans can be approved, disapproved or taken over by EPA. What it appears to be here is a case of a proposal extending Federal enforcement over what has traditionally been a state activity. And this is not a minor legal issue but one that has enormous consequences for private landowners throughout the country, large and small. I would like now to turn to my last point, which is alternatives. The Chairman. Would you summarize that? Mr. Kraft. Sure. This will be very quick. I think we all share the goal of cleaner water, certainly at our company and throughout the AF&PA. I think that there are some common-sense things that can be done to achieve those goals. In essence, I think Section 319 can be made to work. It is working. Examples are there that it is working. If we want to make it work better, I suggest rather than top-heavy regulations that we increase the funding, make the partnerships work better, improve the BMP program. Mr. Chairman, over 30,000-comments have been submitted on these rules and the forestry community represents a sizable share of those comments. We feel strongly that only Congress should determine how nonpoint source activities are addressed under the Clean Water Act. In the end, we believe the current proposed rules will discourage the practice of sustainable forest management. They will create disincentives to maintain timberland in the U.S. In fact, I could see a lot of people getting out of the business if these were passed. They would stifle economic opportunity and prosperity in communities that are desperate to be part of the economic revival in this country and it would make it a lot more difficult for people--the guys who own 40 acres--to make a living off their land. This concludes my remarks, Mr. Chairman, and I would welcome any questions you have. [The prepared statement of Mr. Kraft can be found in the appendix on page 81.] The Chairman. Thank you very much. Let me say at the outset your statement will be published in full in the record, Mr. Kraft, and that will be true of each of the witnesses. Mr. Johnson? STATEMENT OF PAUL JOHNSON, DIRECTOR, IOWA DEPARTMENT OF NATURAL RESOURCES, DES MOINES, IA Mr. Johnson. Thank you, Mr. Chairman and Senator Harkin. It is good to be with you today. In looking at my colleagues on either side, I see they have already scratched half of their testimony. I think we could all spend an hour with you and still have a lot to say. I will not go through my prepared remarks; those are for the record and I would urge you to take a look at them. But I would start today by reminding you of where we have come from. Iowa is working land, probably more developed than any other state in the country. We have no national forests, no national parks, no wilderness areas. We work it all. Senator Harkin, maybe we need to work on that part of it, as well. But nonetheless, it is working land and our subject that we have in front of us today certainly does impact Iowa. We live on this land; we work this land; we are proud of it. I am going to skip the remarks that deal directly with the TMDL, although I do want to say that although my written testimony raises serious concerns about the present TMDL proposals, I want to make it very clear that inaction or business-as-usual should not be the option. We have made great progress in cleaning up our nation's waters but the public is asking for more and we believe there should be more and we need to accelerate our efforts. I would like to take my remaining minutes and maybe offer a slightly different perspective on this. I believe there have actually been two national clean water acts. 1972 is the one that we are talking about now, the foundation on which we are presently trying to add additional programs. I do not want you to weaken where we are with the Clean Water Act, the 1972 act. It has served us well in dealing with point source and should provide the underlining coordination and regulatory framework, I believe, for dealing with nonpoint, as well. But there was another one back in 1935, the Soil Conservation Act back then that established conservation on private lands in this country. I believe if we had called that a Clean Water Act back in 1935, we would probably have even more soil conservation than we have today. But I think we should recognize the importance of that in the work that has gone on over the past 65-years. It, too, has served our Nation well. We are a healthier Nation because of it, I believe. Two acts, two cultures. Our challenge, I believe, is to facilitate convergence of those cultures. You cannot deal with the 1972 act without understanding 1935. And I do not believe we can take the next steps in our 1935 process without support of our 1972 act. I would like to make some suggestions for our 1935. The delivery system is in place and it is a good one. Just four or 5-years ago people were wondering whether we should take it apart as we move toward a more market-driven farm program. Do not take it apart. Strengthen it. We have land grants out there. We have ARS. We have good Forest Service research. Challenge them to produce the conservation commodities that we are talking about here. Think big. I believe you ought to put much more resources into research on how we can produce conservation commodities from private lands. Strengthen the Extension Service. Do not let it fade away. As we talk about nonpoint and we talk about the other opportunities on private lands, the Extension Service should play an important role. So should the Natural Resources Conservation Service and the Farm Service's agency. Strengthen conservation districts and watershed efforts. Locally led conservation can work and we are learning today how to do that better. I would urge you to support additional technical assistance out there. I believe it is tragic that in our mad rush to cut government, we have slashed the heart and soul of private lands conservation. We should have twice as many people out there working with private landowners today, not the number that we now have. We do not improve education by cutting teachers. We do not improve national defense by cutting our military. We do not improve medical services by cutting our doctors and nurses. All of these are what we are about in the technical assistance that we provide private landowners. In fact, it is the private landowners who do the conservation, not these people, but these people are really needed out there to do it. In Iowa we have a huge backlog because of lack of technical assistance. In my home county we have a one-year backlog under the conservation buffer initiative. We have farmers wanting to sign up and enroll them, but we do not have the people out there to do it. The same is true on grazing lands; I believe same is true on urban stormwater issues. I think that if we had technical assistance there, we would start improving our water from nonpoint much more rapidly. We have a good set of basic conservation rules. EQIP-- Senator Lugar, thank you for that. It is an excellent program. RCRA Implementation Plan [RIP], Wetlands Reserve Program [WRP], Conservation Reserve Program [CRP], continuous CRP, but I would argue that we need more resources in those programs and we need more flexibility. CRP is probably the one program that is adequately funded at this point, although I think some would argue that we could always use more. We have almost $2 billion in that program, and what does that tell farmers? Do not farm, and you are a good conservationist. Yet when it comes to the working lands, the lands that we are talking about here today, we have just a fraction of that, perhaps one-tenth of it. In Iowa we have $100 million backlog right now on WRP and floodplain easements, $100 million backlog. Ten years ago I do not think you could have gotten a farmer to sign up for that program and yet today, $100 million backlog, and that is after farmers are already told that there is not much money in the program. We need more flexibility and we certainly need to start rewarding stewardship instead of rewarding people after they have made mistakes. We have farmers out there who have buffers along rivers and streams. They do not quality for the program. They are told to plow them out, farm them for 2-years, and come back; then you are eligible for a CRP contract. I think that has to change. Senator Harkin, I think your proposal and the administration's proposal is a wonderful idea. Although it is $1.3 billion, I would view that as a pilot, given the opportunities that we have. I think we need to build consensus for our National Private Lands Conservation Act. We have done public lands; we have a great start on regulatory. We will continue to argue about whether or not they are as good as they ought to be but I think it is time we looked at that 70-percent of the land out there and looked at ways in which we can really improve our conservation on private lands, and that is the heart of what we are talking about today. Our Governor Vilsack recently called upon Secretary Glickman to work with him toward a National Governors Conference on Private Lands, similar to what Teddy Roosevelt did back at the turn of the century for public lands. I would urge you to take part in that, hopefully as our governor will continue on that. In Iowa this year we are trying to converge the 1935 and the 1972 Clean Water Acts, improving our TMDL program, our monitoring, our standards, our assessment, and accessing more the USDA programs 319 and research. We can make these programs work and we can improve our national waters. Thank you for the opportunity to be here today. [The prepared statement of Mr. Johnson can be found in the appendix on page 95.] The Chairman. Thank you very much, Mr. Johnson. Ms. Savage? STATEMENT OF ROBERTA SAVAGE, EXECUTIVE DIRECTOR, ASSOCIATION OF STATE AND INTERSTATE WATER POLLUTION CONTROL ADMINISTRATORS, WASHINGTON, DC. Ms. Savage. Thank you very much, Senator. And before I begin, I would like to say that normally our association invites, and I did invite, a number of state administrators to be here but each time I called them they said, ``The state legislature is holding a hearing on TMDLs.'' So you have the executive director instead. Your staff has been wonderful and accommodating. They would call me and say, ``Who is going to testify?'' and I would give them a name and then they would go into hearing. So your staff is wonderful and I appreciate their patience. My name is Robbi Savage. I am the executive director of the Association of State and Interstate Water Pollution Control Administrators. I started with the association in 1978 and prior to that I worked with the League of Women Voters on the 208-program, which was the precursor to our nonpoint source 319-program; and prior to that at the United States Environmental Protection Agency in the Office of Water, also in the nonpoint source and 319-program. So I have been involved in these issues for more years than I hope you will count up and I have very strong feelings about the way this program is being managed across the country. The states feel very strongly as well and back in 1972 when the bill (the Clean Water Act) was passed, it was very clear-- at least we thought it was--that the states would take the lead in the clean water program. And prior to the passage of the 1972 Act States viewed themselves as the professors. When EPA was created in 1971, things got all turned around and the States, in EPA'S mind became, in essence, the students. That relationship has changed somewhat, as you know, over the years, but through it all, the states have been at the forefront of the clean water program and Congress recognized that in the 1972 bill, as well as other environmental and natural resource statutes. The states agree that the TMDL program is a useful tool in managing our overall clean water program. It is not the only tool; it is one tool. It is a management tool. It is not an enforcement tool, and this is an issue that nearly every state brought up in its comments. To USEPA on the TMDL Regulations. The states believe that they are co-regulators with the Federal government and in this relationship with EPA that we often call a partnership or a marriage, I tend to think of it either as co-regulators or a continuing partnership but in this process, we have come forward time after time with EPA to work on not only these regulations but the guidance on the 319- program. We cosponsored the Western Governors TMDL forums. We met with EPA for an intensive two-day event at the wye Institute to discuss the TMDL regulations. We have worked with EPA hand in hand on the 319-guidance for the enhancement of the nonpoint source 319-program. I tell you this because we have tried in every way possible to enhance the program on nonpoint sources because we think it is an important, a very important issue for water quality improvement. On the other hand, we do not believe that the enforceability envisioned by EPA is authorized in Section 319 or in the Clean Water Act. Also I would like to say that in working with EPA, we came to a number of conclusions and resolutions, but since they were still in the Federal Advisory Committee Act [FACA] process in the development of the rules, there were no commitments made at that point. EPA is trying to move the program forward and we understand that but the comments that we provided to the EPA, in conjunction with the Environmental Council of the States, (which is the State secretaries and commissioners, like Paul Johnsons around the country), and the Coastal States Organization. Together we outlined a number of concerns and rather than try to go through those for you one by one as an association, I thought it might be more useful to just simply read to you some of the state comments that we received. And I would like to say, having been at the Agency when the term nonpoint source was coined, I remember being in the room and sort of fighting over what is a point source and what is a nonpoint source, at that point we determined, at least in those old days, back in the very early 1970s, that a point source would be those things that came from a pipe or a specific point that you could look at and point to--hence the name point sources. A nonpoint source was just about everything else. This clearly has changed over time. You look at the stormwater rules for example. Stormwater has now been determined to be a point source, versus nonpoint. You look at forestry. That is now being determined to be a point source. So the definitional issues have changed but the original point and nonpoint definitions we thought were very clear and very easy to deal with. Let me share with you the views of the states. In Massachusetts, the role of Section 303(d) has been greatly expanded by the proposed regulations. The Department Mass of Environmental Protection believes that EPA's proposal is overinclusive and questions not only the need for the expansion but whether EPA has the statutory authority to propose nonpoint source requirements. Another state, Delaware commented that the Clean Water Action Plan envisions a number collaborative effort to restore and sustain the health of our watersheds. The TMDL rule impedes the state's watershed approach rather than complements it. In Kansas they point out that the degree and detail of the prescribed remedies suggested will negative effective TMDL establishment and its implementation. EPA has the right and duty to expect TMDLs to be developed. However, its right to describe the specific details with TMDLs must be limited. The effective implementation is a state and local role in directing resources on a priority basis in certain geographic areas. It is not EPA's role, right or responsibility. The comments go on and on, Mr. Chairman. There is a significant workload associated with the proposed regulations. The magnitude of the task is formidable. Given the estimates of the total maximum daily load workload and assuming that the states and EPA will be able to take advantage of the lessons we have learned, economics of scale and delisting inappropriate waters would have proceeded, EPA would still have to approve one TMDL each day in the next 15-years to meet the 40,000 that is currently projected by EPA. There is no way, Mr. Chairman, that the states can do this job, not as it is currently outlined. There is not the money the time or the current staff resources. We need at least a tripling, even with the funding increases that were outlined by the Administrator, at least a tripling of the existing resources. The states are being set up to fail in this context, Mr. Chairman, and that is very troubling to the majority of us. [The prepared statement of Ms. Savage can be found in the appendix on page 100.] The Chairman. Thank you very much, Ms. Savage. Mr. Adler? STATEMENT OF ROBERT ADLER, PROFESSOR, UNIVERSITY OF UTAH, COLLEGE OF LAW, SALT LAKE CITY, UT Mr. Adler. Thank you, Mr. Chairman, and I appreciate the opportunity to be here. I do want to clarify that while the Clean Water Network asked me to testify today, I do not represent the Clean Water Network, which is a very large and diverse coalition of organizations. I am an individual who has been involved in and interested in the effective implementation of the Clean Water Act for a long time and I was a member of the FACA Committee on TMDLs. I am also a participant in the ongoing study being conducted by the National Academy of Public Administration for Congress of innovations in environmental programs designed to make them more effective and cost-effective, with a focus on watershed programs, among others. I want to begin by saying that there is no doubt, as Senator Harkin mentioned earlier, that the proposed regulations will change the manner in which farmers and the forestry industry must address their environmental impacts. Where I disagree with most of the other witnesses is that I do not necessarily think that the net effect of the proposed regulations will be the detriment of those sectors of the economy. In fact, I believe that by increasing the efficiency with which both public and private resources are dedicated to agricultural and silvicultural pollution, the proposed changes have the potential to benefit both the environment and the affected industries. I also believe that they have the potential to help this committee's programs by ensuring that the dollars that are spent under the auspices of the various agricultural assistance programs are again conducted in a smarter, more cost-effective way. But I want to spend a few minutes talking about the impact of U.S. agriculture on water quality and aquatic ecosystem health, facts that have been known to this body for a long time. The 1972 Senate committee report said that agricultural pollutants are major contributors to the Nation's water pollution problem and that the waters of the Nation cannot be restored until this very complex and difficult problem of nonpoint sources is addressed, findings that have been confirmed in study after study, data produced not by EPA but by the states themselves. EPA's 1991 report on nonpoint source pollution, assessing the information provided by the states, found that agricultural run-off impaired or threatened more than 100,000 assessed river-miles and more than 2-million acres of lakes. Logging impaired more than 15,000 assessed miles of rivers nationally, this based on a database which only looks at approximately one- fifth of the Nation's waters. Similar results have been produced year after year and as recently as the latest EPA national water quality assessment, which continued to identify agriculture as the number one cause of impairments of the Nation's lakes and rivers and the fifth leading cause of pollution of estuaries. Now, the response from the agricultural community, from the states, from the agricultural agencies is that significant efforts have been spent over the past 30-years, as Mr. Johnson notes, over the past 75-years or so, to address these impacts. Millions of dollars have been spent. Thousands of BMPs have been implemented around the country. Serious efforts at education, serious voluntary programs, and I agree: all those programs have been operating and in many cases to good effect. Yet despite those programs and despite those laudable efforts, the data remain clear: agriculture remains the leading source of water pollution in the United States. So the question is why this paradox? Why have we spent so much money and still find that so many rivers and lakes are impaired by agricultural pollution? My view is that it is because those dollars and those programs have not been targeted as wisely and effectively as they could be, and that is precisely where TMDLs can be a tool to help and precisely why I believe that this committee and the agricultural community should, in fact, welcome the TMDL process as a way to use those resources more effectively. For example, cost-sharing dollars spent through the various farm bill programs can be targeted at watersheds identified through TMDLs as needing reductions in particular types of pollutants. Within those watersheds, TMDLs can be used to target the pollution sources most likely to contribute to the problem and most likely to be a part of the solution. One of the programs that I studied as part of the NAPA review program was the Colorado River Basin Salinity Control Program and I want to use that as an example. It was not required to use a TMDL because they are not technically in violation of water quality standards, but for more than 25- years they have used the equivalent of a TMDL through a modeling process to calculate the total salinity load reductions necessary to attain and maintain water quality standards and to identify the particular sources of salinity that can be attacked most cost-effectively. Most recently, they have used it for a market-type competitive bidding process, which has approximately doubled the cost-effectiveness of salinity control in the basin. So I draw two basic two basic conclusions from my study of the salinity program. One is that a TMDL-type process can be used to target and select the most cost-effective control projects but does not mandate particular solutions. Second is that it has produced significant reductions in salinity, water quality standards have been met in the basin as a result and because of that TMDL-type process, it is one of the most effective nonpoint source pollution control programs in the country in terms of the real goal not of how many BMPs we put on the ground but how many waters and how many miles of water, in fact, attain water quality standards. And the same is true of the TMDL regulations, which very explicitly say that TMDLs in implementation plans can include regulations, ordinances, performance bonds, contracts, cost- sharing agreements, MOUs, site-specific or watershed-specific voluntary actions or compliance audits of best management practices. The regulations are clear that they do not mandate particular results within the program. I would like to say a little bit about three issues that I understand to be of particular interest to the Committee. One is whether or not waters impaired by nonpoint source pollution should be included in the program. The bulk of remaining waters polluted around the country, as I said earlier, are impaired by nonpoint sources. Excluding nonpoint sources from the program-- not from the NPDES permitting program but from the TMDL program--would render that program of extremely limited value and, in fact, would make virtually no sense. The entire point of TMDLs is to look at the aggregate pollution from all sources within a watershed. It is like the SIP program in the Clean Air Act, which does the same thing. If you try to measure the whole but to ignore some of the component parts, you do not get good results. In fact, you get nonsensical results. It would be like trying to assess a corporate balance sheet by looking only at the cash assets of the corporation while ignoring the capital assets or the inventory simply because they are a bit harder to measure. They are harder to measure but if you do not measure them, you do not get the full balance sheet from the corporation. The second issue is implementation plans. One of the most clear unanimous recommendations of the FACA committee and I believe the most important and effective recommendation was that TMDLs without implementation plans are nothing more than a bureaucratic paper exercise. The implementation plan is what is going to take that load calculation and translate it to real water quality goals, and I think EPA would be making a very bad mistake to delete the implementation planning provision from the regulations. Finally, the issue of EPA's authority to designate certain selected silvicultural activities as point sources, which has received a lot of attention today. The statute defines point sources not in terms of the nature of the economic activity but the nature of the discharge, with the exception only of agricultural stormwater and irrigation return flows, which are subject to particular statutory exemptions. A point source quite simply is any discernible, confined and discrete conveyance. Federal courts have interpreted the term broadly. So based on the language of the statute alone, any silvicultural discharges through a discrete conveyance is a point source. Any silvicultural discharge that reaches waters through other means--run-off--is a nonpoint source. EPA, by regulation, has defined certain activities, silvicultural activities, as being exempt from the program. What EPA proposes to do now is to modify those regulatory exemptions under very limited circumstances where water quality violations occur, as identified through the TMDL process. It is not, as has been alleged, converting statutory nonpoint sources to point sources. So with that, I again thank the Committee for holding the hearing. I think the TMDL program is the best available tool to look at watersheds on a watershed-specific basis and in a comprehensive rather than a fragmented way, and I would be happy to answer any questions the Chairman might have. [The prepared statement of Mr. Adler can be found in the apendix on page 116.] The Chairman. Thank you very much, Mr. Adler. Mr. Barrett? STATEMENT OF JOHN BARRETT, COTTON AND GRAIN PRODUCER, EDROY, TX Mr. Barrett. Thank you for inviting me, Mr. Chairman. My name is John Barrett and I am a cotton farmer from San Patricio County, Texas. Even though I am a farmer, I am not confused, as was alluded to by Secretary Glickman. I would not blame you for being confused, Mr. Chairman. We have heard from the Government witnesses that TMDLs are not really going to do anything to nonpoint sources. Then we hear from Mr. Adler that they are the best hope to control nonpoint sources. We in agriculture strongly believe that EPA's interpretation of the TMDL statute, Section 303, does not conform to the legislative intent expressed by Congress when the Federal Water Pollution Control Act was passed in 1972. We believe that Congress enacted Section 303(d) as a back-up mechanism to deal with point source discharges when technology- based controls proved to be inadequate to maintain water quality standards. The real statute that Congress enacted to deal with nonpoint sources was Section 319. When 319 was passed in 1987, the debate in the Senate is very informative when juxtaposed with this current notion EPA has that Congress really somehow passed nonpoint controls when 303 was passed 14-years earlier in 1972. Senator Stafford. ``A new Section 319 establishes a program to begin the process of addressing this hitherto unregulated source of water degradation.'' Senator Simpson. ``For the first time, we have included a provision in the Clean Water Act related to nonpoint source pollution that comes from farmlands, timber operations, and other sources of run-off which are not considered point sources.'' Clearly, the senators in 1987 did not think that they had established a regulatory program for nonpoint sources in 1972. But beyond the very issues relating to statutory history and legislative intent, the very term ``total maximum daily load'' is counterintuitive to nonpoint source management. Total maximum daily load implies a constant and regular engineered and controllable environment like you can do with a valve on a pipe at a point source. Nonpoint source professionals are well aware that nonpoint source run-off is distinctly unpredictable and unamenable to control. Farmers cannot control the rain. If we could, I would not have had a crop drought disaster in 1996 and 1998 and then two floods from Hurricane Bret and Hurricane Floyd in 1999. Mr. Chairman, when the EPA figures out how to control the weather, those of us out in the real world of run-off will be able to comply with a total maximum daily load. In its zeal to redefine nonpoint source run-off as a discharge subject to the TMDL statute, EPA is attempting to drive a square peg into a round hole. The Federal Section 319 program that Congress passed grants states the flexibility to develop practicable, economically feasible and incentive-driven approaches which are implemented as a suite of best management practices, or BMPs. 319 approaches are considered to be implemented when they are put in place. In other words, implementation of the BMPs is equivalent to compliance. The TMDL statute has a different bar. Its requirement is that compliance is not achieved until water quality standards are met. For nonpoint source run-off, this requirement raises the real possibility that a source will have to be eliminated from a watershed in the event that BMPs and modified BMPs ultimately prove ineffective in attaining water quality standards. Let me be very clear. This is the Federal Government telling farmers whether they can farm or not. Mr. Chairman, EPA has made a policy decision with which it cannot possibly comply. Under the approach EPA is proposing in the new TMDL regulations, if an EPA regional administrator disapproves a state-submitted TMDL and/or implementation plan, then EPA must impose a Federal TMDL and implementation plan on the state and stakeholders in the watershed within 30-days. Mr. Chairman, this must be a joke. EPA cannot even answer their mail in 30-days, let alone develop a TMDL and implementation plan. Even worse, the Federal implementation plan equals Federal zoning and Federal land use planning. Cities can zone, some counties can zone, states can do it within limits, but the last thing most of us heard is that the Federal Government needs unambiguous statutory authority to do so. By this I mean Congress passing a law and not the Administrator of the EPA passing a regulation. Finally, I recently heard a senior EPA official tell a group that this program will have a multi-billion dollar impact, and I agree. However, EPA is officially claiming only $25 million a year on states and no costs on the private sector. I have even heard the Assistant Administrator for Water, Mr. Fox, tell a subcommittee of the House that EPA would never regulate nonpoint sources through a TMDL. However, EPA developed a single TMDL in California which imposed $12 million in costs on just three farmers. Mr. Chairman, I want to let Senator Chafee's comments when the 319 program was enacted close for me. ``The primary role of the Federal Government in the nonpoint program is to provide financial assistance to the states, which are given the lead in developing their own programs. It is not Big Brother from Washington telling them how to do this. The states do this. We give them the money to help them. We do not mandate it. Farmers are not required to seek permission from the Federal Government to carry out their farming practices.'' Thank you, Mr. Chairman. [The prepared statement of Mr. Barrett can be found in the appendix on page 143.] The Chairman. Thank you very much, Mr. Barrett. I will mention that a statement has been submitted by Senator Coverdell and we will put that in the record with the statements from other senators. Let me begin the questioning because I believe my question really has been formulated by all you have said and sort of an understanding of where this may go. There is clearly a difference of opinion with the administration panel and this one on whether Congress really ought to enact something that is more comprehensive or hits the problem of the TMDL, as opposed to this development coming through regulation. And maybe that is so and maybe that is not. Well, one of the reasons for this hearing is that the recommendations by Administrator Browner have set off enormous controversies all over the country. As you mentioned, Ms. Savage, you are unable to produce a director because they are all testifying at state legislatures. Now, maybe that sense has not reached Washington yet, although Senator Lincoln has been talking about the massive participation in her hearings, indicating quite a bit of grassroots interest. That does not define the issue simply because people are outraged or sad or concerned, but it does indicate that this is not a settled situation and the law of the land. We are continuing to work our way through it. Now, as I listened to Ms. Browner this morning, she mentioned, for instance, the Great Lakes and the Chesapeake Bay as very large issues for our country and the thought that a total management of these situations is very complex. Her feeling was that the Great Lakes have been turned around, not that the problem has been solved, and maybe the same for the Chesapeake Bay. Most Americans probably recognize that, that perhaps we are one Nation and we take a look at major problems of this sort and this is very difficult. Now, moving from these massive waterways then into thousands of streams and rivers and so forth, of course, is another problem, and here the rights of landowners, people who are doing business, the Federal system itself, the rights of states or however they fit into the Federal Government may make this a lot more difficult. So I sort of understand where Ms. Browner is coming from, in a way. Obviously there must be some sense of frustration that the TMDL program does not quite work, as it stands. And I think Mr. Adler in his testimony was very helpful as a proponent of TMDL, without going into an endorsement of Ms. Browner's proposal or what Secretary Glickman had to say, but that it is a comprehensive reduction and to have comprehensive reduction, you take a look at where it is all coming from and how you might make something of it. Now, we are dealing, however, with law in which it appears that there is dispute over the point source or the nonpoint source and really what is provided, how much of this you can do, how far you stretch it--I think at least this is in contention. And it could very well be that by the time we complete this issue, Senator Lincoln has offered a bill but other senators are poised to offer all sorts of legislation which, in fact, may finally clarify this. We may have a different Clean Water Act by the time we are concluded with all legislation. What I think I sense is in a common sense way, Ms. Browner hears this and has tried to work through, after the public hearings and with Secretary Glickman and with others, some reasonable rules of the road that will be least offensive to as many parties as possible, try to mitigate some of the anxiety. Certainly that was true in her comments about silviculture today, that not many people are going to be affected by this, but some, and it is not really clear altogether the criteria, I suppose, except that Mr. Kraft said there are some bad actors out there. And indeed there are and the common sense of the American people has seen some of this from time to time and is outraged and wants somebody to do something about it. Now given all of this, are we on the right track? Mr. Adler believes that we are with regard to the TMDL comprehensive reduction idea to begin with and if we are, what sort of legislative changes are going to be required? Or can this occur through interpretation of the legislation, the major acts that we have here? What sort of responsibility should this committee, should the Senate undertake, given the whole lay-out of the dilemma we have heard this morning? Mr. Johnson, do you have an idea about this? Mr. Johnson. Yes. First of all, I think there are some--and I tried to articulate them in my written testimony--there are two or three issues that I think need to be dealt with before we go forward with whatever plan we have. One is to get a better understanding of water monitoring. We do not have a national effort on water monitoring. From what I know, EPA does not have that, so each state is doing it differently. Some states are not doing it at all. I seriously question the whole issue of monitoring in interstate waters. As you know, when we settled this land we laid a grid across it and we are feeling sorry for doing that even today because it does not fit nature. Well, this program, the way we are laying it out, is sort of a second grid. We are not escaping it; we are getting more into it. So I think---- The Chairman. To back up on that for a minute, now you are saying, just for the sake of all of the audience, that water monitoring differs markedly from state to state. What do you mean by that? The measurements? Mr. Johnson. The amount that we do, the mandates. In fact, our 303(d) list is, in most states, dependent on the amount of monitoring that we have done. Iowa has done very little until this last year when we really got into it. I believe Kansas has done a very good job, from my understanding of it. They have 1,500- or 1,600-waters on their list; we have 159. It is not because theirs is more polluted than ours, I do not believe, but we have very uneven monitoring across the country. The Chairman. Well, how could you tell what the problem is without there being some monitoring? Mr. Johnson. That is a very good point. So you have that; then you have an assessment of it. You have a different approach to setting the standards across the country. I think that these are basic, good, basic science questions that we really need to get a better handle on. I do not believe that--I am not here speaking against the idea of targeting, as Mr. Adler has said, and the idea of doing a budget of pollutants in impaired waters. I think that you have to do that if we are going to really use our resources wisely. But we are starting each state at such different levels and nobody has blown a whistle and called time out and said, ``Let's get this right across the country and then let's go forward.'' There is a real need for that, I believe. The U.S. Geological Survey is perhaps a lead agency in monitoring and I would urge you to take a look at perhaps giving them additional resources and more responsibilities in this role, particularly in monitoring. The Chairman. Maybe this is not analogous but in the Clean Air Act there seems to be somewhat more uniformity in monitoring from the nonattainment cities to the attainment or what have you, essentially the same rules of the game for Chicago or Los Angeles or Indianapolis or what have you. Mr. Johnson. Well, others could maybe comment more on this; they may know the issue better than I. But I would guess that if Iowa wanted to quit monitoring entirely--and we do not; we want to do more--we could just do that and there would be no impaired list except what would be imposed upon us, I suppose. We would lose some 106 money, perhaps. We have got to get a better handle, I think, and some better standards nationwide on monitoring and a better understanding of the science of what it tells us, as well, especially with nonpoint. The Chairman. Are you saying if Iowa stopped monitoring, which you are not going to do but if you just stopped it, then the TMDL does not work, or how does it work if you have no monitoring? Mr. Johnson. I suppose a drive-by look. In fact, we are dealing with a list right now that is not based on real good science but at least it is a start. I think a lot of the frustration we all have with TMDL right now is that suddenly we are really cranking it up and it is being driven by litigation and I do not fault that, by the way. I think sometimes to get us off of dead center, somebody has to force it, and that is what is happening. But we are developing TMDLs now based on a list that we feel is very, very weak. It is not based on good monitoring. It is based on a fisheries person driving by a shallow water, for example, and saying, ``Gee, there is too much algae there.'' So there are certainly good programs in the country. I would have to admit that ours is not, because of our past history, but we are catching up. The Chairman. Well, that is an important point because all of us say on the one hand, all this is a problem but, on the other hand, as you say, TMDLs are being driven by litigation. People say this is outrageous and what is going to be done about it? Now, the fact that there is no monitoring, no plan, no one doing anything does not really assuage the public grief. For example, the White River running through Indianapolis, Indiana, source of enormous outrage presently because tens of thousands of fish have died and continue to be dying. The governor devotes much of the State of the State address trying to talk about the fish dying in White River. Now the fact is that I am not certain the governor has any plan for this, although many people say they are still looking for the source of the problem, but people do get outraged in America. They are very concerned about the environment and clean air and clean water are uppermost. So balanced against our thoughts today about the Federal Government overreaching, really the lack of monitoring or the whole matrix that might be required to get there, is a public demand for this and people who go after it have a lot of political support, in addition to those who are saying, ``Hold on now a moment,'' what Ms. Browner was saying today, a lot of support, too, for holding on, walking around this. Ms. Savage, you talk to these people every day in your capacity who are out there on the firing line. What is the balance between this? How do we meet the lawsuits, the public outrage, the demands for standards that may or may not have been established very well and may be extraordinarily different really, state by state? What advice do you have not only to Ms. Browner or Secretary Glickman but to the Congress, to this committee to begin working on this? Ms. Savage. Let me address your first point, Senator, that the public is outraged, and rightfully so, in many ways. When Mr. Ruckelshaus came to the Agency in 1971 he made some very clear--I remember seeing him now--very clear directions to the EPA and to the states, specifically we were to focus on what was called point sources in two areas. One was the construction of wastewater treatment facilities, and $5 billion a year was going to build sewage treatment plants. And the other was the bad actors in the industrial sector. The intent was to move to a permitting system for all point sources of discharges. The 208-program, which was the original precursor to the nonpoint 319-money, was a planning exercise and literally ignored by many in the Agency. Billions of dollars went into cleaning up point sources. It is taking us 30-years to do that and for the most part, we are fairly comfortable with the successes achieved in the point source arena. On the other hand, it is like the onion. The more you clean up and the more layers of the onion that you discover, the more you understand how difficult this process is. Most of us thought when you clean up the raw sewage in the streams and you get those industries under control, voila, your water is cleaner. Well, that has not necessarily been the case. On the other hand, as Ms. Browner said, there are all these standards that people are not meeting. That is assuming that the standards are the same as they were in 1972; they are not. It seems that every time we attain standards, then we raise the bar and, of course, we are not going to be in consistent compliance with the standards because we are always learning more and changing them. I would not give any advice to Ms. Browner or Mr. Glickman. I am just glad I am not in their shoes, to be perfectly honest. These are very, very tough issues and TMDLs are very, very important. I think that because of the suits, as Paul has said, there is a new energy. About 10-years ago we were all saying clean water is a boring program and it is not very sexy. Well, it is pretty sexy now, and TMDLs has been in the middle of that, but TMDL's aew not the whole program. It is a way to do the water budget, as Ms. Browner indicated. But the budgeteers do not enforce; they do not regulate; they develop the budget, and that is what we need to be doing here. With regard to the implementation plan, it is not that we do not think nonpoint sources are important; they are; they are critical. Our association came up with the first national analysis of nonpoint sources back in 1985 and at that time we said it was 50-percent of the remaining problems. State administrators cannot say it is 50-percent of the problem and say, ``No problem with nonpoint sources.'' That is inconsistent. But the way we go about implementation and the time frames that we go about cleaning the program or getting to that end point of clean water is what is under debate. Whether EPA has the statutory authority is under debate. Implementation plans--we feel very strongly, as Bob does and as Chuck does and as Carol does, that implementation plans need to be part of this. The question is do they need to be submitted and approved by EPA? We do not think so. Perhaps an outline of what the implementation plan will include--we have discussed this with the agency specifically--an outline of what that implementation plan would hold and then, after the TMDL is approved, to go back with your public and develop the implementation plan using existing authorities. We are very comfortable with that approach and EPA seems to be at least willing to discuss it. We want to delete the threatened waters category, because there is just no way to deal with this. Every water in the United States is threatened by something. But when we put threatened waters in this regulation, then you multiply 40,000 number--totally beyond our belief. EPA cannot expect that. So if you delete the threatened waters category, it might be doable in some regard. The offset provisions are very troubling. Again philosophically, we agree with the concept. If you are going to pollute a waterway and there is a way to get 1.5 out, then you should do that, but how do you do it? You know, philosophically, it makes some sense but most folks in the field do not know how to make that happen. We need a very clear delisting process. As Paul said, some of the states' lists were just developed by EPA, by drive-bys. That is inadequate. That is inappropriate, and a lot of the listings were done to get 319-money. They did not think much about implementation and enforcement associated with TMDL's. Those lists need to be cleaned up. And we need a very clear delisting process to do that. I could not agree more with Paul on the monitoring. The monitoring is not there for States to do what they need to do in 303(d). We come before you year after year and argue for money for the monitoring program, try to tell you what we have done in 30-years of clean water and what is the first thing that happens? Our monitoring money is cut. USGS is cut. That makes no sense. If Congress and the public want accurate data, we need to ask the appropriators to make sure there is money and appropriate strategies for monitoring. And lastly, we need to integrate our 303(d), the TMDL program, with our 319 nonpoint source program and our 305(b), which is our reporting program. We need to report to you on a regular basis what is going on in these programs. They should not be separate. We should coordinate them into a comprehensive approach that, in fact, does what we are asking--a budget that is a plan and then report to Congress on how we are doing. Fifteen years is not going to do it. The Chairman. Well, that is a good list of very sensible suggestions. Have these all been made to Ms. Browner and her associates at some point? I presume---- Ms. Savage. Oh, yes, Sir. The Chairman. So you are reciting really on the basis of having done this before. Ms. Savage. Well, as Mr. Kraft said, there were 32,000 comments to EPA, of which I understand 15,000 were from the forestry industry and the remaining were across the board, very substantive for the most part, and I think you will find that the comments that I have outlined here are reflected in a large majority of those comments. The Chairman. Mr. Kraft, you commented in your testimony that the legal basis is not here or not quite here for much of what was being suggested, and you have heard the comments of others--Mr. Adler, who believes that the TMDL program, at least in general, may be a good way to proceed, that we are not able to monitor what we are doing now, but in part, that is because, as Ms. Savage so kindly mentions, money is not often appropriated and that, I suppose, does not happen totally by chance. A lot of people do not want to monitor these things in life. There is resistance to monitoring dirty air over cities from time to time but finally we do this and report it and it has ramifications that are difficult politically. When you begin to get all this data it is good for social scientists but sometimes not for the practitioners who are out there. What comments do you have, Mr. Kraft, having listened to all this conversation at this point, that would clarify your position or where we ought to go? Mr. Kraft. There are a whole host of things, I think, in your question. I do not think, on your first point about the lack of authority, I think the legislative history and EPA's own interpretation of the statute consistently over a long period of time, I think, makes it pretty clear that there is not authority in the current statute for what is being proposed. As to the second part of your question about TMDLs perhaps being a good thing and being in the statute, I think it is clear, and no one really disagrees with this, that there is a requirement to do a TMDL budget for impaired watershed and it is clear the states do not have the money to do it on the time line they are being ordered by the courts. And I think there probably is some benefit to having a budget. The question really comes down to then what is the way that you take that budget and translate it into something that is workable for the vast array of nonpoint source activities? I think for our company we are strong believers in adaptive management. We do that in our own plans, our habitat conservation plans, and I think that kind of approach to 319 is what is needed here. I think rather than trying to regulate through permits things that really cannot be done, the way you do it is through more money for monitoring, and we definitely need that, and then take a look at your BMPs and are they doing what you think they are supposed to be doing? Get some scientific data that shows whether those BMPs are effective or not. We need, rather than this regulation, I think what we need is a study to find out what is the problem out there with silviculture, if any? Is it really as big an issue as some would have you believe? I happen to think that that is not the case but perhaps we should put off a massive change in regulation until we can really understand what the problem is. But I do think that even if there is a problem out there and we find out what it is with better data, the way you approach that is through best management practices because that will lead to better water quality. And the best example I can give is our own habitat conservation plan, which is, in essence, a collective set of best management practices. It includes putting buffers around streams, repairing roads that were not built up to modern standards. It means grazing best management practices, fencing off cattle from streams where that is needed. It is a whole host of things that when you think about and work it, once you set some guidelines out there for resource managers, you will be impressed, I think, with the dedication that people who work the land, who know the land, they want to protect these resources and they will. So I think rather than having to get into a permitting of every single thing, we can create, through an adaptive management process, better BMPs. The Chairman. As you know, most of the protest of the EPA idea come from the silviculture area, from forestry. Trying to think through, and you are someone who knows about this, why is silviculture likely to come under fire at any point? If you think of lots of small plots with trees on them, it is hard to figure that, but I gather when Ms. Browner was talking about the bad actors, there are very large lumbering interests who impact upon streams and waterways in various ways, foul up the water in some fashion. Now, what is to be done about this where there seem to be outrageous situations, and what does the industry do about it now? Mr. Kraft. I think there are a couple of answers to that. I would think you would find among the vast majority of our members in AP&PA that they are exactly the opposite. They are responsible stewards of the land. One of the things that the industry has done is, I think, have a code of conduct that they have implemented through the Sustainable Forestry Initiative Program, a commitment to clean water. I think you see many of the large timber companies around the country doing habitat conservation plans. So I think there is a lot going on already under the voluntary programs that we have to protect clean water. The Chairman. Well, what if somebody in the far west sees a stream or river and they believe that things are really being fouled up by somebody in the lumber or timber industry and they file suit and say somebody has to stop all this? Isn't this a part of the reason we are having the argument as Ms. Browner comes forward with this? Mr. Kraft. Mr. Chairman, I would say that the states are very active in enforcing those standards now. If we were to cause a problem on our land, if we violated the best management practices or the streamside management zone and caused pollution in a stream, we would be called into court immediately. I think there is ample enforcement authority under the current act and the states and EPA have that enforcement authority today. The Chairman. Now Mr. Barrett, from the standpoint of the farmers, it does not matter whether we are talking about EPA today; whenever we talk about EPA, there are problems. In fact, I think some have said sometimes we have price problems and those are very severe. the Committee has been talking about that all the time. But problems with EPA supersede that almost every time in terms of getting a turn-out of people. Now in this particular area, whether farmers are exercised or not, I am trying to gather your view as to how those views fit into a total management plan for a waterway or lakes and streams and what have you. In other words, really most of the protests on this, as I stated, I think, accurate, have come from people in forestry, although there have been long-running arguments with dirt farmers and other people who are involved in agriculture with regard to EPA. But on this specific argument today, could you restate what the objections are as you see it from farmers other than foresters? Mr. Barrett. Well, Mr. Chairman, with all the good work you do here on the Committee to try to keep us in business, you talked earlier about the crop insurance mark-up and for us to have the most important asset we own, which is our land, threatened by a Federal regulatory take-over is something that really has not sunk in on the greater agriculture community out there yet. I do not think the pendulum has swung to the degree it has with the silviculture folks, but that is going to change. And that is why we are trying to deal with it as proactively as possible down at the county level to try to get the real row crop farmers involved in the TMDL process. The largest issue I think that we have to get across to policymakers is that when you deal with land management practices like BMPs, and that is what we have with the help of NRCS to manage our nonpoint source run-off, we can have an effective program that leads to water quality improvements over time. But when you put BMPs into a water quality-based program, like the TMDL program, just the mere BMP by itself is not enough. You have to ratchet your BMPs without regard to whether or not they are practicable or feasible or whether or not you are making any money. The BMP might be you take the south 100-acres out of production and plant grass on it. That is not something that American agriculture is going to be able to comply with. That is why my testimony to you is that in order to, in a cooperative way for us to move forward with the states and improve water quality, we need to work with the BMP program that you in Congress passed for us, Section 319, along with all of our other partners--the NRCS and USDA--and actually get something done on the ground. I think that is the real thing that needs to be changed. We in agriculture need to take back Section 319 from EPA and make it into an action-oriented program that improves rural nonpoint source water quality, rather than what it basically is now, which is just a process program where they go around counting septic tanks and such things as that. That is probably the number one thing that we could do to really make a difference out there. And I agree with all the other statements about monitoring. The drive-by monitoring problem that we have in the TMDL business right now is horrendous. The state of Idaho ended up with 962 drive-by monitored waters on its list. The state of Oklahoma--I have a paper trail on that one. In 1992 the state of Oklahoma turned in a 303-list with about 20-waters on it. EPA made them put on 80-nonpoint source only waters that were just potentially threatened. They were on another list somewhere but nobody knew why they were on the list. Then, 8- years later, the state was asking EPA to take them off the list and they said, ``Well, even if you had no data to put them on in the first place, you cannot take them off unless you have data.'' So in a nutshell, Mr. Chairman, we need to have better science behind this process and we need to put BMPs into a process where they can be allowed to work. The Chairman. I think you have emphasized correctly what is a fear, at least, of many farmers of the arbitrary aspects of this or that a good part of a farm might be sacrificed for the greater good. There is some possibility always hopefully in our courts of law for due process and working out before you are bankrupted arbitrarily but a good number of farmers feel they have been dealt with in this way. So it is timely that we hear that again because it is a part of the argument. Mr. Adler, your testimony has been characterized by me so many times, it is only fair that you have a chance at least to make certain that it remains. But having heard what you have heard, do you have a first comment? Mr. Adler. I actually appreciate your characterization of my testimony, which I think was fairly accurate. But I do want to respond to some of the things that have been said. First, your opening question, which is whether or not this committee or the Congress as a whole needs to take action on the statute, and I do not think you do. I think that EPA is well within its legal authority within the regulations. There are some legal issues at the margins here that I am sure are going to be litigated, but that is true of every single regulation that EPA has ever promulgated and undoubtedly every regulation that it will promulgate in the future, and that is the role of the courts to decide that. I do agree that Congress should help, can help by increasing dollars for monitoring and implementation of the TMDL program. You are used to hearing that. ``Don't do anything but send me more money'' is, I think, the message, but I think it is true. And the FACA committee was also unanimous in its recommendation for more monitoring and better monitoring. But in response to John Barrett's concerns, what we need is good science, not perfect science, and Congress acknowledged that in 1972 when it said that TMDLs ought to be set with a margin of safety, taking into account seasonal variations and the uncertainty inherent in the process. If we wait for perfect science, I would submit that the next generation of all of us will be in this room in 30-years talking about the very same issues. We need to act on good science but the best available science and to move forward. I think it is important to take an historical perspective here because there is a bit of a misimpression that EPA all of a sudden launched this TMDL missile, and that is not what happened at all. Congress adopted the TMDL program in 1972 and the problem is that it was never implemented except in the breach. What catalyzed the activities over the past several years was a rash of citizen suits around the country in which groups complained that this legitimate and useful program had never been implemented and the courts, by and large, agreed. In fact, many of the courts expressed some shock at the slow pace or lack of pace with which this program had been implemented. What EPA tried to do through the FACA committee and its rule-making process was to try to make some sense of the program and to try to make it workable. As just one example, we had courts saying that states ought to write their TMDLs in 5- years and the FACA committee recommendation was to move that to 15-years and I would note that there were four state representatives on the Committee who agreed with that representation or that recommendation. What EPA has done I think is the reasonable conservative middle ground. If Congress were to act, it would consider two other courses. One is to maintain the status quo but to get rid of the TMDL program, and I think we all agree that the status quo has not worked. Congress can throw more money at the nonpoint source and farm bill programs, but you legitimately do not like to simply throw money at a problem without knowing that the money is being spent wisely. The other course on the other side is to regulate nonpoint sources and to treat them like we do point sources. There may be a day that comes where we will decide that we have to do that but in the meantime, the TMDL process is the reasonable middle ground and I think we ought to give it a shot. The Chairman. Is there any further comment from the panelists? Ms. Savage. Mr. Chairman, I would like to add to that. Is there a role for Congress? I think there is. There is always a role for Congress in the statutes that they pass. And it may well be time for us to have a regulatory nonpoint source program, an enforceable program that might include acknowledgment of the BMPs and the good actors that are out there doing it right and that are moving forward. We at ASIWPCA do not want to interfer with that or undermining their efforts. But, as Ms. Browner said, there are bad actors out there and maybe it is time that we say look, you have X amount of time to do it right and if you are a habitual wrong doer, then we ought to have something that is more enforceable and puts you on par with a point source that is not doing what it is supposed to be doing. So I think in that, Bob and I agree. On the other hand, to say that there are only two options--status quo or go with these regulations--I do not think that that is accurate. We could modify these regulations based the comments and there have been, as we said, 32,000 comments. EPA has more than its hand full in going through all of these recommendations. There are many, many good comments. We can modify these regulations and get into the debate on nonpoint sources here in the Congress where it needs to be. The Chairman. Well, I thank all of you for your testimony and likewise for being so forthcoming in your responses to the chair and to each other. The hearing is adjourned. [Whereupon, at 12:01 p.m., the Committee adjourned.]======================================================================= A P P E N D I X February 23, 2000 ======================================================================= [GRAPHIC] [TIFF OMITTED] T7026.001 [GRAPHIC] [TIFF OMITTED] T7026.002 [GRAPHIC] [TIFF OMITTED] T7026.003 [GRAPHIC] [TIFF OMITTED] T7026.004 [GRAPHIC] [TIFF OMITTED] T7026.005 [GRAPHIC] [TIFF OMITTED] T7026.006 [GRAPHIC] [TIFF OMITTED] T7026.007 [GRAPHIC] [TIFF OMITTED] T7026.008 [GRAPHIC] [TIFF OMITTED] T7026.009 [GRAPHIC] [TIFF OMITTED] T7026.010 [GRAPHIC] [TIFF OMITTED] T7026.011 [GRAPHIC] [TIFF OMITTED] T7026.012 [GRAPHIC] [TIFF OMITTED] T7026.013 [GRAPHIC] [TIFF OMITTED] T7026.014 [GRAPHIC] [TIFF OMITTED] T7026.015 [GRAPHIC] [TIFF OMITTED] T7026.016 [GRAPHIC] [TIFF OMITTED] T7026.017 [GRAPHIC] [TIFF OMITTED] T7026.018 [GRAPHIC] [TIFF OMITTED] T7026.019 [GRAPHIC] [TIFF OMITTED] T7026.020 [GRAPHIC] [TIFF OMITTED] T7026.021 [GRAPHIC] [TIFF OMITTED] T7026.022 [GRAPHIC] [TIFF OMITTED] T7026.023 [GRAPHIC] [TIFF OMITTED] T7026.024 [GRAPHIC] [TIFF OMITTED] T7026.025 [GRAPHIC] [TIFF OMITTED] T7026.026 [GRAPHIC] [TIFF OMITTED] T7026.205 [GRAPHIC] [TIFF OMITTED] T7026.027 [GRAPHIC] [TIFF OMITTED] T7026.028 [GRAPHIC] [TIFF OMITTED] T7026.029 [GRAPHIC] [TIFF OMITTED] T7026.030 [GRAPHIC] [TIFF OMITTED] T7026.031 [GRAPHIC] [TIFF OMITTED] T7026.032 [GRAPHIC] [TIFF OMITTED] T7026.033 [GRAPHIC] [TIFF OMITTED] T7026.034 [GRAPHIC] [TIFF OMITTED] T7026.035 [GRAPHIC] [TIFF OMITTED] T7026.036 [GRAPHIC] [TIFF OMITTED] T7026.037 [GRAPHIC] [TIFF OMITTED] T7026.038 [GRAPHIC] [TIFF OMITTED] T7026.039 [GRAPHIC] [TIFF OMITTED] T7026.040 [GRAPHIC] [TIFF OMITTED] T7026.041 [GRAPHIC] [TIFF OMITTED] T7026.042 [GRAPHIC] [TIFF OMITTED] T7026.043 [GRAPHIC] [TIFF OMITTED] T7026.044 [GRAPHIC] [TIFF OMITTED] T7026.045 [GRAPHIC] [TIFF OMITTED] T7026.046 [GRAPHIC] [TIFF OMITTED] T7026.047 [GRAPHIC] [TIFF OMITTED] T7026.048 [GRAPHIC] [TIFF OMITTED] T7026.049 [GRAPHIC] [TIFF OMITTED] T7026.050 [GRAPHIC] [TIFF OMITTED] T7026.051 [GRAPHIC] [TIFF OMITTED] T7026.052 [GRAPHIC] [TIFF OMITTED] T7026.053 [GRAPHIC] [TIFF OMITTED] T7026.054 [GRAPHIC] [TIFF OMITTED] T7026.055 [GRAPHIC] [TIFF OMITTED] T7026.056 [GRAPHIC] [TIFF OMITTED] T7026.057 [GRAPHIC] [TIFF OMITTED] T7026.058 [GRAPHIC] [TIFF OMITTED] T7026.059 [GRAPHIC] [TIFF OMITTED] T7026.060 [GRAPHIC] [TIFF OMITTED] T7026.061 [GRAPHIC] [TIFF OMITTED] T7026.062 [GRAPHIC] [TIFF OMITTED] T7026.063 [GRAPHIC] [TIFF OMITTED] T7026.064 [GRAPHIC] [TIFF OMITTED] T7026.065 [GRAPHIC] [TIFF OMITTED] T7026.066 [GRAPHIC] [TIFF OMITTED] T7026.067 [GRAPHIC] [TIFF OMITTED] T7026.068 [GRAPHIC] [TIFF OMITTED] T7026.069 [GRAPHIC] [TIFF OMITTED] T7026.070 [GRAPHIC] [TIFF OMITTED] T7026.071 [GRAPHIC] [TIFF OMITTED] T7026.072 [GRAPHIC] [TIFF OMITTED] T7026.073 [GRAPHIC] [TIFF OMITTED] T7026.074 [GRAPHIC] [TIFF OMITTED] T7026.075 [GRAPHIC] [TIFF OMITTED] T7026.076 [GRAPHIC] [TIFF OMITTED] T7026.077 [GRAPHIC] [TIFF OMITTED] T7026.078 [GRAPHIC] [TIFF OMITTED] T7026.079 [GRAPHIC] [TIFF OMITTED] T7026.080 [GRAPHIC] [TIFF OMITTED] T7026.081 [GRAPHIC] [TIFF OMITTED] T7026.082 [GRAPHIC] [TIFF OMITTED] T7026.083 [GRAPHIC] [TIFF OMITTED] T7026.084 [GRAPHIC] [TIFF OMITTED] T7026.085 [GRAPHIC] [TIFF OMITTED] T7026.086 [GRAPHIC] [TIFF OMITTED] T7026.087 [GRAPHIC] [TIFF OMITTED] T7026.088 [GRAPHIC] [TIFF OMITTED] T7026.089 [GRAPHIC] [TIFF OMITTED] T7026.090 [GRAPHIC] [TIFF OMITTED] T7026.091 [GRAPHIC] [TIFF OMITTED] T7026.092 [GRAPHIC] [TIFF OMITTED] T7026.093 ======================================================================= DOCUMENTS SUBMITTED FOR THE RECORD February 23, 2000 ======================================================================= [GRAPHIC] [TIFF OMITTED] T7026.110 [GRAPHIC] [TIFF OMITTED] T7026.111 [GRAPHIC] [TIFF OMITTED] T7026.112 [GRAPHIC] [TIFF OMITTED] T7026.113 [GRAPHIC] [TIFF OMITTED] T7026.114 [GRAPHIC] [TIFF OMITTED] T7026.115 [GRAPHIC] [TIFF OMITTED] T7026.116 [GRAPHIC] [TIFF OMITTED] T7026.117 [GRAPHIC] [TIFF OMITTED] T7026.118 [GRAPHIC] [TIFF OMITTED] T7026.119 [GRAPHIC] [TIFF OMITTED] T7026.120 [GRAPHIC] [TIFF OMITTED] T7026.121 [GRAPHIC] [TIFF OMITTED] T7026.122 [GRAPHIC] [TIFF OMITTED] T7026.123 [GRAPHIC] [TIFF OMITTED] T7026.124 [GRAPHIC] [TIFF OMITTED] T7026.125 [GRAPHIC] [TIFF OMITTED] T7026.126 [GRAPHIC] [TIFF OMITTED] T7026.127 [GRAPHIC] [TIFF OMITTED] T7026.128 [GRAPHIC] [TIFF OMITTED] T7026.129 [GRAPHIC] [TIFF OMITTED] T7026.130 [GRAPHIC] [TIFF OMITTED] T7026.131 [GRAPHIC] [TIFF OMITTED] T7026.132 [GRAPHIC] [TIFF OMITTED] T7026.133 [GRAPHIC] [TIFF OMITTED] T7026.134 [GRAPHIC] [TIFF OMITTED] T7026.135 [GRAPHIC] [TIFF OMITTED] T7026.136 [GRAPHIC] [TIFF OMITTED] T7026.137 [GRAPHIC] [TIFF OMITTED] T7026.138 [GRAPHIC] [TIFF OMITTED] T7026.139 [GRAPHIC] [TIFF OMITTED] T7026.140 [GRAPHIC] [TIFF OMITTED] T7026.141 [GRAPHIC] [TIFF OMITTED] T7026.142 [GRAPHIC] [TIFF OMITTED] T7026.143 [GRAPHIC] [TIFF OMITTED] T7026.144 [GRAPHIC] [TIFF OMITTED] T7026.145 [GRAPHIC] [TIFF OMITTED] T7026.146 [GRAPHIC] [TIFF OMITTED] T7026.147 [GRAPHIC] [TIFF OMITTED] T7026.148 [GRAPHIC] [TIFF OMITTED] T7026.149 [GRAPHIC] [TIFF OMITTED] T7026.150 [GRAPHIC] [TIFF OMITTED] T7026.151 [GRAPHIC] [TIFF OMITTED] T7026.152 [GRAPHIC] [TIFF OMITTED] T7026.153 [GRAPHIC] [TIFF OMITTED] T7026.154 [GRAPHIC] [TIFF OMITTED] T7026.155 [GRAPHIC] [TIFF OMITTED] T7026.156 [GRAPHIC] [TIFF OMITTED] T7026.157 [GRAPHIC] [TIFF OMITTED] T7026.158 [GRAPHIC] [TIFF OMITTED] T7026.159 [GRAPHIC] [TIFF OMITTED] T7026.160 [GRAPHIC] [TIFF OMITTED] T7026.161 [GRAPHIC] [TIFF OMITTED] T7026.162 [GRAPHIC] [TIFF OMITTED] T7026.163 [GRAPHIC] [TIFF OMITTED] T7026.164 [GRAPHIC] [TIFF OMITTED] T7026.165 [GRAPHIC] [TIFF OMITTED] T7026.166 [GRAPHIC] [TIFF OMITTED] T7026.167 [GRAPHIC] [TIFF OMITTED] T7026.168 [GRAPHIC] [TIFF OMITTED] T7026.169 [GRAPHIC] [TIFF OMITTED] T7026.170 [GRAPHIC] [TIFF OMITTED] T7026.171 [GRAPHIC] [TIFF OMITTED] T7026.172 [GRAPHIC] [TIFF OMITTED] T7026.173 [GRAPHIC] [TIFF OMITTED] T7026.174 [GRAPHIC] [TIFF OMITTED] T7026.175 [GRAPHIC] [TIFF OMITTED] T7026.176 [GRAPHIC] [TIFF OMITTED] T7026.177 [GRAPHIC] [TIFF OMITTED] T7026.178 [GRAPHIC] [TIFF OMITTED] T7026.179 [GRAPHIC] [TIFF OMITTED] T7026.180 [GRAPHIC] [TIFF OMITTED] T7026.181 [GRAPHIC] [TIFF OMITTED] T7026.182 [GRAPHIC] [TIFF OMITTED] T7026.183 [GRAPHIC] [TIFF OMITTED] T7026.184 [GRAPHIC] [TIFF OMITTED] T7026.185 [GRAPHIC] [TIFF OMITTED] T7026.186 [GRAPHIC] [TIFF OMITTED] T7026.187 [GRAPHIC] [TIFF OMITTED] T7026.188 [GRAPHIC] [TIFF OMITTED] T7026.189 [GRAPHIC] [TIFF OMITTED] T7026.190 [GRAPHIC] [TIFF OMITTED] T7026.191 [GRAPHIC] [TIFF OMITTED] T7026.192 [GRAPHIC] [TIFF OMITTED] T7026.193 [GRAPHIC] [TIFF OMITTED] T7026.194 [GRAPHIC] [TIFF OMITTED] T7026.195 [GRAPHIC] [TIFF OMITTED] T7026.196 [GRAPHIC] [TIFF OMITTED] T7026.197 [GRAPHIC] [TIFF OMITTED] T7026.198 [GRAPHIC] [TIFF OMITTED] T7026.199 [GRAPHIC] [TIFF OMITTED] T7026.200 [GRAPHIC] [TIFF OMITTED] T7026.201 [GRAPHIC] [TIFF OMITTED] T7026.202 [GRAPHIC] [TIFF OMITTED] T7026.203 [GRAPHIC] [TIFF OMITTED] T7026.204 [GRAPHIC] [TIFF OMITTED] T7026.206 [GRAPHIC] [TIFF OMITTED] T7026.207 [GRAPHIC] [TIFF OMITTED] T7026.208 [GRAPHIC] [TIFF OMITTED] T7026.209 [GRAPHIC] [TIFF OMITTED] T7026.210 [GRAPHIC] [TIFF OMITTED] T7026.211 [GRAPHIC] [TIFF OMITTED] T7026.212 [GRAPHIC] [TIFF OMITTED] T7026.213 [GRAPHIC] [TIFF OMITTED] T7026.214 [GRAPHIC] [TIFF OMITTED] T7026.215 [GRAPHIC] [TIFF OMITTED] T7026.216 [GRAPHIC] [TIFF OMITTED] T7026.217 [GRAPHIC] [TIFF OMITTED] T7026.218 [GRAPHIC] [TIFF OMITTED] T7026.219 [GRAPHIC] [TIFF OMITTED] T7026.220 [GRAPHIC] [TIFF OMITTED] T7026.221 [GRAPHIC] [TIFF OMITTED] T7026.222 [GRAPHIC] [TIFF OMITTED] T7026.223 [GRAPHIC] [TIFF OMITTED] T7026.224 [GRAPHIC] [TIFF OMITTED] T7026.225 [GRAPHIC] [TIFF OMITTED] T7026.226 [GRAPHIC] [TIFF OMITTED] T7026.227 [GRAPHIC] [TIFF OMITTED] T7026.228 [GRAPHIC] [TIFF OMITTED] T7026.229 9[GRAPHIC] [TIFF OMITTED] T7026.230 [GRAPHIC] [TIFF OMITTED] T7026.231 [GRAPHIC] [TIFF OMITTED] T7026.232 [GRAPHIC] [TIFF OMITTED] T7026.233 [GRAPHIC] [TIFF OMITTED] T7026.234 [GRAPHIC] [TIFF OMITTED] T7026.235 [GRAPHIC] [TIFF OMITTED] T7026.236 [GRAPHIC] [TIFF OMITTED] T7026.237 [GRAPHIC] [TIFF OMITTED] T7026.238 [GRAPHIC] [TIFF OMITTED] T7026.239 [GRAPHIC] [TIFF OMITTED] T7026.240 [GRAPHIC] [TIFF OMITTED] T7026.241 [GRAPHIC] [TIFF OMITTED] T7026.242 [GRAPHIC] [TIFF OMITTED] T7026.243 [GRAPHIC] [TIFF OMITTED] T7026.244 [GRAPHIC] [TIFF OMITTED] T7026.245 [GRAPHIC] [TIFF OMITTED] T7026.246 [GRAPHIC] [TIFF OMITTED] T7026.247 [GRAPHIC] [TIFF OMITTED] T7026.248 [GRAPHIC] [TIFF OMITTED] T7026.249 [GRAPHIC] [TIFF OMITTED] T7026.250 [GRAPHIC] [TIFF OMITTED] T7026.251 [GRAPHIC] [TIFF OMITTED] T7026.252 [GRAPHIC] [TIFF OMITTED] T7026.253 [GRAPHIC] [TIFF OMITTED] T7026.254 [GRAPHIC] [TIFF OMITTED] T7026.255 [GRAPHIC] [TIFF OMITTED] T7026.256 [GRAPHIC] [TIFF OMITTED] T7026.257 [GRAPHIC] [TIFF OMITTED] T7026.258 [GRAPHIC] [TIFF OMITTED] T7026.259 [GRAPHIC] [TIFF OMITTED] T7026.260 [GRAPHIC] [TIFF OMITTED] T7026.261 [GRAPHIC] [TIFF OMITTED] T7026.262 [GRAPHIC] [TIFF OMITTED] T7026.263 [GRAPHIC] [TIFF OMITTED] T7026.264 [GRAPHIC] [TIFF OMITTED] T7026.265 [GRAPHIC] [TIFF OMITTED] T7026.266 [GRAPHIC] [TIFF OMITTED] T7026.267 [GRAPHIC] [TIFF OMITTED] T7026.268 [GRAPHIC] [TIFF OMITTED] T7026.269 [GRAPHIC] [TIFF OMITTED] T7026.270 [GRAPHIC] [TIFF OMITTED] T7026.271 [GRAPHIC] [TIFF OMITTED] T7026.272 [GRAPHIC] [TIFF OMITTED] T7026.273 [GRAPHIC] [TIFF OMITTED] T7026.274 [GRAPHIC] [TIFF OMITTED] T7026.275 [GRAPHIC] [TIFF OMITTED] T7026.276 [GRAPHIC] [TIFF OMITTED] T7026.277 [GRAPHIC] [TIFF OMITTED] T7026.278 [GRAPHIC] [TIFF OMITTED] T7026.279 [GRAPHIC] [TIFF OMITTED] T7026.280 [GRAPHIC] [TIFF OMITTED] T7026.281 [GRAPHIC] [TIFF OMITTED] T7026.282 [GRAPHIC] [TIFF OMITTED] T7026.283 [GRAPHIC] [TIFF OMITTED] T7026.284 [GRAPHIC] [TIFF OMITTED] T7026.285 [GRAPHIC] [TIFF OMITTED] T7026.286 [GRAPHIC] [TIFF OMITTED] T7026.287 [GRAPHIC] [TIFF OMITTED] T7026.288 [GRAPHIC] [TIFF OMITTED] T7026.289 [GRAPHIC] [TIFF OMITTED] T7026.290 [GRAPHIC] [TIFF OMITTED] T7026.294 [GRAPHIC] [TIFF OMITTED] T7026.295 ======================================================================= QUESTIONS AND ANSWERS SUBMITTED FOR THE RECORD February 23, 2000 ======================================================================= [GRAPHIC] [TIFF OMITTED] T7026.291 [GRAPHIC] [TIFF OMITTED] T7026.292 [GRAPHIC] [TIFF OMITTED] T7026.293