Opening Statement of Michael D. Crapo
Chairman, Subcommittee on Fisheries, Wildlife, and Water
Committee on Environment and Public Works
Hearing on Proposed Changes to the TMDL program: Costs and Impacts to States

Good afternoon and welcome. Today the Subcommittee on Fisheries, Wildlife, and Water will hear from witnesses on proposed changes to the total maximum daily load and NPDES programs under the Clean Water Act. This is the first in a series of hearings -- we will focus today on the costs and impacts to states. We will be joined by a number of distinguished witnesses including Governor Marc Racicot of Montana, several top administrators of state agencies and local governments who will provide their perspectives on what EPA's proposed rule means to states and communities.

Cleaning up our nation's waters has been a priority of this nation. Everyone supports that goal. I believe that we have made great strides in our objective and I believe that there is much left to be done. This is a goal that can only be accomplished through collaborative efforts and partnerships of federal, state, and local government, as well as stakeholders.

Similar sentiments were expressed in an EPA document called "October 1999 Agenda of Regulatory and Deregulatory Actions and Regulatory Plan. " On the cover of that document is a quote: "EPA believes that if the people affected by rules take part in developing them, we will produce rules that are clearer, less burdensome, and more effective." Inside the document is a photograph of Administrator Browner with the quote, "We must inform and involve those who must live with the decisions we make -- the communities, the industries, the people of this country."

I couldn't agree with those two statements more. Several years ago, I read a book called Community and the Politics of Place by a professor at the University of Montana named Daniel Kemmis, and I instantly became an advocate of collaboration and local decisionmaking. Policies, particularly those advanced by the federal government, and particularly those with regulatory implications, are doomed to failure without the support of states, communities and stakeholders. Federal, state and local partnerships are the only means by which we can be successful in carrying out measures that result in a healthy environment -- whether it is cleaning up our nation's waters, restoring salmon runs or conserving America's other precious natural resources.

So, I commend EPA for these very strong statements in favor of working together in partnerships to address environmental issues.

That said, let me talk a little bit about how EPA's proposed rule changes on TMDLs. Let us examine how the words of the agency and their actions compare. In November 1996, EPA convened a committee under the Federal Advisory Committee Act to look at possible TOOL rule changes. The committee was composed of the environmental community, state and local government and the regulated community. The group met for 18 months and published its findings in July 1998 detailing recommendations on how to make the TMDL program work more effectively. Since the rule was published last August, EPA has defended the proposed changes, such as the proposed requirement that states submit an implementation plan under Section 303(d), as simply "the recommendations" of the FACA committee.

However, this very contentious provision in the rule was not resolved in the FACA committee's report. For EPA to cast this provision as the product of collaborative decisionmaking is a selective use of these recommendations. To compound this problem, under the proposed rule, the state's implementation plan would be subject to EPA approval. I believe that it is extremely unlikely that Section 303(d) provides EPA with the authority to require implementation plans.

Although this may seem like a minor legal issue, it, in fact, could potentially hold grave consequences for private landowners. If, for example, EPA were to reject an implementation plan based on inadequate riparian buffers widths -- even if the buffers were state-approved best management practices -- EPA would be free to re-write the implementation plan, because the agency has provided itself with the authority to do so in the proposed rule outside of the statutory language provided by Congress in the Clean Water Act.

One of the most disturbing provisions of the August proposed rules is the significant change EPA has proposed to the National Pollution Discharge Elimination System (NPDES) regulation. EPA has proposed to change the definition of what a non-point source is, subjecting private land activities such as traditional agriculture and forestry activities to Federal NPDES permits.

--It is my understanding that this change was never, ever discussed during the FACA deliberations.

In reading the proposed rule, it doesn't require an economist to conclude that this rule would be expensive -- very expensive -- to implement. However, given the universal belief that this proposed rule, if implemented, would be ruinously expensive to states, local governments and private industry, I am astounded by this statement in the proposed rule from the Federal Register. "EPA has determined that today's proposed rule does not contain a federal mandate that may result from the expenditures of $100 million or more for state, local, and tribal governments, in the aggregate, or the private sector in any one year. The costs for states, territories and...tribes...are not expected to exceed $25 million in any one year. And today's proposal does not impose any requirements on the private sector." I believe we will hear more about that from our witnesses.

I am very concerned that this type of statement has come from an agency that has promised to, "produce rules that are clearer, less burdensome, and more effective." I am very concerned that this type of statement is designed to avoid the safeguards Congress has built into law and feeds the growing cynicism of the governed towards their government.

When the rule was published in August of last year, EPA provided a 60-day comment period for receiving public input. Given the scope and complexity of the rule, the significance of the changes, and the array of parties that would be affected, a 60-day comment period was wholly inadequate for providing meaningful input with respect to the proposal. It was hardly, "informing and involving those who must live with the decisions."

After EPA denied requests to extend the comment period, this Committee, through" the past Chairman and Ranking member was forced to intervene. The comment period was subsequently also extended legislatively. By the close of the comment period on January 20, EPA had received 30,000 comments.

This hearing marks the fifth occasion that a committee or subcommittee has seen fit to examine the numerous and significant concerns over this TMDL proposal. In my seven years in Congress, I have never seen one proposal draw this level of attention and scrutiny by committees with different jurisdictions.

Let me just quickly recount this history:

Provisions were included in the proposed rule that were not part of the FACA committee's recommendations, yet EPA continues to claim that the rule is based on the group's report. States, communities and stakeholders have voiced their strong concerns about the cost of the proposed rule. Congress was forced to intervene and legislatively extend the comment period for an additional 90 days. 30,000 comments were received on the rule, many of which expressed concern from both technical and legal perspectives. To date, this is the fifth hearing to be held on the proposed rule in other committees. The mere fact that these hearings have been held suggests to me that there is significant concern in Congress about the proposed rule.

Given these facts, I understand that EPA still intends to issue a final rule as early as June. I find this extremely disturbing. This suggests to me that this rule is being fast tracked in the face of overwhelming concern from states, communities, and stakeholders -- even other departments within this Administration!

Ironically enough, this is the same agency that says it wants to work with people affected by rules in order to produce clearer, less burdensome, and more effective rules.

I look forward to hearing from EPA about how they intend to truly engage all parties affected by the rule rather than paying lip service to collaboration. I look forward to hearing our other panelists address these issues and how we might move forward in creating a more workable rule that achieves the very important goal of cleaning up our nation's waters.