UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION X
IN THE MATTER OP:
PROPOSED CONSOLIDATED
PERMIT REGULATIONS
TRANSCRIPT OF PROCEEDINGS
Taken at Conference Room 12-A, Park Place Building
APPEARANCES:
Panel Members:
ALAN LEVIN, Chairman
JOHN SKINNER
SAM MOREKAS
DAVID SCI-INAPF
FANNY KNOX
FRANCES PETERSEN
EDWIN COATE
LLOYD REED
VOLUME I
Pages 1 - 142
DATS TAKEN:
REPORTED BY:
July 31, 1979
Earl L. Eartell
IK WIN & ASSOCIATES. CSK's
1525 Peoples National Bank Building
Seattle. Washington 98171
623-7881
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INDEX OP SPEAKERS
SPEAKER
Mr. Herb Streuli
Mr. Robert Jones
Ms. Linda Zander
Mr. Walter DeJong
Mr. Glenn Aldrich
Mr. Paul Sabin
Mr. Wesley R. Higbie
Mr. Don Lee Fraser
Mr. Jack Winn
Mr. Neil Skill
Mr. Richard Kosesan
Ms. Claudia Craig
Mr. Kelly Niemi
Mr. Wayne Meek
Mr. Gerald Palmer
Mr. Dale J. McGreer
Mr. James Linxwiler
Mr. Warren Harper
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SEATTLE,, WASHINGTON; TUESDAY, JULY 31, 1979
9:00 A.M.
3
—ooOoo—
4
MR. LEVIN! Good morning, ladies and gentlemen,
and welcome to today's public hearing on EPA proposed
7 consolidated permit regulations and the consolidated
8 permit application.
9 Both of these materials were published in the
10 Federal Register for public Comment on June 14th.
11 My name is Alan Levin. I am the Director of the
12 State Programs Division, Office of Drinking Water, EPA,
13 Washington, D.C. I will be your Chairman for today's
14 public hearing.
15 ' Before we begin our testimony, I would first
16 like to introduce Mr. Don Dubois, Regional Administrator,
17 EPA, Region 10, here in Seattle.
18 MR. DUBOIS: I would just like to add my welcome
19 to the welcome that Alan has already given to you. I
20 hope that you find this to be a useful and productive
21 session and that for our visitors from out of town that
22 you will enjoy some of our scenery and countryside here
23 in the Northwest as well as the more serious business of
24 the hearing that you are attending now.
25 The regulations that you will be considering today,
IRWIN & ASSOCIATES, CSR's - Court Reporters - 623-7881 - Seattle, Washington
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1 and I might add tonight and tomorrow, represent a
2 new approach by EPA in regulation writing. Our intent
3 is to consolidate and to streamline several of the
4 permitting activities that EPA, in cooperation with
5 the states, is responsible for under various federal
6 and environmental acts.
7 The regulation consolidates, actually, the
8 procedural requirements for five permit programs
9 administered b/ EPA. These programs are the Hazardous
10 Waste Management, the Underground Injection asd Control
11 Program under the Safe Drinking Water Act, Discharge
12 Elimination System or Permit Program under the Clean
13 Water Act, the Section 404 Dredge and Pill Activities
14 of the states under the Clean Water Act, and the
15 Prevention of Significant Deterioration Permits under
16 the Clean Air Act.
17 So, we have five different permitting programs
is under four different federal acts that we are attempting
19 to bring together under one umbrella of regulation here.
20 The genesis for this effort, in terms of EPA
21 trying to consolidate these permitting regulations> flows
22 on the one hand from the commitment made by the President
2^ in his State of the Union message in January ct this year
24 that EPA would do this to simplify our permitting
25 activities. It is part of the program that EPA has been
. IRWIN & ASSOCIATES, CSR's Court Reporters 623-7881 Seattle, Washington
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1 embarked upon for a year or more to try to simplify and
2 streamline the EPA regulations with the basic intent
of Carrying out our legal mandates to protect the
4 environment but to do it in a manner that will reduce
5 the economic impacts and just the red tape impact on
6 the industry and the others that we regulate. And I
7 think, personally, that we can do that.
8 I think we can have simpler, more goal or
9 action oriented regulations and less procedurally
10 oriented regulations and still meet our legal and
11 professional mandates to protect the environment.
12 And I am certainly personally committed to doing that,
and I know the Administrator of EPA is committed to
14 that.
15 ' So, really this set of regulations you will
16 be looking at today will be one of the major steps in
17 proceeding along those lines.
18 Now, I think that there are a number of
19 significant results that we hope to achieve through
20 this consolidated permit package. One, we expect
better environmental results. And I say that because
for the first time we will be able to look comprehensively
at all five of these programs as they apply to one
^
24 installation or one factual situation and should reduce
the tendancy for us or others to make the mistake of
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1 solving a water pollution problem, for example, and
2 creating a solid waste problem. So, I think there is
3 the'potential for better environmental results with this
4 regulatory approach.
5 I think there is the potential, also, for
6 economic savings to the permitees of not being required
7 to produce overlapping or conflicting kinds of activities
8 or constructing facilities that would result from a
9 separate approach that might not be as effective or,
10 and would be less expensive from this approach, from the
*-,.
11 consolidated approach. I think that we certainly expect
12 to reduce the regulatory burden to both-the permitee and
13 to the agency issuing the permit, whether it be EPA or
14 - the states.
15 ' Along those lines, I think we have in this
16 regional office done some reorganizing so we now have
17 under Harold Geren, on my far right, a single permitting
18 branch who has the oversight of all these permitting
19 programs. So, I think we can expect some significant
20 benefits from the approach we are proposing here today.
21 I don't want to lead you to thinking that this
22 is some kind of panacea, that I think it is a panacea
23 or you should think it is a pancea for solving all our
24 regulatory problems, the effluent limitations and the
I " VIS"'-,
25 NPDES increments under the Clean ftir Act and so on. These
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1 are not being relaxed. What we are talking about is a
2 better system to bring all these requirements to bare.
3 Furthermore, the various statutory requirements,
4 in terms of time frames and all that kind of thing, are
5 not, of course, eliminated by these regulations. Further-
6 more, we still have something of a split personality in
7 the sense that some of these regulatory programs are
8 delegated to some states and others are delegated to
9 other states, and we don't have, in each state, either
10 a complete delegation of all these programs, or a
11 complete non-delegation. So, it is a challenge for
12 EPA and the states to work together to bring about the
B spirit of what we are trying to accomplish with this
14 consolidated permit program.
15 • But, nevertheless, despite these remaining
16 factors, I think these regulations, in my judgment
17 anyway, are certainly a step in the right direction.
is We do sincerely need your advice and counsel
19 on how to improve these regulations. There is absolutely
20 nothing that can substitute for practical, on-the-ground
21 experience such as you represent, and I certainly hope
22 that you will feel most free and willing to step forward
23 and say what you think is wrong about these regulations,
24~ and if you care to, what you might think even &hat might
25 be right about them, but what you think is wrong about
IRWIN & ASSOCIATES, CSR's Court Reporters 623-7881 - Seattle, Washington
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1 them and what you think we can do to fix those things,
2 because we do want the most practical and affective
3 sat'of regulations we can possibly develop.
4 So, I do hope that you will be very frank and
5 forthright in your statements and that you will share
6 your experience with us. And I hope you have a good
7 hearing.
8 MR. LEVIN: Thank you very much, Don.
9 The next person I would like to introduce is
10 Mr. David Schnapf. David is an attorney with the Permit/
11 Division in the Office of Enforcement, EPA, Washington,
12 D.C.
13 David will give you an overview of the regula-
14 tions before we begin our formal testimony.
15 • MR. SCENAPF: Thank you, Al.
16 We have got a lot of people here signed up to
17 speak today so I am trying to keep my comments somewhat
18 short.
19 There is a lot of criticism to the regulatory
20 process, and there is a lot of solutions to so-called
21 cutting through red tape, et cetera. One of the solutions
22 that is often mentioned is the notion of a one-stop
23 permitting mechanism for all these environmental statutes,
24 This set of regulations is not a one-stop
25 permitting scheme, although it is probably a first step
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1 in that direction, and somewhat a modest first step in
2 that direction. What we did last fall, basically, was
3 take a hard look at all of EPA's permit programs and
4 initiate a program to try to coordinate and make consister
5 requirements for all these permit programs. We feel this
6 is the first step towards some kind of one-stop permit
mechanism. There are still many more steps to follow.
We need some more on-the-ground experience. We
9 are not asking any of the states to do any kind of one-
10 stop permitting. We don't feel we are ready for that
yet.
t
12 This set of regulations does not require con-
13 solidated applications and consolidated permit processing
in all instances, however, it does make our requirements
15 for- the various programs consistent so that where one-
16 stop permitting or where a consolidated permit review
process makes sense it can be employed.
is With that opening remark, I would like to jump
19 into how these regulations are structured.
20 Basically we have three parts of Title 40 of
21 the Code of Federal Regulations, 122, 123 and 124.
22 Part 122 contains the general program require-
23 ments for each of four programs, the NPDES program, the
24 UIC program, the Hazardous Waste Program, and in part,
25 the 404 Program.
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1 What we found in analysing the various programs
2 was that certain features of every permit program are
3 the same, but on the other hand there is certain unique
4 aspects to each of these programs. To accommodate this,
5 what we did was we proposed structuring this with a
6 general set of requirements in subpart (a) which would be
i. '
7 applicable to all these four programs with specific
s additional requirements for each of the other programs.
9 So what we have is a general subpart (a), a subpart (b),
10 which controls Hazardous Waste Program, additional
11 requirements for the Hazardous Waste Program and unique
12 aspects of that program. Subpart (c) which covers the
13 UIC program. And subpart (d) which covers the NPDES
14 program.
15 • With respect to the 404 program and 122, only
16 subpart (a) is applicable to the 404 program, that is
17 the general program requirement.
is This part 122 contains, as I said, the definitions
19 applicable to these permit programs and such general
20 permit features as who needs a permit, who can be controlled
21 by rule rather than a permit, when you apply for a permit,
22 who needs to apply for a permit, grounds for modification,
23 how you write permits, what kinds of terms and conditions
24 are incorporated in the permit.
25 Each of the three environmental statutes that we
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1 are working with, the Clean Air Act, the Resource
2 Conservation and Recovery Act and the Safe Drinking
3 Water Act, clearly favors state administration of all
4 these programs, and directs EPA to promulgate regula-
5 tions setting forth minimum requirements for state
6 programs.
7 These minimum requirements for state programs
s are found in part 123. Again, it is structured somewhat
9 the same as the part 122 regulations I have just describee
10 subpart (a) contains the general requirements applicable
11 to all four programs, again 404, UIC, Hazardous Waste and
MIC -I,,-
12 NPDES. Subpart (b), Hazardous Waste, subpart (c), NPDES,
13 and 123, in addition, contains a subpart (e) which governs
14 additional requirements for state 404 programs.
15 • Now, since EPA is not in the business of
16 issuing 404 permits, we don't have any requirements for
17 an EPA program in that regard. But EPA does have the
is duty to promulgate regulations for the state 404 programs
19 and for making decisions with respect to state 404 programs
20 States which desire to take over the permitting authority
21 from the Corps of Engineers can administer a 404 program.
22 That authority can only be delegated with respect to
23 certain waters within the state, and basically the Corps
24 will, in all instances, retain jurisdiction over what might
25 be called traditionally navigable waters, your main water-
IRWIN 8. ASSOCIATES, CSR'S - Court Reporters • 423-7881 Seattle, Washington _•
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1 ways in the state and the associated wetlands with those
2 waterways.
3 The state can be delegated authority for all
4 other waters of the state for dredge and fill permitting.
5
7
The permit processing requirements for the
state 404 program, rather than being put in 122 were put
in 123. Those of you familiar with the background, these
8 previously were going to be the part 126 regulations.
9 Most of the operational aspects of state
10 programs, in other words who needs a permit, how do you
11 modify a permit and the basic processing requirements for
12 permits, rather than duplicating them in 123, we have
13 incorporated them in 123 by reference from the other
14 parts, so a section of 122 saying who needs to apply for
15 a permit, for example, to the extent that that section
16 is applicable to state?programs which have received
17 primacy, it is cross-referenced and not repeated in 123.
18 Therefore, most of the 123 requirements relate to the
19 approval process for state programs, that is an approvable
20 program,
21 I might add with respect to 122 and 124, you
22 should be, for the most part, be able to read those
23 parts and understand from the context which sections
24 are applicable to state programs and which are not.
25 However, if there is any doubt, 123 should be checked to
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1 see if there is an appropriate cross-reference.
2 Finally, the third part is 124. This deals
3 with procedural permit processing type requirements,
4 administrative appeals, permit decisions and these sorts
5 of requirements. It does not always, in all instances,
6 set out a clear cut view of what is in 122 and 123. Some
7 of them are judgment calls. If you have any comments
8 along those lines, we welcome them, of course. But 124
9 basically deals with due process. A number of these are
10 imposed on state programs by cross-reference from 123.
11 The 124 requirements that are applicable to
12 state programs deal with some of the permit processing
13 procedures. The administrative appeals process is not
14 applicable to state programs, it is merely an EPA appeals
15 process. The state normally has some kind of administrative
16 appeal process of their own under state law.
17 Now, these regulations are basically a permitting
is program regulation. We have tried to make them consistent
19 with respect to how to process a permit so that where
20 appropriate we could process permits along one track.
21 In reality at the end of the process, you
22 probably would come out, if you consolidated applications,
23 you would come out with separate permits. It is not,
24 in a legal sense, one permit. It will be separate permits
25 However, we feel by making it consistent we can certainly
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n have one process, hold -one hearing. We are encouraging
2 the states to join in with us, where they are issuing
3 the NPDES permits and we are issuing a UIC permit, where
4 we can hold a hearing to consider all this.
5 The technical requirements for each of the
6 . programs are contained elsewhere in Title 40 of the
7 Federal Code of Regulations. Basically the effluent
8 guidelines for the NPDES program are in Subchapter N.
9 The technical requirements for the 404 progarm are in
10 part 230, And those of you who were here yesterday
11 know that the technical requirements for the UIC program
12 are in part 146.
13 With just a brief note with respect to the NPDES
14 program, those of you that follow that program know that
15 a week before the consolidated regs were proposed we
j- "• i
X*J«Vlt V- •"> \
16 weren *-t—finished with the revised NPDES regulations.
17 What we have done is we have taken those and incorporated
is them without change into the consolidated regulations,
19 so there are no substantive differences. There are a
20 few minor differences that we had to make just to insure
21 consistency. We will have a question and answer period
22 at the end of this hearing, if time permits, and any
23 questions along those lines will be fielded then. It is
24 not really worth mentioning the slight differences at this
25 point.
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1 We will, of course, as with anything that is
2 proposed, we will accept further comment on the NPDES
3 regulations where it is appropriate. However, we have
4 been through most of the issues very thoroughly in the
5 last round of comments, so unless someone raises something
6 new, we don't really expect to be making any major changes
7 to the NPDES program regulations.
8 I would like to just get into some of the issues
9 we would like to receive comment on. These are the ones
10 that we are interested in hearing comments on. Clearly
11 you are free to comment on any aspect of the proposed
12 regulation, and just quickly these are the duration of
13 permit1, and that's in 122.8 and .9. having some sort
14 of system where the duration of permits is consolidated,
15 facilitates consolidation.
16 There was, kind of a controversy within the
17 agency on this, there still is, I am sure, somewhat of
is a difference of opinion. The NPDES and 404 programs are
19 required by statute to have limited permit duration of
20 no more than five years.
21 For the Hazardous Waste and UIC program the
22 decision was made to have permits issued for the life of
23 the facility. In order to insure that some of the benefitjs
24 of consolidation occur with respect to a coordinated
25 review process, we are asking in the proposal that permits
IRWIN & ASSOCIATES, CSR'S - Court Reporters 623-7881 - Seattle, Washington
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1 be reviewed at the same time and that RCHA and UIC
2 permits be reviewed at least every five years. And
3 we would like comment on that.
4 Of course, we would like coroment on any aspect
5 of the states' program. Perhaps the most controversial
6 aspect of the state program regulations are the reguire-
7 ments for state enforcement programs.
8 What we are asking for is that the states have
9 the same basic enforcement tools as are available to EPA
10 under the various statutes.
11 Now, of course, EPA enforcement tools vary from
12 statute to statute. We are asking that the states have
13 at least the same enforcement tools as EPA, both civil,
14 criminal and injunctive relief with the same fine levels
15 and-with no greater burden of proof to establish the
16 violation.
n Many states may feel this prevents them, and
is if that is the case in a particular state, we would like
19 to know what the enforcement options are available to that
20 state and any further description of the nature of the
21 problem.
22 One other aspect I described that we would like
23 comment on is the structure of the regs. Some people find
24 this confusing, and I can't argue with that. It is an
\
25 attempt to delicately balance the unique aspects of these
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1 programs while at the same time trying to come up with j
I
2 a general requirement for the program.. Any continents j
3 on how we have structured the regs ars, of course, welcome
4 Any suggestions on how we may make it easier for people
5 who are interested in only one program to get access to
6 the requirements for that program would also be appreciate|d
7 For example, we are considering reprinting some
s of the regulations in separate reprints for each program
9 so someone who is only interested in the 404 program
10 requirements could get a reprint of the regulations which
11 contains only the 404 portions.
12 I think that's about it. Some of the procedural
13 aspects of the state programs, the need for draft permits
14 under each of the programs, the need for fact sheets and
13 statements of basics, especially with respect to these
16 requirements being imposed on state programs, we would
17 also like to see comments on that, and we would also like
•
is to see comments on EPA's appeal process and public
19 hearing process, particulary with respect to the adminis-
20 trative appeals under the UIC and RCRA programs.
21 Basically what we have done there is we have
22 tried to take a new approach to these administrative
23 appeals, tried to simplify it. We feel in the NPDES
24 program the administrative appeals process perhaps got
25 a little bit out of hand, too many administrative appeals,
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i too complicated a system for dealing with administrative
2 appeals. We would like to simplify that. We have sat
3 forth a simplified process and we would like to hear
4 comments on that. Of course, with NPDES program there
5 has been enough litigation on those requirements that
6 we are pretty much stuck with them, but any further
7 comment on those requirements would be appreciated.
s Comments should be directed to Ed Kramer in
9 the Office of Water Enforcement. His mail stop is EN336.
10 His name and address is contained in the regulations,
11 and that's Waterside Mall, EPA, Washington, D.C., 20460.
12 Ed's phone number, if you have any further questions,
13 is (202)755-0750.
14 That's it for me.
15 • MR. LEVIN: Thank you, David.
16 Just one word. There are shortened guides to
17 each part of the regulations that you can find on the
is back desk with beautifully attractive covers in case some
19 of you do not wish to read the Federal Register.
20 I would like to now introduce my panel.
21 Seated to my far right is Dr. Edwin Coate,
22 Deputy Regional Administrator, EPA Region 10 here in
23 Seattle.
24 Next to Dr. Coate is Miss Frances Peterson,
25 State Programs Coordinator, 404 Section, EPA, Washington.
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1 Immediately on my right is Dr. John Skinner,
2 Director, State Programs and Resource Recovery Division,
3 Office of Solid Waste, EPA, Washington.
4 On my far left is Ms. Fanny Kncx, environmental
5 chemist, Permits Division, Office of Enforcement, EPA,
6 Washington.
7 Seated to Ms. Knox is Mr. David Schnapf whom
s you have already met. He is an attorney with the Permits
9 Division, Office of Enforcement, EPA, Washington.
10 And seated at my immediate left is Mr. Sam
11 Morekas, Manager, Hazardous Waste State Program, State
12 Programs"and Resource Recovery Division, Office of
13 Solid Waste, EPA, Washington.
14 We have several of our regional people seated
15 at the table to my far right, and I would appreciate it
16 if they would stand up and introduce themselves one by
17 one.
is MR. GEREN: Harold Geren, Chief of Permits,
19 Enforcement Division, Region 10.
20 MR. SCOTT: Harold Scott, Coordinator for
21 Underground Injection Control, EPA, Region 10. I work
22 in the ground water program under the Safe Drinking Water
23 Act.
24 MR. FINGER: Ken Finger, Chief, Waste Management
25 Branch, Region 10.
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1 MR. LEVIN: Thank you.
2 Just a few ground rules that we need to cover
3 for today's hearing. First of all there will be an
4 evening session this evening to cover both the Undergroun
5 Injection Control Program regulations, part 146, and the
6 Consolidated Permit regulations and Consolidated Permit
7 Application form. Registration for that public hearing
s will be from seven to seven-thirty and the public hearing
9 will begin at 7:30 p.m.
10 John just reminded as of the moment no one
11 has signed up for the evening session; however, we will
12 be here from 7 to 7:30 and for as long as we have1 to,
13 so there is still ample opportunity.
14 Comments received at this hearing and the
15 other hearings which have been held, and thus far there
16 have been hearings held in Dallas, Texas; Washington, D.C.
n Chicago; and this is the fourth hearing here in Seattle.
is There is a fifth hearing scheduled in Denver, Colorado
19 on August 28th, 29th and 30th. That will be the final
20 hearing on all sets of regulations.
21 Comments received at those hearings, along with
22 comment letters received will be part of the official
23 docket in this rule making process.
24 The comment period closes on September 12, 1979.
25 The docket or public record may be seen during
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1 normal working hours in Room 1045S, Waterside Mall,
2 401 M Street S.W., Washington, D.C.
3 We expect transcripts of each hearing within
4 about two weeks of the close of the hearing. Transcripts
5 will be available for reading at any of the EPA regional
6 office libraries. A list of these locations is available
7 at the registration table.
8 Some rules of conduct concerning the hearing.
9 First of all, the focus of the public hearing is on the
10 public's response to a regulatory proposal of an agency.
11 The purpose of the hearing is to solicit commentjs
12 on the proposed parts 122, 123, 124, consolidated permit
13 regulations and the consolidated permit application.
14 Comments directed to the proposed consolidated
15 regulations, part 146, state program requirements for
16 UIC programs, will not be taken today. If you have any
17 comments on part 146, you will have to sign up for this
18 evening. This hearing concerns only parts 122, 123 and
19 124 and the consolidated permit application.
20 If you are interested in making a statement, and
2.1 you have not signed up, please sign up at the desk, the
22 registration desk outside.
23 This hearing is being held not primarily to
24 inform the public nor to define the proposed regulations,
25 but rather to obtain the public's response to these
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i reproposed regulations and thereafter revise them as
2 may seem appropriate.
3 All major substantive comments made at this
4 hearing, and others received throughout the comment
5 period, will be addressed during the preparation of
6 the final regulation. The agency's response to comments
7 made by the public will be published as part of the
s preamble to the final regulation.
9 These are national hearings so there is no
10 need to make comments more than once. Written comments
n will be given as much weight as oral comments.
i'2 This is not a formal adjudicatory hearing
13 with the right to cross examination. Members of the
14 public are to present their views on the -awproposed
13 regulation to the panel, and the panel may ask questions
16 of the individuals presenting statements to clarify any
17 ambiguities in their presentations. However, the speaker
is is under no obligation to answer questions of a broader
19 nature beyond this. Although within the spirit of this
20 information sharing hearing, it would be of great assist-
21 ance to the agency if questions were permitted.
22 I will ask each speaker when he comes up to the
23 podium if you will respond to questions. We will not
24 entertain questions from the floor; however, if there is
25 sufficient time remaining at the end of the day, we will
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i go off the record and entertain factual questions that
2 any person in the audience might have.
3 There are three by five cards available for
4 this purpose. Oftentimes these sessions have involved
5 more than just questions and answers, and the person
6 asking the question has really made a statement. If you
i. f
7 do have a statement to make on the regulations, we would
a appreciate it if you would make that statement as part
9 of the record either today or in writing during the
10 comment period. But when we go off the record this
11 afternoon, we would need to limit your questions to
12 factual questions concerning the regulations, which the
13 panel will be happy to answer.
14 Due to time limitations, and we have them this
15 morning, the Chairman reserves the right to limit
16 lengthy questions, discussions or statements.
17 Those that have a prepared statement to make
is orally, please limit it to a maximum of 10 minutes.
19 If possible, try to summarize your statement rather than
20 read it. Unlike yesterday, we do have a great number
21 of speakers today, and so please limit it to 10 minutes.
22 I would also ask our panel to limit their
23 questioning to 10 minutes. And if there is a clear
24 misinterpretation of the regulations by one of the
25 speakers, the panel may correct that misinterpretation.
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1 However, I would ask the panel to refrain from the
2 temptation of lengthy editorializing.
3 If you wish to submit a written, rather than
4 oral statement, please make sure the hearing coordinator
5 Judy Staffer, has a copy. Written statements will be
6 included in their entirety in the record.
7 Persons wishing to make an oral statement who
8 have not made an advance request, if you have not
9 indicated your intent to give a statement at either
10 today's hearing on parts 122, 123, 124 or tonight or
11 tomorrow's hearing, and you decide to do so, please
12 return to the registration table and fill out a card.
.13 As we call upon an individual to make a
14 statement, he or she should come up to the lectern,
15 and'I would prefer it if they would speak from the back
16 podium, identify yourself to the court reporter and
17 deliver his or her statement.
is If you have a written statement that you will
19 be reading, will you please give it to the court reporter
20 in advance so he can follow it.
21 We will break for lunch at about 12 o'clock
22 and reconvene at 1:30. Then, depending on our progress,
23 we may go off the record or we may have to continue for
24 the rest of the day.
25 Phone calls will be posted on the registration
IRWIN & ASSOCIATES, CSR's - Court Reporters 623-7881 Seattle, Washington
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i table at the entrance, and restrooms are located outsids.
2 I have been asked by our regional folks that:
3 if you need to make long distance calls that you use
4 your credit card.
5 If you wish to be added to our mailing list
6 for future regulations or .other material, please leave
7 your business card or name and address on a three by
s five card at the registration desk.
9 I will now read the names of the people that
10 i have who will be speaking in the order that I will
11 be calling on them. If there is any error or oversight
12 please let someone at the registration know.
13 The first speaker will be Mr. Herb Streuli,
14 President of the Washington State Farm Bureau, Olympia,
15 Washington.
16 The next group of individuals are all members
17 of the Washington Farm Bureau, so I will read their
is names s Mr. Robert Jones, Ms. Linda Zander, Mr. Walt
19 DeJong, Mr. Glen Aldrich, Mr. Paul Sabin.
20 Then Mr. Wesley R. Higbie, Staff Attorney,
21 Western Timber Association, San Francisco, California.
22 Mr. Dennis L. Cox, Southern California Edison
23 Company, Rosemead, California.
24 Mr. John Dohrman, Port of Seattle, Seattle,
25 Washington.
IRWIN & ASSOCIATES, CSR's - Court Reporters - 623-7881 - Seattle, Washington
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1 Mr. Don Lae Fraser, Consultant for State of
2 Washington Department of Natural Resources, Olympia,
3 Washington.
4 Mr. Jack Winn, President, National Association
5 /of Consulting Foresters, Tumwater, Washington.
6 Mr. Kelly Niemi, State Farm Forestry Association
7 Castle Rock, Washington.
s Mr. David B. Weinberg, Counsel for Utility
9 Solid Waste Activities Group, Washington, D.C.
10 Mr. Neil Skill, Oregon State Forestry Department
11 Salem, Oregon.
12 Mr. Wayne Meek, Simpson Timber Company, Seattle,
13 Washington.
i4 Mr. James D. Linxwiler, Sohio Petroleum Company,
13 Anchorage, Alaska.
16 Richard Kosesan, Oregon Farm Bureau, Salem,
17 Oregon.
is C. B. Stevens, Combustion Equipment Associates,
19 Seattle, Washington.
20 Before we begin our list of speakers I have
21 been asked to read a statement into the record that
22 arrived by mail. It is a brief statement, so I will
23 read it. It is from the Umatilla County Board of
24 Commissioners, Pendleton, Oregon, and it is addressed to
25 Sally Hanft, Environmental Protection Agency, Region 10,
IRWIN & ASSOCIATES, CSR'S - Court Reporters 423-7881 Seattle, Washington
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i 1200 Sixth Avenue, Seattle, Washington, 98101.
2 "Dear Peoples:
3 "We would like to have this letter presented
4 as our testimony in the hearing of EPA in Seattle on
5 July 30 - August 1 concerning proposed consolidation
6 regulations for a variety of permit programs:
7 "1. In rural areas this can be a tremendous
8 help to the people seeking permits, as they would only hav|e
9 to deal with one segment of the agency.
10 "2. This will save EPA large sums of money
11 as consolidation will simplify the whole process.
12 "3. A one permit system simplifies the program.
13 "We are happy to see that EPA recognizes the
14 cumbersome red tape in the present program and are taking
15 steps to eliminate red tape."
16 "Very truly yours, Umatilla County Board of
17 Commissioners,11 and it is signed by F, K. Starrett,
is A. L. Draper and Ford Robertson.
19 And I can vow to you that no member of the panel
20 wrote that letter.
21 We will now begin our formal testimony with
22 Mr. Herb Streuli, President of the Washington Farm
23 Bureau, Olympia, Washington.
24 Welcome, Mr. Streuli, and will you answer
25 questions from the panel at the completion of your statement?
IRWIN & ASSOCIATES, CSR'S Court Reporters - 423-7881 - Seattle, Washington
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1 MR. STREUL1: Yes.
I am Herb Streuli. I am presently the President'
3 of the Washington State Farm Bureau. I operate a 200-cow
4 dairy farm here in King County at 2001 S.E. 136th Street,
3 Enumclaw. And my comments will be general in nature and
6 quite brief because I have others with me today who will
7 be testifying on individual concerns.
8 I appreciate the efforts of the EPA to try to
9 simplify the permit process. However, the information
10 that we have at the present, and the 170-page instructions
11 indicates to us that you haven't totally succeeded, and
12 it has created frustration and confusion and discouragemen
13 on the part of our members on the possible use of these
14 consolidation permits.
15 • Farmers are conservationists by nature. We are
16 just as concerned, if not more so than anyone else, in
17 conservation, because we are totally dependent on soil
18 and water conservation.
19 We are also busy people. We do not retain
20 legal staffs to sort out the multitude of regulations that
21 are being presented to us, and for that reason, hopefully,
22 that perhaps a consolidated permit for agriculture could
23 be developed. And from that it would appear that it would
24 be more practical for those of us that would be affected
25 by these regulations and also be more practical for those
^ IRW1N & ASSOCIATES, CSR'S • Court Reporters - 623-7881 Seattle, Washington
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i within EPA that are responsible for reviewing those
2 applications.
3 Generally that is my concern at this point.
4 We will be presenting a more detailed written testimony
5 following this hearing, because some of the information
6 that we had been seeking was not available until today,
7 and from that information and the information that we
8 will gain from this hearing, we will be submitting a
9 more detailed report.
10 Thank you.
n MR. LEVIN: Thank you Mr. Streuli.
12 Do we have questions from members of the panel?
13 (No audible response.)
14 MR. LEVIN: If not, we will proceed to our
15 next speaker, Mr. Robert Jones, member of the Washington
16 Farm Bureau.
17 MR. JONES: My name is Robert Jones. I farm
is in Yakima County, Washington, east of the mountains.
19 I operate a 140 acre irrigated farm. My testimony will
20 be short.
21 Your proposal is entirely too hard for the
22 average farmer and also too complicated for the average
23 farmer to understand and to comply with. We need a
24 consolidated permit specifically for agriculture. It
25 needs to be separated from the other things. We need a
IRWIN & ASSOCIATES, CSR'S - Court Reporters 623-7881 - Seattle. Washington
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i regulation for agriculture to be separated from the
2 other regulations so that the average farmer doesn't
3 have to read through 170 pages of published government
4 regulations to try to find out what he may have to comply
5 with.
6 Putting a complex, new program in the middle
7 of 170 pages and then expecting us to run it down is very
s hard to do. I have neither the time or desire to rummage
9 through 170 pages of government regulations to try to
10 find out what 1 might be subject to. We also need people
11 in EPA with an agricultural background to review agri-
12 cultural permit applications so that they understand what
13 these are all about. And we need a simplified applicatior
14 form for agriculture.
15 Thank you.
16 MR. LEVIN: Thank you Mr. Jones. Will you answe
17 questions from the panel?
is MR. JONES: In view of the fact that I have not
19 been able to read the entire 170 pages, I respectfully
20 decline.
21 MR. LEVIN: Thank you, sir.
22 Ms. Linda Zander, member of the Washington Farm
23 Bureau.
24 MS. ZANDER: Thank you.
i
!
25 MR. LEVIN: Ms. Zander, will you answer question
.£• \
IRWIN & ASSOCIATES, CSR'S - Court Reporters - 623-7881 • Seattle, Washington -
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1 MS. ZANDER: I will answer to the best of
2 my ability.
3 MR. LEVIN: Thank you. May we have your state-
4 ment, please.
5 MS. ZANDER: Mr. Chairman, members of the
6 committee, I am Linda Zander, 2003 Blackburn Road, Linden,
7 Washington. I am President of the Whatcom County Farm
s Bureau.
9 My husband and I are dairy farmers and our count
10 Whatcom County, is the largest dairy county, and the second
n largest beef county in the state of Washington.
12 Under your section*goals', I would like to quote
13 Webster's dictionary definition on consolidate: "To unite
H or press into a compact mass."
15 • I would suggest to you that the proposed regula-
16 tions, from a farmer's viewpoint of the EPA draft, is
17 not mass but mess.
is Under 34347Ngoal; to reduce paperwork burden
19 resource burdens upon EPA and state officials.
20 How can you reduce paperwork for the farmer if
21 we must read 170 pages of print so legalized that we can't
22 understand it? How can you expect us to comply with your
23 regulations if they are subject to various interpretations
24 depending on who does the interpretation?
25 Your goals of reducing burdens on EPA and state
IRWIN & ASSOCIATES, CSR's Court Reporters - 423-7881 Seattle, Washington
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i officials will work well to insure that the $13 billion
2 our farmers and consumers now pay for bureaucratic
3 regulations which provide our consumers with nothing but
4 higher prices, double within five years. This all in the
5 name, gentlemen, of reducing paperwork burdens on fanners,
6 EPA and state officials.
7 Dc$ the persons who wrote these regulations
8 graduate from high school?
9 Under Section Three you wish to insure that
10 applicants consider and report at a single time.
11 Ladies and gentlemen, I want to assure you that
12 by your definition you have roost assuredly written in that
13 we will report. We will be required to farm by permit. .
14 I want to bring in something here, and in doing so, voice
15 strong objections to the National Discharge Elimination
16 System definition of animal feeding lots. And I hope
17 if the media is here, I hope you are listening loud and
is clear out there.
19 In the Federal Register notice, Section 12242 of
20 the proposed rules defining animal feeding operations as
21 a facility where animals have been, are or will be confined
22 and fed or maintained for a total of 45 days or more in
23 any 12-month period, and too, crops, vegetation, are not
24 sustained in the normal growing season over any portion
25 of the lot or facility.
. " IRWIN S. ASSOCIATES, CSR's Court Reporters 423-7881 Seattle, Washington
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1
1 In fact, ladies and gentlemen, this means that
2 we will be required to have an NPDES or general permit
3 for every barn, chicken house, cattle shed, and under
4 strict interpretation, our dog houses. Think of that.
5 Dog houses by permit.
6 I can only hope that you people are really
7 listening to the ferming community. EPA had originally
s intended to exempt our farmers. You are not doing too
9 good a job of it.
10 Under Section Three, with your definition of
11 animal feeding operations and navigable waters, you
12 assure that farmers are required to farm by permit, and
13 that you have jurisdiction on the U.S. as a whole,
14 especially since you have defined navigable waters as
15 all-ground and surface waters.
16 Webster's dictionary says a large body of water
17 in which a large vessel can navigate down that body of
is water. Is that vessel the EPA?
19 As you are aware, this definition of navigable
20 waters covers ground and surface waters is already being
21 challenged in court. The American Farm Bureau has taken
22 the Corps of Engineers to court on this issue, and I am
23 sure that we will soon be hearing as to whether you aro
24 going to get away with it or not.
25 Your statement that EPA's effort is limited, that
IRWIN & ASSOCIATES, CSR's Court Reporters • 623-7881 Seattle, Washington
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you are minimizing and consolidating the permit procass>
and that your forms are understandable is ludicrous.
Under Section Two, general form, under the
general form requirement first you require a preliminary
form, then this can be the beginning of many forms,
but only if we answer yes. What if we answer no? I am
7 not so sure I understand that form. What if we answer
8 no? Does this mean we don't farm?
9 What you have written earlier in the Federal
10 Register means farming by permit. And by your proposed
11 mass — I mean mess — we will be unable to comply.
12 Under Section Three in Hazardous Waste form,
13 -the inclusion of manure, ladies and gentlemen, as a
14 hazardous waste is in farm terminology B.S.
15 ' The fact that you require permits for animal
16 feeding operations, dredge and fill permits of which some
17 50,000 to one-half million farmers will qualify, and the
18 regulation for permits concerning disposal of 220 pounds
19 of manure is one I am sure that the farming community will
20 rise up en masse against. We cannot comply with regula-
21 tions that are hazardous to our health and our environment
22 and our farm operations.
23 Why don't you have a short permit for farmers,
24 twelve words or less. Two lines: Our address and our
25 name, nothing more.
IRWIN & ASSOCIATES, CSR's - Court Reporters 623-7881 Seattle, Washington
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1 Would you jeopardize the only industry in the
2 U.S. that is helping the trade deficit; the only industry
3 that is keeping'this country solvent with a federal
4 government deficit spending?
5 Problems with manure can be soil conservation
6 problems, locally controlled using the soil conservation
7 district guidelines. We don't need big daddy with a
s big stick and deficit dollars, bureaucrats and red tape
9 to help us solve local problems. I find myself wondering
10 if EPA is building a vast empire so great that it becomes
11 a government in itself.
12 The local planning of 208 will be obstructed.
13 It is contrary to congressional intent. Our Whatcom
H County Farm Bureau on the NPDES permit regulations in
15 Everett, at that time we were advised by legal help that
16 in no way could a farmer comply as it was written. This
17 new version is even worse.
is As a farmer, my husband and I put in some 12 to
19 14 hours a day, and at the end of the day you expect the
20 farmer to read those 170 pages and fill out a form he can1
21 understand and that is not written for agriculture, regu-
22 lations that are completely subject to interpretation?
23 You have published with this proposed consolidated draft,
24 gentlemen, a new Judge Boldt for Washington State and the
25 United States as a whole.
. IRWIN & ASSOCIATES, CSR'S - Court Reporters 623-7881 Seattle, Washington
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i I also have some questions concerning the 404
2 dredge and fill regulations. Why, gentlemen, why are you
3 including it in with this particular proposal when any
4 other time you have always separated these new regulations
5 so we would have benefit of giving testimony on our con-
6 cerns?
7 You have not allowed it in this particular draft
s This proposed draft rapes our farms, our land, our
9 environment and our fanners. Farmers have a deep and
10 abiding interest in soil environment management of their
n land, and it is to their concern that we are before you
12 today. What we need is a legal requirement for EPA to
13 do an in-depth, economic and environmental study on every
14 proposed regulation that they propose.
15 . And if your regulations cause economic harm
16 or environmental problems with lack of common sense in
17 the farming community you should be fined and the heads
is should roll in the EPA.
19 How can we possibly comply with these proposed
-20 regulations if we must read, again, 170 pages?
21 I don't understand this mess. I got this docu-
22 ment on Thursday, I have gotten to about page four. You
23 are proposing regional jurisdiction and I question it.
24 You are forcing our states to comply with federal EPA
25 draft regulations. Where is our states' rights? Why isn1
___________ IRWIN & ASSOCIATES, CSR's Court Reporters • 623-7881 Seattle, Washington
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i there a pamphlet to help us understand the rules for
2 agriculture?
3 • In trying to get a copy for these, each of
4 these seven pamphlets, C-l through C-7, I found none for
5 agriculture. This nation's largest industry receives no
6 help from EPA. It would appear that EPA's information
7 system is doing a poor job of informing the public.
8 I also have some additional concerns, and that
9 was the concern as to why agriculture has been placed with
10 industry? Why have we not been separated? You ay this
11 is a modest permit process. Do you really think that
12 170 pages of regulations with state enforcement and
13 federal enforcement is modest?
14 Earlier you commented on your enforcement of thejse
15 regulations, and I would like to challenge you as to
16 your legislative authority that has been given either
17 the Department of Ecology or EPA for on-site inspection
is to determine the validity of complaints that might come
19 intoysu. You will be trespassing, if attempted, and
20 farmers should be quite willing to seek legal recourse
21 accordingly. Our farmers are innocent until proven guilty
22 We are environmentalists and we are conservationists and
23 we manage our land, gentlemen, or we don't make a living,
24 Thank you.
25 MR. LEVIN: Thank you, Ms. Zander. Any questions
^ IRWIN & ASSOCIATES, CSR'S • Court Reporters - 623-7881 Seattle, Washington
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from members of the panel?
2 MR. SCHNAPF: This is more in the way of one
3 clarification. I realize we have to keep this to a
4 minimum. But with respect to this concentrated animal
5 feeding operations requirement, just two points.
First of all, the regulations as proposed are
identical to the regulations that have been in existence
for, I would say, the last five years, and what they
9 require, they have a definition of an animal feeding
10 operation and then — but that is not the threshold
11 determination. You need a permit only if you are a
12 so-called "concentrated animal feeding operation."
13 This requires one, that there be no crops
produced anywhere on the facility, so that I think most
farmers raise some sort of crop on their land. The
16 extent that they do raise any crops on their land they
i? would not need an NPDES permit for any of their activities
is or animal feeding activities.
19 And in addition, there are some numbers which
20 are threshold requirements for permits, basically 700
21 dairy cattle in the case of a dairy farmer.
22 MS. ZANDER: I have two responses to you. Since
23 you are making a statement and not particularly a question
24 I still feel free to respond.
25 The definition in the Federal Register, as
IRWIN & ASSOCIATES, CSR's Court Reporters - 623-7881 - Seattle, Washington
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i was published under Section 122.42 stated "animals
2 have been, are, or will be confined and fed or maintained
3 for a total of 45 days or more in any 12-month period."
4 It does not necessarily state "or/and."
5 MR. SCHNAPF: And it says crops or vegetation
6 are not grown on the facility, and that's only the
7 definition of animal feeding operation and it does not
s require a permit unless you are a concentrated animal
9 feeding operation.
10 So, the threshold you have to go through before
11 you need a permit are such that almost any farmer who is
12 growing any kind of crops on their farm would not need
13 a permit.
14 You don't need a permit for your dog house.
15 • MS. ZANDER: So the householder that has a
16 family garden in his backyard is growing a crop and,
17 therefore, he fits all these criteria that you set up.
is He is growing a crop and he also has animals.
19 MR. SCHNAPP: If you are growing a crop that
20 means you are, the growing of the crop merely exempts you
21 from the permit requirement.
22 MS. ZANDER: We don't grow a crop. We are
23 dairy farmers. We pasture our land.
24 MR. LEVIN: If we could limit ourselves to
25 questions and answers. Are there any further questions
IRWIN & ASSOCIATES, CSR's • Court Reporters - 623-7881 Seattle, Washington
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i from members of the panel?
2 (No audible response.)
3 MR. LEVIN: If not, thank you very much.
4 MS. ZANDER: Thank you. For the record, I am
5 Mrs., not Ms.
6 MR. LEVIN: Mr. Walt DeJong.
7 (Pause)
a MR. LEVIN: Mr. DeJong, will you take questions
9 from the panel?
10 MR. DeJONG: Yes, I will.
11 MR. LEVIN: Thank you.
12 MR. DeJONG: Good morning, ladies and gentlemen,
13 honorable members of the panel. My name is Walter DeJong.
14 My address is 23430 Highbridge Road, Monroe, Washington.
15 I am the past President of the Snohomish County Farm
16 Bureau. My principle business is a dairy farmer. I farm
17 300 acres of flood plain land in Snohomish County.
is On reviewing the Federal Register, parts two
19 and three, I come to the conclusion that possibly the end
20 result would be regative to agriculture and ultimately
21 result in some higher costs to the consumer. I have a
22 couple of areas that I feel a special impact that I would
23 like to comment on.
24 They are of a vital concern to me personally.
25 One of them is the dredge and fill provisions of the
IRWIN 8. ASSOCIATES, CSR's - Court Reporters - 623-7881 Seattle, Washington
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i proposed regs.
2 First of all, I would like to say that I
3 certainly do endorse your concept of single-stop permit
4 .deal", except I have some difficulty in clarifying whether
5 or not this included some of the other permits that are
6 presently required. We will get into that on our dredge
7 and fill comments.
s On page 34318 of the Federal Register it appears
9 that the intent was to exempt all farming practices from
10 permit requirements. And I think that this intent is
11 goodr and I certainly support this exemption.
12 There was some question in my mind what
13 constituted normal farming practices, especially in a
14 unique area as Snohomish County.
15 • My partner and myself operate a dredging service
16 in Snohomish County. We do irrigation systems, and our
i? major clientele is almost all dairy farmers.
is As we move into this thing we find that a number
19 of permits are already necessary, a fisheries permit,
20 hydraulics permit, county permit and especially if you are
21 in the flood plain you have other requirements. And if
22 we are now to add another permit, then I think that we
23 are going backwards. But if this one stop permit would
24 in fact cover the present permits so that we would only
25 have to get one, that would include the fisheries, et cetsjra,
IRWIN & ASSOCIATES, CSR's Court Reporters - 623-7881 Seattle, Washington
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i then I ara sure it would be a step forward.
2 The other thing that I would like to mention
3 is that I feel in many areas, at least in the area that
4 I am acquainted with, the ditching, drainage and so on
5 of that land should be considered a normal operation,
6 farm operation and exempt from permit requirements.
7 I think you have got adequate protection so far
s as the farmer if he was going to go out and do something
9 wrong, probably doesn't have enough money to damage the
10 environment very much. And in most cases, he would be
n trying to improve his property, not damage it.
12 The point I am making is I don't think you have
13 to worry that he is going to go out and divert channels
14 and reroute the river, et cetera. The final implication
15 of that would not permit it. Ditching is normal, and I
16 think in our eastern Washington communities putting in
17 ditches and so on, they are irrigating instead of drainage
is but they are certainly a normal part of the practice.
19 And I would like to see that clarified a little better
20 in the language we are using.
21 The other thing I would like to comment on is
22 the impact of this on agriculture in some of our local
23 communities. For the past six months I have served as
24 Chairman of the Ad Hoc Advisory Committee to the County
25 Commissioners on Land Use Planning in Snohomish County.
. IRWIN & ASSOCIATES, CSR's - Court Reporters - 623-7881 Seattle, Washington
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i In that county, the Commissioners gave us a mandate to
2 come up with solutions to the dwindling agriculture in
3 Snohomish County. And the reason they did that was
4 because of the public pressure in that county saying
5 we need the farms, we need that activity for the environ-
6 ment. Those people in town that are primarily pushing
7 this think that without the agricultural greenbelt in
s and around these metropolitan areas the environment would
9 be substantially damaged, and they feel, I think, part
10 of it is that they would like to come out and look at it.
11 Others, feel it is necessary because of the oxygen exchange
12 and so on that is created by these greenbelt areas. And
13 the others argue that it is necessary to keep the price
14 of food down.
15 • Regardless of the intent or reasoning, I think
16 there is unanimity in the fact that we do have to preserve
17 agriculture in and around our metropolitan areas in order
is to enhance the quality of life to the ultimate.
19 I think if we are going to do that we have to
20 address the problems that can be unique to a certain
21 particular area, and I would like to talk about Snohomish
22 County. Eight percent of our agriculture in Snohomish
23 County lies in the flood plain with very limiting pro-
24 visions made by our hydraulics, by the Army Corps of
25 Engineers and by the EPA.
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1 And I think in some cases what the farmers are
2 attempting to do there overrides some negative effects
3 that we might have, and I would like to see the county,
4 the local county have some jurisdiction or some ability
5 to come in and exempt their agricultural community from
6 these permit requirements so long as they are operating
7 some type of a, say, overview or overlook procedures so
8 that the EPA and the American people can be sure that this
9 county isn't just flagrantly being exempt and doing things
10 wrong. That's not what I am proposing.
11 But I am saying that there are unique problems
t
12 in the county, and I think that the local control in that
13 particular county could better deal with the problem than
14 our big brother Sam.
15 • And I think if we could build in some type of
16 provisions for the county to take over — I notice that
17 you have those provisions for the state to do such, and
is I think I would like to see that extended to the county
19 level, at least where the counties are able to do that.
20 In conclusion, I would like to say that much
21 of the qualities of our present environment have been
22 brought about by agriculture. I see that in my experience
23 with the Ad Hoc Advisory Committee in Snohomish County,
24 especially why they wanted to preserve it was because
25 we had improved the environment. That's why people were
IRWIN & ASSOCIATES, CSR's Court Reporters - 623-7881 Seattle, Washington
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i so concerned about it. They would like to see continuing
2 improvement, but at least they want to see it continued,
3 what we have. And I am sure this can best be accomplished
4 by giving agriculture as much latitude and as much to say
5 about their own future as possible. I think it could
6 be easily happening where an admistrator might be over
7 zealous, he might have an excellent education or qualified
s but he could be detrimental to the overall agricultural
9 community if he didn't understand it properly.
10 I think that most of the farmers are probably
11 better judges of what has to be done to their particular
12 piece of property than the administrators that are hired.
13 And I appreciate the opportunity to testify
14 today. Thank you very much.
15 • MR. LEVIN: Thank you, Mr. DeJong. Any questions
16 from members of the panel?
17 (No audible response.)
is MR. LEVIN: Thank you very much.
19 The next speaker is Mr. Glenn Aldrich.
20 Mr. Aldrich, will you entertain questions?
21 MR. ALDRICH: Yes.
22 I am Glenn Aldrich, a farmer at Mossy Rock,
23 Washington. I am currently county President of Thurston
24 County Farm Bureau and will speak today not only on my
25 own behalf, but also on behalf of our county farm bureau.
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i I h,v."~ to insert, parenthetically within
2 my prepared speech, that I was prompted to do this. I
3 was willing to write this and take time from my harvest
4 of blueberries today to come and share with you my
5 opinion.
6 After, I think it was probably about page three
7 of part two, the information came to me in the mail, and
s I do make an attempt to read my mail, and I got about
9 that far, and now it made some reference to hazardous
10 material, maybe this thing applies to me. So I hunted
11 up the definition on hazardous materials and the first
12 thing I find in that was a cross reference to something
13 else.
14 Well, I don't have a library to go cross
15 referencing in, and as I will point out later, we are
16 production oriented. So I thought maybe I ought to
17 share with you how this is going to be accepted on the
is local level.
19 And 1 also remarked, I talked with a couple of
20 farmers yesterday in delivering my blueberries, and I was
21 telling them, well, I am going to get up at 3:30 in the
22 morning to go to Seattle and tell them what 1 think, and
23 .they said what's this about. And I tried to explain to
24 'them what it is about. And their reaction was pretty much
25 like what you have heard this morning. Kind of a short
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i laugh and a puzzled look, and a resignation, that the
2 government has done it to them again.
3 Anyhow, back to my writing here.
4 First, I'd like to remind you of the uniqueness
5 of the agricultural and forestry industry. Agriculture is
6 the number one industry in America. We produce basic
7 wealth upon which all sorts of services — and life, for
s that matter — depend. All totalled, agriculture is
9 great in America; but the individual businesses within
10 the total industry are small and numerous.
n For example, as an individual person, rather tha
12 taking a job in a bank, or teaching school, or as an
13 accountant or as a government employee, a person would
14 choose to farm and/or grow timber. Rather than invest
15 her- time in one of these other occupations she operates
16 a farm. Rather than invest her savings and stocks or
17 bonds or mutual funds or savings accounts, she borrows a
is pile of money and reinvests her own to gather together a
i
19 bunch of machinery and a piece of ground which we can
20 use to grow livestock or trees or_hay or corn or berries
21 or mint or one of the zillion other products we in America
22 produce to give us our bounty of quality, quantity and
23 variety.
24 Individually, we as farmers are, at once,
25 economist and salesperson; mechanic and machinery operator
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i tiller of the soil and environmentalist. Our operations
2 are complex and require large amounts of capital. It is
3 not unusual for an individual farmer/forester to have
4 half a million dollars invested.
5 We cannot callously ignore environmental
6 factors — after all, we make our living from the use
7 of our environment! We must be good stewards to protect
s our investment and have a viable business to sell when
9 we are ready to retire.
10 We must perform both the tasks of management
11 and operation. Generally we are not heavy employers,
12 but more often find a way to mechanize and produce more
13 with fewer people. We are more likely to be production
14 oriented rather than paperwork oriented.
15 - The point of all this is: The consolidated
16 permit with its 170 pages of instructions is more than
17 we can stand. I think you would likely find these 170
is pages to be ignored rather than used; argued in court;
19 or otherwise involving much time consuming and costly
20 hassling and then later on clarifying modification.
21 The approach as you propose it is like asking
22 you, as an individual, to dig through all the instructions
23 for income tax reporting — not only those which pertain
24 to you as an individual, but also those which apply to all
i
25 other kinds of taxpayers.
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i My recommendation is that the EPA devise
2 a simple basic form of general information which would
3 apply to all applicants and to accompany that with
4 specific forms involving simple and specific instructions
5 for specific kinds of applicants. I do not recommend
6 that farming and forestry be segregated, but rather that
7 they be kept together. The logic here being that the
8 main difference between fanning and forestry is the
9 size of the crop and the length of that crop's rotation.
10 More exactly, I recommend that agriculture be given a
n separate form and uncomplicated instructions to use and
12 that EPA use administrators in the reviewing and approving
13 process who are knowledgeable in the specific problems
i4 of farming and forestry.
15 Thank you for this opportunity to hear my views.
16 MR. LEVIN: Thank you Mr. Aldrich.
17 Questions from the panel?
is MR. SCENAPF: Your analogy to the Internal
19 Revenue Code I thought was a good starting point in terms
20 of how do we get the word out to the farmers?
21 In other words, when the IRS promulgates
22 regulations and they have books and books of regulations
23 on the Internal Revenue Code, and I am sure they send
24 you copies of the regulations and you could wade through
25 them and figure out which applied to farming activities,
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i but in reality very few taxpayers have read any of the
2 IRS regulations and they rely on other mechanisms to
3 understand what is required of them. We have to explore
4 the idea of other mechanisms to get the word out in terms
5 of what is required on farmers.
6 One suggestion we have heard is a separate
7 pamphlet for the farmers. I think that is a very good
s idea, and I think it is something we may very well pursue.
9 Do you have any other thoughts on how to get
10 the word out to the community so you needn't go through
11 the regulations at all?
12 MR. ALDRICH: One thought right off the top of
13 my head, and I was looking at this material, is that we
14 have the mechanism already working in the Agricultural
15 Extension Service and that is their business of getting
16 the information to agricultural people. You know, that
17 might be a way of getting the news out.
is MR. SCHNAPF: If you or any of the other people
19 have any further thoughts along those lines, we would be
20 very interested in hearing them. I think it is somewhat
21 difficult to expect someone as busy as you to wade through
22 a set of regulations.
23 Thank you.
24 MR. LEVIN: Any other questions?
25 MS. PETERSEN: At headquarters the 404 program
IRWIN & ASSOCIATES, CSR's - Court Reporters 423-7881 Seattle, Washington
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i we have begun to talk to the USDA and the Extension
2 Service people and they are willing to begin to
3 distribute some of our materials.
4 MR. ALDRICH: They may also be interested in
5 helping you rewrite it. They have a long, long history
6 communicating with agricultural people.
7 MS. PETERSEN: One recommendation a person in
a Chicago had was that we develop an article or talk to
9 some of the people from some of the farming magazines,
10 and any suggestions that you might have along those lines
11 as to who we might contact would be appreciated. I think
12 that's a pretty good idea. Do you agree?
13 MR. ALDRICH: Yes, I think so. And just a quick
14 remark in that regard. Your agricultural magazines, I
15 think over the last recent years, have become fairly
16 specialized. There are a few general ones, of course,
17 but you probably ought to start at their organizational
is level and work from there down, taking their advice as
19 to the best way of getting to the agricultural community.
20 MR. LEVIN: Any other questions?
21 (No audible response.)
22 MR. LEVIN: Thank you, Mr. Aldrich.
23 Mr. Paul Sabin.
24 Will you entertain questions, Mr. Sabin?
25 MR. SABIN: Yes, I will.
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1 MR. LEVIN: Thank you.
2 MR. SABIN: My name is Paul Sabin, I reside
3 in Central Washington. I farm in two different areas
4 with my family, three sons, and we operate between eight
5 and 900 acres, most of it is irrigated, and about half
6 of it being owned.
7 I appreciate the opportunity to come here and
8 testify. This is my first experience testifying at any
9 hearing, and these are my own thoughts and I am just
10 strong enough to stick to my own thoughts.
11 First of all, I haven't had an opportunity to
12 digest all of the 170 some pages of material, but going
*3 through it in the short time 1 had these are the thoughts
w 1 had on it.
15 • I am speaking in opposition of the idea of tryin|g
16 to bring all of agriculture under one comprehensive and
17 inclusive set of regulations covering this private
18 enterprise. It is too complicated and it is not practical
!9 The question I have, one of them is: Who is
20 to say whether an assigned staff person reviewing these
21 forms is even qualified in any certain area, let alone
22 covering several different areas?
23 And I think this is a difficult example of
24 appointed bureaucrats and kingdom builders stifling
25 private enterprise and business by cranking out mountains
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i of paperwork and regulations. And all too often, and '
2 I say this from experience, all too often having very
3 little, if any, working knowledge in their assigned area
4 of authority.
5 Burying this 404 program in the middle of this
6 large packet of other regulations, I think, is completely
7 irresponsible and it looks like to me a deliberate cover-
s up. This is not a good way to establish credibility with
9 the public. And I think things like this adds to the
10 further distress of governmental agencies.
11 And this 404, as far as 1 could determine, it
12 is not spelled out clearly, and my past experiences show
13 to me that often oral statements differs drastically
14 with what is written in paper.
15 • I also believe that if the people making up
16 these forms had an understanding of agriculture, the
17 forms would be much simpler and changed drastically.
is I recognize the fact that our environment needs
19 protection, but big daddy government coming to me and
20 telling me how to run my operation is not practical. Sincje
21 there are so many variables in agriculture and I don't
22 think very many people recognize and know this and under-
23 stand it, the different variables that we have. Each
24 area within the state has things that are peculiar to its
25 own, and any regulations that are to be administered
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i should be administered by people at the local level, by
2 peopla who have a working knowledge of that particular
3 business.
4 I was going to comment on 125.1, but then we
5 were instructed not to.
6 Good water and air is necessary for the productin
7 of food and fiber, and I, along with my family enjoy a
s good environment, but extreme environmentalists have got
9 to back off and have got to apply some common sense, and
10 this has got to be done by all.
11 We all have to remember that up to now we have
*
12 all enjoyed literally thousands of different items on
13 the grocery shelves from which to choose. But applying
14 too many complicated regulations could change that, and
15 I do not say that facetiously. I question the authority
16 of bureaucratic officials to come on to my operation for
17 snooping. I doubt if some of these agencies have authorit
is to do this.
19 My experience with bureaucrat agencies has been
20 that numbers and regulations are often changed after the
21 general regulation and policy has already been adopted.
22 This so-called streamlining of these regulations 1 don't
23 think has been accomplished in the present packet as we
24 see here today.
25 Thank you.
IRWIN S. ASSOCIATES, CSR'S Court Reporters 423-7881 Seattle, Washington"
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1 MR. LEVIN: Thank you, Mr. Sabin. Any questions
2 from members of the panel?
3 (No audible response.)
4 MR. LEVIN: I have one just for clarification,
5 if you would.
6 I didn't quite understand your last statement
7 about regulations are changed after once adopted. Could
8 you go over that for us, please?
9 MR. SABIN: I think I said my experience has
10 been, I have seen it that after once a general policy
11 or regulation was adopted, different numbers and different
12 minute parts of the regulations were changed after they
13 were once publicly adopted. Somebody within the staff
!4 changed them.
15 • MR. LEVIH: Thank you very much.
16 MR. SABIN: Thank you.
17 MR. LEVIN: I would like to thank the members
is of the Washington Farm Bureau for taking time out to
19 be here today and for their statements this morning.
20 Our next speaker will be Mr. Wesley R. Higbie.
21 Will you respond to questions, Mr. Higbie?
22 MR. HIGBIE: Certainly.
23 MR. LEVIN: Thank you.
24 MR. HIGBIE: I am Wesley R. Higbie, Staff
25 Attorney of the Western Timber Association. The
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*
i Association is made up of firms which process the majority
2 of the timber sold by the National Forests in California.
3 Wa would like to offer some comments on the proposed
4 regulations as thay apply to the 404 permit program.
5 The Clean Water Act of 1977 (P.L. 95-217)
6 created several notable exemptions from the Dredge and
7 Fill Permit program which had been madated by Section
A
8 404 of the Federal Water Pollution Control Act Amendments
9 of 1972 {P.L. 92-500). These exemptions included
10 normal silvicultural activities and the construction
11 and maintenance of forest roads in accordance with
12 "best management practices."
13 The Proposed Consolidated Permit Regulations
14 published June 14, 1979 in the Federal Register set forth
15 proposed requirements for State 404 permit programs.
16 We take vigorous exception to the "baseline provisions"
17 for best management practices. This is nothing less than
is an attempt to establish a system of nationwide federal
19 forest practices.
20 I might note that similar attempts have been
21 made earlier and, of course, rebuffed in the rule-making
22 process and on the floor of Congress. And I think that
23 it is safe to say that Congress does not endorse this
24 type of a federal forest practices act. We wonder why
25 EPA or someone in EPA keeps trying to slip this one by.
IRWIN a. ASSOCIATES, CSR's - Court Reporters 623-7881 Seattle, Washinoton
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i It was proposed in 1976 under another program. It was
2 proposed last year in the form of a definition of
3 silvicultural point sources, and it was rejected, and it
4 appears again as a "baseline provision" for state programs
5 for granting 404 permits.
6 Under the 208 program the various states have
7 been developing best management practices for dealing with
8 non-point sources of pollution for the last several years.
9 This program reflects local conditions and objectives and
10 is the logical element for dealing with nor-point source
11 x problems. Roadbuilding and harvesting activities are j
12 best addressed in this manner.
13 In Section 123.107(a)(5) of the June 14 proposal
14 activities other than the point source discharge of
15 dredged or fill material are restricted by the "baseline
16 provisions." This exceeds the proper scope of the 404
i? program and is inconsistent with Congressional intent.
is The definition of "fill material" at Section 122.3(e)
19 speaks of "material used for the primary purpose of
20 replacing any water of the. United States with dry land or
21 changing the bottom elevation of a water body. The
22 "baseline provisions" go far beyond the replacing of
23 water with dry land and attempt to contro1. upland
24 activities not related to the fill activity. The mandate
25 of a "selective uneven-aged management system" on slopes,
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1 in streams or "in other sensitive areas" is utterly
2 outrageous. In mountainous California forests are
3 generally on slopes. Clearly the focus is on potential
4 erosion resulting from upland silvicultural activities
5 and this is something properly left to the 208 program.
6 We urge you to delete all of the "baseline
i
7 provisions" and leave the determination of what
s constitutes best management practices to the states.
9 The exemption from the 404 permit program passed by
10 _ Congress in 1977 was not intended to be subject to
11 additional conditions such as those proposed.
12 I would like to reference you back to the
.13 definition in the section on NPDES permits where it
14 defines what a silvicultural point source is. I am sure
15 tfte-farmers will understand my difficulty in finding it
16 in their 170 pages.
17 MR. SCHNAPF: 122.30.
is MR. HIGBIEs It says at the bottom there, this
19 is the — reflects a rule-making proceeding that was under
20 tak€$last summer in which there was an attempt to, or
21 a proposal to define as a silvicultural point source
22 which would require a site permit any activity that was
23 deemed to pose water pollution problems by the appropriate
24 official, I believe it would be the EPA Administrator or
25 the head of a state program where that has been sanctioned
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i The comment there in small print is that the
2 silvicultural point source, the term did not include
3 nursery operations, site preparation, reforestation,
4 fire control, harvest operations, surface drainage and
5 road construction and maintenance from which there is
6 runoff during precipitation events, which is rain, I beliejve
7 and snow.
a However, some of these activities such as
9 stream crossing for roads may involve point source
10 discharges of dredged or fill material which may require
/
11 a Clean Water Act Section 404 permit.
12 The point in sitting that is that here
13 harvesting operations and road construction and maintenanc
14 except for the actual discharge of the dredge and fill
15 material in the stream, is deemed to be a non-point
16 source, yet which is something in the grand scheme of
17 things is covered under Section 208. And yet these
is baseline provisions attempt to control these non-point
19 source type activities as a condition &r qualifying for
20 the Congressionally granted exemption.
21 MR. LEVIN: Thank you, Mr. Higbie.
22 Do we have questions from the members of the
23 panel, please?
24 (No audible response.)
25 MR. LEVIN: Thank you very much.
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1 MR. HIGBIE: Thank you.
2 MR. LEVIN: Mr. Dennis L. Cox.
3 ' Is Mr. Cox here?
4 All right, we will return to Mr. Cox.
5 Mr. John Dohrman?
6 (No audible response.)
7 MR. LEVIN: No Mr. Dohrman.
8 Mr. Don Lee Eraser?
9 MR. FRASER: I am here.
10 MR. LEVIN: Good morning, Mr. Praser. Will you
11 answer questions?
12 MR. PRASER: Yes, I will.
!3 MR. LEVINs Thank you.
14 MR. PRASER: First I would like to point out
!5 that I am here today representing the Commissioner of
16 Public Lands, Bert L. Cole, the elected Land Commissioner
17 in the State of Washington who is the Administrator of
18 the State of Washington Department of Natural Resources.
!9 The Department of Natural Resources, just to
20 kind of orient you on where I come from at this point in
21 addressing these regulations, the Department has regulator^
22 functions dealing with the regulation, promotion,
23 encouragement of forestry on privately owned forest land.
24 These regulations apply to both large industry and the
25 multitude of small forest owners in the state.
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i At the same time, our Department is responsible
2 for the production of timber on some two million acres
3 of state owned land. So, we are in kind of a dual role,
4 on one hand of being a regulatory agency much as EPA is;
5 at the same, we are in a production oriented mode as far
6 as producing timber on that state owned land.
7 We have been concerned, historically within the
8 state, as a state, with the protection of the forest
9 environment. That concern started way back in 1903 with
10 the pasage of our first forest protection legislation.
H It has proceeded over the years until 1945 when we
12 initiated our first Forest Practice Act, and subsequently
13 expanded it in 1974 and 1975 to include, among other
14 things, regulations concerning protection of the waters
15 that run through our forest lands.
16 We, therefore, want to be strongly on record
n as supporting reasonable protection of the waters on our
is forest properties.
10 On the other hand, we are a state agency con-
1 /
20 cerned with the thought that if we can do the job in the
21 State of Washington that we should be allowed to do the
22 job in the State of Washington with the minimum amount
23 of red tape and duplication from the federal agency. I
24 think that Utopia, as far as these regulations would be
25 concerned, would be for EPA to find that our present
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i Forest Practice Act, along with our hydraulics legislation!,
2 would provide sufficient compliance with the Clean Water
3 Act* We sincerely believe that it does provide compliance
4 with the Clean Water Act. And if we could eliminate all
5 the duplication and the additional forms and the need to
6 read through these additional instructions, it would be
7 rather painless, I think, to the forest land owners in
s the State of Washington if they could merely continue with
9 the present Forest Practice legislation.
10 And I guess the second option would be that if
11 in fact there has to be some change, that we would want
12 the change to be incorporated in our present state
13 regulatory process so that the operator would still not
14 be subject to two different regulatory procedures.
15 • In addition to looking at this problem from the
16 perspective of the state, I have in the past been the
17 Chairman of the National Association of State Foresters'
is Environmental Committee, and I have come to be somewhat
19 familiar with some of the problems in forestry that exist
20 in other states, and I am familiar with some of the concerjns
21 of stata foresters in those areas. And while I don't
22 profess to be an expert in those other states, I would
23 strongly urge that you solicit the comments individually
24 of those state foresters, because they are representing
25 a large segment of the forest land owners out there.
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1 Now, I have four principal concerns that I
2 would like to just highlight.
3 ' First, we feel that it is improper to include
4 in the baseline guidelines dealing with 404 and forest
5 road construction — and I will confine my remarks here
6 to forest roads, although many of the remarks would also
7 apply to agricultural road construction — but we believe
8 it is incorrect to include regulations there that relate
9 to the non-point source Activities in silviculture.
10 We believe that these non-point sources are
11 already addressed in the 208 program. We believe that the
12 legislative history is clear, that Congress did not intend
!3 to move those non-point source programs over under a
14 regulatory program in 404.
15 • We also object, and very strongly, to the
16 definition of BMP'a that are set forth in 404. I have
17 included some analyses in the appendix, and as I come
18 down on a point-by-point discussion here, I will address
19 that question further.
20 we object to the establishment of baseline
21 BMP's for forest road construction. We do. not think that
22 the law provided for this, and we strongly feel that the
23 most practical way to approach BMP's that are required,
24 and we recognize are required, under the 404 road con-
25 struction exemption, the most practical way to do that is
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i for EPA to sit down on a site-by-site basis and
2 negotiate, if you will, reasonable BMP's applicable
3 to each site.
4 How, thera is a precedent for this, of course,
5 in the legislation today, we have separate federal water
6 quality standards for each state in the nation. And these
7 are standards that were submitted by the states, were
a subsequently approved by EPA. But there is a whole set
9 of different types of water quality standards.
10 We certainly believe that the conditions
n between the State of Washington, where in some areas we
12 have as much as 200 inches of rain a year in our forest
13 land, is certainly different than the situation you would
14 find back East or in the South or Southeast. The multitud
15 of different environmental concerns that we have out thera
16 is meaningful, and we feel that each state should be looked
17 at on a separate basis.
is Fourthly, I feel that I am somewhat frustrated
19 relative to the definition and identification of "wetland"
20 and "minor drainage."
21 I really don't understand the definition of
22 "minor drainage," because I really don't understand the
23 definition of "wetlands," and I am not a novice at trying
24 to understand these definitions, I have been dealing with
25 it since the passage in 1972.
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1 I think that the complexities of those
2 definitions is well illustrated in the opposing testimony
3 that is constantly being set forth in the courts today.
4 I think that in the definition of minor drainage
5 the one conclusion that I have come to at this point in
6 time is that the present proposal almost eliminates the
exception that Congress created in establishing the
exception of minor drainage under silviculture and
9 agricultural activities. Because the definition now
10 is confined to the drainage on uplands. We would contend
11 that uplands are in no way covered under the Act, and,
t.
12 therefore, the only remnants that you have is that you
13 concede in the event there is a drainage ditch from the
14 uplands that you can make such a minor adjustment in the
15 wetlands to accommodate that amount of water.
16 Now, I would like to go down, I had understood
in reading the document that there was reference to making
18 the presentation on a page-by-page basis with specific
19 references so that you could read those.
20 MR. LEVIN: Mr. Praser, if I may, you have about
six pages of detailed comments, and I would like to
22 commend you for being so thorough. However, for the sake
23 of time and in fairness to other people who are waiting
24 to speak, I would have to ask you to summarize. All of
your comments are entered into the official record and
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i will be given equal treatment as if you had made them
2 verbally.
3 MR. FRASER: Then I would like to elaborate some
4 on these four points that I have just hit.
5 One of the problems, it has been suggested by
6 a number of speakers, that the BMP's that were proposed
7 were not proper BMP's, they were not the best BMP's that
8 you should have. And I am arguing that you should not havje
9 any at all.
10 If you will refer to the statute you will find
11 in 404 that the governor of the state desiring to administjer
12 his own program may submit to the ^dminstrator of EPA a
13 fully complete description of the program that the state
H proposes to establish under the state jurisdiction, then
15 directs the EPA to examine the proposal and see whether or
16 not the state has the authority to administer the program
n that it proposes.
is And there is no specific reference in the
19 statute to the fact that the Administrator is going to
20 approve or disapprove the proposal of the state. It is
21 true it says in the event that the state program does not
22 suffice that the state Administrator can cancel out that
23 program. And I would not argue that somewhere down the
24 line, and I don't object to it being early on in the
25 program, that that can happen. But I do believe that the
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1 initiative in that proposal is with the state and that
2 the state is to make the proposal and submit its
3 program, which includes the BMP'a that are in alignment
4 with agricultural activities.
5 Now, to come out with a guideline, and
6 incidentally the guideline is a confusing thing because
7 the guideline is premised on the guideline in 403, which
s are addressing the declarations of ocean dumping. And I
9 have never seen a correlation of how you jump from there
10 to these guidelines. It says these guidelines will be
11 based on those criteria. And I haven't seen the tie.
12 -' But in any rate, the guidelines that are set
13 forth become more than guidelines when you put in
14 mandatory provisions that say whatever your program is
15 going to be, in addition to your proposal you have to
16 include, without exception, these specific things.
17 And so we would argue that that is not the ,
18 proper procedure, that the state should sit down with
19 EPA, as partners in this thing, and agree upon what
20 reasonable guidelines are. And, really, should say what
21 reasonable BMP's are in that particular state.
22 In the State of Washington, we will argue that
23 the BMP's that we presently have, and coupled with the
24 administration of the state's hydraulic act which requires
25 a permit for this, for the discharge of any material
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i directly into a stream, that those programs would be
2 sufficient.
3 - Now that I have sold you on that I see all
4 the heads nodding up and down. The question of BMP's
5 is a very serious one. In addition to having some BMP's
6 that we disagree with, because they are addressing the
7 point sources, we disagree because they are not good
8 ' BMP's even if they were properly addressing the subject
9 matter.
10 But if we wipe those out, we are still confrontejd
n with the problem of having to live under the definition
12 of BMP's being created for 404.
13 Now, remembering at the same time that the state
14 has an option, if in fact it elects to go on a 404 program
15 that it has an option of going around through 208 (b) (4)
16 and coming in with BMP's through that process.
17 Now, there is a definition of BMP's under
is 208 which is entirely different than the set of BMP's
19 that are being created for 404. The set of definitions
20 that you have for BMP's at 404 require absolute compliance
21 with water quality standards. Now, there is no way in
22 God's green earth, and we have argued this since the
23 days of Russell Ceww, initially the BMP's for 208 was
24 almost identical to what you are proposing now in 404,
25 but we got the definition in 208 turned around so it is
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i a usable definition that we could really operate on,
2 And it takes into consideration problems of technical
3 nature, practicality and economic problems, and, it,
4 you know, does not require absolute compliance with
5 water quality standards.
6 MR. LEVIN: Thank you, Mr. Fraser.
7 Excuse roe for interrupting, but I am going to have to
s ask you to summarize in about two minutes. You have
9 obviously made a detailed study of the issue, but I
10 must ask you to wind it up if you could, please.
n MR. FRASER: Okay. I recognize the time
12 constraints and I recognize the complexities of these
13 things. I guess one of my frustrations is that I have
14 already written these things to you in addressing the
15 1978 draft and very few of the things that I suggested
16 have been reflected in the new draft, so you will pardon
17 my persistence, if you would, or my enthusiasm to try
is to get you fellow on the same track as we are, so we can
19 do a better job mutually out here in the regulation of
20 these forest practices.
21 I think I will leave it at that.
22 MR. LEVIN: We do appreciate that. We are not
23 ignoring your comments. It is only for the sake of time.
24 MR. FRASERs And we are going to have a field
25 trip afterwards and we will wear Fran out out there.
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1
Thank you very much.
2 MR. LEVIN: Thank you, Mr, Fraser.
3
Questions from the members of the panel?
4 MR. SCHNAPF: I was just wondering, since these
5 are the regulations for state programs, can you explain
6 the level of interest, perhaps, that DNR has with
7 assuming delegation of the 404 program within the state?
8 In other words, is DNR actively interested in obtaining
9 authority to issue these 404 permits?
10 MR. FRASER! The answer.is yes and no. And that
11 was one of the questions that you asked in here and one
12 of the things my paper does address. But I think it is
13 absolutely desirable that the state have the election of
14 peddling out to more than one agency the authority to
15 administer the state's 404 program.
16 Now, where I hedge is that we are talking often
17 here verbatim about the authority to delegate the authority
18 to issue permits, and as far as the DNR is concerned,
19 we would be interested and would in the State of Washington
20 be administering the BMP portion, which is not per se a
21 permit unit, you see.
22 So, within the state it would appear to me that
23 there would be, the State Fisheries and Game Department
24 presently have a permit program that deals with the
25 discharge of dredge and fill material'into certain waters,
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i and that the Department of Ecology, who is the chief
2 honcho in representing the State of Washington as far
3 as water problems are concerned, that they would be the
4 initial agency, that they would farm out some of the
5 permit activities to other state agencies and they might
6 elect to farm out some of those activities to counties
7 or other agencies out there at the local level.
s I do think that option to break it down below
9 the state level is an option that should be exercised by
10 the state and not directly by EPA to the county, because
n I really think that the United States is a federation or
12 union of states and not counties.
13 MR. SCHNAPP: Any further specific detailed
14 comments you might have along those lines would certainly
15 be appreciated, not particulary now, but if you can reflec
16 on it. One of the real problems with allowing subdelegati
17 to the county level, particularly where EPA is in the
is business of reviewing these 404 programs, is it becomes
19 an administrative nightmare. However, on the one permitti
20 agency requirement, any way we can redefine that would be
21 helpful.
22 MR. PHASER: You have already spread 208 out
23 on a reasonable basis, and in the State of Washington the
24 forestry program is a state program administered by DNR
25 with input from our Department of Ecology, Fish, Game and
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i the counties all have input. But one agency is administer
2 ing that program today.
3 MR. SCHNAPF: I think you hit on one of the
4 other problems we have is in defining what a wetland is,
5 and any further comments you have on that would be
6 gratefully appreciated. Most people don't have any
7 problems in conjuring up a vision in their mind when you
s use the word, but when it comes down to being precise in
9 defining it, it becomes difficult.
10 MR. PHASER: Absolutely.
11 MS. PETERSEN: You mentioned some court activity
12 in that regard, and I do want you to know -- and for
13 purposes of telling the audience that we are working with
i4 the Corps of Engineering^ particularly in the area of the
15 bottomland problem right now, to come up with an agreeable
16 definition.
17 MR. PRASER: Real good.
is MR. LEVIN: Any other questions?
19 (No audible response.)
20 MR. LEVIN: If not, thank you, Mr. Fraser, and
21 we will hope Fran enjoys her field trip.
22 Our next speaker will be Jack E. Winn.
23 Will you answer questions, Mr. winn?
24 MR. WINNs Yes.
25 Thank you, gentlemen, for the opportunity of
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i making a few brief statements. Any time left over I
2 will yield back to Don Frasar.
3 I have passed out my statement.
4 MR. LEVIN: We have no recalls.
5 MR. WINN: I am speaking on behalf of the Associ
6 ation of Consulting Foresters as National President. The
7 Association of Consulting Foresters has been a private
s professional organization since 1948, consisting of
9 several hundred members and managing on behalf of
10 thousands of private non-industrial forest land owners,
11 managing thousands of acres.
12 We now seem to be witnessing efforts by EPA to
13 find another way to add more regulations which leads to
14 possibilities of over regulation.
15 • We are concerned with the proposal to use 404
16 to attempt to regulate normal silvicultural activities
17 not related to the discharge of dredge or fill material,
is We are concerned also with the definition of
19 BMP's for use in 404 that requires absolute compliance
20 with water quality standards regardless of practicality
21 and economics. We cannot believe the Act requires this.
22 MR. LEVIN: Any questions from the panel?
23 (No audible response.)
24 MR. LEVIN: If not, thank you, Mr. winn.
25 MR. WINN: Thank you Mr. Levin.
/
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i MR. LEVIN: Mr. Kelly Neimi, State Farm
2 Forestry Association, Castle Rock, Washington?
3 (No audible response.)
4 MR. LEVIN: Mr. David B. Weinberg, Counsel for
5 Utility Solid Waste Activities Group, Washington, D.C.?
6 (No audible response.)
7 MR. LEVIN: We will return to Mr. Weinberg.
s Mr. Neil Skill, Oregon State Forestry Department
9 Salem, Oregon?
10 MR. SKILL: I am Neil Skill, I am Director
n of the Oregon Forest Practices Act for the state
12 forester in Salem, Qregon.
13 In a constructive way, I would like to let you
14 know our concerns about EPA's recently published
15 proposed regulations which we were talking about here
16 particularly as it relates to 404.
17 We are very concerned about the relationship
is between best management practices that are proposed for
19 silviculture activities under 404 and those that are
20 established under Section 208 under the 208 process.
21 Setting aside the legal question of regulating
22 silviculture and non-point pollution through Section 404,
23 we are most concerned about the apparent duplication of
24 responsibility at this time, and efforts that the
25 proposed regulations seem to purport and the very real
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i possibility of the conflict of two sets of regulations
2 being devloped by two federal agencies.
3 Now, in the context of the proposed regulations,
4 the Corps of Engineers would adopt the requirements deal-
5 ing with erosion problems resulting from upslope activities
6 as it relates to silviculture. What we see is that these
7 are already dealt with under the 208 program and the best
a management practices that have already been developed.
9 Now, the State of Oregon has invested a substantial amount
10 of time already in meeting the requirements of the 208
11 program, and I believe it was on the 9th of March this
12 last year that we were designated as the agency to
13 administer the 208 program on forest land, and the rules
14 also, which we have at this time are submitted for
15 regular updating and are a part of a regular program for
16 working with the other agencies in the state, including
17 Pish and Wildlife Department, the Department of Environ-
is mental Quality and the other natural resource agencies.
19 I guess what we see is it is not in the public
20 interest to have two different sets of BMP's dealing with
21 the same thing from two separate federal agencies. And I
22 guess that's the main context of my comments here at this
23 time.
24 If there are any questions I would be glad to
25 answer them.
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1 MR. LEVIN: Are there any questions from
2 members of the panel?
3 • MR. SCHNAPF: I would liks to ask the saroe
4 question that I asked John, to the best of your knowledge
5 to what extent is the State of Oregon interested in
6 taking over the 404 program?
7 MR. SKILL: Well, I think the best answer to
s that is that we already invested a substantial amount of
9 time when the general permit concept was discussed, what,
10 two years ago, I believe, and were ready to take it over
11 at least under the Forest Practices program, were ready
12 to take over that part of the 404 program as it related
13 to forest land. I believe, as Mr. Praser has indicated,
i4 there is probably a need for other agencies or other
15 entities to take care of other aspects of 404, such as
16 in Oregon, for example, we have a fill and removal act
17 which deals with navigable streams that are not related
is to forest land. So, I would assume you would be looking
19 at the same kind of program in Oregon that Mr. Fraser has
20 indicated for Washington.
21 MR. SCHNAPF: Thank you.
22 MR. LEVIN? Our next speaker, Mr, Weinberg?
23 (No audible response.)
24 MR. LEVIN: All right. Mr. James B. Linxwiler,
25 Sohio Petroleum Company, Anchorage, Alaska.
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i (No audible response.)
2 MR. LEVIN: Richard Kosesan, Oregon Farm
3 Bureau, Salem, Oregon?
4 (No audible response.)
5 MR. PRASER: Mr. Chairman, there was some word
6 came back that some of these people would be speaking
7 this afternoon.
s MR. LEVIN: That's fine. We will be back this
9 afternoon if that's the case.
10 MR. KOSESAN: My name is Richard Kosesan.
11 I am representing the Oregon Farm Bureau, which is a
12 non-profit voluntary organization consisting of nearly
13 10,000 member families.
14 We have not had a great deal of time to look
15 at the rules, proposed regulations, but do appreciate
16 certain sections of them. We appreciate the opportunity
17 or the possibility to consolidate a somewhat cumbersome
is permit system.
19 We also are extremely supportive of the state's
20 ability to accept the responsibility in this program.
21 We do have problems with it, however.
22 The length and complexity seems a little
23 difficult to understand in a short period of time. The
24 hearings are a very good opportunity for the farmer and
25 the agricultural community to display their concerns,
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however, this is rather an untimely point during the
growing season, people- are harvesting right BOW, it i:
3 very difficult for a large number of farmers and agri-
4 cultural interests to be present here.
5 We have had a difficult time in acquiring the
pamphlets. We came across the Federal Register last
7
week, so we have not had a lot of time to prepare any-
8 thing. But we will submit written testimony before
9 September 12th.
10 MR. LEVIN: Thank you, Mr. Kosesan,
11 Any questions from members of the panel?
%
12 (No audible response.)
13 MR. LEVIN: Thank you, sir.
14 MR. KOSESAN: Thank you.
15 MR. LEVIN: Our next speaker is Mr. C. B.
16 Stevens, Combustion Equipment Associates, Seattle,
17 Washington. Is he here?
18 (No audible response.)
19 MR. LEVIN: Ms. Claudia K. Craig, Burlington
20 Northern, Seattle, Washington?
21 Before we begin, Ms. Craig, do you prefer to
22 be called Miss, Mrs., Ms.?
23 MS. CRAIG: I will go with Ms.
24 My name is Claudia Craig; I am a forester and
25 am employed as Supervisor, Land Planning, by Burlington
,-=r
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1 Northern'3 Timber and Land Department. The Department
2 owns and manages approximately 1.5 million acres of
3 forest land in the states of Washington, Oregon, Idaho
4 and Montana. Our Department staff is made up of about
5 150 persons, most of whom are professional foresters.
6 My remarks today will reflect the Department's views of
? the proposed consolidated permit regulations as they relatje
8 to forest management activities. I will concentrate
9 specifically on the Section 404 state program regulations,
10 particularly parts 123.3(e) and 123.107 which provide
11 an interpretation of the Section 404(f) exceptions for,
12 among other things, normal silvicultural activities and
13 forest road construction. Before turning to concerns
v
14 which relate specifically to those parts of the proposed
15 amendments, I would like to offer some general comments
16 on the concept of permit regulation consolidation. The
17 idea of consolidating the permit process of various federal
is regulatory programs is enticing; it promises greater
!9 efficiency in regulation and an easier job for those
20 regulated in understanding just what is required of them.
21 our review of these proposed consolidated regulations,
22 however, indicates that the hoped-for increase in
23 efficiency and understanding may not be achieved.
24 The mere process of sorting out only those
25 parts of the regulations which apply to the 404 program
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i was confusing and tedious. This situation was oniv
2 compounded by the fact that not only ware we being
3 asked to evaluate a new regulatory process and format,
4 but to comment as wall on some vary substantive rsgula-
5 tions which could have a significant impact on our
6 Department operations.
? We have opted to place our primary emphasis
s today on responding to the substantive issues, but want
9 to point out that the format of these regulations has
10 so complicated just their review that we do not believe
11 this approach will significantly improve regulatory
12 efficiency.
13 . Our specific concerns with EPA's interpretation
i4 of the exemptions provided for in Section 404(f)(l) are
15 related primarily to the definition of "minor discharge"
16 in part 123.3(c) and to the "baseline" best management
17 practices (BMP'a) listed in part 123.107. While the
is language of parts 123.107U) (1) and (2) and 123.107{b)
19 and (c) which outline some conditions of the exemptions
20 is fairly clear, the definitions of minor drainage and
21 wetlands is not.
22 In effect it exempts few forest management
23 activities in wetland areas from the permit requirements;
24 it restricts the definition to activities which occur
25 on uplands, an area outside the jurisdiction of the 404
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i program, and for which no exemption would be needed.
2 It would be more logical to allow minor drainage
3 practices in wetlands whan they would not significantly
4 alter the wetland area or would not substantially Iffect
5 water quality. This would give the forester or farmer
6 a more comprehen^sble guideline and would, at the same
7 time, provide for the protection of wetland areas.
s Our second major concern with the proposed
9 regulations are the suggested baseline provision for
10 BMP'a (part 123.107) designed to implement Section
11 404(f)(1)(E). Let us first put this portion of the
12 Clean Water Act in context and then examine the proposed
13 BMP's.
14 Section 404(f)(1)(E) provides for an exception
15 from the overall Section 404 charge to regulate dredge
16 and fill activities in wetland areas, "for the purpose
17 of construction or maintenance of farm, roads or forest
is roads, or temporary roads for moving mining equipment
19 where such roads are constructed and maintained in
20 accordance with best management practices, to assure that
21 flow and circulation patters and chemical and biological
22 characteristics of the navigable waters are not impaired,
23 that the reach of the navigable waters is not reduced,
24 and that any adverse effect on the aquatic environment
25 will be otherwise minimized."
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i We recognise that the Act requires road
2 construction or maintenance to bs carried out in
3 accordance with "best management practices" whan it
4 occurs in areas under Section 404 jurisdiction, that
5 is — in wetlands.
6 We do not agree, however, that such a set of
7 nationwide standards needs to be written into the
s regulations.
9 Prescriptive nationwide standards cannot take
10 into account local or regional situations and adopt
11 guidelines to best respond to localized conditions.
12 Furthermore, we believe it is inappropriate to introduce
13 ,a list of BMP's which address broader issues of non-
14 point water pollution. These issues are already being
15 addressed through the Section 208 planning programs.
16 In the states of Washington and Oregon, for example,
17 sets of BMP's for controlling non-point water pollution
is from silvicultural activities, including road construction
19 - and maintenance, have already been approved by EPA and
20 are in operation. Other states are in the process of
21 developing and having their 208 programs' BMP's approved
22 by EPA.
23 We suggest that developing BMP's for state 404
24 programs to comply with Section 404(f)(1)(E) could be
25 better done one, on a statewide or areawide basis, and,
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i two, in a way which would build on the years of
2 constructive effort in Section 208 planning toward
3 building workable BMP's. Such an approach — working and
4 appropriate BMP's with each of the states — would also
5 have the benefit of providing a more consistent regulatory
6 approach than that which has been outlined in the Section
7 404 state programs.
8 Finally, we would like to comment on part 123.95)(e)
9 which require, that state programs designate the agency to
10 be responsible for issuing Section 404 permits. The
11 introductory material to the regulation in the Federal
12 Register, June 14, 1979, page 34262, indicates that this
13 requirement is still under consideration. We believe it
14 would be advantageous in some cases, to have far more than
15 one agency to issue permits. For example, in the State
16 of Washington, forestry expertise and regulatory authority
17 are concentrated in Hie State Department of Natural
is Resources. It would be logical to designate this agency
19 responsible for issuing 404 permits related to forest
20 practices, while authority for issuing other types of
21 404 permits could rest with another agency.
22 A provision which would allow more than one
23 state agency permit authority would also help coordinate
24 permit programs. In this case, it could facilitate the
25 coordinated use of BMP's for Section 208 and Section 404
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i programs. Such an approach would truly make the
2 goal, consolidation and coordination of permit programs,
3 more attractive and attainable.
4 Thank you.
5 MR. LEVIN: Thank you, Ms. Craig. Will you
6 remain for questions?
7 MS. CRAIG: Yes.
s MR. LEVIN: Thank you.
9 MS. PETERSEN: I am wondering whether you find
10 all of the BMP's that are proposed here as general
11 standards objectionable, or just some of them?
12 MS. CRAIG: I would say that all of them,
13 primarily the concept of having a list of baseline
14 provisions is objectionable, that a better way to approach
15 it would be on a state-by-state basis, so that BMP's
16 could be responsive to local conditions.
n i MS. PETERSEN: Have you or your company operatec
is under any of the Corps BMP's? Quite a number of these
19 BMP'a were derived from the Corps regulation 323.4-3 and
20 i am wondering if you find those objectionable as well?
21 MS. CRAIG: I am not familiar with that situa-
22 tion, but I would be happy to respond to you later.
23 MS. PETERSEM: Those are the BMP's for minor
24 road crossings, bridges.
25 MS. CRAIG: I am speaking off the top of my heac
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i now, but I believe most of those kinds of considerations
2 we are complying with under the state Forest Practices
3 Act, and usually we are required in that case to obtain
4 4Q4 permits. Let me clarify that and get back to you.
5 MS. PETERSEN: In this case, you wouldn't need
6 an individual 404 permit as well. And if the state would
7 meet that baseline condition then the exemption would
a hold.
9 MR. MOREKAS: Ms. Craig, I believe you made
10 a comment relative to the complexity of the format that
11 we have in these consolidated regulations that in your
12 opinion would not improve the efficiency.
13 Would you expand a little more, or perhaps you
14 have some alternative that you may want to propose to us.
15 MS. CRAIG: I think that my comments were not
16 so much directed to the fact that they would not improve
17 EPA's efficiency, but they would certainly not improve
is private industry's efficiency. It is very difficult for
19 us to wade through that many pages in somewhat the same
20 sense as the farm people said to you earlier. It would
21 be helpful to have those things that specifically relate
22 to forestry pulled out separately or which relate to the
23 404 program pulled out separately.
24 MR. MOREKAS: The comment that David made earliefr
25 in the day, would that satisfy your concern, that is that
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1 we would reprint those portions that would apply to the
2 agricultural or forestry interests separately?
3 MS. CRAIG: That would aid. Another point I
4 think should be made ia that there is some more substanti'v
5 concerns about the efficiency that would result from the
6 adoption of these kinds of regulations.
7 For example, limited regulations dealing with
8 time and requirements that permit applications to be made
9 up to 180 days, I believe, in advance for issuance of a
10 permit. When you are dealing with the kinds of industry,
11 like the one I work in, six months in advance is, many
12 times, too far ahead to tell exactly what our plans will
13 be. There is an additional time delay.
14 MS. PETERSEN: The basic time clock for processijng
15 a 404 permit is in 404J and it provides for an additional
16 30-day period to tell the director whether EPA intends
17 to object, unless an objection is filed and the —
18 MS. CRAIG: I would suggest that that is still
19 too long a time frame.
20 MS. PETERSEN: Several other options are under
21 general permit, and the 404(b) program. I would suspect
22 that a number of activities could be covered if the
23 State of Washington decided to go that way.
24 MR. LEVINs Any other questions?
25 (No audible response.)
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1 MR. LEVIN: Ms. Craig, thank you very much.
2 That completes the list of speakers.
3 Mr. Dennis L. Cox? Mr. John Dohrtaan?
4 Mr. Kelly Niemi?
5 (No audible response.)
6 MR. LEVIN: Mr. David Weinberg? Mr. Wayne
7 Meek or Greer Polka?
s MS. POLKAi I am here on the Greer Polka part
9 of that. Would it be possible for Wayne Meek to speak
10 after lunch?
11 MR. LEVIN? Yes, it would.
12 Mr. James Linxwiler? Mr. C. B. Stevens?
13 (No audible response.)
i4 MR. LEVIN: All right. If none of these people
15 are here or in the case of Ms. Polka, would prefer to
16 speak this afternoon, what we will now do is go off the
n record for approximately one-half hour until noon and
is the panel will respond to questions, factual or informational
19 questions on the regulations. We will then break at noon
20 for lunch and return at 1:30 for the afternoon part of
21 the hearing. The hearing will begin promptly at 1:30,
22 and at that time we will see if the people who have
23 requested to speak are here.
24 Before we go off the record, is there anyone
25 else in the audience who would like to make a formal
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1 statement for the record?
2 (No audible response.)
3 MR. LEVIH: If not, we will now go off the
4 record.
5 (Whereupon, at 11:35 a.m. the
proceeding was continued until
6 1:30 p.m.)
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
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25
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1 AFTERNOON SESSION
2 1:30 P.M.
3 —ooOoo—
4
5
7
MR, LEVIN: We are going to give you folks
a break this afternoon, I am not going to read the rules
of conduct again. I hope everybody will remember them.
Q
We have an additional panel member sitting in
9 for Dr. Coate, Lloyd Reed who is the Division Enforcement
10 Director for Region 10 here in Seattle.
11 We will then continue the list of witnesses and
12 I will call you again in the order in which I have them
13 - here.
14 Mr. Dennis L. Cox, has he come in?
15 (No audible response.)
16 MR. LEVIN: Mr. John Dohrman?
17 (No audible response.)
18 MR. LEVIN: Mr. Kelly Niemi?
19 MR. NIEMI: Here.
20 MR. LEVIN: You ace next.
21 Since you were not here this morning, very
22 quickly, we are limiting the speakers to 10 minutes.
23 You are not required to answer questions, but we would
24 appreciate it if you would. So I will ask you now if
25 you will respond to questions?
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l MR. NIEMI: Yes, I will.
2 MR. LEVIN: Thank you very much. And would
3 you also state your name and your association?
4 MR. NIEMI: Kelly C. Niemi. I am here today
5 on behalf of the Washington Farm Forestry Association.
6 I am also a small woods land owner and work as a consulting
7 forester and I am a member of the Washington State Soil
s and Water Conservation Commission, also.
9 The Washington Farm Forestry Association is a
10 non-profit organization dedicated to the promotion of
11 better woodlot management on the non-imjidstrial private
12 woodlands in the State of Washington.
13 We provide a medium of exchange of ideas and
u a source of information as to the position of small
15 woodland owners. Our membership is over 1,000 dedicated
16 woodland owners throughout the State of Washington. , Our
17 association is the only one that exclusively represents
is the estimated 40,000 non-industrial prive woodlands
19 owners in the state. Collectively the non-industrial
20 woodland owners own approximately 4.5 million acres,
21 which is about 25 percent of the total forest land base in
22 the state.
23 Our association has been very active in the
24 adoption and promulgation of rules and regulations in
25 the Forest Practices Act. We are vitally concerned about
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1 the proposed permitment regulations of Sectlon404
2 of ths Clean Water Act.
3 In 1975 the State of Washington passed an
4 amended version of the Forest Practices Act. This Act
5 is the process for meeting the requirements for Section
6 404 of the Clean Water Act. We were very active in the
7 process of developing this Act and have been involved
8 in the adoption of the rules and regulations that are
^ an integral part of this Act.
10 The Forest Practices Act of the State of
*_•
11 Washington is one of the most comprehensive and effective
12 Forest Practices Acts in the United States. It brings
!3 together a number of other statutes and regulations and
14 enforcing agencies to effectively regulate the silviculturjal
J5 activities and associated road construction.
K> Overlapping jurisdictions, conflicting regula-
17 tions and complicated permit procedures result in a
is frustration for the land owners and operators. The real
19 test is what is being dsne on the ground, not how many
20 hoops you have to jump through before you do it.
21 The people of the State of Washington are very
22 concerned about the quality of their water. We have some
23 of the best anadromous fish streams of any place in the
24 world. We have also some of the most intesely used
25 recreational areas, and we are very proud of our forest
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i environment.
2 We, as small woodland owners are concerned about
3 the quality of life in the state because it is our home.
4 Most of us live on or near our property and our activities
5 are directly related to our quality of life.
6 The production of timber is very important in
7 the industrial base and employment in the State of
s Washington. It currently is the number one industry.
9 The management of our timber resources has to be the numbejr
10 one priority in the protection of the economy of the
11 state.
12 In the current energy crisis, our timber
13 resources are emerging as a major source of energy.
14 The wood residues for manufacturing and the waste and
13 non-merchantable material in the forest has a tremendous
16 potential as a source of energy. If we are going to
17 survive as a nation, our timber resources are going to
is play an ever increasing role to meet both our fiber and
19 energy needs. Section 404 poses a serious threat to our
20 meeting the needs of this nation.
21 Each forest application is reviewed to see if
22 the activity would have an impact on fish, wildlife,
23 shorelines of state or local significance, or a public
24 resource. The application for a forest practice permit
25 triggers, if necessary, a hydraulics permit, shoreline
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permit or others. The regulations and enforcement are
adequately administered by the appropriate state am
local agencies» It is difficult to conceive where our
4
present procedures do not meet the intent and purposes
5 of Section 404 of the CWA.
The adoption of the Forest Practices Act in
the State of Washington was a very difficult period.
Many years were spent resolving the jurisdictional problems
9 and adopting rules and regulations that would truly
10 improve water quality. Regulations themselves do not
11
protect water quality.
12 Our goal was to develop tales and regulations
13 and enforcement procedures that would be effective in
14 protecting our water and timber resources. It is our
15 hope that the proposed consolidated permit regulations
16 can be integrated into our Forest Practices Act and it
17 may serve as a vehicle for meeting the requirements of
18 Section 404 of the Clean Water Act.
19 We do not need another set of Forest Practices
20 regulations to cover the silvicultural and road con-
21 struction activities in the forest environment.
22 I will leave just a little bit here.
23 Probably one of our greatest threats in the
24 State of Washington is change of views, because even
25 poor forest management itself probably is a lot better
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i than any other use in the state. Woodland owners that
2 are confronted with lengthy permit procedures, costly
3 procedures, become frustrated, and this kind of triggers
4 them almost forcing them to sell it, dividing it up,
5 their property, subdividing it up or just plain abusing
6 it. Good rules and regulations and administrative
7 procedures encourage good forest management. Poor rules
s discourage forest management.
9 We are very sincere in our effort to do what is
10 right, but the end result is what we are most concerned
11 about.
12 Section 404 must be integrated into our
13 Forest Practices Act and be consistent and non-contradictcjry
14 with the rules and regulations that we have adopted into
15 forest management practices for protection of water
16 quality.
17 MR. LEVIN: Thank you, Mr. Niemi.
is Questions from the members of the panel?
19 (No audible response.)
20 MR. LEVIN: Thank you, sir.
21 Is David Weinberg here?
22 (No audible response.)
23 MR. LEVIN: Mr. Wayne Meek or Ms. Greer Polka,
24 both of you can speak if you so desire.
25 MR. MEEK: I will speak .
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1 MR. LEVIN: And will you be available to
2 answer questions?
3 MB. MEEKs Yas.
4 My name is Wayne Meek. I am Director of
5 Environmental and Energy Affairs for Simpson Timber
6 Company, and I will share my time today, Mr. Chairman,
7 with Mr. Jerry Palmer, who is a professional forester in
8 our forest: management group.
9 Simpson is a medium-sized manufacturer and
10 distributor of products for homes and commercial buildings
11 construction. To supply the manufactured materials,
12 Simpson owns and manages forest lands in Washington,
13 Oregon and California.
14 In addition to my comments today, we will
15 submit written comments on other aspects of the proposed
16 consolidated permit regulations, and specifically on
17 Section 404. ;
18 After a review of the Environmental Protection
J9 Agency's extensive and still ^incomplete consolidated
20 permit program, we have mixed reactions to the Agency's
21 efforts. Praise, on the one hand, for the Agency's
22 attempt to respond to industry's urgings for a more
23 efficient and understandable process required prior to
24 construction and operation of a new facility; but deep
25 apprehension that the elaborate system created will not
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1 attain the needed balance between the Agency's goals
2 and industry's request for simplification, nor be of
3 added benefit to the environment.
4 Frankly, we see another layer of regulations
5 which would not achieve a regulatory burden reduction.
6 On that note of support, I wish to make some
7 general comments about the thrust of the proposal and
s highlight some specific concerns about time delays and
9 definitions.
10 Furthermore, because this is really a hearing
11 within a hearing, we will, through Mr. Palmer, comment
12 specifically on Section 404.
13 A primary concern about the consolidated regula-
14 tions is the possibility of creating more delays in the
i? permitting process because of the repeated absence of
16 any time limits for Agency action on a permit application.
17 Without such a mechanism, the efficiency benefit of the
is consolidation is negated, for both the Agency and
19 industry. Indeed, we have apprehensions that consolidation
20 as proposed would result in increased delays.
21 In Section 124.3(b) it is written that no
22 permit shall be issued until "the applicant has fully
23 complied with governing application filing requirements
24 of this part and part 122."
25 It is unclear whether this may be interpreted tc
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i maan that no permit may be issued until all permits
2 have met thsse filing requirements, or just the permit
3 in question. The former situation would delay permit
4 decision and this type of delay is of no benefit.
5 Procedures for cross examination in 124.14
6 also could be cause of significant delay, as the right
7 to cross examine cannot be granted until one week after
s the transcript is available. Unnecessary delay and cost
9 to both the Agency and industry will accompany the
10 supplementary hearing.
n In the section on evidentiary hearings under
12 NPDES, 124.74, there is a specified time period, 30 days,
13 for requesting the hearing, but there is no time period
14 specified for the regional administrator's decision **hethe
15 or not to grant such a hearing.
16 In addition, there is no time limit set for the
17 presiding officer's decision to the regional administrator
is in 134.89.
19 The definitions in any proposal establishes
20 fundamental direction for implementation. I wish to
21 highlight a few definitions in 122.3, in these proposed
22 regulations which we feel need clarify or adjustments,
23 and which fail to achieve the objective of consistency.
24 122.3(e) "Contaminant:* Any physical, chemical,
25 biological or radiological substance or matter in water."
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1 This definition is so broad as to even include small
2 stones in water. Certainly some degree of harm to the
3 water environment should be included in the criteria for
4 this definition.
5 Section 122.3(a) "Pollutant" is inconsistent
6 with the definition in the Clean Water Act. We question
7 the necessity of adding "filter backwash" as a part of
s that definition.
9 Section 122.3(b) "major hazardous waste
10 management facility" has not been defined before, and it
11 is good that it is defined, but it is a poor definition
12 and should be thoroughly discussed.
!3 One point I would add. The definition given
14 covering facilities which operate at a rate equal to or
15 greater than 5,000 metric tons a year lacks precision
16 because of the varying moisture content in sludge. We
17 recommend that the addition of language something to the
is effect that this shall be "measured by the oven dried
"9 weight of accumulated solids." But we further suggest
20 consultation with industry.
21 Section 122.3(b) "physical construction": The
22 inclusion of "excavation, movement of earth" and "purchase
23 of equipment" we feel goes beyond the normal interpretaticn
24 of physical construction. Recognizing that physical
25 construction is prohibited without a permit, it should be
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i industry's perogative to risk site preparation or
2 equipment purchases. Action postponed on these
3 activities could add needlessly to time delay and expense,
4 for instance foregoing options on used equipment or
5 opportunity to purchase new equipment at better rates.
6 Action postponed on these activities could add needlessly
7 to both time and expense.
8 Perhaps the biggest inconsistency in the proposejd
9 regs that we see deals with the definition of "best
10 management practices." Best management practices
11 was defined in the., regulations for Section 208 under the
12 1972 amendment to the Clean Water Act, and we have worked
13 with that definition and massaged it for a good number of
14 years.
15 The terminology, "best management practice" was
16 reintroduced under 304(e) for "toxics" and applied
17 specifically to the control of toxic substances runoff
is from ancillary sources. We have recommended several times
19 to EPA that this reference be deleted and that control of
20 that kind of pollution be covered under the NPDES as well
21 as that for spills.
22 If the terminology "best management practice" is
23 retained under Section 402, the NPDES permitting system,
24 we certainly recommend that it be consistent with the
25 definition developed under Section 208.
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1 The same statement is made for the definition
2 of "best management practice" under Section 404, that
3 if one of the goals of the consolidated system is
4 consistency, we certainly would recommend that the
5 definitions for the same term be consistent.
6 I will close my general comments on that and
7 introduce to you Mr. Gerald Palmer, who is, as I say,
8 a professional forester on our management system improve-
9 ment task group on Section 208 and 404 for the western
10 states.
11 MR. LEVIN: Thank you Mr. Meek. We will hear
12 from Mr. Palmer and then would you please both remain
13 for questions.
14 MR. PALMER: My name is Gerald Palmer, Simpson
15 Timber Company.
16 Simpson has identified four areas of concern
17 with Section 404. These include:
18 1. Wetland classifications
19 2. Minor drainage and conversion of forest
20 wetlands
21 3. Best management practices for forest roads
22 4. Definition of best management practices
23 Last year, Simpson had the opportunity to
24 review the Corps of Engineers' preliminary guide to wetlan
25 of the West Coast states. We found the guidelines useful
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i except for those pertaining to identification of frsah
2 water swamps. A number of indicator species which occupy
3 the fringe of fresh water swamps also occupy forest up-
4 lands including slopes having gradients of 50 percent.
5 Applying the indicator species to the saturated
6 soil conditions common west of the Cascade Mountains,
7 could lead to the conversion of much of Western Washington
s and Oregon to fresh water swamp. In fact, based on the
9 soil characteristics and our precipitation, the site
10 upon which this building is situated prior to man's
11 development could have been classified as fresh water
12 swamp under the Corps' guide. Many experts disagree on
13 the classification of forest wetlands as, ds evidenced
14 by the recent lawsuit in Louisiana.
15 If experts and agencies can't agree on what a
16 wetland is, how can the regulated public be expected to
17 comply with the 404 program?
is We would urge that EPA, working with the Corps,
19 the Pish and Wildlife Service and professional foresters
20 attempt to reach a consensus on forest wetlands classifies
21 tion which can be understood by land owners.
22 Section 404 (f) exempts minor drainage associate*:
23 with silviculture in forest wetlands from the purview
24 of the Section 404 program. The activity is, however,
25 covered under Section 208 of the Clean Water Act.
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1 EPA's proposed regulations in addressing minor
2 drainage provides that minor drainage dees not include
3 discharges incidental to the drainage of a forested
4 wetland to convert it to any type of non-wetland forest.
5 We foresee some confusion in the application of this
6 rule and suggest clarification.
7 Originally, many of the poorly drained soils
8 of the Pacific Northwest supported conifer tree species
9 such as Douglas Fir, Western Hemlock and Western Red Cedaz
10 After initial logging, many of these areas regenerated to
11 Red Alder, Maple, Cottonwood and other miscellaneous
12 hardwood and brush species, since prior to 1940 there was
13 no-requirement to assure regeneration with the more
14 desirable conifers.
15 Many of these hardwood and brushlands are now
K> being rehabilitated and reforested to the original
i? conifer species composition. Reclamation and conversion
is of poorly drained soils to their original forest type
19 should not be considered a forest wetland conversion.
20 In line with this, Washington's Forest Practice
2i Act requires that as the forest land is harvested or
22 rehabilitated, reforestation with a desirable commercial
23 species is required. Conifer species are required to
24 be used unless the land owner can provide compelling
25 reasons to reforest with non-conifer species.
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1 Section 404(f) exempts forests roads and
2 waters of the United States from the purview of 404
3 where they are constructed in accordance with best
4 management practices to assure that flow, circulation
5
and water characteristics are not impaired? that the
6 reach of the navigable water is not reduced and that
7 adverse effects on the aquatic environment is minimized.
8 EPA has rightly quoted these requirements in
9 proposed rule 123.107(a)(5). However, as an adjunct to
10 the quotation, EPA proposes a list of BMP's which states
11 would have to adopt to have an approved program.
12 After review of the list, the^appropriateness
13 of nationwide BMP standards becomes apparent. It is
14 unrealistic to expect BMP's applicable to the silviculture
"V
15 and physiographic conditions in Southeast Alaska, with
16 its steep rocky slopes inlaid with muskeg to be applicable
17 to forest plantations in the South.
18 To provide an example of the problems associated
19 with EPA?s proposed BMP's, consider BMP number one which
20 states, "logging in streams is prohibited."
21 Proposed rule 103.107(a)(5) pertains specificall
22 to road construction and maintenance affecting waters of
23 the United States. It does not concern itself with
24 logging which is a silviculture activity. Also, since
25 trees rarely grow in streams, it can be assumed that the
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i tree either blew down, was cut down or was washed into
2 the stream from adjacent land. Blow down of timber
3 adjacent to streams occurs frequently in the Northwest.
4 This blow down can damage stream morphology, block fish
5 migration and during peak runoff can dislodge and cause
6 property damage downstream.
7 The forest industry has, for many years,
8 cooperated with the fish and wildlife agencies in removinc
9 timber causing stream blockage. Prohibiting removal of
10 timber in streams pending issuance of a Corps' permit,
n which takes four to six months to obtain, is contra-
12 productive to maintaining channel stability and water
13 quality.
14 We could describe arguments against or discuss
15 improved wording for each of the BMP's in the proposed
16 rules. However, in the interest of brevity we will, in
\
17 lieu, just state our view that nationwide BMP standards
is are inappropriate and contrary to the principle expressed
19 by EPA in its Section 208 rules and guidelines that BMP's
20 should be as site specific as possible.
21 Simpson recommends that proposed rule 123.107
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i the state with the objective that BMP's be as sits
2 specific as possible in harmony with those BMP's
3 developed by the state pursuant to Section 208 require-
4 ments.
5 We appreciate the opportunity to testify and
6 hope that the EPA will give favorable consideration to
7 our views.
s MR. LEVIN: Thank you Mr. Palmer.
9 Do we have questions from members of the panel?
10 MR. SKINNER: Mr. Meek, with respect to your
n comments on major hazardous waste management facilities,
12 is it just the issue of moisture content of the sludge
13 that is of concern to you or are there other aspects of
14 that definition that you think could be improved as well?
15 MR. MEEK: It seems like a pretty simplistic
16 definition.x That's the one that immediately comes to mine
17 I really think it ought to be worked around by the people
is involved in it to make sure —
19 MR. SKINNER: In what direction should we try
20 to improve it?
21 MR. MEEK: Well, I think some consideration
22 for content would be appropriate.
23 MR. SKINNER: I see.
24 MR. MOREKAS: May I follow up on that? I just
25 want to point out, Mr. Meek, that there is a discussion,
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i albeit brief, on page 34254 of the preamble on the
2 thinking and rationale behind that definition, and I
3 want to kind of reemphasize what Dr. Skinner adds, if
4 you can provide us some other details on how to approach
5 this definition in terms of the 5,000 or some other
6 parameter, we would appreciate it.
7 And I have one more question relative to your
8 comment on the definition of physical construction. As
9 I recall, I believe you indicated that the purchase of
10 equipment does not really belong in that type of definiticjn.
11 MR. MEEK: That was my statement.
12 MR. MOREKAS: Is this strictly a definitional
13 thing? What our thinking is behind that is that in some
14 instances where perhaps fairly extensive type of equipment
13 are associated with say a facility such as an incinerator,
16 that the owner has not really started any physical con-
17 struction in a traditional sense, but has committed, in
is many cases, a multi-million dollar investment in purchasing
19 equipment. And we felt that it was important to consider
20 that as part of the definition when we decide whether the
21 facilities exist or not.
22 MR. MEEKs I guess my point is that I am trying
s
23 to save all the freedom of choice that I can possibly save
24 and it is my perogative if I want to spend a million dollars
25 for a piece of equipment and then have it turned down.
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1 I might not make that, but I would like to have that
2 option .
3 MR. LEVIN: Any other questions?
4 MR. SCHNAPF: A couple of questions with raspect
5 to your comments on NPDES.
6 You objected to the inclusion of filter backwash
7 in the definition of pollutants. Could you expand on that
8 comment a little bit?
9 MR. MEEK: It seems to me, again, that the
opportunity to propose these regulations was used to
10
11 modify an existing definition j&o&t the due process that
12 x*ould normally go through among an existing regulation.
13 MR. SCHNAPF: It seems to me the fact that we
14 are reproposing it and accepting comments on it again is
15 exactly what the due process is about.
16 What is it about including filter backwash in
17 the definition of pollutants that you object to? Why
18 don't you think that should be covered by the NPDES
19 program?
20 MR. MEEK: It opens up the question whether
21 existing NPDES permits took that into consideration.
22 v i can see a whole round of reconsideration of existing
23 permits .
MR. SCHNAPF: As a matter of law, we are not
25 able to open up permits for new changes in standards, but
i
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i I guess what I am getting at is, do you think thssa
2 should go unregulated? Do you think you should be
3 able to discharge filtered backwash from a point source
4 into navigable waters with no regulatory requirements?
5 MR. MEEK: I think the controls of that are
6 adequately covered.
7 MR. SCHNAPP: which programs cover that?
s It seems to roe inclusion of filtered backwash in the
; t
9 definition was j-us.t one example. I think it is assumed
10 in the concept of industrial waste —
11 MR. MEEK: Isn't there evidence that some
12 toxic or hazardous substance, because of the lack of
B that —
14 MR. SCHNAPF: No, we just wanted to make it
15 clear to the public that this was within the definition.
16 i think we have always been of the opinion that there is
17 a —
is MR. MEEKj To us it signals additional costs
19 for analysis and additional time involved to negotiate
20 a permit upon renewal or opening up the permit, and
21 permits are able to be opened up when something new is
22 recognized by the regulatory agency.
23 MR. SCHNAPP: What do you do with your filter
24 backwash presently?
25 MR. MEEKi What do we do with it?
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1 MR. SCHNAPF: Yes,
2 MR. MEEK: I am not even sure that, in our
3 particular plant, that it is a concern. It is more
4 of a generic concern.
5 MR. SCHNAPPs And I guess I missed it, and
6 perhaps I wasn't paying attention carefully enough, but
7 would you go over your comments with respect to the
8 definition of BMP's with respect to the NPDES program?
9 Could you reiterate that?
10 MR. MEEK: The terminology and definition for
11 best management practices sort of grew out of Section 208,
12 the Clean Water Act, and applied specifically to non-
13 point sources as a means of affecting a measure of
i4 control other than into the pipe.
15 And this is a concept that we certainly have had
16 pros and cons about. But nevertheless, in terms of being
17 able to manage a facility, to minimize runoff that could
is significantly affect the receiving waters, it seemed that
19 a best management practice was a reasonable approach to it).
20 The 1977 amendment to the Act brought forth the
21 reference in 304 (e) to toxic substance on ancillary sourcejs,
22 the implication of a best management practice was in the
23 Act, but not those words. Since that time, the regulaticrs
24 have been developed picking up the words "best management
25 practice," but applying it in a manner that is much more
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1 akin to a point source, much, more akin to an NPDES type
2 permit.
3 Oiar industry does, at the time that the- new
4 NPDES regulations were being proposed, spoke at length.
5 We thought that this introduction of a term that would
6 add confusion to the Act, because it already existed in
7 another form, was unnecessary, that between the NPDES
8 permitting process and the Section 311, in whatever form
9 it finally was proposed, to act for controls over industrial,
10 accidental, significant spills would be adequate through a
11 spill provision bill.
12 We have suggested simply that that term not be
13 used.
14 MR. SCHNAPF: In other words, it is a matter of
15 phraseology. You don't question our authority to include
16 those source conditions into permits of industrial
17 activities?
18 MR. MEEK: We question this backing up type
19 authority.
20 MR. SCHNAPF: What I am saying is, because I
21 want to get a better idea of where you are coming from,
22 but the Act is pretty clear that we are supposed to use
23 these conditions in 402 permits to control site runoff,
24 spillage, leaks, drainage from raw material storage. Do
25 you question that?
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MR. MEEK: No. I am questioning the implementa-
2 tion. It is certainly in the Act.
3 MR. SCHNAPF: With respect to one comment you
4 made, I just want to clarify that you mentioned the
5
possibility of added delays out of this whole process,
and the fact that your fear in that one permit delay
7 may hold up all the permits. This is not our intent.
8 Perhaps we could make this a little bit clearer in the
9 regulation.
10 MR. MEEK: Good.
11 MR. SCHNAPF: However, these permits are
12 separable and if one gets held up in the process, there
13 is no reason why one can't go forward. Unless there is
14 an overlapping issue. We may, in that case, have to hold
15 up the permits. If it is a matter of whether you discharg
16 one place or another place, we will try to make that
17 decision.
18 MR. MEEK: I have a hard time, and I grant you
19 that at times I have argued for the simplicity of con-
20 solidated permitting procedures, but I have a hard time
21 reading into the proposed regulations the ease that we
22 had hoped for in terms of simplifying the approach to
23 permitting.
24 I might say that in my opinion, perhaps it is
25 the published proposal was somewhat premature in terms of
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i bringing it to this point without the benefit of
2 perhaps regional workshops and involving people that
3 you have to work with and perhaps getting that Input.
4 Perhaps it would have bean easier to digest.
5 MR. LEVIN: I would like to follow up a question
6 on that, Mr. Meek.
i Other than the fact that you have anticipated
s delays, are there any other parts of the consolidated
9 permit proposal that give you a problem? In other words,
10 what I am groping for is I fail to see why it would not
11 be helpful to industry to have a consolidated effort,
12 recognizing the fact that we are not at one stop permittinjg
13 y®t, but can you be a little more specific as to what
14 your objections ara to the consolidated permit approach?
15 MR. MEEK: I think if the emphasis and your
16 concentration had been on interdepartmental, inter-EPA
i? unification and simplification of definitions and
is interpretations, to avoid the possibility of being asked
19 the, same question by more than one segment of the Agency
20 would have been a welcome consolidation.
21 I have a really hard time reading a consolidatiojn
22 in the Act. It is a detailed and somewhat modified re-
23 writing of existing portions of the regulations without
24 a real bringing it together and saying this is the
25 consolidation aspect.
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1 I don't know what good it is going to do.
2 I am worried about simply having to take one more step
3 beyond that which I already have to take.
4 MR. LEVIN: I just want to add one thing to
5
that. You are aware, of course, that we are required
6 to follow the various environmental pieces of legislation
7 and that oftentimes these are not always consistent,
8 so what we have tried to do here is consolidate and also
9 assure that the legislative mandates of the individual
10 Acts are carried out?
11 MR. MEEK: Perhaps the exercise in doing this
12 will lead you to suggest some changes in the original
13 legislation
14 MR. LEVIN: Are there any other questions from
15 the members of the panel?
16 MS. PETERSEN: I had a question for Mr. Palmer
17 on the blow down of timber. How frequently does this
18 occur and what sorts of best management practices are
19 prescribed by the State of Washington for the removal
20 of timber in that situation?
21 MR. PALMER: Of course, best management
22 practices are the Forest Management Act. Blow down,
it occurs quite often, especially in the Northwest. You
24 have your high winds, you have trees that are relatively
25 shallow rooted. It is inevitable. You leave different
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1 types of strips to protect streams and you are going to
2 get blow down, naturally.
3 MR. LEVIN: Any other questions?
4 (No audible response.)
5 MR. LEVIN: If not, gentlemen, thank you very
6 much for your statements today.
7 Mr. McGreer?
8 Before you begin, will you agree to answer
9 questions from the panel?
10 MR. McGREER: Certainly.
11 I am Dale J. McGreer. I am a forest soil and
12 water scientist for Potlach Corporation, vrhich manages
13 forest lands in Idaho, Arkansas and Minnesota. I hold
14 degrees in forestry and forest hydrology, and live in
!5 Lewiston, Idaho.
16 As a scientist I have followed technical aspects
17 of P.L.-92-500, and 95-217 for over five years. Today I
is offer technical comment, and also comment of a broader,
19 philosophical and administrative nature on the proposed
20 Section 404 provisions. My comments are quite brief.
21 There really are two main areas on which I wish
22 to comment. First, proposed definition of minor drainage,
23 if implemented as currently proposed, would result in
24 unnecessary and unjustified permit requirements, in my
25 opinion.
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Second, proposed provisions appear to impose
BMP regulations which are improper for three reasons?
first, these BMP's address upslope activities not
involving dredge or fill or conducted within wetlands
5 and are therefore beyond the proper jurisdiction of 404.
Second, several of these BMP's are technically
7 inappropriate.
Third, these proposed BMP's overlap, duplicate
9 and even conflict with BMP's which have been carefully
10 formulated by the state through the 208 program.
11 Now, I would like to expand on my first area of
12 concern, that of definition and exemption from permit
13
requirements. I am particulary concerned with the
14 proposed definition of "minor drainage.
13 The proposed definition for minor drainage,
16 "means construction and maintenance of facilities for the
17 removal of excess soil moisture from drylands, uplands."
18 Now, I must ask, in all seriousness, why would
19 anyone want to drain excess soil moisture from drylands?
20 Drainage and removal of excess moisture of
21 forest lands is done solely for purposes of improving
22 productivity and operability of wet sites.
23 Surely this was recognized by the legislature
24 when exempting minor drainage incidental to normal
25 agriculture and silviculture. Surely they did not mean
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1 to exempt only drainage of drylands.
I am, of course, suggesting that the proposed
3 definition of minor drainage is too restrictive. I am
4 not prepared to offer a specific definition. However,
5 I do believe it would be more appropriate to exempt,
6 as minor drainage, and for normal silviculture, removal
7 of excess soil moisture from forest lands necessary to
8 allow and improve production of desirable forest tree
9 species.
10 My second major concern is with the proposed
11 imposition of BMP's, some of which I regard as inappropriate,
12 Proposed part 123.107(a)(5) provides a means of exempting
13 discharge of dredgs or fill associated with construction
14 of forest roads. To qualify for an exemption, Section
15 404(f}(l)(E) requires that these roads "be constructed
16 and maintained in accordance with BMP's —" which are
17 listed.
18 BMP's designed to regulate discharge of dredge
19 " and fill resulting from construction of forest roads
20 within wetlands are appropriately within the purview of
21 404. However, potential non-point pollution from forestry
22 activities not involving dredge and fill, or not conducted
23 within wetlands is not, in my opinion, within the juris-
24 diction of 404.
25 The regulation of such activities would seem to
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1 be clearly inappropriate, especially in view of the
2 proposed definition of "dredged material" and "fill
3 material."
"Pill material means any material used for
5 the primary purpose of replacing any water of the United
States with dryland or of changing the bottom elevation
7
of a waterbody."
8 Some of the proposed BMP*s specifically
9 proposed parts 123.107(a)(5)(X), (XI), (XIII), (XVI),
10 and (XVII)t address practices conducted upsiope on
11 drylands and having absolutely nothing to do with dredge
12 or fill, and in fact in no way involves dredge or fill,
13 by any definition.
14 My second concern with these proposed BMP's
15 is that I regard them as technically inappropriate, and
16 in fact they are not BMP's at all. I will take, as
17 examples, two of the BMP's which I find most disagreeable.
18 First, proposed BMP XIII says in part:
19 v Sufficient zones of vegetation adjacent to
20 waterbodies shall be preserved to prevent thermal
21 pollution by preserving shade cover for waterbodies.
22 Now, while prevention of thermal pollution is
23 indeed a worthy goal, I ask again, in all seriousness,
24 what on earth does stream shade and thermal pollution have
25 to do with disposal of dredge and fill, and Section 404?
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1 Second, proposed part XI statas:
2 A selective, uneven-aged management cutting
3 method should be employed on slopes, near streams, or
4 in other sensitive areas unless the use of other forest
5 management options would result in the same or less
6 attrition of the chemical, physical or biological
7 integrity of effected waters including sedimentation.
8 Proposing selective, uneven-aged management for
9 controlling sediment production is a gross generalization.
10 Selective management often requires an intensive road
11 system and requires repeated stand entries and usually
12 requires ground operated skidding equipment. These facts,
13 in many cases, result in the more ground disturbance
14 and soil loss than does even aged management.
!5 It all depends on very specific circumstances,
16 which should not be generalized if best management is
!? actually to be achieved.
is And this leads to my third point as to why
J9 these BMP's are inappropriate. BMP's for prevention of
20 sedimentation and control of non-point pollution from
21 silviculture have been and continue to be painstakingly
22 developed in a site specific manner by the states under
23 the direction of Section 208.
24 I believe that the 404 BMP requirements were
25 meant to be specific and limited to the point source of
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1 dredge and fill. BMP'a for non-point sources should
2 continue to be tha purviaw of Section 208. Duplication
3 and even conflict of regulation simply cannot be in the
4 national interest.
5 In this regard, I call your attention to Sectior
6 101(f) of P.L. 92500, where Congress gave clear direction
7 that implementation of the Act should, and I quote:
8 "Encourage the drastic minimization of paperwork and
9 inter-agency decision procedures, and the best use of
10 available manpower and funds, so as to prevent needless
11 duplication and unnecessary delays at all levels of
12 government."
B And in Section 101(b)s
14 "It is the policy of the Congress to recognize,
15 preserve and protect the primary responsibilities and
16 rights of the states to prevent, reduce and eliminate
17 pollution, to plan the development and use (including
18 restoration, preservation and enhancement} of land and
!9 water resources, and to consult with the administrator
20 in the exercise of his authority under this Act."
21 In view of these mandates, I recommend that
22 Section 123.107(5) be modified to refer only to those
23 detailed best management practices described in the
24 state's approved 208 program. Description of required
25 BMP's, and certainly those addressing upland activities,
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1 are duplicative and unnecessary and should be removed
2 from the proposed regulations.
3 Thank you.
4 MR. LEVIN: Thank you, Mr. McGreer.
5 Questions from members of the panel?
6 (No audible response.)
7 MR. LEVIN: If not, thank you very much.
8 That completes our list of speakers.
9 (Whereupon, a discussion w?,s had
off the record.)
10
11 MR. LJIVIN: James D. Linxwiler?
12 Would you also answer questions from the panel?
13 MR. LINXWILER: Okay. Insofar as I am able.
14 My name is Jamie Linxwiler. I am employed as
13 an attorney to Sohio Petroleum Company in Anchorage,
16 Alaska. I come today to offer testimony on behalf of
17 Sohio Petroleum Company on the consolidated permit
18 regulations. I appreciate the opportunity to comment
19 upon these regulations, and will supplement my oral
20 testimony with further written comments in the next
21 few weeks.
22 MR. LEVIN: That will be fine, then. We
23 realize you just got off an airplane.
24 MR. LINXWILER: Sohio Petroleum Company
25 strongly endorses the idea of simplifying current
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permitting and regulatory mechanisms by consolidating
programs, as the regulations have attempted to do.
Substantial amounts of time and money are currently
4
expended in an effort to adhere to a wide variety of
permit regulations, and insofar as these regulations
can be standardized, the public can only profit.
However, Sohio Petroleum Company does have certain
o
problems with the consolidated permit regulation scheme,
9 particularly as it affects our operations within the
10 State of Alaska. These problems include the following:
11 First, we would suggest that the comment period
12 for both the consolidated permit regulations and for
13
the UIC regulations found in part 146 be extended.
14 We would suggest that both comment periods be extended
15 until approximately mid-October. While the standard
16 comment periods were provided for in these regulations,
17 meaningful comment within this period of time upon such
18 complex and lengthy regulations is very difficult for
19 members of industry, and members of the general public.
20 We believe that the consolidated permit
21 regulations should provide that the UIC program, should
22 expressly be made inapplicable to permafrost areas.
23 The UIC program, like many other regulatory programs
24 found within the consolidated permit regulations, was
25 established with reference to conditions in the lower 48
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states, and does not readily translate to the Alaska
experience. This is certainly the case with respect
3 to the extensive Prudhoe Bay Field, which is underlain
4 by several 1,000 feet of permafrost, and is also the
5 case with respect to several other proposed oil and
6 gas development areas in the arctic. The definitional
7 sections found within part 122.3, defining the term
"underground drinking water source" should expressly
9
exclude water held in the frozen state in permafrost,
10 or ground waters occuring in aquifers underlying
11 extensive permafrost areas. This goal could easily be
12 achieved by expressly excluding injections in the strata
13 deeper than some maximum depth, say 2,000 feet.
14 A point related to this is that the UIC
15 program regulations do not acknowledge that underground
16 injection is currently the subject of extensive state
17 regulations in many states, including the State of
18 Alaska. The danger in the regulations is that this
19 careful scheme of state regulation, focused upon real
20 problems as they exist within the states, is ignored,
21 and in fact is replaced by a mechanism of.nationwide
22 application which responds only to hypothetical harms
23 to potential drinking water sources, a system which
24 distinctly lacks focus upon the real problems as they
25 exist with respect to Class II injections within any
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1 particular oilfield. We believe more attention should
2 be given to existing state regulations of injections.
3 Part 122.5(a)(b) provide that this signatory
4 of application and report forms under the consolidated
5 permit application program shall either be, in the case
6 of a corporation/ a principal executive officer of at
7 least the level of Vice President, or, in the case
8 of reports, a duly authorized representative, if the
9 representative is responsible for the overall opera-
10 tion of the facility from which the regulated activity
11 originates, such as a plant manager, superintendent,
12 or person of equivalent responsibility. We assume that
13 the point of this sort of requirement is that the EPA is
14 concerned that the corporation making the application
15 or report truly be cognizant of, and truljay be bound by,
16 the representations made within reports and applications,
17 However, applications and reports within the industry
is are not customarily signed by a person with a rank of
19 Vice President or higher, and to so require in view of
20 the substantial amount of reports are filed in a given
21 year by any operator within the oil and gas industry
22 would result in the creation of the position for a vice
23 president who did nothing but sign reports. We can see
24 no reason for the sort of limitation stated therein —
25 as long as the signatory of the permit application or
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1 report is duly authorized by the corporation rakincr
2 the application or raport to sign the relevant docu-
3 nents, the corporation is legally bound, and it makes
4 little difference beyond that as to the identity of the
5 signatory.
6 This is, in itself, a relatively small point,
7 but it is typical, we think; failure to acknowledge
8 the practicalities of the regulatory mechanism within
9 the proposed consolidated permit regulations. In our
10 written submittal, we will point out further similar
n areas in which some of the day-to-day operational
12 impacts of the proposed regulations can be eased by
13 - relatively simple changes in the regulations.
14 Part 122.7(c) and part 122.8 provide that there
15 shall not be renewals of permits issued under these
16 regulations and that their maximum term shall be five
n years. While there will be in the future substantial
is industry comment upon these regulations as they impact
19 other operations and change current regulatory require-
20 ments, we would like to focus your attention for the
21 moment upon the impact of these regulations upon the
22 arctic environment — specifically, in speaking with
23 respect to the impact of a five-year permit limitation
24 without renewals upon operations within the arctic.
25 Virtually every aspect of arctic development
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1 requires a Section 404 permit, because it is either
2 carried on upon wet tundra'areas, which are classified
3 as wetlands, or is carried on gravel islands in the
4 Arctic Ocean. There is currently a substantial amount
5 of such development, such as the Prudhoe Bay Field,
6 oil and gas operations within the NPRA, and operations
7 within the Beaufort Sea, and in the future there will
8 be substantially more.
9 While most of this regulation currently is done
10 through the Army Corps of Engineers permitting mechanism,
11 we expect that in the future the EPA regulations could
12 come to have impact: upon these operations. Limiting
13 permits to the short period of five years could in
14 fact substantially interfere with development in the
15 Arctic. Work seasons are so short, that it my require
16 as many as three years simply to drill an exploratory
17 well, which in other areas, could be drilled at the rate
18 of three or four per year. Production facilities,
19 which will take a similarly unusual period of time to
20 create, are also subject to Section 404 permits.
21 Requiring, in the arctic environment, that these permits
22 must be obtained anew every five years, substantially
23 interrupts with both exploration and development of
24 petroleum resources in these areas. This is especially
25 inappropriate in view of the fact that the arctic area
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of Alaska has the highest petroleum potential of any
2 area in the United States, a fact that is especially
3
significant in view of the current energy shortage.
Therefore, we would suggest that these
5 regulations be amended to provide that (a) renewals be
6 freely available if no substantial change in the opera-
tions, or in their environmental impacts occur, and/or
8 (b) that the permit term should coincide with the project
9 life, if the project's life will exceed five years.
10 As I mentioned earlier, these comments upon
11 these particular provisions of the regulations will be
12 substantially enlarged upon by industry spokesman in the
13 future.
14 Part 122.26 "Permits by Rule." We favor the
15 present approach of the draft regulations respecting
16 the underground injection of drilling muds and produced
17 formation waters, referred to in the regulations as
18 "oil production brines." In the arctic environment, these
19 substances can only be disposed of by reinjection. This
20 is a method that has been settled upon by federal and
21 state agencies, in cooperation with the oil producers,
22 as the most environmentally sound method of disposal.
23 However, these wastes are generated in large volumes,
24 and are not sufficiently hazardous in nature to justify
25 special regulatory treatment. We believe that adequate
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i reflations can be written respecting the depth £.nc
2 manner of injection which, for instance, require
3 injection into subsurface strata which are not in
4 communication with subsurface drinking water sources,
5 so that any potential harm of contamination of the
6 subsurface drinking water by the saline formation water
7 is avoided. To go beyond .this, and to require special
8 regulatory treatment, either through site specific
9 permits or general permits, as discussed in the comments
a/
10 under part 122.26, is unj/stified and unnecessary in our
11 view.
12 The mechanism chosen in part 122.33 for
13 identifying underground drinking water sources requires
14 the affirmative mention of aquifers which are not so
15 qualified — everything not so identified is classified
16 as drinking water source. The result of an inadvertent
17 failure to identify an underground deposit of water should
is be to prohibit creation of further injection wells which
19 penetrate it. In view of this possibility, we believe
20 that the regulation should be rewritten to provide an
21 express identification of drinking water sources which
22 are subject to protection under the regulation, a reversal
23 of the present approach.
24 The authorizing legislation for these regulation^,
25 shich is found in the Safe Drinking Water Act, 42 USC 300(p)
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®£: 52SL- contains, at 42 USC 300(h)(b){2) the following
2 statement:
3 "Regulations of the Administrator under this
4 Section for state underground injection control programs
5 may not prescribe requirements which would interfere
6 with or impede:
7 "(a) the underground injection of brine or
8 other fluids which are brought to the surface in
9 connection with oil or gas production or
10 "(b) any underground injection for secondary
11 or tertiary recovery of oil or natural gas,
y
12 "unless such requirements are essential to
13 assure that underground sources are not endangered by
14 such injection."
15 We believe that there are certain provisions of
16 the regulations of the consolidated permit regulations,
17 and additionally, components of part 146 governing the
18 DIG program, which do not satisfy this statutory require-
19 ment. We will set forth in detail the portions of the
20 regulations which we believe improperly inhibit the free
21 underground injection for petroleum production purposes
22 in our written comments.
23 However, at this time, we would bring to the
24 attention of the EPA the provisions of part 122.40, which
25 We believe may interfere with the statutory requirements.
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i This provision relates to temporary authorization.-; -;vhlan
2 are allowed only where irretrievable losses of oil or
3 gas will result. This is far too high a standard —
4 of course oil and gas will always be in the ground — and
5 operation of this provision will interfere with oil and
6 gas production in a manner prohibited by the authorizing
7 statute. Another similar example is that existing
8 injection wells which inject formation waters are not
9 included in the exception from the permit requirement
10 found in part 122.36. As I mentioned earlier, substantial
11 amounts of formation waters are reinjected in the Prudhoe
12 Bay Field and in the arctic in general because this
13 results in substantial environmental benefit. We hope
u , that the omission of produced waters from part 122.36(a)
15 was inadvertent, because if it was not, it constitutes
16 a substantial interference in the safe and environmentally
17 sound operation of the Prudhoe Bay Field, the largest
is existing oilfield in the United States, again in violation
19 of the statute.
20 In view of the time constraints, I will not go
21 on with further oral comments concerning the consolidated
22 permit regulations. However, as I mentioned, Sohio
23 Petroleum Company will be submitting substantial written
24 comments both as to the consolidated permit program and
25 forms, and as to part 146, of the UIC program.
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1 Thank you very much for your kind attention
2 and for the opportunity to be heard.
3 MR. LEVIN: Thank you, Mr. Linxwiler.
4 Questions from the members of the panel?
5 I have one, at least.
6 Referring to page two of your statement,
7 paragraph three where you discuss the fact that the UIC
8 program regulations do not focus on real problems as they
9 exist in the State of Alaska.
10 MR. LINXWILER: Specifically I am speaking with
11 respect to. permafrost operations.
12 MR. LEVIN: I would ask you if you would
13 elaborate perhaps a little bit as to what kind of
14 problems oil and gas operations cause or have caused in
15 the State of Alaska and how the state handles them, becausje
16 you admonish us in the states that we should pay closer
17 attention to what the states are doing, and since you
is come from Alaska, I was wondering if you could give us
19 a little more specific information on it?
20 MR. LINXWILER: I hesitate to speak off the
21 cuff on this subject in view of the fact that I am not
22 a petroleum engineer. I can generally describe the
23 problems that exist in injecting through permafrost and
24 that basically involves the danger of thawing the perma-
25 frost.
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i MR. GORDON: Sines some of your questions
2 or statements ralata to 146 or touched on them, I v.c-aL3
3 like to ask you a couple of questions.
4 Is there anything in the proposed consolidated
5 permit regulations or in the proposed 146 regulations
6 which would require legislative amendment for the State of
7 Alaska, as far as you know?
8 MR. LJNXW1LER: Not so far as I know.
9 MR. GORDON: Will you be commenting on that as
10 part of your written comments?
11 MR. LINXWILER: I will attempt to do so. I
12 suspect it may require the amendment of some regulations,
13 but not statutes.
14 . MR. GORDON: Does Alaska currently have a UIC
15 program?
16 MR. LINXWILER: No, it does not. Not specificaljly
17 for the purposes of protecting ground water. There are
is regulations of underground injection, but they are
19 focused primarily on what you referred to as Class II
20 injection.
21 MR. GORDON: Are there any stripper wells in
22 Alaska?
23 MR. LINXWILER: Not at Prudhoe Bay, There may
24 be some in some of the older fields.
25 MR. GORDON: To your knowledge, are there any
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i differences in the way Alaska treats stripper wells
2 versus other kinds of wells from a legal sense?
3 MR. LINXWILER: Not to my knowledge. But,
4 again, I would hesitate to comment because I haven't.
5 had experience in Alaska with that particular problem.
6 MR. GORDON: Thank you.
7 MR. LEVIN: Any other questions?
8 MS. PETERSEN: I have one short question. In
9 your comments on the requirement for the reissuance of a
10 404 permit after five years, that, of course, is a
11 requirement of the statute that permits the issued for
12 a fixed term. You say in your statement that many of
13 these exploratory wells or other projects require as many
14 as three years. Is the effect that it requires longer thajn
15 five years to complete a project under a single permit?
16 MR. LINXWILER: I would suspect that we are
17 looking ahead on this to the Beaufort Sea development
is primarily. I think primarily looking to the Beaufort
19 Sea development which hasn't occurred, but they have been
20 drilled in very hasty basis, not an extensive basis,
21 for purposes of exploring say the outer limits of a known
22 oil development. There are sort of wildcat wells.
23 Those wells didn't, in the past, have not caused any
24 problem. But in the future, if in fact there is a sub-
25 stantial oil discovery made, then probably they will take
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1 longer then five years.
2 MS. PETERSEH: How far offshore ara these?
3 HE. LINXWILER; Well, there is a substantial
4 amount of controversy as to exactly where the outer limits
5 is going to go. It could extend 10 miles offshore.
6 MS. PETERSEN: How far close to shore?
i MR. LINXWILER: They will be within a rails of
8 the shore I am sure.
9 MR. LEVIN: Any other questions?
10 (No audible response.)
11 MR. LEVIN: If not, thank you very much, Mr.
12 Linxwiler.
13 Are there any other people in the room who wish
14 to make a statement this afternoon?
15 MR. HARPER: I would.
16 MR. LEVINs I would ask you, if you would, fill
17 out one of the cards after the fact.
is Will you remain for questions?
19 'MR. HARPER: I will.
20 My name is Warren Harper, Weyerhaeuser Company.
21 I am Manager of Environmental Affairs, specifically
22 related to land and timber issues.
23 Technical training as a forast hydrolosist,
24 so I am here really to offer a few comments both rep-
25 resenting my capacity as an environmental affairs manager
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.->
1 and also mora specifically as a forast hydroIodise.
2 I would like to confine my remarks to specific
3 aspects of the 404 portion of the proposed consolidated
4 regulation. In addition, I will confine my comments to
5 a few overall general concerns, but would like to reserve
6 the right to submit more specific written comment to
7 your office prior to the September 12th deadline, and that
8 written comment will also provide comment expressing an
9 overall concern for the validity of the consolidated
10 permit program.
11 As related to the consolidated permit program
12 , concept, however, I would like to make one observation.
13 I certainly agree with the concept of a one stop permit
14 inasmuch as it would reduce the permitting burden.
15 However, relative to the 404 regulatory program, it is
16 difficult to evaluate the permit program in the context
17 of consolidation, since there has not been an opportunity
18 to review the specific content of the proposed regulation
19 outside the concept of consolidation. While the forest
20 industry has seen various versions of the other permit
21 programs as proposed in the consolidated regulation,
22 this is the first time specific regulation related to
23 the 404 permit program has been offered. It would have
24 been much easier to evaluate the proposed 404 program
25 by itself, and then take on the task of reviewing the
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i desirability of consolidation with the other
2 Of major concern with the proposed 404 permit
3 program is the apparent confusion with the role of the
4 208 program. It is my understanding that the 208 program,
5 as envisioned and endorsed by Congress, was designed to
6 address control of pollution from most, if not all forest
7 and agricultural practices. In fact, Congress exempted
s normal silvicultural practices from the 404 program,
9 including forest road construction and maintenance when
10 completed in accordance with specific best management
11 practices.
12 ' -However, in reviewing the proposed best manage-
13 ment practices, the exemption is partially, if not completely
14 lost, through defining practices which extend_ far beyond
15 the deposit of dredge or fill material into waters of
16 the United States.
17 For instance, the practice specified under
is number 11 states that selective uneven-aged management
19 should be avoided on slopes near streams. Such a practice
20 may or may not be the silvicultural description for a
21 given site and will depend on many things, including
22 vegetation, climate and physiographic type. If the
23 concern here is toward preventing sediment from reaching
24 stream courses due to silvicultural activity, then this
25 is clearly the province of the 208 program, and not the 404
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i permitting program, because of a specific exemption.
2 Dnder the practice specified in paragraph I,
3 logging in streams is prohibited. Assuming that a
4 stream is any water course as specified under the definition
5 of waters of the United States, then anytime a forest
6 road is constructed for the purpose of harvesting and
7 managing a forest stand, then either a permit will be
s required to operate across all small streams, including
9 an intermittant headwater stream, or such practice would
10 have to be avoided. Such a restriction would bring to
11 a halt all the yarding operations in the Pacific Northwest),
12 It is virtually impossible to design a harvest setting to
13 yard away from all stream courses. Even if it were
14 possible to do so, it would almost assuredly mean con-
15 struction of many more road miles in order to do so.
16 The small headwater drainages also pose problems in that
17 it would require permit for the installation of virtually
is all culverts. Because of the large number of small
19 drainages and resulting culvert installations, this would
20 pose an almost impossible situation.
21 The concern for problems surrounding small
22 headwater tributaries could be handled through the
23 proposed general permit program as developed by individual
24 states. There is some precedent for doing so, based on
25 the nationwide general permit as issued by the Corps of
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i Engineers in their regulations of July, 1977. It would
2 also be helpful, however, if the state had some direction
3 or guidance as to what should be included within the
4 provisions of the general permit process.
5 For purposes of the regulation, I understand
6 that it is not possible or desirable for the EPA to offer
7 such guidance, and in fact, EPA cannot tell the state that
8 they should not include a category of discharge if they
9 choose to do so. Perhaps this problem could be solved
10 through EPA developing guidelines for assisting states
11 in developing their 404 program following promulgation
12 of the specific regulation.
13 Further, because of the problems inherent in
14 trying to specify best management practices that are
15 applicable nationwide, perhaps the listing now included
16 within the body of the proposed regulations should be
17 deleted in favor of offering such direction in the form
is of guidelines. Specific BMP's should be developed by
19 the individual states based on local conditions rather tha
20 by EPA as proposed.
21 I would like to make one further comment
22 relative to the concept of best management practices.
23 Under paragraph 122.3(e) a definition of best management
24 practices has been suggested. This definition differs
25 significantly from the one that most states have
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1 recognized and used during the development of 20S plans
2 and programs. That definition differs significantly from
3 the one that most states have recognized and used during
4 the development of 208 plans and programs.
5 That definition specifically included a considerja
6 tion for technical, social, political and economic
7 feasibility. I believe all of these aspects to be an
8 important part of a definition for best management
9 practices and suggest that it be retained.
10 In that same paragraeh it is noted that the
11 best management practices developed by an individual
12 state must insure compliance with, among other things,
13 water quality standards. Such a requirement is an
\
14 impossible situation in almost every state. Water quality
15 standards now in force in most states, were developed
16 primarily for the control of point sources of pollution anjd
17 do not adequately include a consideration of natural
is background conditions or of the natural variability
19 characteristic of streams flowing through forested lands.
20 Finally, I would like to say just a few words
21 about problems related to trying to define wetlands
22 utilizing the definition as proposed. First let me say
23 that I believe it was Congress' intent that normal
24 silvicultural practices be exempted from the 404 program,
25 and therefore forest managers should be relieved of their
IPWIN & ASSOCIATES, CSR's • Court Reporters 623-7881 Seattle, Washington ______^_______
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1 concern relative to the permitting process.
2 However, as referenced earlier, it is somewhat
3 difficult to understand the extent of liability when
4 considering construction and maintenance of forest roads.
5 An inappropriate delineation of wetland on a side slope
6 resulting from the prevalence of indicator species could
7 subject the land manager to a 404 permitting procedure
8 or compliance with best management practices that may
9 not be necessary, and in fact counter-productive to
10 both environmental protection and to the production of
11 forest products. For instance, vegetative indicators
t
12 that have been proposed in existing preliminary guidelines
13 by the Corps of Engineers lists Red Alder and Lodgepole
14 Pine as an indicator species for mountain fresh water
15 swamps in the Northwest.
16 Depending on physiographic and climatic provinces
17 both of these species will develop readily when overstory
is vegetation has been removed. The site may or may not
19 be wetland, and in fact in most cases it probably will
20 not be. It would seem appropriate that the agency take
21 a hard look at the existing definition and determine if
22 there is a more appropriate way of identifying those
23 wetland sites that need protection. It seems to me that
24 in the end analysis a viable identification of wetland
25 will depend heavily on the timing and extent of inundation
.. IRWIN & ASSOCIATES, CSR's Court Reporters • 623-7881 - Seattle, Washington
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i with standing surface water, topigraphic position and
2 soil type. Vegetative indicators may in fact be a
3 valid way of estimating when such conditions occur,
4 but they cannot stand alone as a final point of decision.
5 Also, there seems to be a tendancy by most
6 biologists to look at understory species as primary
7 indicators. It would seem more appropriate to consider
8 longer lived woody overstory species as primary indicators
9 because they are more indicative of long term trends.
10 I believe it is the longer term trends that
11 are of importance in defining true wetlands that need
12 protection, rather than relying on short term trends.
13 Thank you.
14 MR. LEVIN: Thank you, Mr. Harper.
15 Any questions from members of the panel?
16 MS. PETERSEN: With regard to the general
17 permit we have provided a section with guidance for states
is on developing general permits. That's in 123.106. I
19 think we have encouraged them to take over general permits
20 that are administered by the Corps in our requirements
21 for the memorandum of understanding between the Corps
22 and the state.
23 And one other thing, is that our office will be
24 developing some guidance for states that are developing
25 404 programs in terms of listing each individual requirement,
._. IRWIN & ASSOCIATES, CSR's - Court Reporters • 623-7881 • Seattle, Washington
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1 and some of the options the state might taka in
2 complying with that requirement. I think that will
3 probably be the extent of the guidance we will give
4 states with regard to general permits. Any further
5 decisions, I think, are rightly left to the individual
6 state.
7 MR. HARPER: Can I comment on that?
8 MR. LEVIN: Sure.
9 MR. HARPERs The intent for offering that,
10 Fran, was the problem I think most people have presented
11 today in terms of the best management practices as
12 proposed. And I think at one point in time during the
13 informal discussion it was really a concept that this
14 was guidance rather than being a requirement. And it
15 seems to me like if that's the intent of EPA, while I
16 understand that is not the way it is currently written,
17 if it is the intent of EPA that this be guidance to the
18 state as what would logically be included within a permit-
19 ting process as related to BMP's, then it seems to me
20 like it would be more appropriately in guidance material
21 rather than in the body of the regulations.
22 MS. PETERSEN: I think the BMP's are based on
23 minimum requirements for the exemption under farm and
24 forest roads, but I think we probably ought to keep the
25 discussion of these baseline BMP's for that exemption and
IRWIN & ASSOCIATES, CSR'S • Court Reporters - 6J3-7881 Seattle, Washington
139
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1 general permit separate.
2 MR. HARPER: Okay, I will accept that. I had
3 the two premises, one of which that there needed to be
4 guidance to the state for what should be included in the
5 general permit and the reason for bringing that up is
6 the problems we have with a large number of headwater
i
~i streams.. If we don't have some provision as we were
8 given through the Corps' general permit, that in essence
9 excluded those headwater streams,• then we really have an
10 impossible situation. Virtually anytime we place a
11 culvert in any size stream, we have to do so under permit.
12 Certainly the state has the latitude to do that, I wonder,
13 under direction though whether or not we would do so.
14 And I understand you can't tell them that they have to.
15 But all I am saying is that there might be some room
16 for guidance from EPA helping the state understand what
n it is that would be appropriately included in that kind
is of a permit.
19 And then in that same context with guidance,
20 i suggest that the best management practices also be
21 included in guidelines.
22 MS. PETERSEN: Under the general permits, we
23 do ask them to include BMP's necessary to insure
24 environmental effects will be minimal, but we don't
25 \ specify baseline BMP's. General permits are, of course,
. IRWIN & ASSOCIATES. CSR's - Court Reporters - 623-7881 Seattle, Washington
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1 subject to oversight review by EPA as the stata reviews
2 them.
3 MR. LEVIN: Any further questions?
4 (No audible response.)
5 MR. LEVIN: If not, thank you, Mr. Harper.
6 Let me tell you what is supposed to happen from
7 here on in. In a few minutes we will go off the record
8 again to answer any further questions about the regulation^
9 you may have. In addition, WQ are scheduled to have a
10 public hearing this evening, which will start at 7:30,
11 which will cover both the DIG program as well as the
12 proposed consolidated permit regulations.
15 As of the moment we have not had anyone sign
i4 Up to make a statement at that hearing. Nevertheless,
15 I am going to ask the panel members who are scheduled to
16 be here tonight to be here at 7:30, just in case anyone
17 should show and wish to make a statement.
is If that takes place, that hearing will be chaire|d
19 by John Skinner, sitting to my immediate right. He may
20 be talking to an empty chamber.
21 We are also scheduled to have a third hearing
22 On the consolidated permit application. As of the moment,
23 we have one individual who has signed up for that hearing,
24 and that is a Mr. Harold Solomon from San Francisco,
25 ^ California, and he may wish to make a statement today.
. IRWIN & ASSOCIATES, CSR'S • Court Reporters - 423-7881 Seattle, Washington
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1 Is Mr. Solomon hare?
2 {No audible response.)
3 MR. LEVIN: Before we go off the record, I woulc
4 just like to close with this comment, and that is that
5 regulation setting, is a very serious and complex business
6 because it affects.millions of peoples' lives, and as
7 a result EPA does very, very seriously consider the
8 public comment.
9 And on behalf of the panel, I would like to
10 thank all of you who came here today to make a statement,
11 and for members of the audience for sitting through the
12 hearing.
Thank you very much.
14 The hearing is now adjourned and we will go
off the record for questions and answers
16 (Whereupon, at 3:00 p.m. the
proceeding was concluded.)
17
18
19
20
21
22
,23
24
25
t ASSOCIATES, CSR's - Court Reporters - 623-7881 • Seattle, Washington
142
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1
2 CERTIFICATE
3 STATE OP WASHINGTON )
) ss
4 COUNTY OF )
5
6 I, the undersigned Notary Public in and for
7 the State of Washington, do hereby certify:
8 That the foregoing proceedings held on
9 July 31, 1979 were taken stenographically before me
10 and reduced to typewriting under my direction;
ii I further certify that the proceedings as
12 transcribed are a full, true, and correct transcript,
13 including questions and answers, all objections, motions,
14 and exceptions of counsel made and taken.
15 Signed this IQthday of August
16 1979 .
17
18 /s/ Earl L. Bar tall
21
22
23
24
25
19 Notary Public in and for the
State of Washington, residing
20 at Issaquah
-IRWIN & ASSOCIATES, CSR's - Court Reporters - MA 3-7881 - Seattle, Washington-
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Presentation by Don Lee Fraser at EPA's Seattle hearing on "Consolidation
of Permit Regulations," as published in the June 14, 1979 Federal Register
(including regulations relating to Section 404 of the Clean Water Act):
I am appearing here today to speak for Bert L. Cole, the elected Land
Commissioner in the State of Washington, who is the Administrator of the State
of Washington Department of Natural Resources.
I personally worked for a period of nearly 40 years for the Washington
DNR and its predecessor, the State Division of Forestry. I retired two years
ago after having been the supervisor of the Department for ten years.
The DNR has two major forestry functions:
1. To assist, encourage, and regulate sound, productive forest practices
on privately-owned forest land—to this end the State initiated its
first forest protection legislation in 1903. We initiated our first
Forest Practice Act back in 1945 and substantially expanded it in 1974
and 1975 to include, among other things, regulations concerning
protection of the waters of the State.
2. DNR's second major function is to manage, in a proprietary sense,
two million acres of state-owned timber land.
So, the DNR is both a forest regulatory agency and a manager of forest land
and it is headed by a statewide elected official accountable to all of the
people in the state (and incidentally, the current Commissioner is in his sixth
consecutive four-year term.)
Our Forest Practice Act is a regulatory act which addresses reforestation,
maintenance of soil productivity and water protection. It has been submitted
and accepted under 208 as our "process. . . to control to the extent feasible"
nonpoint sources of water pollution stemming from siIvicultural activities. ]_/
The DNR is the administering agency, but the State Departments of Ecology,
Fisheries, and Game and the counties all have certain rolls in the program.
We, in the State of Washington, have been and are concerned with conducting
our forest practices in such a way as to reasonably and meaningfully protect
water quality, but we want to maintain state options to the maximum extent
permitted under the law. We also want to minimize unnecessary and unproductive
duplication and procedural red tape.
In addition to my past responsibilities in the State of Washington, I
served for a number of years as the chairman of the National Association of
State Forester's Environmental Committee and acquired a concern and some perspectivt
of forest practice issues in many other states.
This submission was not'under the provisions of 208(b)(4) even though our
Forest Practice Act is a regulatory program.
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My discussion of the regulations proposed in the June 14, 1979 Federal
Register will be limited to the portions dealing with and/or impacting silvi-
cultural activities, including associated forest road construction.
I'd first like to make several general statements, and then I'll address
the specific details on a point by point basis:
Our major objections to the June 14th proposal are these:
1. We object to the inclusion of nonpoint activities not involving the discharge of
dredge or fill material into waters of the United States in the baseline BMP's
obstensively developed for forest road construction dredge or fill activities.
These nonpoint activities are already addressed under 208. (see appendix)
2. We object to the new definition to be used in drafting 404 BMP's and recommend
use of the 208 definition of BMP's (see Appendix).
3. We object to the establishment of baseline BMP's that are required to be
included in all State 404 BMP's dealing with the discharge of dredge or'fill
resulting from forest road construction. Each State should be free to negotiate
BMP's with EPA in order to make them fit conditions in each State.
4. Considerable confusion and uncertainty exists relative to the definition arid
identification of "wetland" and "minor drainage" that need resolution. I'm
not prepared to offer alternative wording today, but we plan to do so prior to
the September 12th comment deadline.
IN ADDITION TO THE ABOVE GENERAL COMMENTS, I note the following detailed points:
1. Page-34248, 3rd Col.umn: I would not like to see the NPDES definition of BMP's
extended to 404.
2. Page 34262, Subpart D: Again in answer to EPA's request for comment, I believe
that a State should be allowed to elect to use more than one agency for issuance
of 404 permits. This is particularly needed where state agencies already administer
state permit programs for dredge or fill activities under existing state laws,
as is the case in the State of Washington.
3. Page 34268, 1st Column: The definition of "contaminant" adopts wording from
the statutory definition of "pollution" but drops the requirement that it be
'man-made or man-induced. Is this intended? (I haven't found where the term is
used.)
4. Page 34270, (d): While there will be only a few point source discharges stemming
from silvicultural activities requiring NPDES permits, I don't understand the
need .to impose both effluent limitations, BMP's and WQS.
5. Page 34271, 1st Column: I find several problems with the provisions under the
general definition of "Discharge of a pollutant." The term is first properly
identified, in the proposed reg's., with "point sources," but then there is the
additional wording that: "This definition includes discharges into waters of
the United States from surface runoff which is collected or channeled by man..."
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This seems to conflict with the definition of "Silvicultural point sources!1 in
122.80 on page 34295 (I strongly support the definition of siIvicultural
point sources in 122.80.) The definition on page 34271 also seems to run
contrary to the 1977 amendment specifically stating that irrigation return flow
shall not be classified as a point source and is contrary to the statement
exempting irrigation return flows in the definition of "Point Sources" on page
*
6. Page 34271, 2nd Column, Item (6): I believe the definition of "wetlands" does
not properly confine itself to what most people conceive wetlands to be. Here
in the Northwest, most of the tree species that normally occur in soils that are
periodically satuated also occur on the uplands and, in some cases, dominate our
very driest sites. Because of the difficulty of identifying "wetland" areas, as
presently defined, it is also difficult, to evaluate the impact of the "minor
drainage, definition proposed in these reg's. I'm concerned that the forest
land owner may not be able to maintain, reestablish, foster and improve the
timber types historically having existed on his land. I also believe that
additional consideration should be given to the definition of "minor drainage"
with the southern state forestry agencies.
7. Page 34272, 1st column, (e): I strongly object to the proposed definition of
BMP's that is to apply to the 404 program. Strict interpretation would nearly
eliminate all 404 projects under the WQS's currently existing in most states.
Secondly, there appears to be a direct conflict possible in having two different
definitions of 'BMP's that can be applicable to the same activity depending on
agency options under the Act. First let's compare and evaluate the two definitions
BMP's for 404 Activities
1. must insure compliance with the ,,
404(b)(l) environmental guidelines—'
2. must insure compliance with effluent
limitations and prohibitions under
307(a) 2/
3. must insure compliance with WQS. Inas-
much as most WQS's permit only a 5 to
10 JTU increase in turpidity and have
no time exemption, most discharges will
result in short-term violation.
4. there is no consideration of "practi-
cality," "economics," or "feasibility."
BMP's for 208 Activities
1. no comparable provisions-
2. no comparable provision
3. shall be developed to achieve water
quality goals-(fishable-swimabTe)
which may be very different from
current WQS. (The goals of the Act
are clearly labeled as "goals" on
page 1 of the Act.)
4. Economic, institutional and technic
factors shall be considered.
I/ Under the Act, these guidelines relate only to the disposal of dredge or fill
material at specified disposal sites, but these proposed reg's would apparently
extend said guidelines to also relate to discharge of dredge or fill, other than
at specified disposal sites, and to certain nonpoint activities.
2/ 307(a) relates to establishment of effluent standards for point sources and the
June 14th proposed reg's extend 404 — incorrectly — to nonpoint activities.
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In the disposal of waste by-products into waters of the United States,
there will be times when it is in the public interest to disregard economic,
institutional and technical factors, but Section 404 is an affirmative state-
ment by the Congress permitting certain agricultural and silvicultural dredge
or fill activities 3/ and requiring only compliance with BMP's in other
instances (with certain statutory exceptions). Surely Congress did not expect
BMP's that would prohibit or severly restrict these permitted activities. It
is also noted that the provisions for general permits under 404 (page 34317)
includes the wording "minimizing impairment to the maximum extent practicable,"
but no such leeway is provided under the definition of BMP's for 404. The
1977 amendments provided the alternative of complying with State BMP's imposed
under 208(b)(4) and developed under the 208 definition of BMP's. It seems
irrational to have a different definition for BMP's developed under 404 for
the same activities.
8. Page 34272, 2nd Column: The definition of "Disposal Site" merely says, in
essence, that it is a "space." The question is "a space for what? and where?"
But, I really think EPA also needs to define the term "a specified disposal
site," including who it is that does the specifying.
• '!,)
9. Page 34272, 3rd Column: Relative to the definition of minor drainage, I am
concerned that minor drainage is limited primarily to drainage on uplands which
is not subject to the provisions of 404.
10. Page 34295, 122.80: I agree with this definition of a silvicultural point
source as published in the final 402 reg's on June 7, 1979.
11. Page 34314, 123.95(a): The state should be allowed to elect additional agencies
to issue 404 permits.
12. Page 34314, 123.95(d): I concur with the provision for the state to develop
said 404 BMP's if the state has not elected to operate and develop BMP's under
208(b}(4), but the wording "in accordance with 123.107" suggests the BMP's must
either include the baseline BMP's set forth in 123.107 or that they will be the
same set. BMP's should be adapted to individual states (or even to portions
of states). As a matter of fact, such state-oriented baseline BMP's could be
cooperatively developed on a state by state basis for use by the Corps and/or
EPA even where the state did not elect to administer its 404 program. (This
would be similar to the situation where each state has a different federal water
quality standard.) In the event that 123.95(d) is also intended to direct
state BMP's developed under 208(b)(4) to include the baseline BMP's in 123.107,
I would argue that 208(b)(4) provides an alternative method of compliance and
the appropriate activities are then not subject to 404 permits—neither
individual permits or general permits nor with BMP's developed under 404
regulations. Compliance with one set of BMP's should be enough—EPA will still
have to approve said 208(b)(4) BMP's.
13. Page 34317, 123.106(c): I object to the blanket requirement for advance notifi-
cation. The previous General Permit did not have this requirement. In the
absence of problems serious enough to warrant the extra effort, the change
should not be made. At a minimum, the rules should provide for designation of
activities that either do or do not require advance notice. I endorse use of
general permits.
3/ Normally these activities do not involve the disposal of waste material.
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H. Page 34318, 123.106(e)(2): I would suggest deletion of this provision, but,
at a minimum, appropriate sideboards need to be included. As proposed, the
decision can be made for any reason at all or for no reason.
15. Page ,34318, 123.107(a)(5): As noted in my point 12 above, the BMP's in the
state s approved 404 program should be developed on a state by state basis
and in any event, the baseline BMP's do not apply if the state has triggered
and received approval of a program under 208(b)(4) which includes BMP's for
such activities.
16. Page 34318, 123.107(a)(5)(i): Exceptions have to be provided when one
remembers that the term"streams" include- no minimum size limits and may include
intermittent streams when they are dry. Not a discharge.
17. Page 34318, 123.107(a)(5)(ii): Who judges "minimum feasible number"? Would
the operator have to get prior approval to prevent the Corps or EPA from second
guessing him? There are often compensating factors: short steep roads on
certain sites may be worse than longer, less steep roads, etc. Sometimes
tractor logging should not be done at all—the proposed BMP's seem to envision
a simplified world. The fact is that those kinds of BMP's cannot be written
for the types of activities covered for the nation as a whole.
18. Page 34318, 123.107(a)(5)(iv): I really doubt that we ever "bridge" road fill.
The wording needs to be changed.
19. Page 34318, 123.107(a)(5)(v): I think it is totally impractical to provide for
upward mobility except for anadromous and other edible fish. The added cost
could be enormous and I haven't yet heard one fish biologist who has advocated
this.
20. Page 3419, 123.107(a)(5)(x): I don't understand. Is it addressing the area of
road involved in the discharge of dredge or fill material, the total area in roads
(connected or unconnected to some road crossing), or to the total silvicultural
operation either connected or unconnected to some road discharge of dredge or
fill. It seems pretty unrealistic, but in any event, doesn't this Act relate to
impacts on navigable water?
21. Page 34319, 123.107(a)(5)(xi): Inclusion of every "slope" must include 99%
plus of the forest land in the nation. This is not a defensible regulation, even
if it were an activity subject to 404 regulation.
22. Page 34319, 123.107(a)(5)(xii): Would seem to outlaw all slash burning, and other
controlled burning and perhaps other site preparation and cultural activities.
23. Page 34319, 123.107(a)(5)(xiii): Is the reference to shade just from the borrow
site? If so, the thermal impact would normally be infinitesimal small and it
doesn't seem appropriate to 404. If the provision applies to the total shoreline,
it is clearly a subject for 208 and not 404.
*
24. Page 34319, 123.107(a)(5)Qiv): Proposes to expand restrictions under the National
Wild and Scenic River System legislation to restrict road construction on
tributary streams, etc. I believe this prerogative rests with Congress.
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25. Page 34319, 123.107(a)(.5)(xvi): The unqualified directive to "avoid where
possible" can often be interpreted to be a near complete prohibition. The
restriction seems to extend to all uplands.
26. Page 34319, 123.107(a)(5)(xvii): If an operator does not elect to qualify for"
the exemption for forest road construction by complying with the BMP's and
the state has not established a state 404 program, is the Corps prepared to
receive and process permit applications?
27. Others of the proposed BMP's do not cover activities properly classified as
subject to 404 controls.
28. The Act, since the 1977 amendments, now seems to separate between discharges
made at "specified disposal sites"—a term that EPA avoids defining—and "other"
discharges of dredge or fill material. -The Corps is authorized to issue permits
for discharges at "specified disposal sites." The Administrator is authorized
to approve State 404 programs. It is not clear to me whether it is proposed
that the Corps or the EPA will administer the provisions of 404 relative to
these "other" discharges of dredge or fill if the state does not elect to
administer the 404 program.
DLF:ms
7/26/79
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APPENDIX
SECTION 404 v. 208
I ve always interpreted Section 404 of the CWA as being limited to activities relating
to the discharge of dredge or fill material into navigable waters. The proposed
June 14th 404 regulations start out by correctly excepting from regulation under 404
any dredge or fill activities stemming from normal silvicultural operations, including
dredge or fill related to the establishment of "minor drainage" (with certain
statutory exceptions), and forest road construction done in compliance with BMP's.
However, the 404 BMP's for forest road construction in the proposed reg's incorrectly
proposes to expand said BMP's to apply to and, thus, regulate activities not involving
the discharge of dredge or fill:
1. These activities not involving the discharge of dredge or fill are, in essence,
nonpoint silvicultural activities already addressed in EPA's own May 23, 1979
Section 208 final regulations. The treatment of these activities in the June 14th
404 proposed regulations is in direct conflict with the treatment of these same
activities in the 208 regulations.
2. Not only does this 404 - 208 conflict exist, but a number of the 404 proposed non-
point BMP's are unsound, unfeasible, and/or unnecessary, particularly as applied
on a site specific basis.
3. In order to avoid commitment to the proposed BMP's, it appears that an operator
would be forced to get a 404 "dredge or fill" permit for activities NOT involving
the discharge of dredge or fill for activities that are already addressed and
authorized under the 208 regulations. I would argue that this is clearly not a
correct interpretation of Section 404. Even discharges of dredge or fill material
stemming from normal silvicultural activities, including minor drainage, and from
forest road construction done in compliance with BMP's are excepted from either a
404 permit or from any regulation under 404 (with certain statutory exceptions).
Surely Congress did not intend to then regulate non-dredge or fill silvicultural
activities under 404.
BMP's (404 v. 208)
Unqualified requirements for total compliance with water quality standards in the
definition of BMP's in the proposed 404 regulations would prevent any and all discharges
of dredge or fill material in most states. In addition, if 404 is really extended to
those silvicultural activities listed that do not involve discharges, the 404 definition
of BMP's could come in direct conflict with the definition of BMP's in 208 for these
same nonpoint activities. There are major differences between the definition of the
404 proposed BMP's and the definition of BMP's under the 208 regulations:
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Appendix
Page 2
The 404 BMP definition seems to require absolute compliance with Water
Quality Standards—if you exceed WQS for one minute, you would seem to be
in violation. Such a requirement would completely nullify the present
concept of BMP's in silviculture. We went through this with EPA following
the '72 legislation and EPA then developed the current 208 definition of BMP's,
208 BMP's consider economic, institutional and technical factors.
Collectively, they will be upgraded if they fail to meet water quality goals,
but those goals, as set forth in the 208 regulations include "a reduction
of water pollutants from nonpoint sources to the maximum extent feasible"
(the words "extent feasible" come directly from the statute.)
830 Bouta Dearborn 8
i^ 6060
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