Good morning Members of the Committee. My name is Steve Fleischli. I am the Executive Director of the Santa Monica BayKeeper, a non-profit organization dedicated to the protection of Santa Monica and San Pedro Bays near Los Angeles, California. Thank you for the opportunity to be here to discuss important issues addressing national water quality.
The good news is that over the last 27 years water quality across the nation has improved because of the adoption of the federal Water Pollution Control Act. At the time of the Act's adoption, nearly two-thirds of the nations waters failed to meet their intended beneficial uses. This number has been reduced because national efforts to reduce pollution from sewage treatment plants and large industrial facilities. Meanwhile, however, more diffuse sources, such as runoff from municipalities and construction sites, have remained a significant source of pollution.
The Current Problem
Today nearly 40% of the nations waters still do not meet the objectives of the Act. These polluted waters not only present a public health problem, but also contribute to economic losses and threaten important aquatic habitat. In Los Angeles and Ventura Counties alone, more than 156 rivers, beaches and lakes do not meet the objectives of the Clean Water Act.
According to the Natural Resources Defense Council, during 1998, there were at least 7,236 days of closings and advisories nationwide. Polluted runoff and stormwater -- accounting for more than 1,541 closings/advisories plus 8 extended closings and 10 permanent.
Rain or preemptive closings accounted for more than 1,110 closings/advisories.
Almost every coastal and Great Lakes state reported having at least one beach where stormwater was a known source of pollution at or near bathing beaches. New Jersey, California, Florida, and Connecticut are among the states that reported having numerous beaches where stormwater is a known pollution source.
With tourist expenditures in just portions of only 10 coastal states total over $77 billion, the impacts from this type of pollution are far too real.
For example, in Huntington Beach, California -- one of California's most popular surfing areas -- beaches were closed much of this summer. One suspect was a construction site where dredging material was illegally discharged to a storm drain. Unfortunately, the source of the problems has not been identified and local businesses suffer to the tune of millions of dollars in lost revenues.
Meanwhile, as beaches are closed, many lakes and streams are also impaired because of excessive sediment and nutrient loading and metal deposition.
Sediment can smother fish larvae. And sediment loading can obscure sunlight that is necessary for aquatic vegetation growth, upon which fish and other species depend. Sediments can also act as the transport mechanism for harmful pollutants such as nutrients or heavy metals.
These nutrients can contribute to algal blooms, the decomposition of which requires extensive amounts of dissolved oxygen. This often depletes dissolved oxygen levels for other aquatic life in coastal waters. In recent years, a number of coastal waters and their tributaries have experienced frequent hypoxic (low dissolved oxygen levels) and occasional apoxic (no dissolved oxygen levels) conditions leading to massive fish kills. It is also believed that excessive nutrients can trigger outbreaks of the toxic microbe Pfiesteria piscicida.
Finally, Heavy metals can also create toxic conditions for juvenile as well as adult organisms, and present threats to those who consume them.
What's presently Being Done
While some problems still exist at sewage treatment plants and large industrial facilities, it is now widely accepted that storm water and non-point source pollution is the number one threat to water quality across the country. These sources were essentially left unregulated for decades because of, as one federal court put it, perceived "administrative infeasibility."
Fortunately, in 1987 the Clean Water Act was amended to include certain provisions designed to reduce or eliminate pollution from various classes of storm water. This includes pollution from municipalities as well as industrial activities, including construction activities. In many cities and states, permits have been in effect for years. In other areas, these permits are just being considered, with EPA slated to issue new regulations this fall.
As part of the proposed regulations for Phase II storm water control, EPA has once again concluded that "storm water from a variety of sources including separate storm sewers, construction sites, waste disposal and resource extraction are major causes of water quality impairments.]" 63 Fed. Reg. 1356 (January 9, 1998).
What Needs to Occur
In the environmental community, many of us agree that our waters are dying a death of a thousand cuts. And something must be done.
Many areas of the Clean Water Act clearly state that the goal of the Act is to achieve water quality standards, and to have fishable swimmable waters across the country. In the end, the Act's goal is to eliminate the discharge of pollutants to waters of the United States. Unfortunately, the Clean Water Act's storm water provisions, as presently written, leave much room for debate, and thus, allow municipalities to escape responsibility for violations of water quality standards. In Los Angeles, for example, many municipalities subject to the Act have managed to evade responsibility because of weak provisions in the law and poor implementation. Too much time is taken developing plans and strategies which lose focus on the overall objectives of cleaning local waters through the achievement of water quality standards.
What makes the most sense is for the federal government to move forward and set the overall goal that is desired - i.e. protection of beneficial uses. This should be accomplished through the mandatory setting of meaningful numeric limits for all discharges - which would guarantee that everyone knows what is expected.
What is being proposed today with S. 1706, however, falls far short of this need.
Among other things, this bill proposes to eliminate the requirement that construction sites less than five acres be subject to a storm water permit.
This comes despite the fact that EPA has recognized that "[c]onstruction sites can pollute with soils sediments, phosphorous, nitrogen, nutrients from fertilizers, pesticides, petroleum products, construction chemicals and solid wastes." Natural Resources Defense Council v. EPA, 966 F.2d 1292,1305 (June 4,1992), citing 55 Fed. Reg. at 48,033. EPA has also long recognized that "[o]ver a short period of time, construction sites can contribute more sediment to streams than was previously deposited over several decades." NRDC v. EPA, at 1306, citing 55 Fed. Reg. at 48,033.
Indeed, short term loadings may have shock loading effects on receiving water, such as low dissolved oxygen. See, 63 Fed. Reg.1539 (January 9,1998). It is also acknowledged that "erosion rates from construction sites are much greater than from almost any other land use. " Id. at 1540. Numerous scientific studies support this conclusion. These sites can threaten drinking water supplies, increase the need for dredging of coastal sediments for navigation, damage habitat of fish and aquatic species, and even lead to the destruction of coral reefs.
Further, the Ninth Circuit Court of Appeal found that the concept that a less than five acre exemption is "de minimum" is contradicted by [EPA's] admission that even small construction sites can have a significant impact on local water quality." NRDC v. EPA, at 1306. Evidence also suggests that in some areas of the country there may be as many as five times as many construction sites smaller than five acres for every site larger than five acres. See, 63 Fed. Reg. at 1542.
Based on this information, it makes little sense for Congress to now back off this requirement, and, in essence, reduce the effectiveness of the 1987 Amendments. To do so will only serve to worsen water quality, rather than improve it.
The proposed exemption under S.1706 of vegetated road ditches creates a similar situation. This type of blanket exemption fails to recognize that even vegetated drainage ways can convey storm water pollution, the same as a concrete channel or a river. Moreover, many drainage ways are operated in "connection with" a road or street. Arguably, this proposal could allow the exemption of miles upon miles of polluted storm water conveyance systems. Again, the overall objective of the Act should remain the protection of water quality.
Finally, this bill also attempts to exempt from storm water requirements liability for municipalities which contribute to violations of water quality standards. The bill does so under the guise of one co-permitees "reliance" upon other co-permitees to act. This is entirely unworkable as it will simply create a scenario wherein one City will point its finger at another, while the other will simply point right back. Municipalities will then argue about who is "causing" the problem. Thus, no one will ever accept responsibility for the fact that water quality is impaired, leading to endless debate and an intentional diversion away from the true intent of the act: that those who cause -- or contribute to -- the water quality problems are held accountable. Requiring otherwise is a direct attack on the Act's overall objective of improved water quality.
Conclusion
Concerned citizens have worked for years for strong action to address the numerous sources of pollution that contribute to the impairment of our nation's waters. We don't want any more delays or rollbacks.
And for every person who says that storm water is an impossible problem to conquer, there is another person who is finding a way to get there. Technological development in this area is flourishing. There are simple technologies such as silt fences and sand bags, which, when properly used, help reduce or eliminate sediment loading from construction sites. Numerous different types of catch basin inserts are being developed. Storm drain treatment systems are being installed. New methods of landscape architecture are emerging. And scientists around the country have demonstrated the effectiveness of these developments in reducing contamination of our nation's waters.
The federal government should move forward to set the standards to which everyone should be held accountable.
The waters of the United States belong to everyone and to no one. As such, they must be protected in way that doesn't allow individuals, municipalities or corporations to jeopardize the well-being of these resources at the expense of the public trust.