I am speaking today on behalf of the Northwest Food Processors Association, a regional trade association representing the fruit, vegetable and specialty processing food industry in Idaho, Washington and Oregon. Food processing is the largest manufacturing employment sector in the state of Idaho and the second largest manufacturing employment sector in both Washington and Oregon. Food processors in the region operate 247 processing plants, employ over 50,000 individuals and realize over $6 billion in annual sales.
As part of my written testimony I have provided copies of the comments on the TMDL rule submitted by the Northwest Food Processors Association as well as those submitted by FIEC, the Food Industry Environmental Council, a coalition of more than fifty food processors and food industry trade associations. I am not addressing all of the issues raised in those comments, but would be happy to answer questions regarding them.
Food processors fully support the goals of the Clean Water Act to restore and maintain the quality of the nations waters. We are supportive of the general concepts that we believe motivated the proposed regulations.
The proposed regulation states: "The Water Quality Management (WQM) process described in the Act and in this regulation provides the authority for a consistent national approach for maintaining, improving and protecting water quality while allowing States to implement the most effective individual programs." This is an admirable goal, but we believe that the proposal unreasonably limits the states' discretion in how they would achieve the overall goals of the program.
The Pacific Northwest states have assumed a strong leadership role in the establishing and funding programs to meet Clean Water Act requirements, including preparation and implementation of TMDL programs. All three states are committed to preparing TMDLs
for all state water bodies listed as water quality impaired within timeframes dictated by litigated agreement. It is important to recognize that although some federal funding has been provided to states for the TMDL programs, the current programs are primarily funded by state moneys.
We believe that the TMDL should be a state-managed program. State control fosters efficient management by recognizing that the states are best equipped to provide the day-to-day oversight and monitoring needed to identify and correct water quality problems. We are concerned that the proposed rules would significantly change the program from its current focus on state management by imposing strong new federal oversight provisions that do not serve us well in achieving clean water goals.
In the state of Idaho program, stakeholder groups work with our Division of Environmental Quality to help them develop TMDLs. The stakeholder group is charged with development of the implementation plan within 18 months of approval of the TMDL. The implementation plan is not now subject to EPA approval. The proposed system would include the implementation plan as part of the TMDL and add significantly to the time for development of the TMDL. In addition, EPA can refuse to approve an implementation plan until it is satisfied that the state has sufficiently strong authority to achieve water quality standards. Under this proposal EPA expands its authorized authority over nonpoint sources by its ability to withhold TMDL approval, holding the state and point sources hostage to the TMDL process.
Under the proposed offset provision, listed water bodies cannot accept new or significantly increased discharges of the water quality limited constituent unless mandatory effluent trading or "offsets" occur. The offset requirement precedes and may even replace the preparation of a TMDL. Effluent trading may potentially place a disproportionate burden on point sources inconsistent with the equity considerations of the TMDL process. We support voluntary effluent trading and oppose any water clean-up program that mandates or coerces private parties into effluent trading.
The state of Idaho is in the forefront working with EPA on the development of a voluntary effluent trading program. The process has proven to be complicated but this voluntary pilot program could provide a model for the rest of the country. The first model trades will involve a point source and a nonpoint source. Key concepts are: local control, market-based pricing, appropriate ratios. This process will encourage and finance nonpoint source projects such as constructed wetlands, which otherwise might never happen. Quantification can be broad and based on the type of project, with a conservative reduction credit, or monitored, with liberal reduction credit. The trade ratios will be dependent on the relative locations of the trading partners. We believe this will provide a flexible and economic mechanism to meet environmental responsibilities.
We agree with the conclusion reflected in section 130.34 that daily loads are inappropriate for certain pollutants such as nutrients, sediment, and temperature.
We concur with the distinction between pollution and pollutant. It appropriately narrows the scope of TMDLs by recognizing the impracticability of dealing with pollution via the quantitative analysis of a TMDL. The background provided by EPA makes it clear that this change is specifically designed to exclude flow and habitat alteration from the scope of TMDL. Pollution should be addressed by a process or processes separate from TMDLs. Listing water bodies for pollution under this process, however, diverts states' resources from the task Congress clearly intended: listing of water bodies impaired by pollutants.
The prioritization requirements in section 130.28 are highly prescriptive and could result in a meaningless priority list, with most of the waterways of the state being designated high priority because of the presence of any of several listed species. The section also requires a fairly substantial written justification for each decision to start a TMDL.
Should threatened water bodies be listed? The statute does not require the listing of threatened water bodies; it requires the listing of bodies where data show that certain effluent "are not stringent enough to implement any water quality standards applicable to such waters." The statute does not support the Agency's conclusion that water bodies should be listed because there is some possibility that standards will not be attained. The states would be required to predict which water bodies now meeting standards might not meet standards in the future, and then defend those uncertain predictions when they are challenged.
Instead of requiring the listing of threatened water bodies, EPA should encourage states to identify water bodies that they believe are threatened and to take appropriate actions to assure that they do not become impaired.
EPA should reconsider its attempt to expand its authority into traditional state regulatory areas. It is important to look to the entire Clean Water Act, with its balance of state and federal authorities for achieving clean water goals, rather than to force the TMDL program to achieve these goals on its own in a complex and prescriptive program. We believe that the better course is to work cooperatively with the states and the regulated community affected by the rules and we look forward to working with both the state and EPA on these important goals. We look forward to the balance between the certainty of a consistent federal program and the flexibility and efficiency of an effective state-managed program.
Thank you for the opportunity to address you today. I will be happy to answer any questions.