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TESTIMONY OF J. CHARLES FOX



TESTIMONY OF
J. CHARLES FOX
ASSISTANT ADMINISTRATOR
OFFICE OF WATER
U.S. ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE
COMMITTEE ON ENVIRONMENT AND PUBLIC
WORKS
U.S. SENATE

July 22, 1999

Good morning; I am Chuck Fox, Assistant Administrator for Water at the Environmental Protection Agency (EPA). I appreciate the opportunity to be here and to talk with you about some of the things we are doing to protect the Nation's estuaries, coastal waters, and oceans. I will also comment on pending legislation to protect and restore these important natural resources.

I.  COASTAL WATERS -- VALUE , CONDITION, AND RESPONSE PROGRAMS

Coastal waters are a rich natural heritage for all Americans. Protecting and restoring the quality of these waters has tremendous environmental and economic benefits. EPA, along with many other Federal, State and local agencies and organizations, is working hard to implement effective programs to protect coastal water quality and natural resources.

Coastal Resource Values

Estuaries, near-coastal waters, and oceans provide some of the most diverse and biologically productive habitat in the country and are critical to a wide variety of marine life -- from manatees, to migratory wildlife, to salmon. Coastal waters provide essential habitat during critical portions of the life cycles of roughly two-thirds of the fish and shellfish caught commercially in U.S. waters.

Coastal waters are also important economically. They support 28.3 million jobs and generate billions of dollars in goods and services every year. The coastal recreation and tourism industry is the second largest employer in the Nation, serving 180 million Americans visiting the coasts every year. The commercial fish and shellfish industry is also very important, contributing $45 billion to the economy every year, while recreational fishing contributes $30 billion to the U.S. economy annually. A large part of this income is derived from coastal waters.

Condition of Coastal Waters

Because so many people are drawn to, or depend on, coastal waters, restoring, maintaining, and enhancing the health of these waters is of great importance. Unfortunately, coastal waters suffer from serious pollution problems.

Recent studies document a wide range of pollution in coastal waters including low dissolved oxygen levels, contamination of shellfish, contamination of water and sediment with metals and organic contaminants, and beach closings.

Water quality monitoring reports by State agencies under the Clean Water Act (CWA) indicate that, of the 72% of estuary miles assessed (i.e. almost 30,000 square miles) 38% are impaired. Pollutants causing these impairments are nutrients, bacteria, toxic pollutants, and oxygen depleting substances. The leading sources of pollutants causing impairments of estuary waters are industrial discharges, urban runoff, and sewage discharges.

States assessed only 16% of ocean shoreline miles (or 6% if Alaska shoreline is counted) and found 13% of these waters impaired. Bacteria and nutrients are the pollutants of most concern here, and urban runoff and sewage are by far the leading causes of impairment.

A recent national assessment of conditions in 28 estuaries addressed in the National Estuary Program (NEP) concluded that the most common problems are:

(1) nutrient overenrichment;
(2) pathogen contamination;
(3) toxic chemicals;
(4) alteration of freshwater flow;
(5) loss of habitat;
(6) declines in fish and wildlife; and
(7) introduction of invasive species.

Harmful Algal Blooms (HABs) are another serious threat to coastal waters. The death and decay of algal blooms can lead to hypoxia, or total oxygen depletion, known as anoxia, in the water, resulting in widespread mortality of fish, shellfish, and invertebrates, and submerged grasses/vegetation. Hypoxia occurs in many parts of the world, and in the U.S. it occurs in several near-coastal waters.

For example, on the Gulf of Mexico's Texas-Louisiana Shelf, an area of hypoxia forms during the summer months covering 6,000 to 7,000 square miles, an area that has doubled in size since 1993.

This condition is believed to be caused by several factors including a complex interaction of excessive nutrients transported to the Gulf of Mexico by the Mississippi River and physical changes to the River, such as channelization and loss of natural wetlands and vegetation along the banks. The interaction of freshwater from the River with the saltwater of the Gulf is also a factor.

There is evidence that associates algal blooms and hypoxia with nutrient pollution -- excessive nitrogen and phosphorus -- in the water. The sources of these pollutants vary widely from one geographic location to another. However, in general, we see three significant sources:

Finally, there is growing evidence of serious threats to coastal resources and human health from microbiological organisms. For example, Pfiesteria outbreaks have occurred in the Chesapeake Bay and North Carolina rivers in recent years, resulting in fish kills and suspected human health impacts. Red tides cause fish kills, the closing of shellfish beds, and beach closures each year. These outbreaks undermine public confidence in the safety of coastal waters and can result in dramatic impacts on fishing, tourism, and related interests.

We know that coastal waters face serious pollution problems now. In the future, the potential for such problems is likely to persist because coastal waters are especially vulnerable to degradation as a result of high population density, intense land uses, and rapid population growth in coastal areas.

Coastal Pollution Response Programs

It is essential that we have strong and effective programs to restore and protect the quality of the Nation's coastal waters.

EPA has strong statutory authority for protection of coastal and ocean waters under the Clean Water Act and the Marine Protection, Research, and Sanctuary Act (MPRSA). For example, EPA and delegated States require permits for the discharge of pollutants to waters of the United States under section 402 of the CWA. In the case of discharges to ocean waters, these permits impose additional controls consistent with guidelines established under section 403. EPA also works with the Army Corps of Engineers to manage ocean dumping of dredge materials under the MPRSA.

In addition, EPA implements a range of additional programs focusing on coastal water quality including the NEP, beach water quality programs, and programs to protect specific geographic areas, such as the Chesapeake Bay. EPA and NOAA work with States to implement nonpoint pollution control programs with specific authorities to protect coastal waters from nonpoint pollution. Several of these programs are discussed later in this testimony.

The Clean Water Action Plan, announced by President Clinton in February of last year, provides an overall framework for efforts by Federal and State agencies to work with local governments and organizations for cleaner and safer water. A key theme of the Action Plan is cooperation among different levels of governments and other parties to develop solutions to water pollution problems on a watershed basis.

The Action Plan also specifically addresses how diverse coastal programs, including the work of EPA, the National Oceanic and Atmospheric Administration (NOAA), and the Army Corps of Engineers, fit into a larger clean water strategy. Some of the specific coastal protection activities described in the Action Plan include --

Since the publication of the Action Plan last year, EPA has expanded efforts to protect coral reefs and address the threats posed to these waters by invasive species.

II.  ASSURING BEACH SAFETY

Beach Water Quality Problems and Programs

Water pollution at the Nation's beaches is a persistent problem.

The number of reported beach closures and health advisories has increased over the past several years. EPA recently completed the second annual, National Health Protection Survey of Beaches, which is a voluntary survey of government agencies that collected information on beach health activities. Based on this survey, EPA estimates that about one-third of the 1,062 beaches reporting in 1998 had at least one advisory or closing. This is an increase from the first survey, when about 26% of 738 beaches reporting had at least one closing or advisory. More detailed information is available at EPA's "Beach Watch" site on the Internet at www.epa.gov/ost/beaches .

Using EPA data and other information, the Natural Resources Defense Council recently estimated that the number of beach closure days (i.e. days that various beaches were closed or under advisories) rose from over 4,000 in 1997 to over 7,000 in 1998. Although some portion of the increase in both estimates is the result of better monitoring and reporting, this is evidence of a serious problem.

Beach advisories and closings are generally due to disease-causing microorganisms, or pathogens, originating from discharges of sewage or runoff from many different sources, into local waters. Beachgoers, especially children, are at risk of infection from ingestion or inhalation of contaminated water, or through contact with the water.

To protect waters designated for this recreational use, States use scientific information developed by EPA to set water quality standards that include criteria for levels of indicator pathogens with known risk of infection. States and local governments then monitor waters for these indicators, compare their results to the criteria, and determine if action is needed to protect public health or the environment.

However, only 16 of the States have adopted EPA's current criteria for recreational water quality. In addition, some recreational waters are not monitored at all. EPA believes that better monitoring and improved water quality standards will lead to greater recognition of the health threats posed by beach pollution and increased commitment to restore the quality of these important waters.

Recognizing the need to strengthen beach programs, EPA's Administrator, Carol Browner, announced the Beaches Environmental Assessment, Closure and Health (BEACH) Program on May 23, 1997. The goal of this program is to significantly reduce the risk of health threats to users of the Nation's recreational waters through improvements in recreational water programs, communication, and scientific advances.

The BEACH Program emphasizes three themes:

These key concepts are carried forward in the Clean Water Action Plan.

In early 1999, EPA released an Action Plan for Beach and Recreational Waters describing priority actions for Federal, State, Tribal, and local implementation of beach monitoring and notification programs. The research agenda set forth in the Plan covers several areas, including monitoring strategies, improved indicators, enhanced modeling tools to predict beach contamination, and epidemiology studies.

The Beach Plan also describes the importance of States adopting up-to-date water quality standards for protecting beach water quality and public health, and describes EPA's commitment to promulgate the criteria with a goal of assuring that the criteria apply in all States not later than 2003.

Beach Environmental Assessment, Closure, and Health Acts -- S. 522 and H.R. 999

The Beaches Environmental Assessment, Closure and Health Act (S. 522), introduced by Senator Lautenberg, provides for a comprehensive program to improve beach monitoring and to assure that the public has good information about health risks at the Nation's beaches. H.R. 999, passed by the House of Representatives, includes comparable, but somewhat different, provisions. As noted below, both bills have strong points. The Administration supports beach safety legislation that is generally consistent with the approach in these bills.

An important provision of both bills would require States, within 3 years of enactment, to adopt water quality criteria for pathogens and pathogen indicators for their coastal recreation waters that are at least as protective of human health as EPA's recommended criteria for pathogens and pathogen indicators, which EPA published in 1986.

EPA has encouraged States promptly to adopt current criteria for pathogen indicators into their water quality standards for their coastal recreation waters and, as noted above, intends to use current statutory authority to adopt appropriate standards for these waters where States fail to do so.

A key difference between the bills is that S. 522 proposes that water quality standards are "considered" promulgated where a State has not adopted the standards at the end of the 3 year period. H.R. 999 would require EPA to go through additional steps of disapproval of existing standards and formal adoption of new standards. Although it varies from EPA's current process for promulgating water quality standards, the approach in S. 522 would result in faster adoption of needed water quality standards.

Both bills provide for States or local governments to conduct expanded monitoring of beach quality and to notify the public of water quality problems at beaches. The Senate bill provides a clear and direct mandate to States to follow regulations that the EPA Administrator would be required to publish. 9 million dollars would be authorized for grants to support State and local efforts.

The House bill would authorize up to $30 million for grants to States to develop and implement beach monitoring and assessment programs. The Administration has concerns about the funding source for this program and will work with the Committee to identify an appropriate funding mechanism. Further, EPA agrees with the concept in the House bill that EPA can implement the program in a State if the State fails to participate.

There are several other differences between the House and Senate bills that will need to be resolved before enactment and EPA stands ready to work with the Congress to develop the best possible beach safety legislation for final enactment.

III.  PROTECTING THE NATION'S ESTUARIES

Estuaries are one of the most productive types of ecosystems and yet are also among the most stressed. Estuaries often serve as sinks for pollutants originating upstream within their watershed and upwind of their "airshed." In addition, estuaries are directly impacted by human activity - well over half the people in this country live, work, or play near the coast.

National Estuary Program

The National Estuary Program (NEP) was established by Congress in 1987 to address the complex problems associated with estuary management and protection.

The NEP seeks not only to protect and restore the health of estuaries and their habitat and living resources, but also to support economic activities that take place in, or depend on, healthy estuaries. Under the NEP, EPA provides modest grants to support "management conferences" of interested parties and these groups develop a Comprehensive Conservation and Management Plan (CCMP) for the estuary. EPA supports 28 estuary projects around the country.

Unlike traditional approaches to environmental protection, the NEP acknowledges that pollution problems of estuaries are exacerbated by combined and cumulative impacts of many individual activities throughout the coastal watershed. In order to address watershed-wide concerns, the NEP encourages the use of a combination of traditional and nontraditional water quality control measures available through Federal, State and local authorities as well as private sector initiatives. The NEP has strongly influenced our evolution toward watershed management, including the focus on watershed restoration and protection in the Clean Water Action Plan.

A cornerstone of the NEP is that management decisions are made through an inclusive process involving multiple stakeholders. This emphasis on public participation not only ensures a balanced approach to resource problems, but encourages local communities to take the lead in determining the future of their own estuaries, thus bolstering program success through community support.

Estuary Habitat Restoration Partnership Act -- S. 835

The Estuary Habitat Restoration Partnership Act, introduced by Chairman Chafee, would create new authority and authorize new funding for the Army Corps of Engineers to work with other Federal agencies, States, and communities to carry out projects to restore estuary habitat. The bill would also reauthorize the National Estuary Program.

The goals of the bill are laudable and include --

The habitat restoration provisions of S. 835 can make an important contribution to the coastal protection program described in the Clean Water Action Plan and will complement the work underway in the National Estuary Program. For example, the Action Plan calls for coordinated approaches to protecting and restoring water quality on a watershed basis. Coastal habitat restoration projects could complement traditional water pollution control projects implemented as part of watershed restoration plans.

EPA supports the new authority for estuary habitat restoration proposed in the bill. We also have several suggestions for improvements to the bill, described below, as well as some technical comments that will be provided to Committee staff.

First, S. 835 defines estuaries to include areas where a body of water in which "freshwater from a river or stream meets and mixes with salt water from the ocean." We suggest even broader language to include not only estuarine water areas, but also near-shore marine habitats and associated ecosystems.

We would also like to see further clarification of the bill with respect to its relationship to local NEPs and other local habitat restoration plans. We suggest that the term "Federal estuary management plan" be clarified to specifically include such plans as NEP and other such Plans. We note that although NEP plans must be approved by EPA, they are in fact local plans generated by the collaborative NEP process, rather than "Federal" plans.

In addition, we would like to see further regional coordination to ensure that habitat restoration priorities are set on a region-by-region basis. The House version of this bill, H.R. 1775, includes a regional review process to facilitate priority setting and we would support the inclusion of regional review teams.

Finally, EPA agrees that an "estuary habitat restoration activity" should include "clean-up of contamination related to the restoration of the estuary" but recommends that this provision be expanded to include measures to restore or protect water quality, such as buffer strips or related measures to prevent polluted runoff. The provision of the bill prohibiting support of activities "regulated" by Federal or State law is appropriate, but the prohibition on activities that are merely "otherwise governed" by such laws needs to be clarified.

Legislation to Reauthorize the National Estuary Program -- S. 835 and S. 878

Both S. 835, discussed above, and S. 878 would extend and increase the authorization for the NEP.

Both bills would also make grants under section 320 of the Clean Water Act, now used for development of CCMPs, available to implement projects called for in CCMPs. S. 878 would require a 50% non-Federal match for implementation of projects whereas S. 835 would require only the current 25% match for such projects. In addition, both bills increase the authorization for the NEP program from the current level of $12 million -- to $25 million, in the case of S. 835, and $50 million, in the case of S. 878.

The President's FY 2000 budget request for the NEP is for approximately $17 million. This amount reflects the continued development of CCMPs and the costs associated with providing limited grant support for local program management of approved CCMPs. Program management grants assure oversight of implementation efforts and involvement of stakeholders in the implementation phase of CCMPs. In some past appropriation statutes, Congress has included specific language to permit EPA to award grants for the implementation of CCMPs.

The Administration supports amendment of the Clean Water Act to more specifically support NEP grants for program management as well as program development and supports increase of the authorization level consistent with the long-term balanced budget agreement.

EPA recognizes that implementing pollution control projects called for in CCMPs sometimes requires Federal assistance. A primary source of financial assistance is the Clean Water State Revolving Funds (SRFs) under Title VI of the Clean Water Act.

Projects to implement NEP plans developed under section 320 of the CWA are currently eligible for CWSRF loans. In addition, the President proposed in the FY 2000 budget new authority for Governors to use up to 20% of the annual Federal funding for Clean Water SRFs for grants to implement projects called for in CCMPs as well as to implement measures to reduce polluted runoff, including runoff to coastal waters. Use of this provision would be at the discretion of a Governor. EPA believes this is a very effective way to the Federal government to make a major financial contribution to implementation of CCMPs.

IV.  PROTECTING THE CHESAPEAKE BAY

Chesapeake Bay Resources and Protection Program

Chesapeake Bay is a national resource of outstanding significance and vital national importance. The Bay, which is served by a watershed of 64,000 square miles, provides millions of pounds of seafood, is a hub for shipping and commerce, offers habitat for wildlife and fish, and provides recreational opportunities for residents and visitors.

The Chesapeake Bay Program was originally created in 1983 and gets its statutory authority from Section 117 of the Clean Water Act. The Bay Program's emphasis on watershed management, public participation, and voluntary partnerships has been a model for similar efforts elsewhere in the United States, as well as in the world. In fact, the National Estuary Program was based on the Chesapeake model, and the President's Clean Water Action Plan finds its origins in the Program, as well.

There have been many successes in the Bay restoration effort. Nitrogen and phosphorus pollution has been reduced dramatically. The Program should meet its 40% reduction goal for phosphorus in 2000, but a similar goal for nitrogen reduction will probably not be achieved until a couple of years after 2000. The comeback of striped bass is a success story that benefits the entire east coast. The Program has also provided national leadership in the restoration of riparian forest buffers, nutrient management, biological nutrient removal at wastewater plants, and many pollution prevention programs.

The Chesapeake Bay Program, which is a partnership of the Bay States, the District of Columbia, local governments and the EPA, is currently in the process of creating a new Chesapeake Bay Agreement for 2000. This process is a cooperative effort by all of the partners and it seeks to involve all sectors of the public. Just this month, the Chesapeake Bay Program partners held a joint press conference to announce the kick-off a new Agreement in 2000, and to solicit public input into the process.

Chesapeake Bay Restoration Act -- S. 492

I'd like to thank Senators Sarbanes and Warner,and the rest of the Chesapeake Bay delegation, for their leadership and vision in introducing the Chesapeake Bay Restoration Act. It is my understanding that this bill reflects a consensus among the governments of Maryland, Virginia, Pennsylvania and the District of Columbia.

This bill seeks to continue the highly successful Chesapeake Bay Program into the 21st Century. It will allow the Bay Program to better develop new goals and commitments for the next century and implement programs to restore and protect the entire Chesapeake Bay watershed. For example, the bill authorizes Federal support for small watershed programs, assessment of ways to strengthen current protection programs, and expanded study of the relationship between living resources of the Bay ecosystem and water quality. EPA strongly supports these and related provisions of S. 492.

S. 492 would also increase the authorization for the Bay program under section 117 of the Clean Water Act from $13million to $30 million. The Administration supports funding of the Chesapeake Bay program at levels above the current statutory authorization. The President's FY 2000 budget proposes funding of almost $19 million.

V.   PROTECTING AND RESTORING COASTAL WETLANDS

Coastal Wetlands Restoration Challenges and Programs

The Nation's coastal wetlands are in trouble. Thousands of acres of coastal wetlands have already been lost and additional acres have been degraded by pollution. Because of the alteration of several important coastal wetland processes over the past 75-80 years, Louisiana has lost more than 600,000 acres of coastal vegetated wetlands and is now losing coastal wetlands at an annual rate of more than 25-35 square miles per year (20,000-25,000 acres per year).

Further, the concentration of the U.S. population along coastal areas is a continuing source of development pressure. Threats to coastal wetland resources include residential and commercial development, agricultural and urban run-off, shoreline modification, municipal waste disposal, oil and gas development, and over-harvesting of resources.

Louisiana's 3.5 million acres of coastal wetlands represent about 40% of all of the coastal wetlands in the continental United States. These wetlands are an extremely valuable resource. They protect against flooding, provide effective storm protection/ buffering, help maintain water quality, and provide habitat for fish/shellfish and wildlife. Coastal environments are important economically, generating billions of dollars annually through such industries as tourism and commercial fisheries. Coastal wetland habitats in Louisiana serve as a foundation for a $1 billion seafood industry and a $200 million sport hunting industry.

EPA has worked in close partnership with other Federal agencies, including the Corps of Engineers, the Fish and Wildlife Service, and the Federal Emergency Management Agency, to implement coordinated wetlands protection policies and programs. Some of our projects include joint rulemakings and guidance as well as participation on the White House Interagency Wetlands Working Group. We also have formed successful partnerships with State, Tribal and local groups.

We have made great strides over the last decade at reducing wetlands loss. While much remains to be done, the Clinton Administration has demonstrated a strong commitment to meaningful wetlands protection. EPA has implemented wetlands activities described in the Clean Water Action Plan, increasingly integrated wetlands regulatory provisions into watershed plans, worked with the Corps to make Nationwide Permits more environmentally-protective, and undertaken additional activities that help ensure the wetlands program is fair and effective.

EPA's initiatives and effective partnerships will help to achieve the Administration's goal of a net increase of 100,000 wetland acres per year by 2005.

Coastal Wetlands Planning, Protection, and Restoration Act

The Coastal Wetlands Planning, Protection, and Restoration Act (Public Law 101-646, Title III - CWPPRA), also known as the Breaux Act, was signed into law in 1990. It ensures that State and Federal monies are available for coastal restoration and conservation efforts.

The Act directed that a Task Force consisting of representatives of five Federal agencies (including EPA) and Louisiana develop a comprehensive approach to restore and prevent the loss of coastal wetlands in Louisiana. A Priority Project List is developed and approved by the Task Force each year, outlining which projects will receive CWPPRA funding. Pursuant to CWPPRA, coastal restoration projects in Louisiana may be eligible to receive 85% of the project funds through Federal funding. The remainder of the funds are used for projects to protect, restore, and enhance coastal wetlands under the North American Waterfowl Management Plan.

EPA has strongly supported CWPPRA as a means to address a significant ecological problem, and endorses S. 1119, which provides for the extension of authorizations for CWPPRA through 2009 at existing levels. It is my understanding that this bill may have a pay-as-you-go (PAYGO) impact.

CONCLUSION

Thank you for the opportunity to review the diverse programs EPA is implementing to protect and restore coastal waters and to comment on proposed measures to protect estuaries, coastal and ocean resources.

In closing, I want to make a special appeal to the Committee to consider the difficult challenges the Agency faces in implementing some of the important and needed programs proposed in legislation we have discussed today given the budget reductions likely to be imposed on EPA in FY 2000.

Under the Congressional budget allocations, EPA may be forced to implement significant reductions in FY 2000. If these general reductions occur, at the same time that increased appropriations are provided at the levels these coastal bills authorize, the Agency might have to dramatically reduce current core program efforts. I urge this Committee to consider the best overall approach to meeting coastal project funding needs in the context of the serious budget constraints the Agency is facing.

In addition, the President's FY 2000 budget calls for new authority for Governors to have the option of allocating up to 20% of Federal capitalization grants for Clean Water SRF to make grants to implement NEP plans and to implement measures to reduce polluted runoff, including runoff to coastal waters. Enactment of this new authority for Governors to direct resources to areas of critical need will be a major step forward in our efforts to protect and restore coastal waters and I hope that the Committee will agree that this proposal is a key piece to the coastal funding puzzle.

As I have indicated on previous occasions, we welcome dialogue with the Congress and others concerning the appropriate, long term funding level for the clean water SRF program.

This concludes my remarks and I will be happy to answer any questions you may have. Thank you.


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