TESTIMONY OF ROBERT H. WAYLAND, III
DIRECTOR, OFFICE OF WETLANDS, OCEANS AND WATERSHEDS
OFFICE OF WATER
U.S. ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE

Good morning, I am Robert H. Wayland, Director of the Office of Wetlands, Oceans, and Watersheds (OWOW) of the Environmental Protection Agency (EPA). These hearings come at a propitious time. The United States is observing the International Year of the Ocean and examining our responsibilities as stewards of ocean and coastal resources. At the recent National Oceans Conference in Monterey, the President committed to a series of actions in recognition of those responsibilities and again pledged the Administration to implement, with assistance from the Congress, a Clean Water Action Plan. This Plan, undertaken in recognition of the progress made and challenges remaining after a quarter century of implementing the Clean Water Act, contains numerous actions directed to marine and estuarine protection and restoration. These actions have been significantly influenced by our experience over the last decade in implementing the National Estuary Program.

The National Estuary Program, modeled after the Chesapeake Bay and Great Lakes Programs, was established by Congress in 1987 to demonstrate a new framework to address serious environmental problems faced by these valuable ecosystems. Estuaries are particularly vulnerable because they often serve as "sinks" for pollutants originating upstream within the watersheds 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 to protect and restore the health of estuaries and their living resources, and in so doing, the recreation, fishing, and other economic activities that take place in or depend on healthy estuaries. Just how valuable these activities are is highlighted by these facts and figures:

--Coastal waters support 28.3 million jobs and generate $54 billion 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.

-- 39.6% of the Nation's classified marine shellfish areas are in NEP estuaries. 53.4% of those have limits on harvesting.

-- 15% of the population of the continental US resides within NEP coastal watersheds.

-- 26% of the 2.23 million square miles of watershed area of the US drains into NEP estuaries.

-- Surface water covers 27,858,000 square miles of the Nation. NEPs cover 45% of that total, or 12,516,00 square miles.

Although each of the 28 estuaries in the National Estuary Program is unique, many face several common environmental problems and challenges. A recent national assessment undertaken by numerous stakeholders from each local NEP (including scientists, citizens, resource managers, policy makers, and business groups) concluded that the most common problems NEPs are dealing with 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. We have every reason to believe that these problems are common to most coastal watersheds throughout the United States.

The impacts of these problems are serious. Pathogens cause shellfish bed closures. Nutrient-overenrichment contributes to lower dissolved oxygen levels, loss of seagrass and coral habitats, and declines in ecosystem health. Introduction of invasive species adversely affects native species. Changes in land use and the introduction of pollutants and toxic chemicals result in habitat loss and declines in water quality and overall ecosystem health.

The latest data from the National Water Quality Inventory Report to Congress (305 (b) Report) shows that as of 1996, almost 40% of the nation's surveyed estuarine waters are too polluted for basic uses, such as fishing and swimming. This information, obtained by the States, indicates that serious water quality problems persist nationwide.

We are all familiar with the impacts of harmful algal blooms. Pfiesteria outbreaks have occurred in several tributaries to the Chesapeake Bay and North Carolina rivers in recent years, resulting in fish kills, fish lesions, and suspected human impacts. The death and decay of algal blooms can lead to partial oxygen depletion known as hypoxia, or total oxygen depletion, known as anoxia, in the water, resulting in widespread mortality of fish, shellfish, and invertebrates.

There is evidence that associates these algal blooms with nutrient pollution--excess 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, including fertilizer and animal waste from agricultural operations; and air deposition of nitrogen and toxic pollutants from motor vehicles and electric utility facilities.

In some cases nutrient overenrichment of coastal waters leads to hypoxia. Hypoxia occurs in many parts of the world, as well as several parts of the United States, including the Chesapeake Bay, Long Island Sound, and the Gulf of Mexico. 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 saltwater from the Gulf.

Unlike early approaches to environmental protection that target specific pollutants or categories of dischargers, the NEP acknowledges that problems affecting our nation's estuaries are exacerbated by combined and cumulative impacts of many individual activities and that the significance of these activities vary greatly from watershed to watershed. The principal causes of nutrient over-enrichment in the Albemarle-Pamlico NEP, for example, are agricultural, while in Long Island Sound nutrient loadings come from domestic wastewater. 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.

Currently, 28 National Estuary Programs in 18 States and Puerto Rico are demonstrating practical and innovative ways to revitalize and protect their estuaries. For example:

-- A Heritage Trail System was established by the Sarasota NEP to enhance recreational opportunities and increase awareness of Sarasota Bay and related cultural, historical, and natural resources. The trail provides a tapestry of recreational areas (greenways), historical places, cultural and art centers, and scenic waterway systems.

-- The creation of an island in the San Jose Lagoon, which is habitat to numerous birds in San Juan Bay, was made possible by coordination among the San Juan Bay NEP, the Corps of Engineers, and citizens. The project used debris from a recently constructed bridge.

-- The New York/New Jersey Harbor NEP, in coordination with the New York City Parks Department, is using funds from the Exxon Valdez settlement to re-vegetate park areas and reduce sedimentation and erosive runoff in some parks where steep slopes drain into the Hudson River.

-- The Narragansett Bay Project worked with the Rhode Island Department of Environmental Management, the City of Warwick, and Save The Bay to reduce bacterial pollution so that Greenwich Bay could be re-opened to recreational and commercial shellfishing.

-- The Indian River Lagoon NEP is developing and implementing pollutant-loadings reduction goals based on the requirements of its seagrass ecosystem.

-- The Lower Columbia River NEP (OR, WA) is supporting a project to develop a stormwater pollution prevention manual and associated training program focused on voluntary reduction of pollutants from stormwater sources under the direct control of the municipality.

-- Using the Santa Monica Bay Restoration Plan as a guidance document, the Los Angeles Regional Water Quality Control Board approved a new, basin-wide municipal stormwater NPDES permit. A large stakeholder committee was formed to develop permit language and numerous public meetings were held, involving many more people than is typically the case with an NPDES permit renewal.

-- In Tampa Bay, Florida, 4,000 acres of seagrass and 400 acres of wetlands have been restored.

-- The Long Island Sound Study tested two innovative wastewater treatment technologies which resulted in a reduction of nitrogen loadings into the Sound by 83% from one treatment plant and 73% from another plant.

One of the cornerstones 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.

At this time, 17 of the 28 NEPs are in the implementation stage. One additional program is scheduled to have an approved plan by the end of 1998; the approval of Comprehensive Conservation Management Plans (CCMPs) for the 10 remaining programs should occur in 1999. (See Attachment 1)

The NEP approach has been very successful. EPA is working actively to ensure that we use what we have learned in these 28 estuaries to protect and improve the health of all coastal ecosystems.

Legislative proposals

With respect to legislative changes, I would like to emphasize the Administration's position supporting comprehensive amendments to the Clean Water Act that would strengthen protection of our nation's waters.

That having been said, I would like to turn now to comment briefly on S. 1321, the National Estuary Conservation Act; S. 1222, the Estuary Habitat Restoration Partnership Act; and H.R. 2207, the Coastal Pollution Reduction Act.

S. 1321 - The National Estuary Conservation Act and H.R. 2207, Section 3

We note that both S. 1321 and H.R. 2207, Section 3, would amend Section 320(g) of the Clean Water Act and increase the authorization of the NEP program. Although the language of the two bills differs, I would like to address them together. We would be happy to work with committee staff on particular language.

EPA supports the flexibility that would be provided by giving EPA the authority to allow grantees to use Section 320 funds for implementation of CCMPs as well as for developing them. We believe it is important, however, that State and local governments take primary responsibility for implementing CCMP actions, and that, consistent with the current law, grants authorized by section 320 not be used as the primary source of implementation funds.

EPA should and does have a role in implementation. Section 320 provides that CCMPs, once approved by the Administrator, can be implemented using funds from other existing Clean Water Act programs (notably State Revolving Funds and non-point source grants). Many CCMP implementation actions are appropriate for such funding. These programs should continue to be the primary source of implementation funds authorized under the Clean Water Act. Under the Clean Water Action Plan, the Administration has proposed to increase Section 319 grant funds to $200 million.

The process by which the NEPs have achieved success in development of the CCMPs has always emphasized public and stakeholder involvement and commitment to implementation. EPA guidance provides that the implementation action plan specifically state the cost of all actions and the parties committed to fund them. Therefore, we support a cost-sharing type of requirement. We would welcome the opportunity to work with you on the precise language of such a provision that is clear and that protects the principle that CCMP implementation is primarily funded by sources other than Section 320 grant funds.

EPA also supports an increase in authorizations over the original $12 million, given the increased number of NEPs since the program was last authorized (17 programs in FY91 to 28 programs in FY98) and given the Administration's budget request of approximately $17 million for the program in FY99.

S. 1222 - The Estuary Habitat Restoration Partnership Act

We believe the goals and purposes of S. 1222 are laudable: a national goal of restoring 1 million acres of estuary habitat by 2010; better coordination of estuary habitat restoration efforts; better leveraging of funds for restoration; linkage of restoration efforts to broader ecosystem planning; and follow up monitoring of restoration projects. Many NEPs have identified the need to actively restore degraded habitats, consistent with the CWA's broad goal to "restore and maintain the physical, chemical and biological integrity of our Nation's waters." And, many NEPs have successfully demonstrated habitat restoration techniques. In addition, EPA has gained valuable insights in restoration from the experience we and our partners have had on the Coastal Wetlands Planning, Protection and Restoration Act (Breaux Bill) Task Force.

However, the operational provisions of the Clean Water Act currently provide few mechanisms through which to pursue restoration--the emphasis is on pollution control. Many waterbodies which fail to meet their water quality standards do so because of physical alterations to the shoreline or streambed, because wetlands have been filled or drained, as a result of once cobbled streambeds silting-in, or because past pollution has killed off submerged bay grasses. Pollution inputs have often been or will be sufficiently controlled so that these areas can once again realize full biological productivity--but only if we give nature a hand by re-vegetating the shoreline, or bay bottom, removing accumulated silt where appropriate, and re-creating habitat for spawning, feeding, and shelter. Many of these bio-engineering practices can also help reduce storm surges and flood damage potential. S.1222 would complement other provisions of the Clean Water Act and move us in the direction of implementation provisions more attuned to the restoration and physical integrity aspects of the Clean Water Act goal. Chemical and physical improvements are needed to restore the conditions under which aquatic species can thrive.

We would welcome the opportunity to work with the committee staff on specific provisions of this bill.

H.R. 2207 - The Coastal Pollution Reduction Act

Much of our progress toward the CWA goals has been realized through the investment of the private sector and local governments in achieving near universal compliance with the baseline of technology-driven pollution control and prevention requirements: "Best Available Technology" for industry and "Secondary Treatment" for municipalities. In the case of the latter these requirements were initially supported through the Construction Grant Program and now are eligible for loans supported by State Revolving Funds. About $74 billion in Federal assistance has helped support a wastewater infrastructure with a significantly higher replacement value. Since 1972, the population served by secondary or better wastewater treatment has increased from 75 million to 170 million. Secondary treatment is not sufficient, however, to achieve the nutrient control needs for such waterbodies as Long Island Sound and the Chesapeake Bay where relatively shallow, poorly-mixed waters are sensitive to nutrient inputs from whatever source: wastewater treatment, agricultural run-off, lawn fertilizers, or septic systems. Many municipal treatment facilities discharging to these and other nutrient- impaired waterbodies employ advanced wastewater treatment technology or biological nutrient removal.

It may seem ironic, in light of these circumstances, to be discussing an exception to the requirements met by so many communities many years ago. However, Congress provided for a narrow waiver from the general requirement in section 301(h) for cases where a community discharging to ocean waters could demonstrate among other things that less-than-secondary treatment would not have significant adverse environmental consequences. Few municipalities were eligible for this waiver by its very terms. Fewer still sought the waiver. And even fewer were able to make the necessary showings and were approved.

The waiver provision required municipalities to apply by 12/29/82 and did not provide for reapplication in the event of final denial. The CWA provides that application for and pendancy of a waiver application does not relieve a discharger from the otherwise applicable secondary treatment requirement.

H.R.2207 would re-open the window for an application for a deep ocean outfall, but would require EPA to apply the same substantive standards for considering a waiver that had applied to previous applicants (including the Puerto Rico Aqueduct and Sewerage Authority (PRASA)) to the owner/operator of the Mayaguez Puerto Rico wastewater facility (PRASA). H.R. 2207 would also require PRASA to make a financial contribution to a watershed initiative intended to stem run-off to the nearshore area.

PRASA first sought a waiver for the Mayaguez wastewater treatment plant to discharge into Mayaguez Bay (not a deep ocean site) in September 1979. EPA tentatively denied the application in 1984 and 1986. A final denial was issued in 1991. The applicant pursued appeals which culminated in the Supreme Court upholding EPA's decision in February 1995.

In a Consent Agreement to resolve PRASA's violations of, among other things, effluent discharge limits, the Federal government recognized PRASA's intent to seek this legislation but made no committment regarding our position on the legislation. While EPA Region II has had to increase its resources on waiver issues, nationally we have substantantially reduced our resources for evaluating waivers and renewals because the application window closed in 12/82. Further, there are several coral reefs off Mayaguez, and it is important to note that any outfall ultimately approved by EPA will be consistent with new Executive Order 13089, Coral Reef Protection, announced last month by the President at the National Oceans Conference.

However, we must also note that Mayaguez Bay in general, and the coral reefs in particular, are severely stressed. Conditions may be such that PRASA may be able to provide information to support a decision that, based on construction of a deep ocean outfall, it has met the nine part test established in section 301(h). In light of this, and given that H.R. 2207 is limited to the Mayaguez wastewater treatment plant, includes specific environmental protection requirements, and is consistent with the terms of the Mayaguez Consent Decree, which gives PRASA until August 1, 1998, to obtain legislation allowing it to submit a new Section 301(h) application, EPA neither endorses nor opposes H.R. 2207. EPA is generally opposed, however, to re-opening the opportunity to seek Section 301(h) waivers, given the widespread benefits of secondary treatment and the need to do more to control nutrients in many coastal areas.

Conclusion

Thank you for the opportunity to provide testimony on these proposed measures and on EPA efforts 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.

Attachment 1

Status of National Estuary Programs

Programs with approved CCMP's

Program Approval Date
Puget Sound May 1991
Buzzards Bay April 1992
Narragansett Bay January 1993
San Francisco Bay December 1993
Albemarle - Pamlico Sounds November 1994
Long Island Sound November 1994
Galveston Bay March 1995
Santa Monica Bay March 1995
Delaware Inland Bays June 1995
Sarasota Bay October 1995
Delaware Estuary September 1996
Massachusetts Bay September 1996
Casco Bay October 1996
Indian River Lagoon November 1996
Barataria - Terrebonne Estuaries December 1996
Tampa Bay March 1997
New York / New Jersey Harbor March 1997
Programs developing CCMPs


Program Expected Submittal Date

Tier 4
Peconic Estuary June 1999
Tillamook Bay February 1999
Corpus Christi Bay September 1998
San Juan Bay July 1999

Tier 5
Morro Bay June 1999
Barnegat Bay December 1999
Lower Columbia River June 1999
Maryland Coastal Bays June 1999
New Hampshire Estuaries July 1999
Charlotte Harbor September 1999
Mobile Bay September 1999