SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
HEARING ON THE EPA's TMDL RULE
WHITEFIELD, NEW HAMPSHIRE
MAY 6, 2000
Oral Testimony by Harry T. Stewart, P.E. Director,
Water Division New Hampshire Department of Environmental Services

Thank you for the opportunity to testify before the Senate Committee on Environment and Public Works on the United States Environmental Protection Agency's Proposed TMDL regulations.

The New Hampshire Department of Environmental Services (NHDES) and other state environmental agencies across the country were highly critical of the Environmental Protection Agency proposed TMDL regulations dated August 23, 1999. The regulated community and the public were also highly critical, as demonstrated by the approximately 30,000 comments received by EPA on the proposed rule. NHDES viewed these proposed regulations as being too burdensome on both the state environmental agencies and the regulated community, and as too prescriptive, removing the flexibility of states to tailor programs to state-specific priorities and needs. Specific comments were contained in our letter dated January 20, 2000 to EPA. We also supported, and participated in the development of, the extensive comments to EPA by the New England Interstate Water Pollution Control Commission (NEIWPCC) and the Association of State and Interstate Water Pollution Control Administrators (ASWIPCA).

Chuck Fox, Assistant Administrator for Water at EPA, should be commended for his efforts to be responsive to these concerns. In letters dated April 5, 2000 to key senators and congressmen, including Senator Smith, and the "Joint Statement of the Department of Agriculture and the Environmental Protection Agency Addressing Agricultural and Silvicultural Issues Within EPA Revisions to TMDL and NPDES Rules" dated May 1, 2000, Assistant Administrator Fox has indicated that numerous changes in the proposed rule which will address a high percentage of the issues raised by states and other parties.

For example, the April 5, 2000 letter included a table, "Key Elements of the Expected Final Regulation for Restoring America's Polluted Waters". These proposed revisions go a long way to address the concerns of the States by providing greater flexibility to tailor TMDL approaches to state-specific needs. Specifically:

-- Four years are provided for States to develop lists of polluted waters rather than two years. Although we would prefer, and the States recommended, a five-year cycle, a four-year cycle is a significant improvement and is reasonable. This means we can focus our limited resources on activities to improve water quality rather than developing lists.

-- States are provided more flexibility, such as allowing 15 years for TMDL development for impaired waters, than in the original proposal.

-- "Threatened-waters," was dropped as a category. This was an ambiguous category which we believe would have increased the listed waters with no environmental or program benefit.

-- A proposed public petition process was dropped, eliminating a procedure by which citizens could potentially have bypassed state processes and unnecessarily drain state resources to deal with these petitions.

-- The requirement for pollution offsets was eliminated. This also would have been a very difficult program for the States to implement.

The Statement of May 1, 2000 from DOA and EPA in part states: "In States that develop and maintain forestry BMP programs that are recognized by EPA as adequate (i.e., generally consistent win this guidance) will have no exposure to NPDES permit requirements. The idea is that forest operators in States with approved programs will know what is expected of them, what BMPs are effective in reducing pollution and need to be implemented." This indicates a very positive step to address the forestry concerns and suggests an approach that is likely to work in New Hampshire. Under any reasonable criteria, New Hampshire has an "adequate" program in place which includes three critical elements:

-- Implementation of best management practices. It is important to note that a manual has been developed by the New Hampshire Department of Resources and Economic Development (NHDRED), in cooperation with NHDES and the University of New Hampshire, entitled "Best Management Practices for Erosion Control and Timber Harvesting Operations in New Hampshire" dated February 2000. As other states seek to implement BMPs, this manual is likely to become a model document, at the national level, for concisely providing practical information on BMPs on timber harvesting to operators and the public.

-- Training and outreach. NHDES, NHDRED-Division of Forests and Lands, and nonprofit organizations like the New Hampshire Timberland Owners Association and the Society for the Protection of New Hampshire Forests jointly provide training on an ongoing basis on BMP implementation and over environmental protection considerations.

-- Compliance and enforcement. In New Hampshire, when water quality problems caused by forestry operations are identified, they are typically short term and are corrected through the joint efforts of NHDRED and NHDES. These efforts virtually always first include compliance assistance and, when necessary, enforcement wader state statutory authorities. In fact, we expect that site-specific water quality problems would virtually always be addressed under state programs long before they rise to the threshold for federal involvement, such as long-term water quality impairment.

Although we are pleased that EPA has been very responsive to the concerns expressed by the states and other parties, we have not yet had an opportunity to examine the actual wording of proposed revisions address these concerns. Consequently, we urge EPA to publish the actual language of proposed changes for public review as soon as possible, especially for the forestry provisions, to allow evaluation and comment on the changes prior to final promulgation. This approach is appropriate considering the magnitude of the TEAL comments and expected changes.

Finally, please note that, as in most other states, New Hampshire's TMDL program is significantly underfunded. Additional federal funding to support State development of TMDLs is needed, irrespective of the results of the EPA rulemaking.

Additional funding is proposed in both Senate Bill 2411 and the President's proposed budget. The President's budget contains $45 million for Federal Fiscal Year 2001, which translates into just over $200,000 for New Hampshire to assist with TMDL development. We have several concerns with the proposed funding in the President's budget:

-- This additional funding is a good start but is not adequate to sustain an effective long-term TMDL program in New Hampshire. NHDES has estimated that an additional $420,000 per year for staffing and analytical costs is necessary for New Hampshire to support the TMDL program. The President's proposed budget contains half of this amount.

-- Due to the way a new EPA Formula for the Section 106 monies work, if the Appropriation were to increase by $5 million to $50 million ALL of the extra funds would go to New Hampshire, Vermont, and a number of other smaller states

-- the larger states have already gotten their share. To illustrate, with an increase of $5 million, New Hampshire would receive about an additional $110,000, Vermont an additional $175,000 and Rhode Island an additional $320,000 for a 50% increase in 106 funds to these states. Due to the way EPA's new 106 formula works, at $45 million, the larger states will have already gotten increases to 50% and will receive no more additional funds until the smaller states have "caught up".

Under the President's FY 2001 budget proposal, the state match requirements for the proposed new TMDL funding are too rigid to enable New Hampshire to access all of this money. Based on EPA draft guidance, these "strings" include:

(1) A 60/40 split between federal and state costs for the "new" Section 106 money (that is, 3 "federal" dollars for every 2 "state" dollars). This is an extraordinary match requirement that we believe should be reduced to a 90/10 split between federal and state dollars.

(2) An extremely narrow definition of "state match", relative to traditional practices, is proposed. New Hampshire currently faces significant state budget shortfalls caused by problems with education funding. Consequently, the potential for "new" state money to expand the TMDL program is virtually nonexistent during this period. We need flexibility consistent with current practice. These proposed requirements should be changed if the goal is to have these funds rapidly and effectively utilized by all states, not just those with surplus state funds available to meet rigid match requirements.

We urge you to provide additional funding for water quality analysis and TMDL development with minimum match requirements and maximum flexibility on how the federal funds may be matched. This is the only way to ensure that the funds will be fully utilized by all states to make significant progress towards the goals of the Clean Water Act.

Thank you for the opportunity to testify on the proposed TMDL regulation. We look forward to working with Congress and the EPA to ensure that our nation's waters are protected and improved while ensuring that our forest products industry and over traditional activities can continue to flourish in an appropriate and responsible way.