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. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - For SC email list T-and-C, send: GET TERMS-AND-CONDITIONS.CURRENT to [log in to unmask]