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Testimony of Wyoming Governor Jim Geringer Chairman Boehlert, members of the subcommittee, thank you for inviting me to testify on the Clean Water Act (CWA--"the Act"). I commend you for your willingness to hear from the nation's governors about this important issue. We stand ready to work with the Congress should they choose to proceed with reauthorization of this Act. I speak to you today as the Governor of Wyoming. I am also the Chairman of the Western Governors' Association (WGA), which includes our 18 westernmost states. I will be speaking today in that capacity also and will delineate when I'm speaking as Governor of Wyoming or Chairman of WGA. Western Governors in particular, have worked hard to responsibly address water quality and water rights issues. We must maintain a strong federal/state partnership in the development of water conservation policy. Water is as much a part of our cultural necessity as it is a life necessity, and we use it with respect. With the perspective of our long experience in managing the waters within our borders, I am here to tell you that the Act is not in need of a significant overhaul. Western states have struggled with a range of environmental problems and opportunities for many years. We face a common challenge. The magnificent landscape we cherish is threatened - in part by our own success - as our rapid growth competes with the natural resources that underlie our prosperity and quality of life. The West's natural resources are a source of great wealth and beauty for the region, the rest of the nation and the world. Given this legacy and the challenges we face in conserving these resources, Westerners desire to create a vision of the West that will provide our children a quality of life second to none. This vision embraces a shared sense of stewardship responsibility for our region's natural and cultural assets. It ensures for present and future generations clean water and air, open lands that are beautiful, life-sustaining and productive. Equally essential is an economy where people of any background or age have opportunities for education and high quality jobs and the ability to contribute to the well-being of their families and fellow citizens. We realized that there is a need for new tools to solve these increasingly complex environmental challenges, and that these problems require sustained effort as they cannot simply be resolved through acts of governments. We are committed to improving environmental management in the West. To obtain that goal, we have worked together to look at those processes that do indeed bring people together to produce that desired goal. We have reviewed successful efforts in our states and outlined eight principles commonly found in these successful endeavors. These principles form the basis for a shared doctrine for environmental and natural resources management. While all of the eight principles apply to clean water issues, four principles are particularly germane to this issue before us today. They are: (a) Collaboration, not Polarization (use collaborative processes to break down barriers and find solutions). (b) Reward Results, not Programs (move to a performance-based system). (c) Agreed Upon National Standards, Neighborhood Solutions (assign responsibilities at the right level); and (d) Science for Facts, Process for Priorities (separate subjective choices from objective data gathering). We have found in developing this doctrine several examples germane to the implementation of the current Clean Water Act. As a Wyoming example, down on Muddy Creek, a southcentral Wyoming tributary to the Colorado River, the University of Wyoming began a research investigation on sediment transport in high-elevation ephemeral streams. That effort grew into an extensive conservation effort involving local citizens, conservation districts, and county commissioners. Soon, federal agencies, state agencies, and environmental organizations were involved. Why? Because people saw the benefit of cooperation. Together, we have greatly improved over 125 miles of stream in that high dessert watershed. Much of the project is on federal land with some state land as well as private property. The Muddy Creek group assisted in the reintroduction of the endangered Colorado Cutthroat Trout in the lower reaches of the Muddy Creek drainage. This would not have been possible without the knowledge and experience we gained from working together--scientists, ranchers, local, state and federal agencies alike. No one entity had all the answers on Muddy Creek, nor was that ever expected. Innovation, creativity and ingenuity are the hallmarks of the Muddy Creek watershed project. Another example of how we can accomplish good water management through collaboration is the Cooperative Agreement for Platte River Research and Other Efforts Relating to Endangered Species Habitats Along the Central Platte River, Nebraska that was signed in 1997. It enables signatories to the agreement to implement a recovery program that balances the needs of humans to the requirements of several endangered species. Three states--Wyoming, Colorado and Nebraska along with the Department of Interior are doing what they can, separately and together to resolve the water quantity issues. The US Fish and Wildlife Service, the US Bureau of Reclamation and other state and federal agencies are participants. The magnitude of this issue transcends the authority of any of the individual participants. We've developed a process to work together without prescriptive mandates. In Wyoming, we were successfully using collaborative, voluntary measures to improve water quality. The initiative I mentioned on the Muddy Creek is a good example. But we've run into some barriers. Various groups have sued the Environmental Protection Agency (EPA) to implement mandated prescriptive measures, in lieu of voluntary mitigation actions as a way to address Total Maximum Daily Loads (TMDL's) on impaired streams and watersheds. TMDL's set the maximum amount of pollution a water body can receive from all sources--point and nonpoint--without violating water quality standards. I agree that the TMDL language is a part of the Act. But most states had been concentrating on more effective parts of the Act because of limited financial resources that we, the states, must provide to implement the Act. Yes, we still face unfunded federal mandates. We, in Wyoming, had been accessing an EPA fund, commonly referred to as the 319 program as a way to enable water quality improvements on streams and rivers in our state. At the onset of the litigation, those streams on which we had been working cooperatively with local landowners and area residents to improve were targeted for mandated improvements. These actions drove away the trust that had been built among the participants. We do not argue about the objective of clean water at all. But we do take issue with EPA's continual focus on demanding that the states follow their process, their pathways with little attention given to the result. Given our limited resources, we'd rather focus on results --- improved waters. Let the local interests lead. Support them. National Standards, Neighborhood Solutions work best. The strategy for TMDL's is a remnant left over from the paradigm that all pollution can be treated as a point source. Point sources of pollution present us with a relatively discrete regulatory environment. It is not terribly difficult to detect pollution that occurs at a single point, nor to regulate it. Nonpoint source pollution is very different. By definition, it is diffuse, widely distributed, highly influenced by natural causes and difficult to detect. The momentum from the point source regulation side of the law motivates EPA, however to turn a nonpoint source into a point source for the purposes of regulation. Specifying contaminant limits in streams and rivers in this fashion presumes that a nonpoint source can and should be refined into a point source-type regulatory opportunity. The Clean Water Act allowed for tremendous progress in addressing the nation's water quality concerns. The voluntary aspect of the Act generally works well and provides the flexibility needed for states to implement water quality programs that are both agreeable and workable. This is far more palatable than a prescriptive, top-down, command-and-control type of approach. The Western Governors Association, in cooperation with the Environmental Protection Agency (EPA) is conducting a series of workshops throughout the West to share states' experiences, compare strategies, and identify opportunities to more effectively address TMDL's. We will develop and implement a comprehensive TMDL program that provides flexibility to accommodate state and local conditions, address funding needs in a realistic manner and recognize the need to establish incentive-based approaches for all sources and voluntary compliance for nonpoint sources. Once again, we want to focus on results. With respect to the Clean Water Action Plan, the Western Governors support those aspects of the Plan which are consistent with the Governors' Park City Principles, outlined as follows: 1. There should be meaningful legal and administrative recognition of diverse interests in water resource values. 2. Problems should be approached in a holistic or systemic way that recognizes cross-cutting issues, cross-border impacts and concerns, and the multiple needs within the broader "problemshed". 3. The policy framework should be responsive to economic, social and environmental considerations. Policies must be flexible and yet provide some level of predictability. 4. Authority and accountability should be decentralized within national policy parameters. 5. Negotiation and market-like approaches as well as performance standards are preferred over command-and-control patterns. 6. Broadly based state and basin participation in federal program policy development and administration is encouraged, as is comparable federal participation in state forums and processes. In my capacity as Governor of Wyoming, I bring to you 2 concerns over the Clean Water Action Plan. The plan, created by EPA in a remarkable 120 days, is a description of federal agencies' proposed strategies to meet the goals of the Clean Water Act. For the most part, the Clean Water Action Plan is indeed a plan to meet those goals. However, in two areas the Plan does far more than simple planning. First, in discussing nonpoint source pollution, the Plan calls for EPA to promote the establishment of enforceable state regulatory authority to implement nonpoint source controls. But wait --- since the Clean Water Act does not allow EPA to have such laws, how is appropriate for EPA to require states to do so? Second, the Plan changes the requirements related to section 319 nonpoint source funding by incorporating key elements established only in national guidance, not laws or regulations. This is a clear over-reaching of authority into Section 319 Nonpoint Source Management Programs. One of these elements is the new unified watershed assessments. Wyoming is the only state that has not submitted a unified watershed assessment map --- a presumed requirement under the EPA Plan. We did however, submit a Wyoming plan to assess our watersheds. We chose not to submit a map in the absence of accurate data. We are just finishing a correction on inaccurate classification of streams in Wyoming that resulted from another EPA approach. A few years ago, the authority for states to receive federal money for watershed work required that we declare that a waterbody was functionally impaired--regardless of its actual condition. That misunderstood incentive caused many streams to be mislabeled as impaired. As a result Wyoming was able to draw down 319 money. That is not performance based regulation. Calling on that lesson, we refuse to create bad data and science again simply to chase section 319 money. That mislabeling of streams was a mistake and it has taken us over two years to get all the players together again on the Total Maximum Daily Loads (TMDL's) issue and properly classify water bodies correctly. Wyoming's plan goes far beyond the superficial requirements of the EPA Assessment. Over the next five years, we will monitor over 300 stream segments in Wyoming. Based on credible data, we will then list the conditions of the streams and begin locally-based solutions on those that have problems. In fact we have already begun a training program whereby ordinary citizen/volunteers participate in data collection. We have committed to and funded an effort that makes the unified watershed assessment called for in the federal plan pale by comparison. The Wyoming Legislature, various state agencies and private citizens have all cooperated to implement a monitoring program. We are using credible, scientific data to confirm the condition of Wyoming's streams and water bodies. We use footwork, not guesswork. Voluntary mitigation practices supported by peer-reviewed scientific data will be implemented using a grassroots approach. Collaboration and cooperation between stakeholders and federal regulators have much more acceptance in Wyoming and are more effective than strict precriptive measures. The unveiling of the Administration's Plan has come with the inevitable carrot and a stick. I note that section 106 (administration funds) and section 319 in the FY 99 budget are at higher levels this year. However, EPA has taken the position that these funds are to be used to implement state duties only under an EPA Plan. We find no record that Congress has authorized this. Wyoming has received section 106 funds, but few 319 funds. EPA has developed "Nine Key Elements of a Comprehensive Solution to Polluted Runoff Problems" as part of the agency package in order to withhold the funds. Congress did not design the Nine elements. Was it within the regulatory authority of EPA to do so? No. Once again, EPA prescribes not only the objective, but the process by which to get there. We the states and you in the Congress have been left out of a very important policy decision. It should concern Congress that the Clean Water Action Plan has been done through Administrative fiat. It disregards the constitutional roles of each of the three branches of government. The Plan is based on a unilateral administrative directive, adopted with minimal public input, and calls for at least 112 federal actions, none of which any of you voted on. The misperception in the states is that the Plan has the full force and effect of enabled legislation. It does not. It violates both the spirit and the word of the National Environmental Policy Act (NEPA), especially the requirement to include state and local governments in the decision-making process. First and foremost, I believe that only Congress should authorize changes to the Clean Water Act. I support the national objective of clean water. I am concerned about and object to the administration's Clean Water Action Plan. As Chairman of the WGA, I will discuss three priority issues to use as guidance for any reauthorization of the Clean Water Act: 1. the clean up on abandoned and inactive mine lands; 2. the defense of state certification authority under section 401 of the CWA; and, 3. the need to add provisions to encourage the beneficial reuse of reclaimed wastewater and to authorize the development of appropriate water quality standards for ephemeral and effluent-dominated streams. In working on CWA issues, it is WGA's practice to develop and refine through broad stakeholder involvement, legislative and administrative remedies to Western issues. Due to the complexity and controversy of the issues before your committee, we have crafted solutions in a form that would allow Congress or administrative agencies to take them up on a stand-alone basis or to fold them into broader initiatives. Good Samaritan. The Western Governors believe that there is a need to eliminate current disincentives in the Clean Water Act for voluntary, cooperative efforts aimed at improving and protecting water quality impacted by abandoned or inactive mines. The Western Governors urge you to amend the Clean Water Act to protect a third-party, remediating agency from becoming legally responsible, under section 301(a) and section 402 of the Clean Water Act (CWA), for any continuing discharges from the abandoned mine site after completion of a cleanup project. Such protection would only be provided if the remediating agency or "Good Samaritan" does not otherwise have liability for that abandoned or inactive mine site and attempts to improve the conditions at the site. Inactive or abandoned mines are responsible for threats and impairments to water quality throughout the western United States. Many also pose safety hazards from open adits and shafts. These historic mines predate modern federal and state environmental regulations which were enacted in the 1970s. Often, the responsible party for these mines is not identifiable or not economically viable enough to be compelled to clean up the site. Many stream miles are impacted by drainage and runoff from such mines, creating significant adverse water quality impacts in several western states. Recognizing the potential for economic, environmental and social benefits to downstream users of impaired streams, western states, municipalities, federal agencies, volunteer citizen groups and private parties have come together across the West to try to clean up some of these sites. However, due to questions of liability, many of these Good Samaritan efforts have been stymied. To date, EPA policy and some case law have viewed inactive or abandoned mine drainage and runoff as problems that must be addressed under Section 402 of the CWA -- the National Pollutant Discharge Elimination System (NPDES) permit program. This, however, has become an overwhelming disincentive for any voluntary cleanup efforts because of the liability that can be inherited for any discharges from an abandoned mine site remaining after cleanup, even though the volunteering remediating party had no previous responsibility or liability for the site, and has reduced the water quality impacts from the site by completing a cleanup project. The western states have developed a package of legislative language in the form of a proposed amendment to the Clean Water Act (attached). The effect of the proposed amendment would be to eliminate the current disincentives in the Act for Good Samaritan cleanups of abandoned mines. Over the four years that the proposal was drafted, the states received extensive input from EPA, environmental groups, and the mining industry. Although complete consensus was never reached with these groups, we are confident that we have put together a very reasonable proposal that fairly addresses the many concerns we heard from various interests. We believe that it is now time for Congress to take up this issue, and enact a Good Samaritan amendment based on the work that we have done to date. We and our staff will gladly work with you in such an endeavor. State Certification Authority Under Section 401. The nation's governors received a wake-up call in 1995 when the House adopted a floor amendment to HR 961. The amendment converted conditions, imposed under state 401 certification authority, to recommendations when addressing relicensing of hydropower facilities. As a result, the governors have redoubled their efforts to defend their authority from legislative and judicial attack and to make the relicensing process of the Federal Energy Regulatory Commission more effective and efficient. The governors believe that legislative changes are unnecessary and that most problems that exist with FERC's relicensing process can be remedied through administrative change. As you know, in order to prevent state standards from being violated by federal activities, Section 401 of the CWA requires an applicant for a federal license or permit to apply for certification from the state that potential discharges from the proposed activity will not violate state standards. The state must deny certification if compliance can not be ensured. If necessary, the state can condition these activities to ensure compliance with the standard. Any such federal license, such as a FERC hydropower license, must include these conditions. State certification authority is particularly important to WGA at this time because the licenses for over 100 Western hydroelectric projects, many encompassing multiple dams, are due to expire between now and 2010. Relicensing may provide the only opportunity, during the next 50 years, for us to address the effects a facility has on water quality, fisheries, and other natural resources which were unknown or not addressed when most of these projects were first licensed. While the governors have long supported hydropower development, subject to a strong state role, and consider the hydrdopower industry as their partner in economic development, they believe industry's argument that it is unfairly subjected to dual federal-state regulation to be inherently invalid. We live in a federal system in which a host of proposed projects, including mining and other activities, even on federal lands, must comply with both state and federal law as a precondition for operation. Exemption of hydropower facilities would be to the detriment of all other water users who may be required to pay for the water quality mitigation that should rightfully have been provided by the hydropower facility. Western governors have convened state experts from across the nation to share their best 401 certification and FERC relicensing practices and to address legitimate industry concerns. As a result, the efficiency of the licensing process is being improved in a manner that enhances the efficiency of the process while maintaining the distinction between state and federal jurisdiction. For example, in October 1997 FERC implemented an alternative relicensing process for applicants that wanted to enter into a collaborative process. At the state level, Oregon recently enacted a model law that ensures early identification of environmental and resource concerns and ensures maximum efficiency and reduced costs to applicants by requiring careful coordination of the state and federal application processes. The National Governors' Association, WGA and their member states are participating in a dialogue with representatives of FERC, EPA, and federal resource and land management agencies to make the relicensing process more effective through administrative change. At the same time the state team is participating in a forum of stakeholders organized by the Electric Power Research Institute that is charged with finding common ground and promoting best practices for the relicensing process. Arid Lands Issues. In our states water is a scarce and precious resource that must be managed with sensitivity to all social, environmental, and economic values and uses. Much of our region is characterized by unique physical, chemical, hydrologic, and biological conditions and contains countless ephemeral streams, effluent-dependent streams, and man-made water conveyance systems. These streams flow only in response to sporadic precipitation, snowmelt, runoff, wastewater discharges, or the conveyance of water or reclaimed water intended for specific purposes. Western Governors urge your committee in reviewing the CWA, to take into account this environment. Specifically, the CWA should recognize and Congress should provide adequate resources for the development of water quality criteria for non-perennial and effluent dependent streams. States should be encouraged to adopt water quality standards for reclamation projects to control toxicity, nutrients and other water quality parameters to provide for reasonable protection of designated water uses. The Clean Water Act reauthorization should include two new statements of purpose: 1. to recognize the need to establish water quality criteria to reflect the wide variety of ecosystems that exist in the U.S., and 2. to allow states to encourage the reuse of treated wastewater, as a component of water quality control. We believe that it is important to allow states flexibility in the designation of beneficial uses and establishment of criteria for non-perennial and effluent dependent streams and man made water transportation canals. The Governors support continued funding for regional water quality research projects that design and develop water quality standards that are more appropriate to unique conditions in the western states. A series of recommendations on the Act developed by the Western States Water Council (WSWC), which have also been reaffirmed by the Western Governors' Association in August, 1998 contain these observations: 1. Pollution prevention programs help states avoid costly, complex and unproductive prescriptive approaches to pollution control and clean up. Adequate funding should be provided to the states for the development of pollution prevention programs, and incentives such as greater flexibility in using existing grants should be provided to states with strong pollution prevention programs. 2. Watershed management should not be dictated by the federal government. Watersheds should be managed to meet peoples needs while protecting our environmental resources. Federal methodology mandates are by definition "one size fits all" and are not appropriate for each and every state. Outcomes are more important to us than processes. 3. The Clean Water State Revolving Fund (SRF) should be funded at a minimum of $2.4B annually for at least five years. Funding under section 104 ought to be combined into section 106 along with any new funding for pollution prevention and watershed management. The result should be a single grant to each state. We oppose any increased matching requirements for federal funds. The 4 % limitation on SRF administrative costs should be based upon the authorized level rather than the appropriated capitalization grant amount. Provisions need to be made for a minimum amount of administrative cost assistance for each state. 4. States must be allowed to establish water quality standards flexible enough to account for natural variations in water quality. Floods, unusually high snow runoff and other events regularly occur in the West and negatively affect water quality through no fault of humans. Not all waters should be classified as swimmable and fishable. Doing so virtually ignores ecological and physical processes which naturally occur. Irrigation return flow exemptions from the National Pollutant Discharge Elimination System (NPDES) permit process must be retained. Many of Wyoming's finest fisheries are dependent upon irrigation return flows. 5. Many watersheds are influenced by reclaimed or effluent waters. Naturally occurring channels, constructed channels and/or constructed channels wetlands convey and temporarily store those waters. They support riparian habitat and aquatic life. I have two important points for you about these situations: (a) Occasional maintenance work is needed on those systems and the US Corps of Engineers span of control relative section 404 permits has become unreasonable in that many of these waters are unnavigable. (b) Congress should recognize the interrelationship of such waters and the associated array of water rights, riparian habitat, aquatic life and water quality standards issues. Water quality standards for these waters should be based on intended uses. 6. The section 404 program must be improved. Sole authority for the program should be vested in one agency. It should encourage states to assume full or partial permitting authority. The program must recognize the differences between those that are naturally occurring those that are incidentally created. 7. Clean Water Act sections 510(2) and 101(g) are clear expressions of Congressional intent regarding deference to the states' role to allocate quantities of water and establish water rights. This fundamental principle of deference, which is manifest in many other federal environmental statutes, must be reinforced in the context of the CWA reauthorization. 8. TMDL development for impaired water bodies is difficult and very expensive work. Done correctly, this work must be allowed to evolve in a reasonable way. We need the flexibility to accommodate state and local conditions, address funding needs in a realistic manner and recognize a watershed-based approach to establishing TMDL's and encourage incentive-based approaches for all sources and voluntary compliance for nonpoint sources of pollution. 9. Section 319 of the Act establishes the framework for addressing nonpoint source pollution through state authority. It should continue to be the state's mission, and discretion, to determine the appropriate "nonregulatory or regulatory programs for enforcement, technical assistance, educational training, demonstration projects and voluntary, incentive-based programs." The states need maximum flexibility to implement nonpoint source control programs. The position of the Western States Water Council is "EPA should not define national, mandatory management practices to control agricultural runoff and other forms of nonpoint source pollution. It should be left to the states to select an appropriate mix of voluntary and mandatory approaches to control such pollution, provided that the overall program is adequate to achieve compliance with water quality standards." Our purpose is to promote changes that create a safer, healthier environment in a more cost-effective manner. We believe that any reauthorization should increase the effectiveness of the law by allowing states to focus limited resources on solutions that yield results. The Act is not in need of major repair. The arid nature of Western states presents unique concerns and challenges and we should be careful that we don't lose sight of our collective national objective of clean water. Our states have considerable expertise in integrating water quality criteria with our longstanding authority to allocate water resources. Through legislative action, planning strategies and regulations, we are ensuring protection of water quality, while discharging our responsibilities to allocate, conserve and protect water quantity. The Clean Water Act should continue to ensure that the states make the crucial decisions on water quantity and quality actions. We have success stories across the nation that are driven by local stewardship, by people who care about the natural resources in their back yard. They are totally committed to success because they are committed to assuring a future better than the present that they inherited. Mr. Chairman, thank you again for the opportunity to be here today. I look forward to your questions. |
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Page last updated 09/22/1999 |