Statement of Doug Harrison, Oct. 13, 1999


Presented by Doug Harrison General Manager - -Secretary Fresno Metropolitan Flood Control District
Before the Senate Environment and Public Works (committee
on the Water Regulation Improvement Act of 1999 S. 1706
October 13, 1999

On behalf of the National Association of Flood and Stormwater Management Agencies, I am pleased to submit testimony on the Water Regulation Improvement Act of 1999, introduced by Senators Hutchinson and Gramm. NAFSMA represents more than 100 flood control and stormwater management agencies serving a total population of more than 76 million citizens. Many of our members are participants in the Phase I NPDES Stormwater program and also administer water resources projects with the Corps of Engineers and work closely with the Federal Emergency Management Agency, as well as participating in the National Flood Insurance Program. NAFSMA also served on the Federal Advisory Committee convened to help design the Phase II Stormwater Program and participated on the Urban Wet Weather Federal Advisory Committee.

NAFSMA's membership includes public agencies whose function is the protection of lives, property and economic activity from the adverse impacts of storm and flood waters. As a national association whose mission is to advocate public policy, encourage technologies and conduct education programs to facilitate and enhance the achievement of the public service functions of its members, NAFSMA appreciates the Committee's attention to the stormwater issue and looks forward to continued work with you on this important priority.

Background on the Stormwater Issue

In adopting the Clean Water Act Amendments in 1987, Congress clearly recognized the differences between stormwater and wastewater discharges and required stormwater permitters to reduce the discharge of pollutants in urban stormwater to the "maximum extent practicable" or "MEP." It is the MEP standard and best management practice approach that drive the federal stormwater program.

A requirement to include numeric effluent limits in NPDES stormwater permits has been alleged by various environmental groups. In a suit against five public agencies in Arizona responsible for administering the stormwater program, the Ninth Circuit Court upheld the Arizona permits and rejected the position of both petitioners, the Defenders of Wildlife and the Sierra Club that the Clean Water Act  402(p) is ambiguous and that compliance with water quality standards is required for municipal stormwater permits. NAFSMA joined the National League of Cities, the National Association of Counties, the American Public Works Association and the Association of Metropolitan Sewerage Agencies in filing as amici curiae in support of the Arizona permitters in this case.

Although the decision was favorable on the water quality standards issue, such litigation needlessly ties up local staff and resources that could otherwise be directed to stormwater management activities. We urge Congress to clarify its intent to recognize that municipal stormwater systems and the related NPDES permits are not adaptable to traditional NPDES requirements and that the goal of improved water quality is to be achieved through municipal stormwater management programs, not the application of non- achievable, non-practicable numeric limits. Even the U.S. Environmental Protection Agency in the interim guidance for the Phase I stormwater program issued in the summer of 1997 clearly states that numeric limits are not necessary or appropriate in NPDES stormwater permits.

Our members with NPDES permits have also had to face citizen suits for failing to meet water quality standards, which in most cases are technologically unattainable. A number of our members are also facing legal action over the imposition of stormwater utility fees, which for many localities is the only approach available for funding their stormwater activities. In Cincinnati, Ohio, the federal government's National Institute of Occupational Safety and Health facility refused to pay the local stormwater fee and at least one other federal agency in the area has also expressed its intent not to pay the municipal stormwater fee.

Additional Research on Water Quality Impacts on Phase I is Needed

NAFSMA is encouraged by language currently attached to the VA-HUD Independent Agencies Appropriations bill that calls on the U.S. Environmental Protection Agency to report to Congress on the actual water quality gains brought about nationwide as a result of the Phase I NPDES stormwater program. However, in order for Congress to clearly see the stormwater Phase I impact, we urge that the report examine both the costs and benefits of the Phase I program to date. We also support the request that EPA report to Congress on the successful and unsuccessful best management practices that have been used in the NPDES stormwater program to date.

The lack of research on the impacts of the Phase I stormwater program has long been an issue for NAFSMA members. A few years back, NAFSMA surveyed communities over 100,000 in population to determine the average amount spent at the local level on NPDES stormwater permits. We reported to Congress and U.S. EPA at that time that our individual members had expended on average $650,000 per community on the application process alone.

In a recent survey of Phase II communities undertaken by NAFSMA, nearly 75% of the respondent communities indicated that they do not currently have a public education or outreach program on stormwater and 46% of the respondents do not currently spend money on any of the stormwater activities identified in the survey. It is also significant to note that 39% of the respondent communities believe they will need to hire a consultant to assist them in preparing the application. The 54% of Phase II communities that currently fund stormwater programs or activities spend upwards of $4,000 per square mile or on an average of $2.76 per capita on these programs. It is clear that the economic impacts of the Phase II program will be significant.

S. 1706 - Water Regulation Improvement Act

NAFSMA commends the committee for looking at ways to improve the federal stormwater program and the Phase II regulation. However, it is important to note that S. 1706 only gets to the tip of the iceberg. The problems with the stormwater regulation are not limited to Phase II, but include the Phase I program as well. Problems such as the potential inclusion of numeric effluent limits in NPDES stormwater permits have critical national impacts and should be considered by the committee as part of legislation to improve the federal stormwater regulation. The lack of research on the impacts of Phase I, both cost and benefits, is another issue that merits national attention.

Also looming are the impacts of current regulatory proposals such as Total Maximum Daily Loads (TMDLs), a tool for attaining water quality standards, and the parallel NPDES regulation that modifies the antidegradation rule. NAFSMA appreciates the committee's efforts to provide additional time for review of these regulations as well as scheduling an oversight hearing on the proposal. The impacts of the proposed TMDL and antidegradation rule on NPDES stormwater permit holders throughout the country (whether Phase I or Phase II) will be great and we appreciate your attention on this issue. We also urge that even more attention be given and a thorough review the impacts of this program be carried out over the upcoming months.

The inadequacy of funding for wet weather programs is also an extremely important issues. There has been very little federal funding provided to implement the federal stormwater program. The regulatory requirements have continued to grow while funding to carry out these wet weather activities has been reduced. Congress needs to look at providing adequate resources to conduct the requisite research, demonstration projects and to implement the national environmental mandates.

The most recent estimates of the costs of compliance with Clean Water Act mandates are staggering - more than $330 billion over the next 20 years. No locality, no matter how large, how well off, or how committed - can find or generate the resources required to finance needs of this magnitude. And, this estimate does not include anticipated mandates to meet TMDLs, which has the potential to require extraordinarily costly or unattainable reductions of pollutants from municipalities and/or industry, further straining limited resources.

S. 1706 - Section 2. Waiver of Liability of Co-Permittees

NAFSMA supports protection for a co-permittee in compliance with their NPDES stormwater permit from liability for the failure of another co-permittee or other governmental entity to implement a specific control measure required under the NPDES permit. NAFSMA also supports and urges protection for NPDES stormwater permit holders who are in compliance with their NPDES permits from citizen suits for failure to meet water quality standards.

Vegetated Road Ditches

NAFSMA understands this provision to exclude vegetated road ditches in rural areas from NPDES Phase II requirements. This language could be clarified to ensure that the exemption does not apply to those Phase II MS4s that are located in urbanized areas, which are automatically designated for Phase II regulations. Many communities around the country have expressed concerns that the donut holes (currently unregulated small cities surrounded by Phase I cities) need to be brought into the federal stormwater program since these currently excluded cities have similar discharges and frequently impact the Phase I city's stormwater system and stormwater quality program efforts.

Of central importance is not the structural nature of the stormwater conveyance, but the quality of the waters flowing therein and their point of disposal. (Discharges which do not reach waters of the U.S. are already exempted.) This point well supports the need for stormwater systems to be seen as more typically non-point sources requiring a reasonable watershed based approach.

Construction Activities and Routine Road Maintenance

NAFSMA and other organizations involved with the Stormwater Phase II Federal Advisory Committee were concerned with the reduction from the five acres requirement down to one acre in the proposed Phase II regulation. This change will greatly increase the workload on the permitting agencies, be it either the states or U.S. EPA and will probably result in significant stormwater permitting delays. NAFSMA proposed during the Phase II FACA process that construction sites below 5 acres not be included in the regulatory framework unless sensitive resource waters were at risk.

NAFSMA also wishes to highlight its concern as to the current and proposed federal regulation of routine local stormwater system maintenance issues. The regulatory burden on state and local government agencies to carry out their routine maintenance activities has intensified in recent years and has created a public safety threat in many cases. Our members have experienced great delays in carrying out routine maintenance not only because of NPDES requirements, but because of Section 404 regulatory requirements implemented by the U.S. Army Corps of Engineers. The general regulatory move from environmental protection to environmental perfection has left our agencies unable to carry out their local maintenance responsibilities. In many cases it has taken months, and in some cases years of work, to obtain necessary federal permits to carry out local maintenance activities due to section 7 consultations and water quality certification reviews that are required as part of the permitting process.

NAFSMA recently commented on the Corps proposed nationwide permit regulations which have been designed to streamline the wetlands permitting program and we would be pleased to submit those comments as part of the record. The combined effect of the nationwide proposals will put many of our flood control activities into the individual permits. By adding restrictions such as limiting our flood control and stormwater management projects in the 100-year floodplain and reducing acreage limitations in the program, many of our public safety activities will now fall into the individual permitting process. NAFSMA therefore also urges the Committee to delay implementation of these new nationwide permits until some of these significant problems are addressed.

We would be pleased to work with the Committee to provide language to address local exemptions for routine maintenance activities.

We appreciate the opportunity to address the Committee and would be pleased to answer any questions at this time.