I also appreciate your leadership on this issue, Mr. Chairman. I think that the Environmental Protection Agency (EPA) has exceeded its statutory charge in proposing these rules, and congressional oversight is therefore required. As you know, last session I led the fight to extend the comment period on these proposed rules. Initially, EPA was only going to provide a 60-day comment period for this complex rulemaking that seeks to regulate a number of industries and activities not previously regulated under the TMDL program.
I authored an amendment, accepted by the managers of the VA/HUD and Independent Agencies Appropriations bill, that extended the comment period by 90 days.
Given the 30,000 comments the agency received, I think that the additional time Congress mandated for the comment period was definitely warranted. It is my understanding that EPA heard from a wide range of interests that were critical of the proposed rules, including: other federal agencies, state and local governments, manufacturing interests, landowners and others.
In sum, these comments point out that EPA is proposing to use a sledge hammer when a fly swatter would do.
I know that a broad range of stakeholders are testifying before the Subcommittee today. Therefore, I want to focus my comments on the concerns raised by private forest landowners in my state, who are already required to operate using best management practices under the landmark Oregon Forest Practices Act.
Under these proposed rules, a number of nursery and forestry practices would no longer be categorically excluded from the definition of "point source." These activities include: nursery operations, site preparation, reforestation and subsequent cultural treatment thinning, prescribed burning, pest anti fire control, harvesting operations, surface drainage, or road construction and maintenance.
Instead of being categorically excluded, selected sources could -- on a case-by-case basis -- be designated as point sources for regulation under the National Pollution Discharge Elimination System (NPDES) permit program for storm water discharges. This is a complete reversal from the treatment for the last 27 years of forestry practices as non-point sources under the Clean Water Act. The implications of this reversal are staggering for the millions of private forest landowners in my state and across the nation.
I believe that EPA has significantly underestimated both the costs to the landowner and the time that it would take to obtain permits under this proposal.
The specter of a state or federal permitting system for each management action needed on a stand of trees throughout its rotation is truly frightening. EPA reserves the right to take over any state's TMDL program, which would mean that landowners would then need to obtain a federal permit, potentially subjecting those permits to consultations under the Endangered Species Act.
Further, under the Act, landowners could be subject to fines of up to $27,500 a day, as well as to citizen lawsuits, for alleged permit violations.
A number of state agencies have raised concerns about the high cost of implementing and administering this program. It is unlikely that sufficient state resources would exist to administer such a permit program in a timely manner. Currently, on the average, it takes several years from the time of making application for an NPDES permit before a landowner receives a permit.
Adding forestry activities to the NPDES pipeline will only exacerbate this problem and reduce effective forest management, since many forestry activities are extremely time sensitive and weather dependent. For example, insect infestations, wildfires, and blowdowns are unpredictable occurrences that must be dealt with in a timely manner.
We all share the goal of clean water, and our nation has made great strides in cleaning up polluted waterways since the passage of the Clean Water Act.
However, the EPA has failed to demonstrate that changing the treatment of everyday forestry activities to point sources of pollution is warranted. In fact, EPA has recognized forestry activities to be a consistently minor source of water quality impairment, as cited in EPA's 1996 National 503(b) Report.
In my state of Oregon, there are about 28 million acres of forestland, representing 45 percent of Oregon's land base. Sixty percent of Oregon's forestland is publicly owned, while 40 percent is privately owned.
Oregon's private forestland is regulated under the 1972 Oregon Forest Practices Act, which established a visionary new standard for forest management. Public forestland in Oregon is protected at a level at least equal to that provided by the Oregon Forest Practices Act. As a result, all of Oregon's forestlands are already required to provide protection to streams, lakes and wetlands. These regulations are unnecessary and will ultimately be detrimental to forest health.
In closing, let me state that I have concerns about these proposed rules both substantively and procedurally. I have summarized my substantive concerns above. But I am also concerned that EPA has failed to fulfill a number of the requirements for promulgating a major rule such as this.
I am not sure EPA has accurately assessed the costs of these proposed rules on state and local governments, as required under the Unfunded Mandates Act of 1995.
Further, that Act requires the agency to consider reasonable alternatives and to select the least costly, most cost-effective or least burdensome of the alternatives, or explain why such alternatives were not chosen. I am not confident that any alternatives will be considered.
I am not sure the Administration has adequately examined the cost of these rules on small businesses, as required by the Treasury and General Government Appropriations Act for fiscal year 2000.
The arrogance with which EPA initially proposed only a 60-day comment period is exceeded only by the arrogance of claiming it will finalize these rules by the end of June. EPA's statutory authority to promulgate these rules is questionable at best, and too many issues have been raised by the comments to be addressed so quickly.
I believe there is another agenda here at work. The issue isn't clean water, it is the federal regulation of private lands, which has historically been the purview of state and local authorities.
Every Member of Congress should be concerned about the proposed regulation of forestry under these rules, because if they are successful in regulating nursery and forestry activities, the regulation of agricultural practices is not far behind.