TESTIMONY OF J. CHARLES FOX
J. CHARLES FOX
ASSISTANT ADMINISTRATOR FOR WATER
U.S. ENVIRONMENTAL PROTECTION AGENCY
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
October 13, 1999
Good morning Mr. Chairman and members of the Committee. I am Chuck Fox, Assistant Administrator for Water at the U.S. Environmental Protection Agency (EPA). I am pleased to be able to talk with you this morning about the Nation's clean water program and several bills that would amend the Clean Water Act.
Next Monday, October 18, is the 27th anniversary of the enactment of the Clean Water Act (CWA). Twenty-seven years ago, the Potomac River was too dirty to swim in, Lake Erie was dying, and the Cuyahoga River was so polluted it burst into flames. Many rivers and beaches were little more than open sewers.
Enactment of the CWA, under the leadership of this Committee, dramatically improved the health of rivers, lakes and coastal waters. It stopped billions of pounds of pollution from fouling the water and doubled the number of waterways safe for fishing and swimming. Today, many rivers, lakes, and coasts are thriving centers of healthy communities.
In my testimony today, I want to describe the work EPA is doing to carry the clean water program forward to the next century and comment on several bills to amend the CWA that are before the Committee today.
CLEAN WATER FOR THE FUTURE - THE CLEAN WATER ACTION PLAN
Despite tremendous progress, almost 40 percent of the Nation's waterways assessed by States still do not meet water quality goals. Pollution from factories and sewage treatment plants, soil erosion, and wetland losses have been dramatically reduced. But runoff from all sources, including that from city streets as well as from farmland and rural areas continues to degrade the environment and puts drinking water at risk. Fish in many waters still contain dangerous levels of mercury, polychlorinated biphenyls (PCBs), and other toxic contaminants. Beach closings are increasingly common.
Several years ago, after taking a hard look at the serious water pollution problems around the country, the Administration concluded that implementation of the existing programs was not stopping stop serious new water pollution threats to public health, living resources, and the Nation's waterways, particularly from polluted runoff. We concluded that clean water programs lacked the strength, resources, and framework to finish the job of restoring rivers, lakes, and coastal areas.
In response to this concern, President Clinton and Vice President Gore announced, in February of 1998, a major new effort to speed the restoration of the Nation's waterways. The Clean Water Action Plan builds on the solid foundation of the Clean Water Act and describes over 100 actions -- based on existing statutory authority -- to strengthen efforts to restore and protect water resources.
The Action Plan is built around four key tools to achieve clean water goals.
- A Watershed Approach - The Action Plan envisions a new, collaborative effort by Federal, State, Tribal, and local governments; the public; and the private sector to restore and sustain the health of the over 2,000 watersheds in the country. The watershed approach is the key to setting priorities and taking action to clean up rivers, lakes, and coastal waters.
- Strong Federal and State Standards - The Action Plan calls for Federal, State, and Tribal agencies to revise standards where needed and make programs more effective. Strong standards are key to protecting public health, preventing polluted runoff, and ensuring accountability.
- Natural Resource Stewardship - Most of the land in the Nation's watersheds is cropland, pasture, rangeland, or forests, and most of the water that ends up in rivers, lakes, and coastal waters falls on these lands first. Clean water depends on the conservation and stewardship of these natural resources. This Action Plan calls on Federal natural resource agencies to support State and local watershed restoration and protection.
- Informed Citizens and Officials - Clear, accurate, and timely information is the foundation of a sound water quality program. Informed citizens and officials make better decisions about their watersheds. The Action Plan calls on Federal agencies to improve the information available to the public, governments, and others about the health of their watersheds and the safety of their beaches, drinking water, and fish.
We are making good progress in implementing the over 100 specific actions called for in the Clean Water Action Plan. Congress has provided vital support to this work by appropriating critical funding, including almost doubling funding for State grants to reduce polluted runoff to the level of $200 million per year.
Some key accomplishments include unified assessments of watershed health by States, initiation of several hundred Watershed Restoration Action Strategies, a new BEACH action plan, a response plan for pollution threats to coastal waters, new efforts to support development of riparian buffers, and a contaminated sediment strategy. Many other critical projects are underway at EPA, the Department of Agriculture, the Department of Interior, the National Oceanic and Atmospheric Administration, and other agencies, as well as in States, local governments, and the private sector.
The Clean Water Action Plan is a sound blueprint that takes clean water programs into the next century. I ask, Mr. Chairman, that a copy of the first annual report of progress to implement the Clean Water Action Plan be included as part of my testimony in the hearing record.
PROPOSED CLEAN WATER ACT AMENDMENTS
Before commenting on the several bills before the Committee today, I want to take a moment to look at the bigger picture of CWA reauthorization.
As you know, Mr. Chairman, key funding authorization and several clean water SRF provisions of the CWA expired in 1994. At that time, the Administration saw this as an opportunity to release a detailed proposal for comprehensive amendments to strengthen the CWA.
Last week, I testified before this Committee on bills to amend the Clean Water State Revolving Loan Fund program and to address the challenging problem of controlling overflows from combined storm and sanitary sewers. Today, I am testifying on bills related to storm water permits, expanded use of the State Revolving Loan Funds, and expanded enforcement at Federal facilities. I gather that additional legislative hearings are likely to be scheduled.
Although the Administration is pleased to provide comments on the specific provisions of each of these narrowly focused bills, I want to encourage the Committee to consider the need to strengthen the CWA in several critical areas that are not now the subject of proposed legislation. For example, the Administration's proposal in 1994 called for strengthening statutory authority to reduce polluted runoff, better protect wetlands, reduce toxic pollution, and improve compliance and enforcement. The clean water program has evolved over the past 5 years, but most of the recommendations we made in 1994 are still appropriate today.
In addition, there is a relatively recent development that poses a serious threat to water quality in coastal and other waters that should be addressed quickly. Congress should act to close a regulatory gap that threatens the loss of tens of thousands of acres of wetlands to drainage and excavation each year. This gap -- which resulted from a court decision invalidating the U.S. Environmental Protection Agency and Army Corps of Engineers "Tulloch" rule requiring permits for drainage and channelization that affect our Nation's wetland resources -- promises to defeat wetlands protection efforts unless Congress takes prompt action.
The Administration is ready to work with this Committee and Congress to strengthen the CWA.
Let me now comment on the pending bills to amend the CWA, including bills to clarify the storm water program, strengthen enforcement against Federal facilities, and expand eligibility of the clean water State Revolving Loan Funds.
Legislation to Revise Storm Water Programs
The Committee asked that I comment on a bill -- S. 1706 -- to make amendments to the storm water pollution control authority of the CWA. The Administration has significant concerns with several provisions of the bill and is opposed to the bill as drafted.
In 1987, Congress added subsection 402(p) to the Clean Water Act to requiring EPA to develop a phased regulatory program to control contaminated discharges associated with storm water runoff. Congress was responding to scientific evidence that storm water discharges contributed to the impairment of one-third of all assessed surface waters in the United States.
In the first phase of the program, the most significant sources of storm water were to be controlled. EPA finalized Phase I storm water regulations in November of 1990. Those regulations generally required CWA permits for storm water discharges associated with certain industrial activities, medium and large municipalities, and large construction sites. Permits generally give sources flexibility to implement various management practices to reduce pollution levels in storm water. Today, the existing Phase I storm water program is resulting in significant improvement of surface water quality in the United States.
In response to statutory requirements to identify a second tier of storm water sources, EPA developed, and is now working to finalize, Phase II storm water regulations. As we developed the Phase II regulation, EPA solicited input from stakeholders by convening a Federal advisory committee which met 14 times. EPA developed 3 pre-proposal public drafts and received 40-50 sets of comments. EPA received additional input by convening a SBREFA Panel to solicit input from potentially regulated small entities.
On January 9, 1998 EPA proposed Phase II storm water regulations that address storm water discharges associated with small municipal storm sewer systems and small construction sites. Small municipal storm sewer systems include incorporated places, counties, and other places under the jurisdiction of a governmental entity that are located in an urbanized area but not included in Phase I. Small construction sites are defined as sites that disturb between 1 acre and 5 acres of land. The proposed rule, however, included several waivers of the permit requirement for these construction sites (e.g. construction that occurs in low rainfall periods).
The Phase II regulations are modeled after the Phase I rule and would establish a cost-effective, flexible approach for reducing environmental harm by storm water. The management measures in Phase II reflect Phase I management measures which are well-accepted, common-sense practices that many local governments and other stakeholders agree are cost-effective and appropriate for controlling water pollution.
Core storm water management measures include -
- public education and outreach;
- public participation and involvement;
- illegal discharge detection and elimination;
- control of construction site runoff;
- post construction runoff control; and
- pollution prevention and good housekeeping.
The proposed rule also conditionally excludes discharges from those industrial facilities that have "no exposure" to storm water, thereby significantly reducing the current Phase I requirements. And, the rule proposed to extend from August 7, 2001 until 3 years and 90 days from publication the deadline by which certain industrial facilities owned by small municipalities must obtain CWA permit coverage.
EPA received 550 comments on the proposal, held 6 public hearings to gather additional information from stakeholders and adopted many recommendations in the final rule. The Phase II rule is scheduled to be promulgated on October 29, 1999.
The legislation before the Committee today would amend section 402(p) of the CWA in ways that would both seriously weaken existing storm water pollution controls and dramatically restrict the water pollution controls to be promulgated in Phase II regulations.
The proposed Phase II regulations provide that a municipality holding a storm water permit may rely on another local government to carry out specific permit conditions without establishing a co-permittee relationship. EPA believes that this provision gives local governments flexibility in addressing storm water problems and will reduce overlap of program effort. In this case, the permittee, however, is still responsible for assuring that permit conditions are met and is subject to enforcement action if a permit condition is violated.
The bill would create a new subparagraph 402(p)(3)(B)(iv) to provide that when a permittee relies on a second governmental entity to carry out storm water related actions, the permittee is not subject to enforcement action if the second governmental entity does not do its job. Because the bill would not require the second governmental entity to be officially part of the permit (i.e. not a "co-permittee") it too would not be subject to enforcement action. The bill would create cases where no one is legally responsible for storm water pollution. Without an effective enforcement response, compliance with storm water permits, and control of storm water pollution, will be significantly reduced.
EPA recognizes that various municipal governments around the country have different authorities and capacities and that in many areas, implementing storm water permit requirements will require a cooperative effort among diverse local agencies. EPA expects that when a Phase II storm water permit provides for implementation by several parties, that permit will specifically assign duties to "limited co-permittees" that are liable for permit compliance. Where a Phase II storm water permit makes clear assignments, EPA will, in the event of noncompliance, direct enforcement to the party that has failed to do its job. In this respect, the Phase II storm water program is unlike other permit situations (e.g. situations where one party has substantial operational control over another party and both entities are jointly liable "co-permittees.") The waiver of liability in the draft bill for any "co-permittee" is inappropriately broad.
Proposed section 402(p)(7)(A) would waive the requirement that a local government obtain a permit for storm water discharges from an "above-ground vegetated drainage ditch or a drainage way owned or operated in conjunction with a road or street under the jurisdiction of a local government." This provision would remove any "above ground" storm water conveyance (as opposed to an underground conveyance) from the Phase II permit program, thereby substantially narrowing the scope of the program and reducing water quality benefits.
Above ground conveyances convey storm water pollutants to waters of the United States as do underground storm sewers, albeit sometimes at a slower or more controlled rate. And, many of the management measures provided for in the Phase II rule are equally appropriate for above ground and underground conveyances (e.g. control of dumping of non-storm water pollution into storm sewers).
Proposed section 402(p)(7)(B)(i) would exempt any storm water discharges associated with construction activity of less than 5 acres from the permit requirements of the CWA. These construction activities are a significant source of water pollution and meeting clean water goals will be virtually impossible without the effective control of the substantial sediment and nutrient pollutants form these sources.
Under current Phase I storm water rules, storm water discharges from construction activity disturbing more than five acres is subject to regulation under the clean water permit program as "storm water associated with industrial activity."
In addition, Phase I rules provide that a discharge from activity disturbing less than five acres is subject to regulation if (1) the activity it is part of a larger common plan of development or sale or (2) the permitting authority designates discharges from the activity as a contributor to a violation of a water quality standard or a significant contributor of pollutants. The bill could be interpreted to overturn these existing water pollution controls.
Authority to require permits for small construction sites that are part of a larger plan of development or sale is important because construction typically occurs in stages. Regardless of the individual lot size in a development of many small lots, the cumulative water quality impact of this work can be equivalent to a larger development.
Case-by-case designation of small construction sites as needing a clean water permit is an essential tool for protecting sensitive water bodies. In addition, States and EPA need designation authority to assure that measures to restore impaired waters identified in a "total maximum daily load " analysis are effectively implemented.
The bill would, of course, also overturn the provision of the soon to be promulgated Phase II rule requiring small construction sites to have a clean water permit. There is extensive evidence of the serious water pollution problems caused by small construction sources. We believe the Phase II rule strikes the right balance in responding to this problem by requiring permits for these sources but also waiving the permit requirements where the likelihood of pollution is shown to be limited (e.g. in low rainfall periods).
Proposed section 402(p)(7)(B)(ii) would codify previous EPA statements about interpretation of "land disturbance" as it relates to storm water associated with construction activity. EPA distinguishes road construction (initial disturbance) from road maintenance (subsequent regrading and leveling) to exclude the latter. EPA does not oppose this section, but believes it is unnecessary.
Legislation to Strengthen Federal Facilities Enforcement
In April 1992, the Supreme Court ruled in Department of Energy v. Ohio that the United States has not waived its immunity from liability for civil "punitive" penalties for violations of the CWA. As a result, neither States or citizens can obtain punitive penalties for violations of the Act.
The Federal Facilities Clean Water Compliance Act of 1999 -- S. 669 -- would explicitly waive Federal sovereign immunity for all penalties for violations of the CWA and would create new authority for administrative penalties against Federal facilities. This legislation is consistent with Administration proposals for amendments to the CWA made in 1994 and amendments to the Act reported by this Committee the same year.
The Administration supports the legislation. However, the Agency would like to work with the Committee to clarify several issues. Most importantly, the CWA should continue to provide the President with the authority to exempt Federal facilities from compliance with certain requirements where it is in the paramount interest of the United States to do so; S. 669 may operate to remove this existing authority.
Amending the CWA as proposed in S. 669 would continue the precedent of clearly waiving sovereign immunity in other reauthorizations of environmental laws. In October 1992, partially in response to the Department of Energy v. Ohio decision, Congress passed the Federal Facility Compliance Act.
That legislation (1) waived the Federal Government's immunity from penalties for violations of the Resource Conservation and Recovery Act (RCRA) and (2) provided EPA with RCRA administrative order authority against Federal facilities under RCRA. Likewise, the 1992 amendments to the Toxic Substances Control Act (TSCA) gave EPA order and penalty authority for violations of the lead-based paint notification provisions of TSCA.
In the 1996 re-authorization and amendment of the Safe Drinking Water Act (SDWA), Congress provided EPA with enforcement authorities against federal facilities similar to those applicable to RCRA.
And, in 1997 the Justice Department Office of Legal Counsel issued a decision clarifying EPA's administrative penalty authorities under the Clean Air Act (CAA).
The clear message here is that, with the help of Congress, we are beginning to "level the playing field" for Federal facilities.
By enhancing enforcement authorities, Congress has sought to ensure that EPA would be an independent force to keep environmental compliance a high priority for the Federal community. EPA and the States have been taking this role seriously. Since the Federal Facility Compliance Act was passed in 1992, EPA and the States have issued over 200 RCRA administrative orders to Federal Facilities with assessed penalties of over $20 million. Last year, EPA issued its first ever administrative penalty orders at Federal facilities under the SDWA, CAA, and TSCA (lead-based paint).
Perhaps more important than penalty or order numbers is the fact that, since 1993, we have seen an increase in RCRA compliance rates by Federal facilities. In the same time period, CWA compliance rates by Federal facilities have not followed that same pattern. While it is too early to see any Federal facility compliance rate trend associated with the recent penalty authorities under SDWA, CAA, and TSCA, the correlation between penalty authority and increased compliance rates under RCRA as compared to the lack of penalty authority and current compliance rates under CWA cannot be dismissed.
Legislation to Expand SRFs Use for Water Conservation
S. 188 would amend the CWA to make an expanded group of organizations and persons eligible for loans from the Clean Water State Revolving Loan Funds (SRFs) to implement water conservation projects and other projects with water quality benefits.
Today, the clean water SRFs are able to make loans to publicly owned treatment works to finance projects to conserve water including "structural" approaches (e.g., publicly-owned water meters, water saving or recycling devices, and grey-water separation systems) and "non-structural" measures (e.g., public education and incentive wastewater service charges). These conservation measures reduce flows to sewage treatment works, reduce capital expansion needs, and thereby, provide significant public benefits.
In addition, under current law, when a nonpoint pollution plan approved by EPA under section 319 or an estuary plan approved by EPA under section 320 provide for water conservation, projects to implement these plans are currently eligible for SRF loans. And, diverse public and private parties (i.e. parties other that publicly owned treatment works) can be eligible to receive the loans, depending on State law.
The proposed legislation would specifically authorize SRF loans for water conservation activities outside of a municipal sewer system for non-residential water conservation activities, specifically, conservation of water used for agriculture. The bill would also make private organizations and individuals eligible for the loans.
Conservation of agricultural water can have dramatic benefits for aquatic life and water quality and the Administration supports using SRFs to finance such projects under specific circumstances. For example, water conservation projects that would make more water available to augment flow in a water body where the State has identified low flow as a cause of nonattainment of a designated use should be eligible for SRF funding.
We are concerned that, as presently drafted, the bill would allow States to use SRF loans for water conservation projects with limited environmental benefits, and would expand eligible loan recipients. And, new authority for use of SRFs for projects with a "water quality benefit" is vague and needs to be better described and discussed. The Administration intends that the primary focus of clean water SRFs remains infrastructure investments to help municipalities meet water quality goals. We would like the opportunity to work with sponsors of the bill and the Committee to better define the circumstances under which SRF loans could be made to public and private entities for water conservation or other purposes.
Thank you, Mr. Chairman and members of the Committee for this opportunity to testify on proposed amendments to the CWA. EPA stands ready to provide additional technical assistance on issues related to these bills.
I will be happy to answer any questions.