From:Debbie Neustadt <[log in to unmask]
To: Sierra Club listserve, Iowa Chapter

Let me know if you are dissapointed in this speech. The Register article
last Friday written by Perry Beeman made it sound worse. I am preparing
a letter to the editor that I will be sharing with the Executive
Commitee in order to sign it with Sierra Club behind my name.

 Mr. Chairman and members of the Committee, my name is Paul Johnson.  I
am
currently the Director of the Iowa Department of Natural Resources.  I
am
also a farmer and a former state legislator and I also served as Chief
of
the Natural Resources Conservation Service for four years.

Iowa is a state blessed with a diverse and productive landscape and
normally abundant rainfall.  Our landforms include the rugged,
picturesque
hills and valleys of the Northeast, the flat plains of the North Central

region, the loess hills of the West, and the rolling hills of the South.

Our streams and rivers are also varied and include the coldwater trout
streams of the Northeast and the mighty Mississippi and Missouri Rivers
on
the east and west.  Our lakes are both natural and constructed, shallow
and
deep.

Although of varied terrain and waters, the resource that unites Iowa is
its
rich, productive working lands.  These lands provide abundant food
supplies
for much of the nation and world.  Statewide, over 60 percent of the
land
is in intensive row crop production with another 30 percent in
grassland.
Only about 1 percent of the land is urbanized and less than two percent
is
in public ownership.  In some basins in the north central region,
intensive
row crop production can exceed 95 percent.  But, the rich productive
soils
that are used to the benefit of so many also present water quality
challenges.  Soil erosion and nutrient enrichment are two of the most
pressing problems in such a highly utilized landscape.

Like many other states, Iowa has had success curbing its most visible
pollution problems - those caused by point source discharges.  Currently
we
have over 1900 NPDES discharge permits with over 800 water quality-based

effluent limits included in those permits.  The remaining water quality
problems are predominately nonpoint source related and, therefore, the
TMDL
process as applied to nonpoint source pollution is of great interest to
Iowa.

Iowa is committed to protecting our streams, lakes, and wetlands while
at
the same time continuing to be known as a breadbasket of the world.  We
believe these two goals are compatible and we believe Iowans are ready
to
seize the opportunity to achieve both.  But the path to these goals may
not
lie within the TMDL roadway.

The TMDL approach is appropriate for some water quality problems.  But
TMDLs as the "universal solution" approach currently being promoted by
the
EPA and supported by various other groups is flawed and will not succeed

unless the Congress and the EPA recognize fundamental shortcomings in
this
approach and take steps to address them.

Some of the issues that Congress, the EPA, and states must address
before
proceeding down the nonpoint source TMDL path are briefly addressed
below.

· Congress must revisit and redefine Section 303(d) of the Clean Water
Act.


Section 303(d) is rife with ambiguities that must be addressed.  For
instance, only the words "total maximum daily load" are used in 303(d).
A
total maximum daily load is appropriate for point source discharges but
not
nonpoint sources.  Surely Congress knew this in 1972.  Yet, the EPA has
redefined TMDL to be something other than the literal meaning and is now

proposing to stretch the meaning even further.  Section 303(d) is also
ambiguous about the significant water quality impairments caused by
non-pollutant stressors such as habitat and flow alteration and exotic
species.  The EPA is simply trying to force a square peg into a round
hole.
 Unless Congress rewrites Section 303(d), the courts and the EPA will
continue to set policy in an arena that should be more clearly defined
by
Congress and the states.  If Congress does not act, the unfortunate
result
will be the continued proliferation of lawsuits challenging every aspect
of
Section 303(d) and the EPA's implementing regulations.  The challenge to

Congress is significant, but the alternative is simply not acceptable.

· States' water quality standards, monitoring programs, and assessment
techniques must be improved.

In the final article of a series of four articles on TMDLs in the
Environmental Law Review, Oliver Houck, Professor of Law at Tulane Law
School, likened the EPA's TMDL program to an elegant new structure
constructed on a shaky foundation, that foundation being state water
quality standards.  The TMDL approach relies exclusively on state water
quality standards, as these standards are the yardstick used to measure
success or failure.  States' water quality standards may be adequate for

dealing with point source pollution and establishing water quality-based

effluent limits, but we question whether they are adequate to
effectively
deal with nonpoint source pollution.  Many states simply do not have
adequate resources to improve their water quality standards nor does it
appear the EPA has the resources or expertise to assist them in
developing
defensible standards.

The EPA is now asking states to develop and adopt numeric standards for
nutrients by 2003 and has given every indication they are willing to
promulgate if states fail to adopt standards.  We question whether the
sound science is there to develop responsible nutrient standards.  For
states like Iowa with rich, productive soils and intensive agriculture,
adoption of nutrient standards is going to be a significant issue.  Farm

groups are more than ready and willing to challenge every aspect of
nutrient standards.

The problem with inadequate monitoring programs and widely-varying
assessment techniques is well known among states' water quality staff
and
should be recognized by Congress and the EPA.  Iowa recently took steps
to
improve its monitoring program and is committed to further improvement.
However, it should be recognized that states with comprehensive
monitoring
programs are effectively penalized under the TMDL approach as states
with
little or no monitoring typically will have small 303(d) lists.
Potentially, a state could discontinue monitoring and have no
waterbodies
on its 303(d) list and the only obvious penalty would be loss of Section

106 funds.  The EPA, has not, to our knowledge defined what constitutes
a
minimally acceptable monitoring program nor has it indicated it would
conduct monitoring in states with inadequate programs.
 · Future approaches to water quality improvement must recognize the
complex nature of the remaining water quality problems and avoid the
current "good versus bad" characterization of water quality.

The TMDL approach, by its very nature, oversimplifies a complex
situation.
Under the TMDL approach, all waters not meeting state water quality
standards are considered impaired.  In the words of some officials, all
impaired waters categorically are too polluted for fishing and swimming.

This is nonsense, as many impaired waters are still relatively healthy
waters.  We must recognize the complex nature of water quality problems
and
design programs that recognize this complexity.  The existing TMDL
program
portrays water quality as a black and white issue, whereas the real
world
is many shades of gray where the degree of impairment (as well as
improvement or decline) may be very difficult to determine.

An unfortunate consequence of targeting 303(d) waters is that funds may
not
be available for water quality improvements in waters that do meet state

water quality standards, but that could be improved with relatively
modest
expenditures.  During the 1998 303(d) listing cycle, Department
personnel
were apparently informed that funds for lake improvement projects may
not
be available if a lake were not on the 303(d) list.  This, of course,
created pressure to list waterbodies for which there was no conclusive
evidence the waterbody was impaired.

· Congress needs to clarify responsibility for interstate waters.

Many states share rivers and their watersheds with neighboring states,
either as a common boundary, or as upstream-downstream neighbors.
State-to-state differences in water quality standards create obvious
problems but another problem is the lack of a clear framework for
addressing interstate waters.  Iowa shares the Mississippi with Illinois

and Wisconsin on the east and the Missouri and Big Sioux with Nebraska
and
South Dakota on the west.  Segments of these rivers are on Iowa's
Section
303(d) list, but the listed segments and the pollutants identified are
not
necessarily consistent with neighboring states.  Responsibility for the
development and implementation of TMDLs on these interstate waters is
unclear.  For instance, would a TMDL for nutrients on the lower
Mississippi
or the Gulf of Mexico override a nutrient TMDL for the Raccoon River
that
drains to the Mississippi?  Questions like these need to be answered.

· The complexity of nonpoint source pollution must be recognized.

The existing TMDL program provides unrealistic expectations and
timeframes
for development of accurate and realistic nonpoint source TMDLs.
Although
water quality models for nonpoint source have improved and linking those

models to a Geological Information System shows additional promise, it
must
be recognized these models typically require a significant amount of
monitoring data to properly calibrate the model.  Given the episodic
nature
of nonpoint source pollution, it may be many years before adequate
calibration data can be gathered.  The accuracy of many of these models
is
also questionable and it is our perception that many of the nonpoint
source
TMDLs being developed are of questionable accuracy.  TMDL consent
decrees
typically establish rigid schedules for TMDLs, practically insuring that

many TMDLs are or will be of questionable technical accuracy.

Currently, Region VII EPA is initiating work on TMDLs for nitrates and
fecal coliform bacteria for the Cedar River at Cedar Rapids.  Both
pollutants appear to be primarily of nonpoint source origin.  Given the
short time frame for developing the TMDLs (months as opposed to years)
and
the lack of data for model calibration, we question whether accurate
TMDLs
can be developed.  As a state where nearly all the waters on the Section

303(d) list are impacted by nonpoint sources, the ability to accurately
develop TMDLs for nonpoint sources is a significant concern for Iowa.

Also of concern is the efficacy of traditional agricultural best
management
practices as they relate to the implementation of nonpoint source TMDLs.

Even if installed best management practices are effective, it may be a
decade or more before the success can be documented.

· The level of funding provided to states must be increased.

Developing accurate TMDLs is expensive, especially for nonpoint source
pollutants.  States like Iowa find themselves in the position of having
to
commit significant state funds to a questionable process to address
problems that may be better addressed through other programs such as the

Section 319 and USDA programs.  If EPA has the expectation that states
will
continue to be a full partner in the TMDLs process, additional resources

must be provided to states to develop accurate TMDLs and implement them.

Failure to do so may result in an increasing number of states abdicating

their responsibilities under Section 303(d), letting the EPA prepare the

303(d) list and develop TMDLs.  This is disturbing as the EPA has
neither
adequate resources nor the expertise to develop accurate TMDLs for
states.

The above issues are not easy ones but it is essential Congress address
them before states are asked to commit more and more resources to a TMDL

process that has questionable application to nonpoint source pollution
and
may at any time be overturned or redirected by the courts.

Concurrently with addressing the TMDL issues, Congress should begin to
implement a aggressive, technology-based nonpoint source program rather
than the water quality based approach inherent in Section 303(d).

We know that certain agricultural best management practices, such as
buffer
strips and constructed wetlands can be highly effective in removing
pollutants before they enter waters.  For instance, researchers at Iowa
State University have found that watershed loadings of some nonpoint
source
pollutants can be reduced by as much as 30% by applying buffers in only
7%
of the watershed.  Other researchers have found that a wetland of just
one
acre can be highly effective in removing pollutants from as much as 100
acres of cropland.  The key to implementing practices that will work
involve both adequate funding levels as well as a program framework to
strategically locate these practices where they will do the most good.

This year, the Iowa General Assembly is being asked to provide funding
for
a Clean Water Initiative.  That initiative includes the following
components:

1. An enhanced water quality monitoring program, which will be used to
establish baseline water quality data which can be used to measure the
success of future water quality efforts, including TMDLs.

2. Staff resources to update and improve the state's water quality
standards and planning program.

3. Funding to assist farmers in establishing conservation buffers along
waterways.

4. Funding to establish wetlands in the Prairie Pothole region (the
North
Central portion of the state) to intercept tile lines and remove
nutrients
such as nitrates before the drainage water reaches rivers and streams.

A more detailed account of Iowa's Clean Water Initiative is attached.

We believe an aggressive technology-based approach to nonpoint source
pollution holds more promise of addressing the nation's remaining water
quality problems than the expensive, technically questionable, and
litigation riddled TMDL approach as it is currently envisioned.  Whether
on
not such a technology-based approach should be implemented though
strictly
voluntary measures or some type of regulatory scheme is open to debate.
Initially, an aggressive voluntary approach should be initiated, with
the
message being that if reasonable water quality improvements are not
achieved within a reasonable timeframe, a regulatory approach will be
imminent.  Coupled with this is, of course, the need to develop better
water quality monitoring and assessment programs that can accurately
document nonpoint source impacts and trends.

To summarize:

· Congress needs to revisit and redefine the intent of Section 303(d);

· significant improvements in water quality standards, monitoring and
assessment need to be achieved;

· Congress needs to provide adequate funding to states; and

· an aggressive, technology-based approach to nonpoint source pollution
needs to be implemented.

Mr. Chairman and Committee members, this concludes my testimony.  I
thank
you for the opportunity to appear before you and I would be happy to
answer
any questions you may have.

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