• Clarification: The intent and legal effect of the 3 year repayment requirement (section 280)) and the allowance for reduction of debt obligations made after May 15, 1991 (section 28 (k)) needs to be clarified. STORMWATER MANAGEMENT States support a comprehensive stormwater control program as embodied in the 1987 Water Quality Act. The fishable/swimmable goals cannot be attained unless this major pollutant source is effectively addressed. With adequate funding and flexibility to implement innovative State programs, great strides can be made. Absent these critical elements, however, not only will the stormwater permit program fail, but important gams in other areas will be threatened. S. 1081 should be expanded to address these issues. Deadlines: The delay in USEPA promulgation of regulations makes statutory deadlines unachievable and threatens the declared strategy of phased implementation, under which the most significant sources are to be addressed first. While the moratorium from permit requirements for second priority sources remains fixed by the statute (402(p)(1)), deadlines for priority sources have been extended by regulation only. Recommendation: The statutory deadlines for permit issuance and the moratorium should be revised to set attainable schedules and accommodate phased implementation. Resources: The funding shortfall for State management of the National Clean Water Program has reached crisis proportions. No issue is of greater importance. Nationally, the total Clean Water Program need in the States is estimated to be over $700 million. The gap between the funds available ad those needed is conservatively estimated to be over $400 million. The new stormwater program severely exacerbates that shortfall. States estimate that the stormwater program will multiply permitted discharges ten-fold. The most difficult aspects of the program will be compliance tracking and enforcement. In one State alone (Michigan), $2.5 million would be required annually. Extrapolated nationally, costs could exceed $65 million. But, the administration provides no additional funds in their fiscal year 1992 Budget. Cuts in other programs, including toxics and nonpoint source control, would have to be made to implement even a minimal stormwater program. Given the priority of programs that would have to be sacrificed, there is a distinct possibility that USEPA may have to administer the stormwater program in some delegated States-even though the Agency does not have the resources. Recommendations: Section 106: The States support S. 1081's effort to increase the section 106 authorization with the following refinements: A statutory allotment formula should be considered to expedite funding. ⚫ USEPA approval of State plans should be required within 90 days of receipt. A 25 percent allotment for pollution prevention/innovative approaches should be made in the State work plan process vs. a bureaucratic national setaside program for competitive projects. * Matching requirements should be phased in, with allowance for use of fee receipts in excess of the equivalent State amount required (60 percent of program costs). Permit Fees: The Act should provide a Federal permit fee structure, with exemptions for State programs with equivalent receipts. S. 1081 addresses this need ad the Association looks forward to working with the committee to refine section 21. • Clean Water Act Penalties: Use of Clean Water Act penalty monies for State administration of water pollution control programs should be considered. • Local Impacts: In addition to fully funding the title VI SRF, the Clean Water Fund needs to assure that: *The SRF loan program is extended through 1998 for stormwater and other new infrastructure needs. *Section 319 funds are available for stormwater planning and implementation to the maximum extent practicable, even though such municipalities are required to obtain an NPDES permit. • Program Flexibility: The stormwater permit program cannot be administered as a traditional NPDES program clarifications in the law should be considered: Phase In: Require the first round of municipal permits to reduce pollution discharges to the maximum extent practicable. Additional controls, if necessary, to meet section 301 would be established in subsequent permits. USEPA should be re quired to develop a less complex, more effective general permit policy. The important issue of water quantity as well as quality must also be addressed. *Coverage: Review of USEPA's overly broad coverage of industrial activities. Delegation: Provision for delegated States' authority to use section 309 administrative enforcement tools. COMBINED SEWER OVERFLOW CORRECTION Urban rivers can be attractive recreational waters, but not until raw sewage overflows are eliminated. States and the USEPA estimate over $20 Billion in documented CSO needs. Many States are tuning their attention to correcting this major remaining problem, and some have addressed CSOs through their own funding initiatives. Funding: Adequate treatment of combined sewer overflows will demand a massive public works effort. Most municipalities recognize the need for CSO correction and are willing to take action. But these cities, most of them older with a variety of pressing needs, cannot do it alone. Federal assistance is needed, without reverting to a grant program. A 75 percent grant is entirely inconsistent with the program direction set into place in the 1981 and 1987 Clean Water Act Amendments. Recommendation: Full capitalization of the SRF is essential. And, the Clean Water Fund should extend the SRF through 1999 to address the new eligibilities including CSOs-providing at least $2 billion annually. Funding for local construction should be allocated to States through the SRF dedicated in the State to complete CSO priorities. After such time, the funds should be able to be used for other Fund eligibilities. Requirements should be minimized and streamlined to expedite planning and construction. The relationship between sections 20 (d)(1)(b) and (d)(4)(b) should be clarified to focus on implementation funding alter plan approval. Guidelines: There is a lack of dear national policy on control expectations. Categorical effluent limitations are a regulatory cornerstone of the Act and the primary tool for working toward eliminating discharge of pollutants equitably nationwide. Yet, such guidelines do not exist for CSOs. This has caused confusion and delay. Such requirements are too resource intensive to develop on a State-by-State basis. Recommendation: USEPA should be required to establish effluent guidelines setting minimum technology based requirements for CSOs. Those guidelines must be flexible enough to allow consideration of site specific criteria, and avoid major capital retrofitting of existing, adequate facilities. Due to difficulties related to the diversity of hydrogeologic and other factors in the States, Congress should not, in S. 1081, prescriptively define a standard. And, States should not be, in effect, penalized for their successful efforts to control CSOs. Realistic deadlines for CSO requirements should be established that enable the NPDES program to set effective permit requirements and compliance schedules. Over one-third of currently identified SRF projects are for small communities. Thirty eight States, participating in a recent ASIWPCA survey, track 16,448 small communities for water pollution control needs ad priorities. Of these, 49 percent or 8006 will require construction of wastewater treatment facilities and conveyance systems in the next 10 years-totaling over $7.87 Billion. ASIWPCA projects that the total construction costs in the 50 States will exceed $10 Billion in the next 10 years. In approximately half of the States, more than 50 percent of small communities needing construction cannot afford the debt service on an SRF loan covering all project costs. Their plight is of particular concern, due to the frequency of water quality and public health problems. S. 729/1081 address legitimate concerns in a manner which will not undermine the perpetual nature of the SRF due to a supplementary authorization The bill makes great progress in minimizing construction requirements, supporting cash payments, and providing more adequate administrative funding. We suggest the following refinements: Recommendations: Cohesiveness: Assistance is best provided by an existing program administered by the States, not a new competing federally administered program. States should be authorized to administer the S. 729 program as a component of their existing SRFs. The bill should assure that this can be done. Creation of a new USEPA office is unnecessary. The program should be managed as a part of the SRF. The Corp of Engineers is not equipped to address the needs of small communities. Rather, they can have a meaningful role in remediation and technical assistance (e.g. on hydrology issues). States need to establish the priorities based on their specific environmental and public health concerns. ●Matching, reporting requirements, etc. should be consistent for ease of administration. Funding: Section 102 funding should be used by States to: Blend grants with SRF loans to achieve a means test vs. creating two separate programs. •Provide technical assistance. The S. 1081 USEPA grant program in section 105 would be difficult to fund adequately and would not build long term program capability in the field. Hardship should be defamed based on a State standard (e.g. percent of State (vs. National) median household income), because State economic circumstances are di verse. "Small community" should be defined to include up to 3,500 in population. Conveyance systems should be eligible. Eligibility of investor owned wastewater systems under S. 729 for the SRF is not appropriate. ●Intended uses of the planning setaside should be clarified. Requirements: A 40 (vs. 30) year loan repayment period would make projects more affordable. Federal crosscutting laws should not apply. ●A 25 percent match may be too difficult to obtain in some States with a proportionately high number of hardship communities. Any construction by the Army Corp of Engineers should comply with State law. The "balance of such fund" (section 102(c)(6)) should be defined and include the repayment stream. Section 301 must assure that debt backed by future plant revenues does not conflict with previously negotiated SRF loan conditions or the ability to meet future wastewater responsibilities. OTHER ISSUES In addition to the above issues, the Association provides the following general comments on S. 1081. Further details will be provided in later hearings after States have had the opportunity to fully review the bill: Water Quality Standards • Fishable/Swimmable Water Quality: Because of the severe constraints on available funding, States should not be required to classify all waters as fishable swimmable. The existing policy should be maintained (i.e., basing use designations on attainability). The resources that section 8(b) would require for State administration and local compliance is prohibitive. The requirement is unnecessary. Uses are now periodically reviewed. In 3-4 percent of streams, the goal is unattainable or inappropriate. Public exposure to health or safety hazards (e.g. below municipal outfails during rainfall events or plant upsets) poses an unacceptable risk. In other instances, naturally occurring conditions, ephemeral, intermittent or effluent dominated streams, inplace pollutants, or unjustifiable socio-economic costs preclude such designations. uke to past pollution and air deposition, subsistence and recreational fishing is clearly unadvisable in some areas for the near future. Criteria: The Association commends the committee for placing higher priority on criteria development. However, biological or assessment methods should be acceptable, in lieu of concentration limits. Each criterion should be accompanied by implementation guidance addressing mixing zones and many other factors required to translate those criteria into permit limits. S. 1081's mixing zone requirement (1000 feet from the point of discharge) is too prescriptive. This will both over and under regulate-taking no account of important discharge characteristics, pollutant diversity or ecological needs. To assure that criteria reflect the latest science and are responsive to ecosystem needs, States should have the opportunity to participate in criteria development. • Direct Enforceability: "Independently applicable" or directly enforceable standards undermine the scientific foundation of pollution control and the integrity of the Clean Water Act strategy. A complex progress is required to translate standards into permit limits, including determination of specific contributions from all the point, nonpoint, natural, and atmospheric sources, the total maximum daily loads, ad the individual waste load allocations. Many municipalities would be put unjustly at risk with direct enforceability. * Balanced Indigenous Population: "Balanced indigenous population and recreation in and on the water" (BIP) and "fishable/swimmable water quality" are similar, but fundamentally different concepts. Their relationship is uncertain in the bill. Municipalities need a very clear goal. BIP would be extremely difficult and costly to define and implement. Changing goals this late in the Act's evolution is likely to require a wholesale rethinking of actions and investments to date and to delay progress. Permitting Prohibition of permit reissuance, unless there is satisfactory demonstration of the "need to discharge" as defined by S. 1081, is likely to lead to even greater permit backlogs than currently exist because of the resource intensiveness of the required showing. Small communities may be particularly hard hit. Application to municipalities should be simplified and clarified. Stormwater and CSO requirements of the 1987 Act and S. 1081, as well as new plant construction, will require new permits. If no permit can be issued to persons who operate two or more "facilities" in non-compliance (section 17(c))-many municipalities will be forced to violate those requirements-despite desires to improve water quality. The permit fee level for small communities in section 21 may not be affordable. Operator Certification Due to the already extensive operator certification programs in the States, section 6 is unnecessary. The expertise in this arena is at the State level. States without such programs should be encouraged to establish them. SUMMARY Mr. Chairman, water is the substance of life, our most precious and most taken for granted natural resource. It is also the ultimate sink for all the world's pollution load. You and this Subcommittee have always wooed to develop sound approaches to environmental problems, and we commend you for your continued efforts. As we look toward 1992 as the Year of Clean Water, we need to be frilly cognizant of municipal needs and their relationship to the broad goals. The Clean Water Act is fundamentally sound, with the most significant impediments to the Clean Water Act goals being: The need for adequate time to carry out the 1987 Water Quality Act Amendments, and * The lack of adequate funding. States must maintain the lead role in program development and management. However, with lack of adequate funding and technical resources as well as delayed policy and regulatory guidance from USEPA, the Nation finds itself further and further behind the "eight ball." Additional mandates should be accompanied by flexibility and funding above 1987 Act baseline requirements. Existing resources need to be utilized more efficiently and effectively to assure the desired environmental results A continuing Federal funding role In infrastructure financing is necessary after 1994. Thank you, Mr. Chairman, and members of the subcommittee. We again commend you and your staff for your continuing efforts to recognize and incorporate the needs and concern of the States in your legislative decision making process. |