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TESTIMONY OF DANA MINERVA



TESTIMONY OF
DANA MINERVA
DEPUTY ASSISTANT ADMINISTRATOR
OFFICE OF WATER
U.S. ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE
SUBCOMMITTEE ON WATER RESOURCES AND
THE ENVIRONMENT
OF THE
COMMITTEE ON TRANSPORTATION AND
INFRASTRUCTURE
U.S. HOUSE OF REPRESENTATIVES

July 13, 1999

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

COASTAL WATERS - VALUE AND CONDITION

We all recognize the importance of this Nation's ocean and coastal waters. These waters 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.

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

Recent studies document a wide range of environmental problems in coastal waters including low dissolved oxygen levels, contamination of shellfish, contamination of water and sediment with metals and organic contaminants, and increased beach closings. Recent monitoring reports by State agencies under the Clean Water Act (CWA) indicate that, of the almost 30,000 square miles of estuaries assessed, 38% are impaired. The leading causes of these impairments are nutrients, bacteria, toxic pollutants, and oxygen depleting substances.

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; physical changes to the river, such as channelization and loss of natural wetlands and vegetation along the banks; and the interaction of freshwater from the River with the saltwater of the Gulf.

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: human waste from septic systems and sewage treatment plants; agricultural runoff from fertilizer and animal waste; and, air deposition from motor vehicles and electric utility facilities.

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.

EPA COASTAL PROTECTION PROGRAMS

Coastal waters have exceptional environmental and economic value and they face serious pollution problems. It is essential that we have strong and effective programs to restore and protect the quality of the Nation's coastal waters. I want to briefly review some of EPA's activities that are directly related to protection of our coasts and estuaries.

Clean Water Action Plan

The Clean Water Action Plan, announced by President Clinton in February of last year, provides an overall framework for expanded efforts by Federal and State agencies to work with local governments and organizations for cleaner and safer water. Many coastal protection activities underway at the EPA and other Federal and State agencies are described in detail in the Action Plan.

A key theme of the Action Plan is cooperation among different levels of governments and interested 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. Many of the coastal protection activities discussed below are described in greater detail in the Action Plan.

Coastal Research and Monitoring

Good information about the changing conditions of coastal waters is critical to effective protection of this resource.

A key provision of the Clean Water Action Plan calls for NOAA, EPA, DOI and USDA, in cooperation with the States and Tribes, to develop a coordinated coastal waters monitoring and research plan by the end of 1999, and by the end of 2000, to develop a comprehensive report to the public on the condition of the Nation's coastal waters. A multi-agency workgroup has developed a draft plan and is working with the States to develop a final plan.

Harmful Algal Blooms and Hypoxia

Under the Harmful Algal Bloom and Hypoxia Research and Control Act, the Administration has an interagency Task Force that is overseeing the development of nationwide assessments of HABs and hypoxia. In addition, there are interagency committees specifically addressing the technical management issues associated with the hypoxic zone in the Gulf of Mexico.

With respect to Pfiesteria in particular, EPA and NOAA together are funding State monitoring and rapid response activities in Maryland, Virginia, Delaware, North Carolina, New York, New Jersey, Mississippi, South Carolina, Georgia, Alabama, Texas and Florida in FY '99. These funds will be used by the States to: hire fish and water quality field personnel; purchase or rent monitoring equipment, vehicles, and boats; staff phone banks to respond to calls from concerned citizens; evaluate monitoring data; and keep the public informed on specific events.

Under the Clean Water Action Plan, EPA, NOAA, and other Federal agencies, in consultation with the States, released a national contingency plan to support State and local efforts in coastal waters for major harmful algal blooms and Pfiesteria outbreaks. EPA also has a website dedicated to providing information and connecting to other sites on Pfiesteria at https://www.epa.gov/OWOW/estuaries/Pfiesteria/index.html).

In addition, EPA and NOAA led a multi-agency group that developed a Federal research strategy for Pfiesteria. The implementation of this strategy is a key action in the Administration's Clean Water Action Plan. To Implement this Strategy, EPA, NOAA, USDA, NSF, NASA and ONR are jointly funding the Ecology and Oceanography of Harmful Algal Blooms (ECOHAB) interagency research program.

National Estuary Program

The National Estuary Program (NEP) was established by Congress in 1987 to address the complex problems associated with estuary management. 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 the watershed and the airsheds overlying them. In addition, estuaries are directly impacted by human activity - well over half the people in this country live, work, or play near the coast.

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 affecting our nation's 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 and resource management techniques available through Federal, State and local authorities as well as private sector initiatives. The NEP has strongly influenced our evolution toward watershed management more broadly, 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.

Coastal Nonpoint Pollution Control

The Coastal Nonpoint Source Pollution Control Program, authorized by Congress in 1990 and known as the "Section 6217 Program" addresses the challenging problem of polluted runoff to coastal waters. Under this program, the 29 States and Territories with approved Coastal Zone Management Programs develop programs specifically addressing polluted runoff. The State or Territory describes how it will implement nonpoint source pollution controls, known as management measures, that conform with national guidance.

In 1998, NOAA and EPA conditionally approved all 29 States and Territories Section 6217 programs. As a part of these conditional approvals, States and Territories were given findings and associated conditions that were to be met to receive full approval of their coastal polluted runoff program. NOAA and EPA have also worked closely with all States and Territories to provide more time and flexibility for implementing these programs.

Protecting Beach Water Quality

Water pollution at the Nation's beaches is a persistent problem. In 1997, there were over 4,000 individual beach closings and swimming advisories. State and local health departments issued most of these beach closings when monitoring data showed bacteria levels exceeded beach water quality standards.

Beach advisories and closings in the United States are generally due to the presence of disease-causing microorganisms, or pathogens, which can originate from discharges of untreated or partially treated 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 their waters for these indicators, compare their results to the criteria, and determine if action is necessary to protect public health or environmental quality.

Unfortunately, only 16 of the States have adopted EPA's current indicators in their water quality standards. 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 as "Key Actions" in the Clean Water Action Plan.

In early 1999, EPA released a BEACH Action Plan describing priority actions for Federal, State, Tribal, and local implementation of beach monitoring and notification programs. This Plan, the EPA Plan for Beaches and Recreational Waters, is a strategic multi-year plan governing activities related to recreational water quality. 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.

In addition, 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 carried out at local beaches. Information collected through the surveys is available to the public at EPA's "Beach Watch" site on the Internet at www.epa.gov/ost/beaches.

COMMENTS ON PROPOSED LEGISLATION

Having described some of the EPA programs to protect our estuaries and coastal waters, I would like to now respond to the request that we comment on the following bills related to estuaries and coastal areas:

Several of these bills propose to increase authorizations for Federal spending for projects that would benefit coastal waters. Generally, EPA recognizes that additional resources are needed over time to respond to the pollution problems in coastal waters. At the same time, EPA and many State water programs face serious budget constraints. Under the Congressional budget allocations, EPA may be forced to implement significant reductions in FY 2000. Under the present proposed Congressional budget resolution, if appropriations were provided at the levels these coastal bills authorize, the Agency might have to reduce current program efforts by an amount equal to the increased funding for coastal projects in addition to the significant reductions likely to be required.

I hope that this Committee will 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 State revolving loan funds to make grants to implement NEP plans and to implement measures to reduce polluted runoff, including runoff to coastal waters. Enactment of this new discretionary 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. As the Agency has 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.

Estuary Habitat Restoration Partnership Act -- H.R. 1775

The goals and purposes of the Estuary Habitat Restoration Partnership Act are laudable and EPA supports the bill. Some of the key goals of the bill include -

The bill would authorize up to $75 million to the Corps to support coastal habitat restoration projects.

H.R. 1775 can make an important contribution to the coastal protection program described in the Clean Water Action Plan. 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.

We have several suggestions for improvements to the bill, described below, as well as some technical comments that will be provided to Committee staff.

First, H.R. 1775 defines estuaries to include areas where the "sea water is measurably diluted with fresh water derived from land drainage." 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 habitat restoration strategy, particularly 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 Plans.

Finally, Title II of the bill would increase the authorization for the Chesapeake Bay Program from $13 million to $30 million per year. We agree that increased authorizations for this important program are appropriate, consistent with the FY 2000 President's Budget request of almost $19 million for the Chesapeake Bay program.

Water Pollution Control and Estuary Restoration Act -- H.R. 1096

The NEP program is making an important contribution to the protection of the Nation's estuaries and coastal waters. H.R. 1096 would make some worthwhile modifications to the program but also includes some provisions that the Administration cannot support.

We are concerned that some provisions of the bill could make NEPs less flexible. Conferences are intended to serve as organizing frameworks to develop solutions, not as implementing bodies. The bill contains detailed provisions regarding management conference responsibilities, mandatory duty to implement actions, and membership which may be perceived to conflict with the spirit of the NEP as a collaborative, locally-based program and which may reduce flexibility to tailor the programs to local needs. We do, however, support greater coordination with other Clean Water Act programs through allowing NEPs to serve as a focal point for other relevant activities within a watershed.

The bill dramatically increases authorizations for grants to capitalize clean water State Revolving Loan Funds under Title VI of the Clean Water Act and requires that the Administrator take a portion of these funds -- ranging over the authorization period from 2.5% to 15% of the total funds appropriated nationally to make grants to "State Estuary Accounts" that would provide loans, including subsidized loans, for projects to implement approved CCMPs. Authorizations to the SRF would be increased dramatically to $2.5 billion in 2000 and up to $4 billion in 2005 and 2006. The bill also amends the Clean Water Act to create a new NEP grant program, with an authorization of $50,000,000 per year, for grants to implement projects called for in CCMPs.

EPA welcomes an open dialogue about the long-term funding levels for the clean water State Revolving Funds (SRFs) with Congress and others. We also agree that SRFs could be a more effective tool for implementing watershed plans. We have been working with the States to that end. States now have the authority to make loans from the SRF to support implementation of CCMPs and implementation of nonpoint source pollution projects consistent with a State nonpoint source management plan.

In addition, the President's FY 2000 budget proposes that Governors be given the discretion to reserve up to 20% of their Federal clean water SRF capitalization grant to be used as grants (with up to a 60% Federal share), not loans, for implementing approved CCMPs and polluted runoff control projects, including projects to protect coastal waters. We believe this new authority for Governors to use clean water SRF funds to implement CCMPs and polluted runoff projects, combined with existing authority to make SRF loans for CCMP projects, is the best approach to financing projects to protect coastal waters.

Finally, the bill would increase the authorization for the existing Clean Water Act grant program for development of CCMPs from the current $12 million per year to $28 million.

The President's FY 2000 budget request for the NEP program is for approximately $17 million. This amount reflects the demand for continued support for the 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 past appropriations bills, Congress has included language that has allowed EPA to support NEPs after program approval.

The Administration supports amendment of the Act to more specifically authorize NEP grants for program management as well as program development. This change complements the proposal for funding of NEP project implementation with clean water SRF funds.

A Bill to Amend the National Estuary Program - H.R. 1237

H.R. 1237 would amend the authorization for the NEP program in the Clean Water Act (i.e. section 320) to increase the authorization from $12 million to $50 million per year and provide authority for the Administrator to issue grants not only for developing, but also for implementing, CCMPs. The Federal share for grants for developing a CCMP would remain at 75 percent of the aggregate costs, but would change to 50 percent for implementing CCMPs.

As noted above, the Administration has proposed in the FY 2000 budget NEP funding of $17 million. This funding should be available to support CCMP development and ongoing program management for approved CCMPs. Also, we believe that the President's proposal to allow Governors to use up to 20% of SRF funds is the best mechanism for supporting implementation of projects called for in CCMPs.

The Florida Keys Water Quality Protection Project of 1999 -- H.R. 673

The Florida Keys are a unique marine environment providing significant recreational and commercial opportunities as well as the only living coral reef barrier ecosystem in North America.

The Florida Keys National Marine Sanctuary was created in 1990 by the Florida Keys National Marine Sanctuary and Protection Act. EPA, NOAA, and the State of Florida have been working together to develop a Water Quality Protection Program for the sanctuary. One of the goals of this Water Quality Protection Program is to recommend priority corrective actions and compliance schedules addressing point and nonpoint sources of pollution. Dilapidated and inadequate wastewater treatment systems and inadequate stormwater management systems are the largest manmade sources of pollution to the nearshore waters of the Florida Keys.

H.R. 673 is designed to "protect the resources of the Florida Keys National Marine Sanctuary by providing the Federal share of funds for projects to replace inadequate wastewater treatment systems and inadequate stormwater management systems." Improving sewage treatment in the Keys is a key goal of the Water Quality Protection Program, and the Agency supports expanded efforts to finance this work and looks forward to working with Congress on the appropriate mechanism to fund this work.

Long Island Sound Preservation and Protection Act -- H.R. 855

H.R. 855 would amend section 106(f) of the Marine Protection, Research, and Sanctuaries Act regarding the dumping of dredged materials in Long Island Sound. We appreciate and share Congressman Forbes' concern for environmental protection of the Sound.

The EPA has played an active role in protecting Long Island Sound through the Long Island Sound (LIS) NEP. Thousands of hours have gone into program activities which have resulted in significant environmental improvements in the areas of hypoxia, habitat restoration, and living marine resources. In addition to EPA's work on the LIS NEP, the EPA has worked with the Army Corps of Engineers to ensure that the disposal of dredged material in the Sound is done in an environmentally sound manner, and in full compliance with the applicable provisions of the Clean Water Act and the Marine Protection, Research, and Sanctuaries Act (MPRSA).

Before commenting on H.R. 855, I would like to provide some background on this issue.

The disposal of dredged material in "ocean waters" is regulated under the Marine Protection, Research, and Sanctuaries Act (MPRSA). In all other "waters of the U.S." it is regulated under the Clean Water Act (CWA). Long Island Sound is not "ocean waters." Therefore, disposal of dredged material in the Sound normally would not be subject to the MPRSA, but is subject to the CWA.

In 1980, however, the "Ambro Amendment" to the MPRSA added section 106(f), which provided that dredged material disposal from any Federal project, or from any non-Federal project exceeding 25,000 cubic yards, was to comply with EPA's MPRSA environmental criteria for ocean dumping, in addition to regulation under CWA section 404.

MPRSA section 106(f) was amended in 1990 to call for compliance with the "requirements" of the MPRSA. The precise meaning of section 106(f) is currently at issue in litigation before the United States District Court for the Eastern District of New York as a result of dredging and disposal of sediments from the Thames River to accommodate the new Seawolf class of submarine at the naval base in New London, CT. The dredged material from the Seawolf project was subjected to thorough testing and evaluation under both the MPRSA regulations and the Clean Water Act § 404 regulations prior to disposal, and the government has strongly defended the Corps' permit and its issuance in the lawsuit.

EPA and the Army Corps of Engineers signed a Letter of Agreement in April 1998 to specify how the Agencies would conduct the dredged material disposal program in Long Island Sound in the future under section 106(f). These steps were taken in order to try to minimize the threat of future litigation and to provide further reassurance to the public that the environment of Long Island Sound would be adequately protected in the administration of the dredged material disposal regulatory program.

Specifically, the Letter of Agreement states that for Federal dredging projects and for non-Federal dredging projects involving more than 25,000 cubic yards of dredged material, the dredged material disposal program in Long Island Sound will continue to be administered in a manner consistent with section 404 of the CWA and the provisions of the MPRSA. Furthermore, EPA agreed to immediately undertake a dredged material disposal site designation process for Long Island Sound sites, with the Corps providing the technical resources to fully support this work.

Recently, three scoping meetings were held for the purpose of receiving public input on the workplan for preparation of the Environmental Impact Statement. EPA, in conjunction with the Corps, will develop site management and monitoring plans for any site that may be designated.

Finally, the Corps agreed that it will not authorize the disposal of dredged material at sites in the Sound from Federal projects, or from non-Federal projects of 25,000 cubic yards or more, unless and until such sites have either been designated by EPA or selected by the Corps consistent with the MPRSA. At the same time, the Corps and EPA will continue to apply CWA § 404 criteria to the disposal of dredged material in Long Island Sound. Recent Corps authorizations for the disposal of dredged material in Long Island Sound have been issued under both CWA § 404 and MPRSA § 103.

We have identified several important technical issues raised by the original version of H.R. 855 and amended bill language. Should Congress decide to revise and retain section 106(f), we would like to work with your staff to see if these technical concerns can be addressed.

CONCLUSION

Thank you for the opportunity to review the range of efforts EPA and other Federal agencies are making to protect and restore coastal waters and to comment on proposed measures to protect our Nation's estuaries and coastal resources. This concludes my remarks and I will be happy to answer any questions you may have.


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