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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Seattla. Wachingtnn

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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

               . IRWIN & ASSOCIATES, CSR's - Court Reporters - 623-7881 - Seattle, Washington

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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



    ._	IRWIN & ASSOCIATES, CSR'S - Court Reporters 623-7861  Seattle, Washington 	

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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
         -	IRWIN 8. ASSOCIATES, CSR's - Court Reporters - 623-7881  Seattle, Washington 	

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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.


        .	IRWIN & ASSOCIATES, CSR'S • Court Reporters - 623-7881  Seattle, Washington 	

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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


  	IRWIN & ASSOCIATES, CSR'S - Court Reporters - 623-7881 - Seattle, Washington 	

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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
                . IRWIN 8. ASSOCIATES, CSR'S - Court Reporters 623-7881  Seattle, Washington
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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




  	.	IRWIN & ASSOCIATES, CSR's  Court Reporters 623-7881  Seattle, Washington 	
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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.
  	IRWIN & ASSOCIATES, CSR's - Court Reporters - 623-7881 Seattle, Washington    '	
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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



      	I RWIN & ASSOCIATES, CSR'S Court Reporters 623-7881 Seattle, Washington 	
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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,
  	;	IRWIN & ASSOCIATES, CSR's - Court Reporters - 623-7881 Seattle, Washington 	
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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.
  ^	IRWIN & ASSOCIATES, CSR'5 • Court Reporters - 623-7881 Seattle, 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.
  ______	I RWIN & ASSOCIATES, CSR's CouFt Reporters 623-7881  Seattle, Washington 	
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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
  	IRWIN 8. ASSOCIATES, CSR's . Court Reporters . 423-7881 Seattle, Washington 	
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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
  	IRWIN & ASSOCIATES, CSR's • Court Reporters - 623-7881 • Seattle, Washington	
                                  19

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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
  	IRWIN & ASSOCIATES, CSR'S - Court Reporters - 623-7881 Seattle, Washington 	
                                  20

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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.



  	IRWIN & ASSOCIATES, CSR's - Court Reporters 623-7881 Seattle, Washington 	
                                  21

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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	
                                  22

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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
                                  23

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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 	
                                  24

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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 	
                                  25

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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 	
                                  26

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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 	
                                  27

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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 -	
                                  28

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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 	
                                  29

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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 	
                                  30

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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 	
                                  31

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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 	
                                  32

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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
                                  33

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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 	
                                   34

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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 	
                                  35

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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 	
                                  36

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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 	
                                  37

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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
   __^___	IRWIN & ASSOCIATES, CSR's - Court Reporters - 623-7881 - Seattle, Washington 	
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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
               . IRWIN & ASSOCIATES, CSR'S  Court Reporters - 623-7881 Seattle, Washington
                                  45

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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.
                . IRWIN & ASSOCIATES, CSR'S Court Reporters 423-7881 • Seattle, Washington
                                  46

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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,
  ________	IRWIN i ASSOCIATES, CSR'S Court Reporters 423-7881 Seattle, Washington 	
                                  47

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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 	
                                  43

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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
  	IRWIN & ASSOCIATES, CSR'S  Court Reporters 423-7881 - Seattle, Washington 	
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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
  	IRWIN & ASSOCIATES, CSR's - Court Reporters - 623-7881  Seattle, Washington
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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"	
                                  52

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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.
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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
  _^______	IRWIN & ASSOCIATES, CSR's Court Reporters - 623-7881 • Seattle, Washington	:	
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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
  	IRWIN & ASSOCIATES, CSR's  Court Reporters - 623-7881 - Seattle, Washington 	;	
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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
  	IRWIN 8, ASSOCIATES, CSR'S - Court Reporters • 623-7881 - Seattle, Washington 	;	
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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
  	IRWIN & ASSOCIATES, CSR'S - Court Reporters - 623-7861 Seattle, Washington 	
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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

24

25
                 . IRWIN & ASSOCIATES, CSR'S  Court Reporters - 6J3-7881 Seattle, Washington
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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
               . IRWIN & ASSOCIATES. CSR's  Court Reporters - 623-7881 Seattle, Washington
                                  88

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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
  	~	IRWIN & ASSOCIATES, CSR'S • Court Reporters 623-7881  Seattle, Washington 	:	
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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
  ^	IRWIN & ASSOCIATES, CSR's • Court Reporters - 623-7881 Seattle, Washington	
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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
                . IRWIN & ASSOCIATES, CSR'S Court Reporters 623-7381 Seattle, Washington
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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  .
                . IRWIN & ASSOCIATES, CSR's - Court Reporters • 623-7881 - Seattle, Washington

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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

                . IRWIN & ASSOCIATES, CSR'S • Court Reporters 623-7881 • Seattle, Washington
                                  119

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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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                                  121

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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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                                   131

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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 ______^_______
                                   136

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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	
                                  137

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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 	
                                  138

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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
                                  140

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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
                                  141

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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-
                                   143

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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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                                      -2-
     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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                                        -3-
    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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                                         -4-


          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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                                       -5-


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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                                        -6-
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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