[Senate Report 111-333]
[From the U.S. Government Publishing Office]
Calendar No. 620
111th Congress Report
SENATE
2d Session 111-333
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S. 1816 CHESAPEAKE CLEAN WATER AND ECOSYSTEM RESTORATION ACT
_______
September 28, 2010.--Ordered to be printed
_______
Mrs. Boxer, from the Committee on Environment and Public Works,
submitted the following
R E P O R T
[To accompany S. 1816]
together with
ADDITIONAL VIEWS
[Including cost estimate of the Congressional Budget Office]
The Committee on Environment and Public Works, to which was
referred a bill (S. 1816) to amend the Federal Water Pollution
Control Act to improve and reauthorize the Chesapeake Bay
Program, having considered the same, reports favorably thereon
with an amendment and recommends that the bill as amended, do
pass.
General Statement and Background
The Chesapeake Bay encompasses 64,000 square miles. Its
watershed is home to more than 17 million people, with
tributaries in Delaware, Maryland, New York, Pennsylvania,
Virginia, West Virginia and the District of Columbia.\1\
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\1\The Chesapeake Bay Watershed http://www.chesapeakebay.net/
watersheds.aspx?menuitem= 14603.
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A recent report from the University of Maryland Center for
Environmental Science finds that the ecological health of the
Chesapeake Bay remains poor.\2\ The Bay continues to have poor
water quality, degraded habitats and low populations of many
species of fish and shellfish. The primary stressors of the
Chesapeake Bay and its tributaries are pollution from excess
nitrogen, phosphorus and sediment entering the water. Nutrient
contamination contributes to algae blooms, which, when they
decompose, deprive the water of the oxygen necessary to support
diverse species. These algal blooms also impact water clarity,
blocking sunlight from reaching bay grasses. Underwater grasses
and wetlands are vital to juvenile fish and crabs, and the
health and abundance of these animals and habitats are gauges
of the Bay's health.
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\2\Chesapeake Bay Health Report Card http://www.chesapeakebay.net/
news_umcesreport card09.aspx?menuitem=35271.
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A number of critical measures have been identified to
restore the Chesapeake Bay and its watershed, including
reducing pollution, restoring habitats, managing fisheries,
protecting watersheds and fostering stewardship.\3\ In 1983 and
1987, the states of Virginia, Maryland, Pennsylvania, the
District of Columbia, the Chesapeake Bay Commission and the
U.S. Environmental Protection Agency, representing the federal
government, signed the Chesapeake Bay Agreement that
established the Chesapeake Bay Program partnership to protect
and restore the Chesapeake Bay's ecosystem. In 1987, the
Congress formally authorized the Chesapeake Bay Program in
section 117 of the Federal Water Pollution Control Act. By
statute, the Chesapeake Bay Program is a joint federal-state
partnership, predominantly led by states within the Chesapeake
Bay Watershed. The governing Executive Council of the Program
consists of the Governors of Maryland, Pennsylvania and
Virginia; the Mayor of the District of Columbia; the Chairman
of the Chesapeake Bay Commission (a tri-state legislative
body); and the EPA Administrator, representing the entire
federal government.\4\
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\3\Bay Stressors http://www.chesapeakebay.net/
baypressures.aspx?menuitem=13959.
\4\The 1983 Chesapeake Bay Agreement, The 1987 Chesapeake Bay
Agreement, and the Chesapeake 2000 Agreement, http://
www.chesapeakebay.net/committee_ec_info.aspx? menuitem=16594.
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In 1994, 25 federal agencies signed an Agreement of Federal
Agencies on Ecosystem Management in the Chesapeake Bay, in
which they agreed to coordinate Bay restoration efforts.
In 1998 the American Canoe Association, Inc., and others
brought suit against EPA, alleging that the Agency had failed
to perform a non-discretionary duty--the classification of the
Virginia waters of the Chesapeake Bay and its tidal waters as
impaired, as required under the Federal Water Pollution Control
Act, section 303(d) (33 U.S.C. 1313(d)). In a 1999 consent
decree, the civil action (American Canoe Ass'n, Inc. v. EPA,
Civil No. 98-979-A (E.D. Va.)) was settled with an agreement
that the Commonwealth of Virginia had until May 2010 to develop
a Total Maximum Daily Load (TMDL), allocating load and
wasteload pollution limits sufficient so that the Bay and tidal
rivers in Virginia achieved water quality standards. In the
event that the Commonwealth failed to do so, the Court agreed
that EPA must develop the TMDL no later than May 2011.
Using the cooperative partnership that had been established
under the Chesapeake Bay Agreement, the Commonwealth of
Virginia, EPA and the other partners agreed to work together to
remove the Bay and its tidal waters from the impaired waters
list by 2010, thus avoiding the need to develop a TMDL.
Through a formal Memorandum of Understanding, the Governors
of Delaware, New York and West Virginia committed to work with
the Executive Council in advancing water quality improvements
in the Bay watershed.\5\
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\5\Memorandum of Understanding: Among the State of Delaware, the
District of Columbia, the State of Maryland, the State of New York, the
Commonwealth of Pennsylvania, the Commonwealth of Virginia, the State
of West Virginia, and the United States Environmental Protection Agency
Regarding Cooperative Efforts for the Protection of the Chesapeake Bay
and Its Rivers http://chesapeakebay.net/content/publications/
cbp_12085.pdf.
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On June 28, 2000, the Chesapeake Bay Program adopted a new
Bay agreement, ``Chesapeake 2000: A Watershed Partnership,''
that set Bay restoration goals for the year 2010. That new
agreement, calling for the restoration of water quality to the
Chesapeake Bay and its tidal segments, was a central element in
the Congressional reauthorization of the Program in 2000. The
current authorization of appropriations expired in 2005.
In recent years it became apparent that efforts outlined in
the Chesapeake 2000 plan to restore water quality to the
Chesapeake and its tidal segments would be unsuccessful. The
principals' staff committee of the Chesapeake Basin Program,
consisting of officials from each Chesapeake Bay State, the
District of Columbia, the Chesapeake Bay Commission, and the
EPA, agreed that all Basin States would take all required
actions to restore water quality within 15 years, i.e., by
2025. The Executive Council also requested a slightly
accelerated schedule under which EPA should complete a
Chesapeake Bay TMDL so that the States would have their
assigned load and wasteload allocations and could begin the
restoration work with clear requirements. The revised date for
EPA to complete the TMDL is December 31, 2010. The Executive
Council agreed that the Chesapeake Bay TMDL would address all
segments of the Chesapeake Bay and tidal tributaries that are
identified on the currently applicable lists of impaired waters
for nitrogen, phosphorus and sediment under section 303(d) of
the Federal Water Pollution Control Act (33 U.S.C. 1313(d)).
In a settlement agreement on a separate but related
lawsuit, among other provisions, EPA agreed to meet the
accelerated timetable of completing the Chesapeake Bay TMDL by
the end of 2010 (Fowler v. EPA, 2010).
Objectives of the Legislation
The purpose of S. 1816 is to amend the Federal Water
Pollution Control Act to improve and reauthorize the Chesapeake
Bay Program authorized in section 117 of the Act.
The bill has four primary objectives:
1. Establish a date-certain of 2025, along with
appropriate milestones, for all restoration actions to
be implemented throughout the Chesapeake Basin that
will lead to attainment of water quality goals in the
Chesapeake Bay and its tidal segments that are on the
EPA list of impaired waters (Federal Water Pollution
Control Act, Sec. 303(d));
2. Assure that the Basin States, as delegated
authorities under the Federal Water Pollution Control
Act, be given maximum authority and flexibility to meet
the restoration load and wasteload allocation pollution
limits;
3. Require that the Federal government be an active
partner in the restoration effort, by developing the
overall pollution reduction targets on a state-by-state
basis through the Chesapeake Bay TMDL, implementing the
terms of Presidential Executive Order and providing
clear and meaningful accountability for the Basin
States; and
4. Provide the States, municipalities, developers,
and especially agricultural producers with significant
new tools and financial resources to meet the
restoration demands within the 15 year time frame
contained in the legislation.
Section-by-Section
Sec. 1. Short title
This Act may be cited as the ``Chesapeake Clean Water and
Ecosystem Restoration Act''.
Sec. 2. Findings
An extensive set of Findings details the pollutants that
are affecting the Chesapeake Bay and its tidal rivers; the
history of the Chesapeake Bay Program efforts to restore the
Bay; and status of legal efforts to require stronger regulatory
responses to enforce cleanup requirements, including EPA's
current drafting of the Chesapeake Bay Total Maximum Daily Load
allocation for the entire watershed and the Basin States'
efforts to plan and adopt watershed implementation plans.
Sec. 3. Chesapeake Basin Program
This Section replaces the current Section 117 of the
Federal Water Pollution Control Act in its entirety.
(a) Definitions. Replaces and expands the current set of
definitions. Among the key definitions are:
Chesapeake Basin State--expands the program to include the
``headwater'' states of Delaware, New York, and West Virginia.
Chesapeake Bay TMDL--for the purposes of the legislation,
defines the EPA-issued TMDL as including both the Bay and its
impaired tidal segments and allows TMDLs to be expressed in
temporal units other than daily.
Baseline, Credit, Offset--terms that are important to the
functioning of the water quality trading program contained in
the legislation are defined.
(b) Renaming And Continuation of Chesapeake Bay Program.
The Chesapeake Bay Program is renamed the Chesapeake Basin
Program to more accurately reflect its watershed-wide
restoration efforts. This subsection largely duplicated the
current subsection 117(b), which establishes a Program Office
for the Chesapeake Basin and details its functions. The Program
Office is responsible for:
Implementing and coordinating scientific research,
modeling, monitoring, and support services
Providing information on the environmental quality
of and living resources of the Basin ecosystem.
Assisting the signatories to the Bay agreements in
their efforts to restore water quality and the living resources
of the Bay.
Coordinating actions among the Basin States,
Federal partners, and other stakeholders in improving water
quality and living resources in the ecosystem.
Implementing programs of public outreach.
This subsection also requires that the Chesapeake Executive
Council meet at least once per year. Meetings will be open to
the public, except when the Council meets in private executive
session. Annual meetings with executive sessions are a long-
established practice of the Chesapeake Bay program, but they
have not previously been required.
(c) Interagency Agreements. This subsection is unchanged
from existing law, allowing the Administrator to enter into
interagency agreements to support restoration efforts. The
Administrator has made extensive use of this authority in the
past to fund staff from other Federal agencies including USDA
Natural Resources Conservation Service, USDA Forest Service,
the National Park Service, and the U.S. Army Corps of
Engineers. The Committee expects this inter-agency
collaboration to continue.
(d) Technical Assistance and Assistance Grants. This
subsection largely retains the same language currently in
subsection 117(d). The Administrator is authorized to provide
technical assistance and assistance grants to advance the
Chesapeake Basin restoration effort. Administrative costs
associated with these grants cannot exceed 10 percent. The list
of current eligible grantees is expanded to include soil
conservation districts and basin commissions. Historically, the
Administrator has made extensive use of this authority,
providing assistance agreements to academic and non-profit
organizations. The ``Small Watershed Grants Program,'' first
authorized in 2000, is renamed the ``Chesapeake Basin
Stewardship Grants Program.'' The federal share of these
projects cannot exceed 75 percent. These grants have been
extremely popular and have resulted in scores of individual
projects that have leveraged their value many times over as
they bring restoration efforts to local communities.
(e) Implementation, Monitoring and Centers of Excellence
Grants. Current Section 117(e) is replaced with this new
subsection (e). Existing authority to provide implementation
and monitoring grants is continued, with changes. A new Centers
of Excellence Grants program is authorized as is a Chesapeake
Nutrient Trading Guarantee Pilot Program.
Implementation grants are to be used to enable Basin States
to undertake Watershed Implementation Plans, which are designed
to meet the water quality goals for the Chesapeake through load
and wasteload pollution reductions contained in the Chesapeake
TMDL. Grants are provided directly to the states or their
designees, which can include non-profit organizations, among
others. Headwater states (DE, NY and WV) are made eligible for
implementation grants for the first time, and are allocated at
least 10 percent of implementation grants. These headwater
States are responsible for just under 10 percent of the
pollution that is responsible for the impairments to the
Chesapeake and its tidal segments. 20 percent of implementation
grants are set aside so farmers and forest owners can receive
technical assistance that will help them access Farm Bill funds
for implementing conservation practices. The Committee believes
that technical assistance is critical to helping local farmers
understand conservation options and plan accordingly. These
technical assistance requirements do not apply to
implementation grants to the District of Columbia. Signatory
States may also use implementation grant funding to achieve the
broader goals of the Chesapeake Bay Agreement.
For the first time, the monitoring program is divided into
a program for freshwater segments and a program for estuarine
segments. USGS and NOAA are given roles in planning the
monitoring programs, and the Administrator must also consult
with the Chesapeake Basin Program Scientific and Technical
Advisory Committee, Basin commissions, the U.S. Department of
Agriculture and other Federal agencies, and the States.
Priority is given to measuring the water quality effectiveness
of agricultural conservation program implementation of the
Chesapeake Bay Watershed Initiative, authorized in the Food
Security Act of 1985 (16 U.S.C. 3839bb-4).
Centers of Excellence grants are established. These grants
are to be awarded to institutions or consortia of higher
education institutions to focus on the areas of innovative
agricultural practices, load reduction quantification, and
formulation of recommendations for the widespread deployment of
effective agricultural conservation technologies, policies and
practices. Agricultural producers have requested assistance in
identifying additional conservation practices and having those
practices analyzed so that specific pollution reduction
efficiencies can be assigned to them. Academic institutions
with strong agricultural and clean water programs have both the
expertise and the confidence of the producer community to make
these recommendations with strong scientific backing and wide-
spread acceptance among the agricultural community.
A Chesapeake Nutrient Trading Guarantee Pilot Program is
established. The program is designed to leverage public funding
to raise private capital to accelerate the restoration effort.
A Guarantee Fund is established in the Treasury. The manager of
the pilot program, supported by an EPA-funded cooperative
agreement, can draw on the Fund to guarantee credit purchases
in the nascent nutrient trading market for a minimum of five
years. Venture capitalists, ``green'' investors, and a number
of businesses offered strong support for a robust trading
system. Providing a price guarantee in the early years of this
program can provide the market with stability and certainty and
will leverage private capital to come into the market.
(f) Federal Facilities Coordination. Federal Agencies with
facilities within the Chesapeake Basin must participate in
regional and sub-watershed planning and restoration programs.
The Basin States are given the task of meeting the EPA-assigned
load and wasteload allocations. Therefore, Federal property
owners must coordinate with the States to achieve the required
pollution reductions. They must also adhere to the goals of the
Bay Agreement and other Program efforts. This subsection
requires the Chief of the Forest Service to work with the EPA
Administrator to coordinate efforts among Federal facilities in
the Bay basin to maximize forest cover at their facilities.
(g) Federal Annual Action Plan and Progress Report. Current
Section 117(g) is replaced with this new subsection codifying
the actions in President Obama's Executive Order of May 12,
2009 (E.O. 13508, 74 Fed. Reg. 23099). This subsection requires
the Administrator to provide an annual action plan, including
budget, and report annually on efforts by the Federal
government to protect and restore the Chesapeake Bay during the
upcoming fiscal year. In addition, by December 31, 2010, with
the concurrence of the Secretary of Agriculture, the
Administrator must create and maintain a Basin-wide database on
the implementation of agricultural conservation management
practices, which is to be updated at least once every two
years. The database is to include all conservation practices,
not simply those supported through public funds. Data are to be
reported in aggregate form.
(h) Chesapeake Basin Program. The current subsection (h)
regarding a Study of the Chesapeake Bay Program is deleted.
This new subsection requires the Administrator to work
cooperatively with Basin States to assure that management
strategies are developed to meet the sediment and nutrient
reduction requirements to restore the living resources in the
Chesapeake Bay and its tidal tributaries. The Administrator is
also required to work with the original Bay signatory states
(MD, PA, VA and DC) on toxins reductions and prevention goals,
habitat enhancements, and living resource restoration and
protection.
This subsection establishes a Chesapeake Basin Stewardship
Grants Program, which is focused on locally based protection
and restoration programs or projects. A wide variety of
entities are made eligible for grants. The grant program
promotes local water quality and habitat restoration efforts,
including activities for increased spawning and other habitat
improvements for migratory fish. In addition, Stewardship
Grants will give preference to cooperative projects involving
local governments as well as soil conservation districts,
sportsmen associations, and projects that involve public-
private partnerships.
(i) Action by States. The current subsection (i) is
deleted.
Modeled on the State Implementation Plans (SIP) in the
Clean Air Act, the new subsection (i) establishes a flexible
but rigorous system for each Chesapeake Basin State to design a
Watershed Implementation Plan (WIP) that will direct its
actions in providing the Chesapeake with clean water and
helping to restore the Chesapeake ecosystem.
Under this subsection, Basin States are required to submit
their Watershed Implementation Plan (WIP) to EPA no later than
November 1, 2011. The WIP shall establish reduction targets,
actions and schedules designed to meet the established point
source and nonpoint source allocations. The allocations must be
sufficient to meet Chesapeake Bay and Chesapeake Bay tidal
segment water quality standards. Detailed WIP requirements are
enumerated, including both regulatory and non-regulatory/
voluntary components, compliance, and contingency plans and
requirements to contain enforceable or otherwise binding
commitments to meet water quality standards. The plans must be
designed to have in place at least 60 percent of the required
restoration actions no later than May 31, 2017 and full
implementation by May 12, 2025.
This subsection establishes biennial reporting requirements
for Basin States, including provisions to show how any
shortfalls are being met through adaptive management
approaches. The biennial reports must demonstrate ``reasonable
additional progress'' in reaching the 2017 interim and 2025
final implementation requirements.
Basin States are given broad authority to add nonpoint
sources that are causing water quality impairments in the
Chesapeake Bay and its tidal segments to their National
Pollution Discharge Elimination System programs under the
Federal Water Pollution Control Act. Basin States are not
limited to National Pollution Discharge Elimination System
permits under the Federal Water Pollution Control Act in order
to achieve these reductions. Other programs with enforceable
provisions may also be used. The Committee expects Basin States
to continue to make extensive use of State Department of
Agriculture programs, for example, such as requirements for
nutrient management plans. Federal regulators are expressly
prohibited from taking enforcement actions against agricultural
producers who are in full compliance with the State-designed,
federally-approved WIP. States are also required to develop de
minimis exemptions for new non-point source permits to
implement the State's WIP.
Chesapeake Basin States that submit a WIP (WIP States) must
implement stringent stormwater permits. By 2013, each WIP State
shall require all major new developments and redevelopment
projects to use a variety of techniques to maintain the
original hydrology of the site, thus stemming the flow of new
pollution into the Bay and its tidal tributaries. Any
unavoidable impacts related to water temperature, rate, volume
or duration of flow will require mitigation. Priority will be
given to in-kind mitigation (e.g., water temperature increases
above pre-existing hydrology must be offset by reductions of
artificially elevated temperatures elsewhere in the same
watershed). Out-of-kind (e.g., elevations in water temperature
mitigated by reductions in flow) and out-of-subwatershed
mitigation is allowed, but only if in-kind and in-watershed
mitigation options are not available. Lowest priority is given
to fees-in-lieu, and they must be set at a high enough level to
allow the permitting agency sufficient funds to support other
watershed mitigation efforts. EPA is required to develop
appropriate regulations by May 12, 2011 to implement the
stormwater permitting program. The Committee encourages EPA to
ensure that states are given maximum flexibility and deference
in making final choices on best ways to achieve pre-development
hydrology and stormwater reduction goals.
To facilitate brownfields restoration and other
redevelopment strategies, the Administrator must take into
consideration, when developing regulations, the overall
watershed protection and restoration that comes with
redevelopment of brownfields or other previously developed
sites. A WIP State that fails to implement the required
stormwater permits is subject to the withholding of Federal
Water Pollution Control Act funds.
WIP States are also required to implement a ban on
phosphates in laundry and dish detergents. Most Basin States
have already instituted such bans in phosphorus pollution
prevention efforts. A WIP State that fails to implement the
required phosphate ban is subject to the withholding of Federal
Water Pollution Control Act funds.
(j) Action by Administrator. The current subsection (j),
Authorization for Appropriations, is moved to subsection (p).
In the new subsection (j), the Administrator is required to
provide guidance and prompt review of state WIPs. EPA is
currently working closely with Basin States and has provided
written guidance to these States for over a year on what
watershed implementation plans should encompass and how they
can be fairly evaluated. The Committee expects EPA to continue
dialoging with the states as watershed implementation plans are
developed. The Administrator is required to establish minimum
criteria that a WIP must meet and make a ``completeness
determination'' as to whether each submitted plan meets those
criteria. The Committee believes that these criteria should be
based on the broad body of information already widely used and
understood. For this reason, such criteria should be issued by
the Administrator promptly.
This subsection outlines methods for the approval,
conditional approval, corrections, plan revisions, and
disapproval of WIPs. Basin States submitting WIPs are given up
to one year to correct deficiencies. Failure to implement a WIP
that will meet water quality requirements by meeting EPA load
and wasteload allocations will result in the Administrator
taking over the program and issuing a Federal Watershed
Implementation Plan. In these circumstances, the Basin State is
subject to losing its Federal Water Pollution Control Act
funding.
All plans must contain 10 specified elements. Within this
general constraint, States are empowered to develop their own
suite of activities, programs and policies to meet their load
and wasteload allocations. The Administrator's role is to
evaluate the completeness of the Plan and the effectiveness of
the State-designed WIPs in meeting water quality standards, not
to design or force specific policy choices on the Basin States.
If a Federal Watershed Implementation Plan is required, it
will incorporate all applicable requirements for nonpoint
sources included as part of the State's most recently approved
watershed implementation plan. The Administrator may not change
the state's nonpoint source requirements. Existing non-point
source pollution control programs will continue, but under
Federal direction so that there will be no backsliding in the
nonpoint sector under a Federal Watershed Implementation Plan.
This section gives the Administrator the authority to enforce
such requirements under federal law in the same manner and with
the same stringency as required in the most recently approved
watershed implementation plan. The Administrator must issue and
enforce NPDES permits under Federal Water Pollution Control Act
authorities to the extent necessary to control pollution
sufficient to meet the pollution reductions required to meet
applicable water quality standards.
The Administrator is required to establish an interstate
nutrient trading program by May 12, 2012 and a sediment trading
program by May 12, 2014. Standards and procedures for the
nutrient trading program are enumerated in this subsection. The
methods by which trades can be incorporated into existing NPDES
permits are specified. Permit compliance remains the
responsibility of the permit holder, not the party with whom a
trade is undertaken. This subsection also allows third parties
to aggregate and bank credits for sale to permitted entities,
the use of ``banked'' credits, and direct purchase of credits
through an exchange. Safeguards are required to assure that
trades do not result in pollution ``hot spots'' locally.
The sediment trading program will rely on the
recommendations from a stakeholder-driven task force and the
expertise of the Department of Agriculture. Every five years
the Administrator must report to the Congress on the
effectiveness of the trading program. State-run intrastate
trading programs may continue without change.
The Administrator is required to establish guidance for
commercial and residential development and redevelopment
projects that impact water quality. In addition, The
Administrator shall compile a database of model ordinances and
guidelines that states, local governments, and private entities
may choose to implement to ensure land maintains predevelopment
hydrology with regard to the temperature, rate, volume and
duration of water flow. EPA's role is to provide technical
assistance. The database of model ordinances and the examples
of how others are addressing stormwater issues is meant to
facilitate the spread of best practices across the watershed.
All decisions regarding land use and development remain solely
in the hands of local governments.
To help local governments customize stormwater control
programs to meet their unique needs, the Administrator is
authorized to provide planning grants to local governments to
develop, implement, and enforce stormwater control programs.
The administrator is also authorized to provide grants to
implement projects that are designed to reduce or beneficially
reuse stormwater discharges. Local governments are facing
extraordinary costs associated with dealing with this legacy
pollution from an era when stormwater pollution was virtually
uncontrolled. This new grants program is designed to help
communities meet this funding need. Municipalities are
encouraged to work with developers on in-fill and redevelopment
projects in which public and private funds can be combined to
improve water quality while benefiting the entire community.
The Administrator, with the Chesapeake Executive Council,
is required to review consumer and commercial products such as
lawn fertilizer, the use of which may affect the water quality
of the Chesapeake. The Committee is aware of numerous reports
of over-applying do-it-yourself lawn fertilizers, resulting in
excess nitrogen and phosphorus runoff. The Administrator shall
submit a report to Congress detailing the findings of this
review.
The Administrator is authorized to implement a new
agricultural animal waste-to-bioenergy deployment program. This
grant program will be designed to assist agricultural animal
producers reduce their water quality impacts while also
generating beneficial bioenergy and generating credits for sale
in a trading market.
(k) Prohibition on Introduction of Asian Oysters. Two
diseases that have decimated the native oyster population in
the Chesapeake were introduced into the ecosystem accidentally
when a non-native oyster was introduced into the Bay. In order
to avoid future such disasters, this subsection requires the
Administrator to designate the Asian oyster as a `biological
pollutant' in the Chesapeake Bay, prohibit the issuance of
permits for the discharge of Asian oysters in the Chesapeake
Bay, and specify conditions under which scientific research on
Asian oysters may be conducted in the Chesapeake Bay.
(l) Chesapeake Nutria Eradication Program. This subsection
authorizes the Secretary of the Interior to provide financial
assistance to Delaware, Maryland and Virginia to eradicate and
control the non-native, invasive nutria and restore marshland
damaged by nutria.
(m) Review of Studies on the Impacts of Menhaden on the
Water Quality of the Chesapeake Bay. This subsection directs
the Administrator, in cooperation and consultation with the
Administrator of the National Oceanic and Atmospheric
Administration, to prepare a report that reviews and summarizes
research on the impacts of menhaden on water quality. The
Administrator must report to Congress within five years on any
recommendations for additional research or study.
(n) Effect on Other Requirements. This subsection states
that nothing in this section removes or otherwise affects any
other obligation for a point source to comply with other
applicable requirements under this Act. In addition, this
subsection outlines enforcement actions that can be taken
related to a violation under this section. In particular,
failure of a Basin state to meet the terms of its WIP or to
make needed changes in order to achieve the overall water
quality goals of the Chesapeake TMDL constitutes a violation of
the Federal Water Pollution Control Act. Citizens can also
bring civil actions against the Basin State, seeking injunctive
relief for such failures. Except for this new liability for
Basin States to implement state WIPs, no other changes are made
to the citizen suit provisions in current law.
(o) Evaluations. This subsection requires the Inspectors
General of the EPA and Department of Agriculture to evaluate
the implementation of this section and submit reports to
Congress every three years. Independent reviews by the National
Academy of Sciences or the National Academy of Public
Administration are also required. These must include an
assessment of progress made toward meeting the goals of this
section, efforts by Federal, State, and local governments to
implement this section, and the methodologies and data used to
support implementation. The independent reviews by the
Academies must be completed no later than May 12, 2015 for the
first review and no later than May 12, 2020 for the second
review.
(p) Authorization of Appropriations. Authorizations of
appropriations are provided for the following:
Chesapeake Basin Program Office ($20 million
annually FY11-FY15);
Basin State Implementation Grants ($80 million
annually);
Centers of Excellence for Water Quality and
Agricultural Policies ($10 million annually);
Agricultural Animal Waste-to-Bioenergy grants
($30 million over 5 years);
Freshwater Monitoring ($5 million annually);
Chesapeake Bay and Tidal Water monitoring ($5
million annually);
Chesapeake Stewardship Grants ($15 million
annually);
Stormwater Pollution Control Planning grants
($10 million total);
Stormwater Pollution Control and Reuse
Implementation grants ($1.5 billion total); and
Nutria Eradication grants ($4 million
annually).
Cost share requirements are established and a general
limitation on administrative expenses of 10 percent is
established. All funds are available until expended.
(q) Severability. If any provisions of this section is
invalid, unenforceable, or in conflict with any law, the
validity, legality, or enforceability of remaining provisions
are not affected.
Sec. 4. Federal enforcement
Section 4 is a conforming amendment to provide the
appropriate cross-references to Section 309 regarding
enforcement of the Federal Water Pollution Control Act. The
cross-references are limited to civil penalties under Section
309.
Sec. 5. Federal responsibility to pay for stormwater programs
Section 5 amends section 313 of the Clean Water Act to
clarify that federal facilities must pay customary stormwater
management fees to local governments or authorities in the same
manner that others are required to do so. Any claims of
sovereign immunity are explicitly waived.
Sec. 6. Relationship to National Estuary Program
Section 6 amends section 320 to make Chesapeake Basin
States eligible for the same flexibility afforded to National
Estuary Program States for federal financial assistance
programs.
Legislative History
On April 20, 2009, the Water and Wildlife Subcommittee of
the Committee on Environment and Public Works held a general
oversight hearing on the Chesapeake Bay. Entitled ``Chesapeake
Bay Restoration: Status Report and Recommendations,'' the field
hearing was held at the Maryland Statehouse in Annapolis, MD--
Joint Hearing Room.
On August 3, 2009, the subcommittee held a second oversight
hearing. Entitled ``A Renewed Commitment to Protecting the
Chesapeake Bay: Reauthorizing the Chesapeake Bay Program.''
Witnesses from the Chesapeake Basin States and other key
stakeholders testified regarding the reauthorization of the
Chesapeake Bay Program.
S. 1816 was introduced on October 20, 2009 by Senator
Benjamin L. Cardin (D-MD), with original cosponsors Senator Ted
Kaufman (D-DE), Senator Tom Carper (D-DE) and Senator Barbara
A. Mikulski (D-MD). The bill was read twice and referred to the
Senate Committee on Environment and Public Works.
On November 9, 2009, the Subcommittee on Water and Wildlife
held a legislative hearing on two pending bills, S. 1816, The
Chesapeake Clean Water and Ecosystem Restoration Act, and S.
1311, a bill to reauthorize the Gulf of Mexico Program.
On June 30, 2010 the Senate Committee on Environment and
Public Works held a business meeting to consider a number of
bills, including S. 1816. The Committee ordered S. 1816, with
an amendment in the nature of a substitute, to be reported to
the full Senate.
Rollcall Votes
On June 30, 2010 the Senate Committee on Environment and
Public Works held a business meeting to consider a number of
bills, including S. 1816.
Amendments Accepted
1. Senator Cardin (D-MD) offered an amendment in the nature
of a substitute to S. 1816. The substitute amendment expanded
the federal grant programs authorized under the bill, required
all federal facilities to pay stormwater pollution fees to
local utilities, added provisions related to interaction with
agricultural producers, and required evaluation of the program
by independent entities. The substitute amendment also
corrected the constitutional concerns in the introduced bill.
By unanimous consent, the substitute was considered as base
text for the purpose of further amendment.
2. Senator Carper (D-DE) offered an amendment that would
authorize $30 million for fiscal 2010 through 2015 for a grant
program to individuals and partnerships that carry out projects
to deploy a technology for converting animal waste to bio-
energy that has a significant potential to reduce agricultural
animal waste volume, recover nutrients, improve water quality,
decrease pollution and recover energy. The amendment was agreed
to by voice vote.
3. Senator Cardin, on behalf of Senator Specter (D-PA),
offered an amendment that would prohibit federal enforcement
action from being brought against an agriculture producer that
is in compliance with all applicable planning and scheduling
requirements consistent with approved plans for watershed
implementation, government-approved soil conservation, nutrient
management, erosion control and other applicable requirements
in approved State watershed implementation plans. The amendment
was agreed to by voice vote.
4. Senator Gillibrand (D-NY) offered an amendment that
would reduce the State and local cost-share requirement for
Delaware, New York and West Virginia to 20 percent, and specify
the share for Maryland, Pennsylvania, Virginia and the District
of Columbia at 50 percent. Senator Gillibrand also offered an
amendment to her amendment regarding cost-share requirements
for the implementation grants authorized in the bill. The
second-degree Gillibrand amendment would change the State and
local share requirements for Delaware, New York and West
Virginia in the underlying amendment to 25 percent. The second-
degree amendment was agreed to by voice vote. The underlying
Gillibrand amendment, as amended by the second-degree
amendment, was agreed to by voice vote.
5. Senator Inhofe (R-OK) offered an amendment to limit the
applicability of certain standards and requirements to
Chesapeake Basin States. With the support of Senator Inhofe,
Senator Cardin offered a second-degree amendment as a
substitute to the Inhofe amendment. The second degree amendment
struck subsection (i) of the bill regarding Total Maximum Daily
Loads. Several subsequent references to the Chesapeake TMDL
were replaced with language referring to ``water quality
standards'' for the Chesapeake Bay and its tidal tributaries.
In addition, the second-degree amendment eliminated the
unlimited ability of EPA to issue permits for all pollution
sources if it should be required to administer the watershed
implementation plan for a State. Instead, EPA is limited to
continuing the nonpoint source programs included as part of the
most recently approved watershed implementation plan of the
State. EPA's ability to permit point sources is not limited.
The Cardin second degree amendment was agreed to by voice vote.
The Inhofe amendment, as amended, was also agreed to by voice
vote.
Amendments Rejected
1. Senator Barrasso (R-WY) offered an amendment that would
require nonpoint source permits issued to agriculture producers
be approved by the State's or the federal Agriculture
Department. A permit would only be granted if it is determined
it would not result in harm to the food supply or create
economic hardship for the agricultural producer. The amendment
was rejected 8-11 with Senators Alexander, Barrasso, Bond,
Crapo, Inhofe, Vitter, Voinovich and Klobuchar voting in favor
of the amendment and Senators Baucus, Boxer, Cardin, Carper,
Gillibrand, Lautenberg, Merkley, Sanders, Specter, Udall, and
Whitehouse voting against.
This Committee ordered S. 1816, as amended, reported
favorably by voice vote.
Regulatory Impact Statement
In compliance with section 11(b)(2) of rule XXVI of the
Standing Rules of the Senate, the Committee notes that the
Congressional Budget Office has found the bill would impose
requirements on private entities by requiring certain States to
develop Watershed Implementation Plans. However, CBO also notes
that States required to develop these plans, ``already comply
with the underlying requirements of the plans.'' The bill will
not affect the personal privacy of individuals.
Mandates Assessment
In compliance with the Unfunded Mandates Reform Act of 1995
(Public Law 104-4), the Committee notes that the Congressional
Budget Office has concluded the bill will impose
intergovernmental and private-sector impacts but CBO also notes
that ``Implementing [Watershed Implementation Plans] plans
would impose requirements on public and private entities such
as wastewater facilities and industrial plants that discharge
water into the basin. Because those States already comply with
the underlying requirements of the plans, CBO estimates that
the cost of those mandates would fall well below the annual
thresholds established in UMRA for intergovernmental and
private-sector mandates ($70 million and $141 million in 2010,
respectively, adjusted annually for inflation).''
August 20, 2010.
Hon. Barbara Boxer,
Chairman, Committee on Environment and Public Works,
U.S. Senate, Washington, DC.
Dear Madam Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1816, the Chesapeake
Clean Water and Ecosystem Restoration Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Susanne S.
Mehlman.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
S. 1816--Chesapeake Clean Water and Ecosystem Restoration Act
Summary: S. 1816 would reauthorize the Chesapeake Bay
program within the Environmental Protection Agency (EPA) and
rename it the Chesapeake Basin program. The bill also would
authorize the appropriation of $2.3 billion over the 2011-2015
period for EPA and the Department of the Interior (DOI) to
provide grants to States and nonprofit organizations to support
a wide range of water quality projects and programs aimed at
restoring and protecting the ecosystem of the Chesapeake basin.
The authorized funding also would be used by EPA to
establish and operate trading programs for nitrogen,
phosphorus, and sediment in the Chesapeake basin. The goal of
the trading programs would be to reduce discharges of those
pollutants into the bay. If sources of pollutants, such as
farmers, reduce such discharges below targeted levels set by
EPA, they could then sell surplus reductions (or ``credits'')
to other pollution sources, such as wastewater treatment
plants. (Target levels for the agriculture sector will be set
by EPA by December 31, 2010, under current law.) Participation
in the proposed trading programs would be voluntary.
CBO estimates that implementing this legislation would cost
about $1.9 billion over the 2011-2015 period, assuming
appropriation of the authorized amounts. Pay-as-you-go
procedures do not apply to S. 1816 because the bill would not
affect direct spending or revenues.
S. 1816 would impose intergovernmental and private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
CBO estimates that the cost of those mandates would fall well
below the annual thresholds established in UMRA for
intergovernmental and private-sector mandates ($70 million and
$141 million in 2010, respectively, adjusted annually for
inflation).
Estimated cost to the Federal Government: The estimated
budgetary impact of this legislation is summarized in Table 1.
The costs of this legislation fall within budget function 300
(natural resources and environment).
TABLE 1. ESTIMATED BUDGETARY EFFECTS OF S. 1816
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
---------------------------------------------
2011 2012 2013 2014 2015 2011-2015
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Authorization Level............................................... 451 451 451 451 451 2,255
Estimated Outlays................................................. 204 383 451 451 451 1,940
----------------------------------------------------------------------------------------------------------------
Basis of estimate: For this estimate, CBO assumes that the
bill will be enacted near the beginning of fiscal year 2011,
that the full amounts authorized will be appropriated for each
year, and that outlays will follow the historical patterns of
spending for similar programs. Components of the estimated
costs are described below.
This legislation would authorize appropriations totaling
about $2.3 billion over the next five years for EPA and DOI to
support activities related to restoring and protecting the
Chesapeake basin ecosystem. Amounts authorized to be
appropriated for individual programs are shown in Table 2.
S. 1816 would authorize the appropriation of $1.5 billion
over the 2011-2015 period for EPA to provide grants to local
governments to support projects and activities within the
Chesapeake basin related to reducing or reusing stormwater
discharges.
This legislation also would authorize the appropriation of
$520 million over the next five years for EPA to establish and
support centers of excellence for water quality and
agricultural policies and practices; monitor the quality of
freshwater supplies; and provide grants to support various
activities related to achieving goals established under the
Chesapeake Bay Agreement. (That agreement, first established in
1983 between EPA and the bay-area states, identifies actions
needed to protect the Chesapeake Bay ecosystem.) Also included
in that amount is an authorization of $20 million over the
2011-2015 period for EPA to establish and implement pollutant
trading programs in the basin.
The remaining authorizations in the bill would total about
$225 million over the next five years. That funding would be
used for various purposes, including administrative support for
the Chesapeake Basin program office ($100 million), a grant
program for DOI to assist the states of Delaware, Maryland, and
Virginia in eradicating or controlling the nutria population
and restoring marshland damaged by nutria ($20 million), a
grant program for EPA to support the conversion of agricultural
animal waste into heat, power or biofuels ($30 million), and a
grant program for EPA to support the water quality and habitat
in the Chesapeake basin ($75 million).
TABLE 2. AMOUNTS AUTHORIZED TO BE APPROPRIATED FOR EPA PROGRAMS UNDER S. 1816
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
---------------------------------------------
2011 2012 2013 2014 2015 2011-2015
----------------------------------------------------------------------------------------------------------------
Storm Water Pollution Planning and Implementation Grants.......... 302 302 302 302 302 1,510
Implementation, Monitoring, and Centers of Excellence Grants...... 104 104 104 104 104 520
Chesapeake Basin Program Office................................... 20 20 20 20 20 100
Nutria Eradication Grants......................................... 4 4 4 4 4 20
Agricultural Animal Waste-to-Bioenergy Deployment Grants.......... 6 6 6 6 6 30
Chesapeake Stewardship Grants..................................... 15 15 15 15 15 75
---------------------------------------------
Total Authorization Level..................................... 451 451 451 451 451 2,255
----------------------------------------------------------------------------------------------------------------
Intergovernmental and private-sector impact: S. 1816 would
impose intergovernmental and private-sector mandates as defined
in UMRA. The bill would require the states of Delaware, New
York, and West Virginia to develop and implement plans for
improving water quality and restoring living resources in the
Chesapeake basin. Implementing those plans would impose
requirements on public and private entities such as wastewater
facilities and industrial plants that discharge water into the
basin. Because those states already comply with the underlying
requirements of the plans, CBO estimates that the cost of the
mandates would fall well below the annual thresholds
established in UMRA for intergovernmental and private-sector
mandates ($70 million and $141 million in 2010, respectively,
adjusted annually for inflation).
Other impacts
The bill would authorize a number of grant and assistance
programs that would be available to state and local
governments. In some cases, those programs would have matching
or administrative requirements, but the costs of such
requirements would be incurred voluntarily as conditions of
participation.
Estimate prepared by: Federal Spending: Susanne S. Mehlman;
Impact on State, Local, and Tribal Governments: Ryan Miller;
Impact on the Private Sector: Amy Petz.
Estimate approvd by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
ADDITIONAL VIEWS OF SENATORS JOHN BARRASSO AND DAVID VITTER
While we appreciate the unique pollution situation in the
Chesapeake Bay, and the tremendous federal involvement and
cooperation in putting together the plan that inspired this
bill, we remain concerned about a number of provisions in S.
1816, the Chesapeake Clean Water and Ecosystem Restoration Act.
First and foremost, this bill was designed and tailored to
meet the specific needs of the Chesapeake Bay, and not to serve
as a model for the rest of the United States. In putting this
bill together, Senator Cardin took input from all of the states
within the Chesapeake Basin and provided for their unique
needs. For example, New York, Delaware, and West Virginia,
states that are traditionally outside of the Chesapeake Bay
Program (which includes Virginia, Maryland, Pennsylvania, and
the District of Columbia) have been given additional time and
resources to meet the pollution goals of the aggressive 15-year
timeline. During consideration of S. 1816, the Committee moved
separate bills for the following water bodies: the Great Lakes,
the Gulf of Mexico, Long Island Sound, Puget Sound, the San
Francisco Bay, and the Columbia River.\1\ Each of these
approaches was also carefully discussed by local stakeholders
and tailored to meet the needs of the particular water bodies
they address.\2\ The Committee believes that what works in one
watershed should not be an automatic template that applies to
other areas of the country.
---------------------------------------------------------------------------
\1\United States Senate Committee on Environment and Public Works,
Full Committee Business Meeting, Wednesday, June 30, 2010, http://
epw.senate.gov/public/
index.cfm?FuseAction=Hearings.Hearing&Hearing_ID=7f356e9b-802a-23ad-
45c5-6e51a788d6c2.
\2\``Each of the restoration efforts takes a somewhat different
approach to deal with the specific concerns of that region. This is as
it should be. Each of these great water bodies is unique, and each
deserves its own restoration strategy developed by its own set of
stakeholders.'' 111th Congress Congressional Record. S6046, July 21,
2010 (Statement of Sen. Cardin).
---------------------------------------------------------------------------
By placing the unique approach S. 1816 takes to watershed
restoration into Sec. 117 of the Clean Water Act, we are
concerned that, either through creative rulemaking, or through
court mandate, expanded EPA authorities in S. 1816 will
inevitably be used for waters outside of the Chesapeake Basin.
We do not believe that this is the intent of the author and co-
sponsors of this bill, and we know it is not the intent of the
Committee to allow this. However, in my view, it would set a
troubling precedent if this bill became law.
On top of this, the bill's new EPA enforcement backstop
will significantly shift the balance of power between the
states and the federal government in dealing with regulation
and management of water. For 38 years, the Clean Water Act and
subsequent amendments have produced a federal-state partnership
to clean up and properly care for our nation's navigable
waters. This federal-state partnership has been a cornerstone
of CWA legislation since its inception, successfully protecting
waters of importance to the United States. The partnership has
also given local and state governments important flexibility in
meeting not only the goals of the CWA but the distinct needs of
local residents. According to the CWA, ``it is the policy of
the Congress to recognize, preserve, and protect the primary
responsibilities and rights of states to prevent, reduce, and
eliminate pollution, to plan the development and use (including
restoration, preservation, and enhancement) of land and water
resources.''\3\ However, S. 1816 has the potential to shift a
great deal of power away from the states and into the hands of
EPA. This is primarily done through states giving EPA their
watershed implementation plans for approval and expanded
permitting authorities.
---------------------------------------------------------------------------
\3\CWA 101(b).
---------------------------------------------------------------------------
Section 3(i)(1) lays out the requirements for watershed
implementation plans. This new scheme requires, in
3(i)(1)(A)(iv)(1), ``State adopted management measures,
including rules, or regulations, permits, consent decrees, and
other enforceable or otherwise binding measures from point and
nonpoint pollution sources.'' The CWA has never been able to
require that states adopt implementation plans that are wholly
enforceable by permit or other binding measures. Currently
states meet their water pollution control goals through a
combination of both binding and voluntary measures.
Additionally, states have made great progress in improving
water quality through voluntary partnerships and programs.
Under the Clean Water Act, funding is set aside for a number of
cooperative, highly successful, voluntary programs, such as the
nonpoint source management programs under Section 319\4\ and
the National Estuary Program under Section 320.\5\ By requiring
that any management measure be binding and enforceable, states
will have to take on unnecessary regulatory burden, not just in
writing the new permits, but also in enforcing them. Moreover,
the requirement for binding, enforceable permits may prevent
states from achieving greater participation through a voluntary
program.
---------------------------------------------------------------------------
\4\In 2008, Chugwater Creek, a tributary to the Laramie River, in
the North Platte River Basin of Wyoming was removed from WYDEQ's 303(d)
list of impaired waters after a stakeholder group including local
landowners, the local irrigation district, Platte County Resource
District, Wyoming Game and Fish Department, and Pheasants Forever
adopted numerous best management practices to reduce sedimentation.
This successful project was made possible through CWA 319 program
authorities. (see: http://www.epa.gov/owow/NPS/success/state/
wy_chug.htm) For more EPA 319 success stories, including dramatic
pollution reduction in Chesapeake Basin states, see EPA's Office of
Water's 321 page report: http://www.epa.gov/owow_keep/NPS/Success319/
pdf/319_all.pdf.
\5\For reports regarding NEP successes, please look at testimony
submitted for the June 26, 2008, the House Subcommittee on Water
Resources and Environment held a hearing on ``Protecting and Restoring
America's Great Waters, Part 1: Coasts and Estuaries.'' http://
transportation.house.gov/hearings/hearingDetail.aspx?NewsID=686. At
that hearing, Richard Ribb, Director of the Narrangansett Bay Estuary
Program stated that ``One of the successes of the program certainly is
due to its non-regulatory approach. It provides a neutral forum for
people to discuss issues and come to agreement on solutions.''
Additionally, EPA's website on the National Estuary Program boasts
about their ``. . . success stories demonstrate the significant work
being done . . . the NEPs implement the Clean Water Act in Ways that
are Effective, Efficient, Collaborative, and Adaptive.'' http://
water.epa.gov/type/oceb/nep/action.cfm.
---------------------------------------------------------------------------
S. 1816 allows, for the first time ever, CWA 402 National
Pollution Discharge Permits (NPDES) to be used and enforced for
any pollution discharge or runoff the state would like to
permit in order to meet their watershed implementation plans.
3(i)(2)(A) reads:
Notwithstanding any other provision of this Act
(including any exclusion or exception contained in a
definition under section 502) and in accordance with
State laws (including regulations), after providing
appropriate opportunities for public comment, for the
purpose of achieving the nitrogen, phosphorus, and
sediment reductions required under a watershed
implementation plan, a Chesapeake Basin State, or, if
the State is not authorized to administer the permit
program under section 402, the Administrator, may
impose limitations or other controls, including permit
requirements, on any discharge or runoff from a
pollution source, including point and nonpoint sources,
located within the Chesapeake Basin State that the
program administrator determines to be necessary.
This is a tremendous expansion of the NPDES permitting
authority. Under current law, NPDES permits are for discharges
of pollutants from any point source into waters of the United
States.\6\ There is nothing in 3(i)(2)(A) that limits NPDES
permits to just pollution of nitrogen, phosphorous, and
sediment, as it allows any permits to be written for achieving
the reductions required under the watershed implementation
plan. For the first time, this bill allows permits to be
written for nonpoint sources. This is a dramatic and
fundamental expansion to the CWA permitting system.
---------------------------------------------------------------------------
\6\Water Permitting 101, USEPA Office of Wastewater Management--
Water Permitting, http://www.epa.gov/npdes/pubs/101pape.pdf.
---------------------------------------------------------------------------
Without limiting the kinds of discharges that can be
regulated, conceivably any activity that involves water moving
on a property could be regulated by an NPDES permit. It is
unknown to what extent permitting could be used for existing
sources, but it is safe to assume that, if the water quality
goals set forth in the Chesapeake Bay TMDL are stringent
enough, permits could be widely required for existing
structures, not being currently developed or re-developed,
including businesses, farms, and private residences.
Furthermore, expanding the states use of 402 permits will
inevitably result in more lawsuits, as all 402 permits written
by states will be immediately enforceable through citizen
suits.
The 402 universe is further expanded by the removal of the
current 502 exemption. Under the S. 1816 regime, states may
require NPDES permits for agricultural stormwater discharges
and irrigation return flows, which have been specifically
exempted from permit requirements.\7\ NPDES permits
traditionally contain strict numeric criteria that would be
incredibly difficult to adapt to agricultural stormwater
situations. Because agricultural runoff is largely dictated by
rainfall, something that agricultural producers do not have
control over, meeting numeric limitations will be extremely
difficult and potentially costly.
---------------------------------------------------------------------------
\7\CWA 502(14).
---------------------------------------------------------------------------
Furthermore, it appears that the added provision against
section 309 enforcement for farmers actually fails to provide
any shield from enforcement actions. The protection in
3(i)(2)(C) only applies if the agricultural producer can prove
he is in compliance with the permit and nutrient management
plans and soil conservation plans, and every provision of the
state watershed implementation plan. This provision does not
stop EPA or an activist from filing lawsuits against
agricultural producers. In fact, depending on interpretation,
it may make it even harder for an agricultural producer to
defend itself from a lawsuit because the section implies that a
producer must not only comply with the terms of a Clean Water
Act permit, but also any additional requirements found in
nutrient management and conservation plans or in the watershed
implementation plan itself. Thus, this provision provides no
protection at all from lawsuits.
I am also concerned about how S. 1816 will impact farmers
in the Chesapeake Bay region and how they could be the
``camel's nose under the tent'' for regulating agriculture in
the rest of the country. In testimony before the committee, the
Honorable Gus Douglass, the Commissioner of the West Virginia
Department of Agriculture argued against additional regulatory
schemes for agriculture in the Chesapeake Basin. He testified:
``Additional regulations at this time will be burdensome to
both the agriculture community and the state as they try to
implement regulations.'' Instead, he argued for continued
support for the successful voluntary incentive-based approach
to helping farmers achieve water quality goals for the
Chesapeake Bay.\8\ Additional permit burdens will only further
disadvantage family farmers who are struggling now.
---------------------------------------------------------------------------
\8\Testimony of the Honorable Gus Douglass, Commissioner West
Virginia Department of Agriculture, Subcommittee on Water and Wildlife
hearing entitled, ``A Renewed Commitment to Protecting the Chesapeake
Bay: Reauthorizing the Chesapeake Bay Program.'' Monday, August 3,
2009. http://epw.senate.gov/public/
index.cfm?FuseAction=Files.View&FileStore_id=a0cc8539-a342-4fc9-bd6d-
11d6cad46524.
---------------------------------------------------------------------------
In the event that states do not have 402 authority,
3(i)(2)(A) gives EPA the authority to write these permits.
Currently, the District of Columbia does not have any delegated
NPDES authority and Pennsylvania doesn't have NPDES authority
for the State Pretreatment Program.\9\ Right now, EPA will have
the sole authority to permit nonpoint sources in the District
of Columbia, and, if EPA takes over any Chesapeake Basin
state's authority prior to S. 1816 becoming law, then EPA will
have complete authority to permit nonpoint sources in that
state. This is concerning because EPA has been petitioned by
the Sierra Club, West Virginia Highlands Conservancy, Coal
River Mountain Watch, and Ohio Valley Environmental Coalition
to begin formal proceedings to withdraw approval of West
Virginia's NPDES program.\10\
---------------------------------------------------------------------------
\9\EPA Office of Water: NPDES State Program Status: http://
cfpub.epa.gov/npdes/statestats.cfm as of 15 September 2010.
\10\``EPA Petitioned to Revoke West Virgina's Clean Water
Authority'' ENS News Service, June 22, 2009 http://www.ens-
newswire.com/ens/jun2009/2009-06-22-091.asp.
---------------------------------------------------------------------------
In the event that EPA utilizes the expanded 402 authority
outside of the Chesapeake Basin, Idaho, Massachusetts, New
Hampshire, New Mexico, American Samoa, Guam, Johnston Atoll,
Midway Island, Northern Mariana Islands, and Wake Island would
have EPA fully in control of their programs. Oklahoma and Texas
would have to share authority with EPA to write nonpoint source
permits for some of their programs, since they do not have
NPDES authority to permit for activities associated CAFOs or
with the exploration, development, or production of oil or gas
or geothermal resources, including transportation of crude oil
or natural gas by pipeline.\11\
---------------------------------------------------------------------------
\11\EPA Office of Water: NPDES Specific State Program Status http:/
/cfpub.epa.gov/npdes/statestats.cfm?program_id=45&view=specific as of
15 September 2010.
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S. 1816 also will alter the relationship between EPA and
the states relationship for responsibilities for water will be
altered by S. 1816. There are two potential scenarios in terms
of watershed implementation plans. States can submit their
plans to EPA for approval, or they can choose not to. Once a
state submits its plan for approval, if EPA believes the plan
is inadequate, it can take over the entire program and issue
permits for whatever it wants. Even if EPA chooses not to take
over a plan, we remain deeply concerned that once a plan is
submitted for approval, all the provisions in the plan are
subject to second-guessing by activist groups through citizen
suits and TMDL implementation by court order.
If a state submits a plan to EPA, and EPA approves it, any
group that disagrees with that decision could bring an action
against EPA to compel them to reconsider and disapprove it.
Such speculation is not far-fetched. Current law already
requires EPA to ``ensure'' that ``management plans are
developed and implemented'' by Chesapeake Basin states. Even
though the legislative history of that provision states that it
confers no regulatory authority and is to be implemented by
issuing grants, the Chesapeake Bay Foundation sued EPA for
failing to meet that nondiscretionary duty and EPA settled that
case by making many commitments related to the Chesapeake Bay
TMDL.\12\ This could happen as Phase I state watershed
implementation plans are submitted to EPA in early September
2010 have already been criticized by environmentalists.\13\ If
S. 1816 were in effect and applied to those plans, these groups
could challenge any EPA approval of those plans by alleging a
failure to meet the many mandates in this bill.
---------------------------------------------------------------------------
\12\Fowler v. EPA, see press release ``EPA Reaches Settlement in
Chesapeake Bay Lawsuit'' 11 March 2010 http://yosemite.epa.gov/opa/
admpress.nsf/ 0/ac46af32562521d48525772000591133?OpenDocument.
\13\``States' Bay Cleanup Plans Fall Short Of EPA-Mandated
Pollution Reductions'' Inside EPA 13 September 2010 http://
insideepa.com/Water-Policy-Report/Water-Policy-Report-09/13/2010/
states-bay-cleanup-plans-fall-short-of-epa-mandated-pollution-
reductions/menu-id-127.html.
---------------------------------------------------------------------------
Section (3)(j)(5) gives EPA authority to directly carry out
a state watershed implementation plan if the state submitted
that plan to EPA for approval and EPA decides that plan is
inadequate. EPA can also carry out a state watershed
implementation plan if the state fails to submit a required
revised plan, fails to submit a biennial report, misses a 2-
year milestone, or fails to remedy a disapproved plan. Again,
citizen suits may force EPA to take over implementation of a
plan on grounds that milestones are not being met or the plan
is inadequate. Furthermore, in the event that a state fails to
stay on its watershed implementation schedule, EPA has a
judicially enforceable, nondiscretionary duty to withhold state
funding, including SRF funds; develop and administer new
watershed implementation plans; and require that any new or
expanded discharges under 402 have stringent offsets.
Essentially, by submitting a watershed implementation plan to
EPA for approval, states will cede decision making authority
over Chesapeake Basin water to the federal government.
If a state does not submit a watershed implementation plan
to EPA for approval, then S. 1816 does not grant EPA new
implementation or enforcement authority. However, EPA has
already threatened to compel states to submit watershed
implementation plans to EPA for approval, even though the Clean
Water Act does not grant EPA that authority. In a letter dated
December 29, 2009, EPA threatened to take the following actions
against states that do not submit their plans to EPA:
Expanding coverage of National Pollutant Discharge
Elimination System (NPDES) permits to sources that are
currently unregulated.
Increasing oversight of state-issued NPDES
permits.
Requiring additional pollution reductions from
point sources such as wastewater treatment plants.
Increasing federal enforcement and compliance in
the watershed.
Prohibiting new or expanded pollution discharges
unless sufficient offsets are provided.
Redirecting EPA grants.
Revising water quality standards to better protect
local and downstream waters.
Establishing finer scale load allocations in the
Bay TMDL.\14\
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\14\``EPA Outlines Framework for Holding States, D.C. Accountable
for Reducing Chesapeake Bay Watershed Pollution; Additional $11.2
Million Provided'' Release date: 12/29/2009 http://yosemite.epa.gov/
opa/admpress.nsf/e51aa292bac25b0b85257359003d925f/
aa36226e613bfb9e8525769b005d85b2!OpenDocument.
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S. 1816 contains additional citizen suits provisions. As
citizen suits are already allowed in the Clean Water Act, a new
citizen's suit right is not necessary in this bill. Rather than
allowing special interest groups to sue for permit violators to
be enforced upon, at a cost to the taxpayers, a better
enforcement strategy would be to subject a state to an
enforcement action by the Administrator when they are found to
violate this act, which is a much more appropriate measure to
help clean up the bay watershed. Allowing an expanded citizens
suit provision will only get the states bogged down with
unnecessary and potentially inappropriate litigations.
Finally, I am extremely concerned that provisions that
compel states to take on the enforcement and enactment of a
federal regulatory program may be unconstitutional. The Supreme
Court has previously struck down\15\ provisions of federal law
that placed burdensome requirements on states. The Court held
that Congress may not ``commandeer the legislative processes of
the States by directly compelling them to enact and enforce a
federal regulatory program.''\16\ Specifically the court
pointed out that such detailed instructions to the states on
how to implement federal programs are outside of Congress'
purview. ``While Congress has substantial power to govern the
Nation directly, . . . the Constitution has never been
understood to confer upon Congress the ability to require the
States to govern according to Congress' instruction.''\17\ The
severability clause that S. 1816 contains in Section (3)(q) ``A
determination that any provisions of this section is invalid,
illegal, unenforceable, or in conflict with any other law shall
not affect the validity, legality, or enforceability of the
remaining provisions of this section,'' seems to prepare for
this constitutional challenge.
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\15\New York v. United States, 505 U.S. 144 (1992).
\16\Id. at 161.
\17\Id. at 162.
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Again, we sincerely respect the process that Sen. Cardin
and the co-sponsors of this legislation have gone through to
help the Chesapeake Bay. We believe from introduction through
committee mark up on August 30, 2010, important, beneficial
changes were made to this bill that allowed for its smooth
passage through committee, and we sincerely hope more will be
done before this sees further Congressional action.
John Barrasso.
David Vitter.
Changes in Existing Law
In compliance with section 12 of rule XXVI of the Standing
Rules of the Senate, changes in existing law made by the bill
as reported are shown as follows: Existing law proposed to be
omitted is enclosed in [black brackets], new matter is printed
in italic, existing law in which no change is proposed is shown
in roman:
* * * * * * *
FEDERAL WATER POLLUTION CONTROL ACT
* * * * * * *
SEC. 117. CHESAPEAKE BAY.
[(a) Definitions.--In this section, the following definitions
apply:
[(1) Administrative cost.--The term ``administrative
cost'' means the cost of salaries and fringe benefits
incurred in administering a grant under this section.
[(2) Chesapeake bay agreement.--The term ``Chesapeake
Bay Agreement'' means the formal, voluntary agreements
executed to achieve the goal of restoring and
protecting the Chesapeake Bay ecosystem and the living
resources of the Chesapeake Bay ecosystem and signed by
the Chesapeake Executive Council.
[(3) Chesapeake bay ecosystem.--The term ``Chesapeake
Bay ecosystem'' means the ecosystem of the Chesapeake
Bay and its watershed.
[(4) Chesapeake bay program.--The term ``Chesapeake
Bay Program'' means the program directed by the
Chesapeake Executive Council in accordance with the
Chesapeake Bay Agreement.
[(5) Chesapeake executive council.--The term
``Chesapeake Executive Council'' means the signatories
to the Chesapeake Bay Agreement.
[(6) Signatory jurisdiction.--The term ``signatory
jurisdiction'' means a jurisdiction of a signatory to
the Chesapeake Bay Agreement.
[(b) Continuation of Chesapeake Bay Program.--
[(1) In general.--In cooperation with the Chesapeake
Executive Council (and as a member of the Council), the
Administrator shall continue the Chesapeake Bay
Program.
[(2) Program office.--
[(A) In general.--The Administrator shall
maintain in the Environmental Protection Agency
a Chesapeake Bay Program Office.
[(B) Function.--The Chesapeake Bay Program
Office shall provide support to the Chesapeake
Executive Council by--
[(i) implementing and coordinating
science, research, modeling, support
services, monitoring, data collection,
and other activities that support the
Chesapeake Bay Program;
[(ii) developing and making
available, through publications,
technical assistance, and other
appropriate means, information
pertaining to the environmental quality
and living resources of the Chesapeake
Bay ecosystem;
[(iii) in cooperation with
appropriate Federal, State, and local
authorities, assisting the signatories
to the Chesapeake Bay Agreement in
developing and implementing specific
action plans to carry out the
responsibilities of the signatories to
the Chesapeake Bay Agreement;
[(iv) coordinating the actions of the
Environmental Protection Agency with
the actions of the appropriate
officials of other Federal agencies and
State and local authorities in
developing strategies to--
[(I) improve the water
quality and living resources in
the Chesapeake Bay ecosystem;
and
[(II) obtain the support of
the appropriate officials of
the agencies and authorities in
achieving the objectives of the
Chesapeake Bay Agreement; and
[(v) implementing outreach programs
for public information, education, and
participation to foster stewardship of
the resources of the Chesapeake Bay.
[(c) Interagency Agreements.--The Administrator may enter
into an interagency agreement with a Federal agency to carry
out this section.
[(d) Technical Assistance and Assistance Grants.--
[(1) In general.--In cooperation with the Chesapeake
Executive Council, the Administrator may provide
technical assistance, and assistance grants, to
nonprofit organizations, State and local governments,
colleges, universities, and interstate agencies to
carry out this section, subject to such terms and
conditions as the Administrator considers appropriate.
[(2) Federal share.--
[(A) In general.--Except as provided in
subparagraph (B), the Federal share of an
assistance grant provided under paragraph (1)
shall be determined by the Administrator in
accordance with guidance issued by the
Administrator.
[(B) Small watershed grants program.--The
Federal share of an assistance grant provided
under paragraph (1) to carry out an
implementing activity under subsection (g)(2)
shall not exceed 75 percent of eligible project
costs, as determined by the Administrator.
[(3) Non-federal share.--An assistance grant under
paragraph (1) shall be provided on the condition that
non-Federal sources provide the remainder of eligible
project costs, as determined by the Administrator.
[(4) Administrative costs.--Administrative costs
shall not exceed 10 percent of the annual grant award.
[(e) Implementation and Monitoring Grants.--
[(1) In general.--If a signatory jurisdiction has
approved and committed to implement all or
substantially all aspects of the Chesapeake Bay
Agreement, on the request of the chief executive of the
jurisdiction, the Administrator--
[(A) shall make a grant to the jurisdiction
for the purpose of implementing the management
mechanisms established under the Chesapeake Bay
Agreement, subject to such terms and conditions
as the Administrator considers appropriate; and
[(B) may make a grant to a signatory
jurisdiction for the purpose of monitoring the
Chesapeake Bay ecosystem.
[(2) Proposals.--
[(A) In general.--A signatory jurisdiction
described in paragraph (1) may apply for a
grant under this subsection for a fiscal year
by submitting to the Administrator a
comprehensive proposal to implement management
mechanisms established under the Chesapeake Bay
Agreement.
[(B) Contents.--A proposal under subparagraph
(A) shall include--
[(i) a description of proposed
management mechanisms that the
jurisdiction commits to take within a
specified time period, such as reducing
or preventing pollution in the
Chesapeake Bay and its watershed or
meeting applicable water quality
standards or established goals and
objectives under the Chesapeake Bay
Agreement; and
[(ii) the estimated cost of the
actions proposed to be taken during the
fiscal year.
[(3) Approval.--If the Administrator finds that the
proposal is consistent with the Chesapeake Bay
Agreement and the national goals established under
section 101(a), the Administrator may approve the
proposal for an award.
[(4) Federal share.--The Federal share of a grant
under this subsection shall not exceed 50 percent of
the cost of implementing the management mechanisms
during the fiscal year.
[(5) Non-federal share.--A grant under this
subsection shall be made on the condition that non-
Federal sources provide the remainder of the costs of
implementing the management mechanisms during the
fiscal year.
[(6) Administrative costs.--Administrative costs
shall not exceed 10 percent of the annual grant award.
[(7) Reporting.--On or before October 1 of each
fiscal year, the Administrator shall make available to
the public a document that lists and describes, in the
greatest practicable degree of detail--
[(A) all projects and activities funded for
the fiscal year;
[(B) the goals and objectives of projects
funded for the previous fiscal year; and
[(C) the net benefits of projects funded for
previous fiscal years.
[(f) Federal Facilities and Budget Coordination.--
[(1) Subwatershed planning and restoration.--A
Federal agency that owns or operates a facility (as
defined by the Administrator) within the Chesapeake Bay
watershed shall participate in regional and
subwatershed planning and restoration programs.
[(2) Compliance with agreement.--The head of each
Federal agency that owns or occupies real property in
the Chesapeake Bay watershed shall ensure that the
property, and actions taken by the agency with respect
to the property, comply with the Chesapeake Bay
Agreement, the Federal Agencies Chesapeake Ecosystem
Unified Plan, and any subsequent agreements and plans.
[(3) Budget coordination.--
[(A) In general.--As part of the annual
budget submission of each Federal agency with
projects or grants related to restoration,
planning, monitoring, or scientific
investigation of the Chesapeake Bay ecosystem,
the head of the agency shall submit to the
President a report that describes plans for the
expenditure of the funds under this section.
[(B) Disclosure to the council.--The head of
each agency referred to in subparagraph (A)
shall disclose the report under that
subparagraph with the Chesapeake Executive
Council as appropriate.
[(g) Chesapeake Bay Program.--
[(1) Management strategies.--The Administrator, in
coordination with other members of the Chesapeake
Executive Council, shall ensure that management plans
are developed and implementation is begun by
signatories to the Chesapeake Bay Agreement to achieve
and maintain--
[(A) the nutrient goals of the Chesapeake Bay
Agreement for the quantity of nitrogen and
phosphorus entering the Chesapeake Bay and its
watershed;
[(B) the water quality requirements necessary
to restore living resources in the Chesapeake
Bay ecosystem;
[(C) the Chesapeake Bay Basinwide Toxins
Reduction and Prevention Strategy goal of
reducing or eliminating the input of chemical
contaminants from all controllable sources to
levels that result in no toxic or
bioaccumulative impact on the living resources
of the Chesapeake Bay ecosystem or on human
health;
[(D) habitat restoration, protection,
creation, and enhancement goals established by
Chesapeake Bay Agreement signatories for
wetlands, riparian forests, and other types of
habitat associated with the Chesapeake Bay
ecosystem; and
[(E) the restoration, protection, creation,
and enhancement goals established by the
Chesapeake Bay Agreement signatories for living
resources associated with the Chesapeake Bay
ecosystem.
[(2) Small watershed grants program.--The
Administrator, in cooperation with the Chesapeake
Executive Council, shall--
[(A) establish a small watershed grants
program as part of the Chesapeake Bay Program;
and
[(B) offer technical assistance and
assistance grants under subsection (d) to local
governments and nonprofit organizations and
individuals in the Chesapeake Bay region to
implement--
[(i) cooperative tributary basin
strategies that address the water
quality and living resource needs in
the Chesapeake Bay ecosystem; and
[(ii) locally based protection and
restoration programs or projects within
a watershed that complement the
tributary basin strategies, including
the creation, restoration, protection,
or enhancement of habitat associated
with the Chesapeake Bay ecosystem.
[(h) Study of Chesapeake Bay Program.--
[(1) In general.--Not later than April 22, 2003, and
every 5 years thereafter, the Administrator, in
coordination with the Chesapeake Executive Council,
shall complete a study and submit to Congress a
comprehensive report on the results of the study.
[(2) Requirements.--The study and report shall--
[(A) assess the state of the Chesapeake Bay
ecosystem;
[(B) compare the current state of the
Chesapeake Bay ecosystem with its state in
1975, 1985, and 1995;
[(C) assess the effectiveness of management
strategies being implemented on the date of
enactment of this section and the extent to
which the priority needs are being met;
[(D) make recommendations for the improved
management of the Chesapeake Bay Program either
by strengthening strategies being implemented
on the date of enactment of this section or by
adopting new strategies; and
[(E) be presented in such a format as to be
readily transferable to and usable by other
watershed restoration programs.
[(i) Special Study of Living Resource Response.--
[(1) In general.--Not later than 180 days after the
date of enactment of this section, the Administrator
shall commence a 5-year special study with full
participation of the scientific community of the
Chesapeake Bay to establish and expand understanding of
the response of the living resources of the Chesapeake
Bay ecosystem to improvements in water quality that
have resulted from investments made through the
Chesapeake Bay Program.
[(2) Requirements.--The study shall--
[(A) determine the current status and trends
of living resources, including grasses,
benthos, phytoplankton, zooplankton, fish, and
shellfish;
[(B) establish to the extent practicable the
rates of recovery of the living resources in
response to improved water quality condition;
[(C) evaluate and assess interactions of
species, with particular attention to the
impact of changes within and among trophic
levels; and
[(D) recommend management actions to optimize
the return of a healthy and balanced ecosystem
in response to improvements in the quality and
character of the waters of the Chesapeake Bay.
[(j) Authorization of Appropriations.--There is authorized to
be appropriated to carry out this section $40,000,000 for each
of fiscal years 2001 through 2005. Such sums shall remain
available until expended.]
SEC. 117. CHESAPEAKE BASIN PROGRAM.
(a) Definitions.--In this section:
(1) Administrative cost.--The term `administrative
cost' means the cost of salaries and fringe benefits
incurred in administering a grant under this section.
(2) Asian oyster.--The term `Asian oyster' means the
species Crassostrea ariakensis.
(3) Baseline.--The term `baseline'--
(A) means the basic standard or level of the
nutrient control requirements a credit seller
shall achieve to be eligible to generate
saleable nutrient credits; and
(B) consists of the nutrient load reductions
required of individual sources to meet water
quality standards and load or waste load
allocations under all applicable total maximum
daily loads and watershed implementation plans.
(4) Basin commissions.--The term `basin commissions'
means--
(A) the Interstate Commission on the Potomac
River Basin established under the interstate
compact consented to and approved by Congress
under the Joint Resolution of July 11, 1940 (54
Stat. 748, chapter 579) and Public Law 91-407
(84 Stat. 856);
(B) the Susquehanna River Basin Commission
established under the interstate compact
consented to and approved by Congress under
Public Law 91-575 (84 Stat. 1509) and Public
Law 99-468 (100 Stat. 1193); and
(C) the Chesapeake Bay Commission, a tri-
State legislative assembly representing
Maryland, Virginia, and Pennsylvania created in
1980 to coordinate Bay-related policy across
State lines and to develop shared solutions.
(5) Chesapeake basin.--The term `Chesapeake Basin'
means--
(A) the Chesapeake Bay; and
(B) the area consisting of 19 tributary
basins within the Chesapeake Basin States
through which precipitation drains into the
Chesapeake Bay.
(6) Chesapeake basin ecosystem.--The term `Chesapeake
Basin ecosystem' means the ecosystem of the Chesapeake
Basin.
(7) Chesapeake basin program.--The term `Chesapeake
Basin Program' means the program, formerly known as the
`Chesapeake Bay Program', directed by the Chesapeake
Executive Council in accordance with the Chesapeake Bay
Agreement (including any successor programs).
(8) Chesapeake basin state.--The term `Chesapeake
Basin State' means any of--
(A) the States of Delaware, Maryland, New
York, Pennsylvania, Virginia, and West
Virginia; or
(B) the District of Columbia.
(9) Chesapeake bay agreement.--The term `Chesapeake
Bay Agreement' means the formal, voluntary agreements
executed to achieve the goal of restoring and
protecting the Chesapeake Basin ecosystem and the
living resources of the Chesapeake Basin ecosystem and
signed by the Chesapeake Executive Council.
(10) Chesapeake bay tidal segment.--The term
`Chesapeake Bay tidal segment' means any of the 92
tidal segments that--
(A) make up the Chesapeake Bay; and
(B) are identified by a Chesapeake Basin
State pursuant to section 303(d).
(11) Chesapeake bay tmdl.--
(A) In general.--The term `Chesapeake Bay
TMDL' means the total maximum daily load
(including any revision) established or
approved by the Administrator for nitrogen,
phosphorus, and sediment loading to the waters
in the Chesapeake Bay and the Chesapeake Bay
tidal segments.
(B) Inclusions.--The term `Chesapeake Bay
TMDL' includes nitrogen, phosphorus, and
sediment allocations in temporal units of
greater-than-daily duration, if the
allocations--
(i) are demonstrated to achieve water
quality standards; and
(ii) do not lead to violations of
other applicable water quality
standards for local receiving waters.
(12) Chesapeake executive council.--The term
`Chesapeake Executive Council' means the signatories to
the Chesapeake Bay Agreement.
(13) Cleaning agent.--The term `cleaning agent' means
a laundry detergent, dishwashing compound, household
cleaner, metal cleaner, degreasing compound, commercial
cleaner, industrial cleaner, phosphate compound, or
other substance that is intended to be used for
cleaning purposes.
(14) Credit.--The term `credit' means a unit provided
for 1 pound per year of nitrogen, phosphorus, or
sediment that is--
(A) delivered to the tidal portion of the
Chesapeake Bay; and
(B) eligible to be sold under the trading
programs established by this section.
(15) Director.--The term `director' means the
Director of the Chesapeake Basin Program Office of the
Environmental Protection Agency.
(16) Local government.--The term `local government'
means any county, city, or other general purpose
political subdivision of a State with jurisdiction over
land use.
(17) Menhaden.--The term `menhaden' means members of
stocks or populations of the species Brevoortia
tyrannus.
(18) Nutria.--The term `nutria' means the species
Myocaster coypus.
(19) Offset.--The term `offset' means a reduction of
loading of nitrogen, phosphorous, or sediment, as
applicable, in a manner that ensures that the net
loading reaching the Chesapeake Bay and the Chesapeake
Bay tidal segments from a source--
(A) does not increase; or
(B) is reduced.
(20) Signatory jurisdiction.--The term `signatory
jurisdiction' means a jurisdiction of a signatory to
the Chesapeake Bay Agreement.
(21) Tributary basin.--The term `tributary basin'
means an area of land or body of water that--
(A) drains into any of the 19 Chesapeake Bay
tributaries or tributary segments; and
(B) is managed through watershed
implementation plans under this Act.
(b) Renaming and Continuation of Chesapeake Bay Program.--
(1) In general.--In cooperation with the Chesapeake
Executive Council (and as a member of the Council), the
Administrator shall--
(A) rename the Chesapeake Bay Program, as in
existence on the date of enactment of the
Chesapeake Clean Water and Ecosystem
Restoration Act, as the `Chesapeake Basin
Program'; and
(B) continue to carry out the Chesapeake
Basin Program.
(2) Meetings.--
(A) In general.--The Chesapeake Executive
Council shall meet not less frequently than
once each year.
(B) Open to public.--
(i) In general.--Subject to clause
(ii), a meeting of the Chesapeake
Executive Council shall be held open to
the public.
(ii) Exception.--The Chesapeake
Executive Council may hold executive
sessions that are closed to the public.
(3) Program office.--
(A) In general.--The Administrator shall
maintain in the Environmental Protection Agency
a Chesapeake Basin Program Office.
(B) Function.--The Chesapeake Basin Program
Office shall provide support to the Chesapeake
Executive Council by--
(i) implementing and coordinating
science, research, modeling, support
services, monitoring, data collection,
and other activities that support the
Chesapeake Basin Program;
(ii) developing and making available,
through publications, technical
assistance, and other appropriate
means, information pertaining to the
environmental quality and living
resources of the Chesapeake Basin
ecosystem;
(iii) in cooperation with appropriate
Federal, State, and local authorities,
assisting the signatories to the
Chesapeake Bay Agreement in developing
and implementing specific action plans
to carry out the responsibilities of
the signatories to the Chesapeake Bay
Agreement;
(iv) coordinating the actions of the
Environmental Protection Agency with
the actions of the appropriate
officials of other Federal agencies and
State and local authorities in
developing strategies to--
(I) improve the water quality
and living resources in the
Chesapeake Basin ecosystem; and
(II) obtain the support of
the appropriate officials of
the agencies and authorities in
achieving the objectives of the
Chesapeake Bay Agreement; and
(v) implementing outreach programs
for public information, education, and
participation to foster stewardship of
the resources of the Chesapeake Basin.
(c) Interagency Agreements.--The Administrator may enter into
an interagency agreement with a Federal agency to carry out
this section.
(d) Technical Assistance and Assistance Grants.--
(1) In general.--In cooperation with the Chesapeake
Executive Council, the Administrator may provide
technical assistance, and assistance grants, to soil
conservation districts, nonprofit organizations, State
and local governments, basin commissions, and
institutions of higher education to carry out this
section, subject to such terms and conditions as the
Administrator considers appropriate.
(2) Federal share.--
(A) In general.--Except as provided in
subparagraph (B), the Federal share of an
assistance grant provided under paragraph (1)
shall be determined by the Administrator in
accordance with guidance issued by the
Administrator.
(B) Chesapeake basin stewardship grants
program.--The Federal share of an assistance
grant provided under paragraph (1) to carry out
an implementing activity under subsection
(h)(2) shall not exceed 75 percent of eligible
project costs, as determined by the
Administrator.
(3) Non-federal share.--An assistance grant under
paragraph (1) shall be provided on the condition that
non-Federal sources provide the remainder of eligible
project costs, as determined by the Administrator.
(4) Nutrient trading guarantee pilot program.--The
project manager of the Chesapeake nutrient trading
guarantee program established under subsection
(e)(1)(D) shall be eligible to receive technical
assistance or technical assistance grants under this
subsection.
(e) Implementation, Monitoring, and Centers of Excellence
Grants.--
(1) Grants.--
(A) Implementation grants.--The Administrator
shall make an implementation grant to the
Chesapeake Basin State, or a designee of a
Chesapeake Basin State (including a soil
conservation district, nonprofit organization,
local government, institution of higher
education, basin commission, or interstate
agency), for the purposes of implementing an
approved watershed implementation plan of the
Chesapeake Basin State under subsection (i) and
achieving the goals established under the
Chesapeake Bay Agreement, subject to such terms
and conditions as the Administrator considers
to be appropriate.
(B) Monitoring grants.--The Administrator may
make a monitoring grant to--
(i) a Chesapeake Basin State,
designee of a Chesapeake Basin State,
soil conservation district, nonprofit
organization, local government,
institution of higher education, or
basin commission for the purpose of
monitoring the ecosystem of freshwater
tributaries to the Chesapeake Bay; or
(ii) any of the States of Delaware,
Maryland, or Virginia (or a designee),
the District of Columbia (or a
designee), nonprofit organization,
local government, institution of higher
education, or interstate agency for the
purpose of monitoring the Chesapeake
Bay, including the tidal waters of the
Chesapeake Bay.
(C) Centers of excellence grants.--The
Administrator, in consultation with the
Secretary of Agriculture, may make grants to
institutions of higher education, consortia of
such institutions, or public, non-affiliated
nonprofit organizations for the purpose of
establishing and supporting centers of
excellence for water quality and agricultural
practices--
(i) to develop new technologies and
innovative policies and practices for
agricultural producers to reduce
nitrogen, phosphorous, and sediment
pollution;
(ii) to quantify the expected load
reductions of those pollutants to be
achieved in the Chesapeake Basin
through the implementation of current
and newly developed technologies,
policies, and practices; and
(iii) to provide to the Administrator
and the Secretary recommendations for--
(I) the widespread deployment
of those technologies,
policies, and practices among
agricultural producers; and
(II) the application of those
technologies, policies, and
practices in Chesapeake Basin
computer models.
(D) Chesapeake nutrient trading guarantee
pilot program.--
(i) In general.--The Administrator,
in consultation with the Chesapeake
Basin States and the Secretary of
Agriculture, shall establish a
Chesapeake nutrient trading guarantee
pilot program (referred to in this
subparagraph as the `guarantee pilot
program') to support the interstate
trading program established under
subsection (j)(6).
(ii) Purposes.--The purposes of the
guarantee pilot program are--
(I) to develop innovative
policies and practices to more
efficiently and effectively
implement best management
practices, primarily on
agricultural land;
(II) to leverage public
funding to raise private
capital to accelerate the
restoration of the Chesapeake
Bay by providing a Federal
guarantee on nutrient credit
purchases; and
(III) to support nutrient
trading throughout the
Chesapeake Basin.
(iii) Project manager.--
(I) In general.--The
Administrator shall designate a
project manager to carry out
the guarantee pilot program.
(II) Qualifications.--The
project manager shall be an
institution of higher
education, a nonprofit
organization, or a basin
commission that--
(aa) demonstrates
thorough knowledge and
understanding of best
management practices
that result in nutrient
reductions in the
Chesapeake Basin;
(bb) demonstrates
thorough knowledge and
understanding of the
Chesapeake watershed
computer model of the
Environmental
Protection Agency;
(cc) demonstrates
thorough knowledge and
understanding of the
relevant environmental
regulations relating to
the Chesapeake Basin;
(dd) has a
demonstrated history of
discharging fiduciary
responsibilities with
transparency and in
accordance with all
applicable accounting
standards; and
(ee) has relevant
experience with
pollution offsets and
transactions involving
pollution offsets.
(III) Duties.--
(aa) In general.--The
project manager shall
provide guarantees to
purchasers of nutrient
credits under the
interstate trading
program established
under subsection
(j)(6).
(bb) Managerial
duties.--In carrying
out the guarantee pilot
program, the project
manager shall--
(AA) identify
best management
practices that
result in the
greatest
reduction in
pollution
levels;
(BB)
establish
offset metrics
for
calculation,
verification,
and monitoring
protocols in
collaboration
with Federal
and State
programs;
(CC) manage
and oversee
project
verification
and monitoring
processes;
(DD)
establish
procedures that
minimize
transaction
costs and
eliminate
unnecessary or
duplicative
administrative
processes;
(EE) take
ownership of
the nutrient
reduction
offsets from
any private
funding source
for an activity
carried out
under this
subparagraph;
(FF) enter
into agreements
with private
funding sources
that enable a
private funding
source, at the
conclusion of a
project, to
sell the
verified
nutrient
reduction
offset to the
program manager
at an agreed
upon price, or
to sell the
verified
nutrient
reduction
offsets; and
(GG) manage
the Chesapeake
Nutrient
Trading
Guarantee Fund.
(iv) Credit purchaser requirements.--
As a condition of receiving a guarantee
under this subparagraph, a purchaser
shall comply with--
(I) the regulations
promulgated by the
Administrator under subsection
(j)(6);
(II) any application
procedure that the
Administrator, in consultation
with the project manager,
determines to be necessary; and
(III) any other applicable
laws (including regulations).
(v) Termination.--The guarantee pilot
program shall terminate on the date
that is 5 years after the date of the
establishment of the interstate trading
program under subsection (j)(6).
(vi) Reports.--
(I) In general.--The project
manager shall--
(aa) ensure public
transparency for all
nutrient trading
activities through a
publicly available
trading registry; and
(bb) submit an annual
report to the
Administrator, the
Committee on
Environment and Public
Works of the Senate,
and the Committee on
Transportation and
Infrastructure of the
House of
Representatives.
(II) Contents.--A report
under subclause (I)(bb) shall
include a description of--
(aa) the activities
funded by the guarantee
pilot program;
(bb) the nutrient
reductions achieved by
each project carried
out under the guarantee
pilot program;
(cc) the efficiency
of each project carried
out under the guarantee
pilot program, measured
in pounds of pollution
reduced per dollar
expended;
(dd) the total
quantity of nitrogen,
phosphorus, and
sediment reduced; and
(ee) the total amount
of private funds
leveraged.
(E) Chesapeake nutrient trading guarantee
fund.--
(i) Establishment of fund.--There is
established in the Treasury of the
United States a fund to be known as the
`Chesapeake Nutrient Trading Guarantee
Fund' (referred to in this subparagraph
as the `Fund'), to be administered by
the Administrator, to be available for
5 years after the date of the
establishment of the interstate trading
program under subsection (j)(6) and
subject to appropriation, for the
purposes described in subparagraph
(D)(ii).
(ii) Transfers to fund.--The Fund
shall consist of such amounts as are
appropriated to the Fund under
subsection (p)(2)(v).
(iii) Prohibition.--Amounts in the
Fund may not be made available for any
purpose other than a purpose described
in clause (i).
(iv) Termination.--Subject to clause
(v), the Fund shall terminate on the
date that is 5 years after the date of
establishment of the interstate trading
program under subsection (j)(6).
(v) Unobligated amounts.--On the
termination of the Fund, the
Administrator shall--
(I) require the return of any
unobligated amounts in the Fund
to the Secretary of the
Treasury; or
(II) reauthorize the use of
the Fund for the purposes
described in clause (i).
(vi) Annual reports.--
(I) In general.--Not later
than 60 days after the end of
each fiscal year beginning with
the first fiscal year after the
date of the establishment of
the interstate trading program
under subsection (j)(6), the
Administrator shall submit to
the Committee on Appropriations
of the House of
Representatives, the Committee
on Appropriations of the
Senate, the Committee on
Environment and Public Works of
the Senate, and the Committee
on Transportation and
Infrastructure of the House of
Representatives a report on the
operation of the Fund during
the fiscal year.
(II) Contents.--Each report
shall include, for the fiscal
year covered by the report, the
following:
(aa) A statement of
the amounts deposited
in the Fund.
(bb) A description of
the expenditures made
from the Fund for the
fiscal year, including
the purpose of the
expenditures.
(cc) Recommendations
for additional
authorities to fulfill
the purpose of the
Fund.
(dd) A statement of
the balance remaining
in the Fund at the end
of the fiscal year.
(2) Administration.--
(A) In general.--Subject to subparagraph (C),
in making implementation grants to each of the
Chesapeake Basin States for a fiscal year under
this subsection, the Administrator shall ensure
that not less than--
(i) 10 percent of the funds available
to make such grants are made to the
States of Delaware, New York, and West
Virginia (or designees of those
States); and
(ii) 20 percent of the funds
available to make such grants are made
to States (or designees of the States)
for the sole purpose of providing
technical assistance to agricultural
producers and forest owners to access
conservation programs and other
resources devoted to improvements in,
and protection of, water quality in the
Chesapeake Bay and the tributaries of
the Chesapeake Bay, in accordance with
subparagraph (B).
(B) Technical assistance.--A State (or
designees of a State) may use any soil
conservation district, nonprofit organization,
private sector vendor, or other appropriately
qualified provider to deliver technical
assistance to agricultural producers and forest
owners under subparagraph (A)(ii).
(C) Nonapplicability to dc.--This paragraph
shall not apply to any implementation grant
provided to the District of Columbia.
(3) Proposals.--
(A) Implementation grants.--
(i) In general.--A Chesapeake Basin
State described in paragraph (1) may
apply for a grant under this subsection
for a fiscal year by submitting to the
Administrator a comprehensive proposal
to implement programs and achieve the
goals established under the Chesapeake
Bay Agreement.
(ii) Implementation grant contents.--
A proposal under clause (i) shall
include--
(I) a description of the
proposed actions that the
Chesapeake Basin State commits
to take within a specified time
period, including 1 or more of
actions that are designed--
(aa) to achieve and
maintain all applicable
water quality
standards, including
standards necessary to
support the aquatic
living resources of the
Chesapeake Bay and
related tributaries and
to protect human
health;
(bb) to restore,
enhance, and protect
the finfish, shellfish,
waterfowl, and other
living resources,
habitats of those
species and resources,
and ecological
relationships to
sustain all fisheries
and provide for a
balanced ecosystem;
(cc) to preserve,
protect, and restore
those habitats and
natural areas that are
vital to the survival
and diversity of the
living resources of the
Chesapeake Bay and
associated rivers;
(dd) to develop,
promote, and achieve
sound land use
practices that protect
and restore watershed
resources and water
quality, reduce or
maintain reduced
pollutant loadings for
the Chesapeake Bay and
related tributaries,
and restore and
preserve aquatic living
resources;
(ee) to promote
individual stewardship
and assist individuals,
community-based
organizations,
businesses, local
governments, and
schools to undertake
initiatives to achieve
the goals and
commitments of the
Chesapeake Bay
Agreement; or
(ff) to provide
technical assistance to
agricultural producers,
forest owners, and
other eligible
entities, through
technical
infrastructure,
including activities,
processes, tools, and
agency functions needed
to support delivery of
technical services,
such as technical
standards, resource
inventories, training,
data, technology,
monitoring, and effects
analyses;
(II) except with respect to
any implementation grant
proposal by the District of
Columbia, a commitment to
dedicate not less than 20
percent of the grant funding
for the Chesapeake Bay under
this subsection to support
technical assistance for
agricultural and forest land or
nutrient management practices
that protect and restore
watershed resources and water
quality, reduce or maintain
reduced pollutant loadings for
the Chesapeake Bay and related
tributaries, and restore and
preserve aquatic living
resources; and
(III) the estimated cost of
the actions proposed to be
taken during the year.
(B) Monitoring grants.--
(i) In general.--An eligible entity
described in paragraph (1)(B) may apply
for a grant under this subsection for a
fiscal year by submitting to the
Administrator a comprehensive proposal
to monitor freshwater or estuarine
ecosystems, including water quality.
(ii) Monitoring grant contents.--A
proposal under this subparagraph shall
include--
(I) a description of the
proposed monitoring system;
(II) certification by the
Chesapeake Basin Program
Director that such a monitoring
system includes such parameters
as the Chesapeake Basin Program
Director determines to be
necessary to assess progress
toward achieving the goals of
the Chesapeake Clean Water and
Ecosystem Restoration Act; and
(III) the estimated cost of
the monitoring proposed to be
conducted during the year.
(iii) Concurrences.--The
Administrator shall--
(I) obtain the concurrence of
the Director of the United
States Geological Survey
regarding the design and
implementation of the
freshwater monitoring systems
established under this
subsection; and
(II) obtain the concurrence
of the Director of the
Chesapeake Bay Office of the
National Oceanic and
Atmospheric Administration
regarding the design and
implementation of the estuarine
monitoring systems established
under this subsection.
(iv) Consultation.--The Administrator
shall--
(I) with regard to the
freshwater monitoring system,
consult with the basin
commissions, institutions with
expertise in clean water and
agricultural policy and
practices, and the Chesapeake
Basin States regarding the
design and implementation of
the monitoring systems
established under this
subsection--
(aa) giving
particular attention
through fine scale
instream and infield
stream-edge and
groundwater analysis to
the measurement of the
water quality
effectiveness of
agricultural
conservation program
implementation,
including the
Chesapeake Bay
Watershed Initiative
under section 1240Q of
the Food Security Act
of 1985 (16 U.S.C.
3839bb-4); and
(bb) analyzing the
effectiveness of
stormwater pollution
control and mitigation
using green
infrastructure
techniques in
subwatersheds that have
high levels of
impervious surfaces;
(II) with regard to the
estuarine monitoring system,
consult with institutions of
higher education with expertise
in estuarine systems and the
Chesapeake Basin States
regarding the monitoring
systems established under this
subsection;
(III) consult with the
Chesapeake Basin Program
Scientific and Technical
Advisory Committee regarding
independent review of
monitoring designs giving
particular attention to
integrated freshwater and
estuarine monitoring
strategies; and
(IV) consult with Federal
departments and agencies,
including the Department of
Agriculture, regarding
cooperation in implementing
monitoring programs.
(f) Federal Facilities Coordination.--
(1) Subwatershed planning and restoration.--A Federal
agency that owns or operates a facility (as defined by
the Administrator) within the Chesapeake Basin shall
participate in regional and subwatershed planning and
restoration programs.
(2) Compliance with agreements and plans.--The head
of each Federal agency that owns or occupies real
property in the Chesapeake Basin shall ensure that the
property, and actions taken by the agency with respect
to the property, comply with--
(A) the Chesapeake Bay Agreement;
(B) the Federal Agencies Chesapeake Ecosystem
Unified Plan;
(C) the Chesapeake Basin action plan
developed in accordance with subparagraph
(g)(1)(A); and
(D) any subsequent agreements and plans.
(3) Forest cover at federal facilities.--Not later
than January 1, 2012, the Administrator, with the
advice of the Chief of the Forest Service and the
appropriate Chesapeake Basin State forester, shall
coordinate with the head of each Federal agency that
owns or operates a facility within the Chesapeake Basin
(as determined by the Administrator) to develop plans
to maximize forest cover at the facility through--
(A) the preservation of existing forest
cover; or
(B) with respect to a facility that has been
previously disturbed or developed, the
development of a reforestation plan.
(g) Federal Annual Action Plan and Progress Report.--The
Administrator, in accordance with Executive Order 13508
entitled `Chesapeake Bay Protection and Restoration' and signed
on May 12, 2009 (74 Fed. Reg. 23099), shall--
(1) make available to the public, not later than
March 31 of each year--
(A) a Chesapeake Basin action plan
describing, in the greatest practicable degree
of detail, how Federal funding proposed in the
annual budget of the United States submitted by
the President to Congress will be used to
protect and restore the Chesapeake Bay during
the upcoming fiscal year;
(B) an annual progress report that--
(i) assesses the key ecological
attributes that reflect the health of
the Chesapeake Basin ecosystem;
(ii) reviews indicators of
environmental conditions in the
Chesapeake Bay;
(iii) distinguishes between the
health of the Chesapeake Basin
ecosystem and the results of management
measures;
(iv) assesses implementation of the
action plan during the preceding fiscal
year;
(v) recommends steps to improve
progress in restoring and protecting
the Chesapeake Bay and tributaries; and
(vi) describes how Federal funding
and actions will be coordinated with
the actions of States, basin
commissions, and others; and
(C) an annual report, detailed at the State
and sector level where applicable, submitted by
the Administrator to the Chesapeake Basin
States and the public on specific recently
completed, pending, or proposed regulations,
guidance documents, permitting requirements,
enforcement actions, and other activities
carried out in accordance with the Executive
Order, including actions relating to the
Chesapeake Bay TMDL and State watershed
implementation plans.
(2) create and maintain, with the concurrence of the
Secretary of Agriculture, a Chesapeake Basin-wide
database containing comprehensive data on
implementation of agricultural conservation management
practices in the Chesapeake Basin that--
(A) includes conservation management practice
implementation data, including, to the maximum
extent feasible, all publicly and privately
funded conservation practices, as of the
effective date of the Chesapeake Clean Water
and Ecosystem Restoration Act;
(B) includes data on subsequent conservation
management practice implementation projects
funded by, or reported to, the Department of
Agriculture, the appropriate department of any
Chesapeake Basin State, a local soil and water
conservation district, or any similar
institution;
(C) except with respect to data associated
with a permit or recorded in the trading
registry, as provided in subsection
(j)(6)(B)(viii), presents the required data to
the Administrator in statistical or aggregate
form without identifying any--
(i) individual owner, operator, or
producer; or
(ii) specific data gathering site;
(D) is made available to the public not later
than December 31, 2010; and
(E) is updated not less frequently than once
every 2 years.
(h) Chesapeake Basin Program.--
(1) Management strategies.--The Administrator, in
coordination with other members of the Chesapeake
Executive Council, shall ensure that management plans
are developed and implemented by Chesapeake Basin
States to achieve and maintain--
(A) for each of the Chesapeake Basin States--
(i) the sediment and nutrient goals
of the Chesapeake Bay Agreement for the
quantity of sediment, nitrogen, and
phosphorus entering the Chesapeake Bay
and the tidal tributaries of the
Chesapeake Bay; and
(ii) the water quality requirements
necessary to restore living resources
in the Chesapeake Bay and the tidal
tributaries of the Chesapeake Bay; and
(B) for the signatory States--
(i) the Chesapeake Bay Basinwide
Toxins Reduction and Prevention
Strategy goal of reducing or
eliminating the input of chemical
contaminants from all controllable
sources to levels that result in no
toxic or bioaccumulative impact on the
living resources of the Chesapeake
Basin ecosystem or on human health;
(ii) habitat restoration, protection,
creation, and enhancement goals
established by Chesapeake Bay Agreement
for wetland, riparian forests, and
other types of habitat associated with
the Chesapeake Basin ecosystem; and
(iii) the restoration, protection,
creation, and enhancement goals
established by the Chesapeake Bay
Agreement for living resources
associated with the Chesapeake Basin
ecosystem.
(2) Chesapeake basin stewardship grants program.--The
Administrator, in cooperation with the Chesapeake
Executive Council, shall--
(A) establish a Chesapeake Basin Stewardship
Grants Program; and
(B) in carrying out that program--
(i) offer technical assistance and
assistance grants under subsection (d)
to States (or designees of States),
local governments, soil conservation
districts, institutions of higher
education, nonprofit organizations,
basin commissions, and private entities
in the Chesapeake Basin region to
implement--
(I) cooperative watershed
strategies that address the
water quality, habitat, and
living resource needs in the
Chesapeake Basin;
(II) locally based protection
and restoration programs or
projects within a watershed
that complement the State
watershed implementation plans,
including the creation,
restoration, or enhancement of
habitat associated with the
Chesapeake Basin ecosystem;
(III) activities for
increased spawning and other
habitat for migratory fish by
removing barriers or
constructing fish passage
devices, restoring streams with
high habitat potential for cold
water fisheries such as native
brook trout, or other habitat
enhancements for fish and
waterfowl;
(IV) activities for increased
recreational access to the
Chesapeake Bay and the tidal
rivers and freshwater
tributaries of the Chesapeake
Bay; and
(V) innovative nitrogen,
phosphorus, or sediment
reduction efforts; and
(ii) give preference to cooperative
projects that involve local
governments, soil conservation
districts, and sportsmen associations,
especially cooperative projects that
involve public-private partnerships.
(i) Actions by States.--
(1) Watershed implementation plans.--
(A) Plans.--
(i) In general.--Not later than
November 1, 2011, each Chesapeake Basin
State, after providing for reasonable
notice and 1 or more public meetings,
may submit to the Administrator for
approval a watershed implementation
plan for the Chesapeake Basin State.
(ii) Targets.--The watershed
implementation plan shall establish
reduction targets, key actions, and
schedules for reducing, to levels that
will attain water quality standards,
the loads of nitrogen, phosphorus, and
sediment, including pollution from--
(I) point sources, including
point source stormwater
discharges; and
(II) nonpoint sources.
(iii) Pollution limitations.--
(I) In general.--The
pollution limitations shall be
the nitrogen, phosphorus, and
sediment load and wasteload
allocations sufficient to meet
Chesapeake Bay and Chesapeake
Bay tidal segment water quality
standards.
(II) Stringency.--A watershed
implementation plan shall be
designed to attain, at a
minimum, the pollution
limitations described in
subclause (I).
(iv) Plan requirements.--Each
watershed implementation plan shall--
(I) include State-adopted
management measures, including
rules or regulations, permits,
consent decrees, and other
enforceable or otherwise
binding measures, to require
and achieve reductions from
point and nonpoint pollution
sources;
(II) include programs to
achieve voluntary reductions
from pollution sources,
including an estimate of the
funding commitments necessary
to implement the programs and a
plan for working to secure the
funding;
(III) include any additional
requirements or actions that
the Chesapeake Basin State
determines to be necessary to
attain the pollution
limitations by the deadline
established in this paragraph;
(IV) provide for enforcement
mechanisms, including a penalty
structure for failures, such as
fees or forfeiture of State
funds, including Federal funds
distributed or otherwise
awarded by the State to the
extent the State is authorized
to exercise independent
discretion in amounts of such
distributions or awards, for
use in case a permittee, local
jurisdictions, or any other
party fails to adhere to
assigned pollutant limitations,
implementation schedules, or
permit terms;
(V) include a schedule for
implementation that--
(aa) is divided into
2-year periods, along
with computer modeling,
or other appropriate
analysis, to
demonstrate the
projected reductions in
nitrogen, phosphorus,
and sediment loads
associated with each 2-
year period; and
(bb) demonstrates
reasonable additional
progress toward
achievement of the
goals described in--
(AA)
subclause
(VIII)(aa); and
(BB) clauses
(i) and (ii) of
subparagraph
(B);
(VI) include the stipulation
of alternate actions as
contingencies;
(VII) account for how the
Chesapeake Basin State will
address additional loadings
from growth through reserved
allocations, offsets, planned
future controls, implementation
of new technologies, or other
actions;
(VIII) provide assurances
that--
(aa) if compared to
an estimated 2008
baseline based on
modeled loads, the
initial plan shall be
designed to achieve,
not later than May 31,
2017, at least 60
percent of the nutrient
and sediment reduction
requirements described
in clause (iii)(I)(bb);
(bb) the Chesapeake
Basin State will have
adequate personnel and
funding (or a plan to
secure such personnel
or funding), and
authority under State
(and, as appropriate,
local) law to carry out
the implementation
plan, and is not
prohibited by any
provision of Federal or
State law from carrying
out the implementation
plan; and
(cc) to the extent
that a Chesapeake Basin
State has relied on a
local government for
the implementation of
any plan provision, the
Chesapeake Basin State
has the responsibility
for ensuring adequate
implementation of the
provision;
(IX) include adequate
provisions for public
participation; and
(X) upon the approval of the
Administrator, be made
available to the public on the
Internet.
(B) Implementation.--
(i) In general.--In implementing a
watershed implementation plan, each
Chesapeake Basin State shall follow a
strategy developed by the Administrator
for the implementation of adaptive
management principles to ensure full
implementation of all plan elements by
not later than May 12, 2025,
including--
(I) biennial evaluations of
State actions;
(II) progress made toward
implementation;
(III) determinations of
necessary modifications to
future actions in order to
achieve objectives including
achievement of water quality
standards; and
(IV) appropriate provisions
to adapt to climate changes.
(ii) Deadline.--Not later than May
12, 2025, each Chesapeake Basin State
shall--
(I) fully implement the
watershed implementation plan
of the State; and
(II) have in place all the
mechanisms outlined in the plan
that are necessary to attain
the applicable pollutant
limitations for nitrogen,
phosphorus, and sediments.
(C) Progress reports.--Not later than May 12,
2014, and biennially thereafter, each
Chesapeake Basin State shall submit to the
Administrator a progress report that, with
respect to the 2-year period covered by the
report--
(i) includes a listing of all
management measures that were to be
implemented in accordance with the
approved watershed implementation plan
of the Chesapeake Basin State,
including a description of the extent
to which those measures have been fully
implemented;
(ii) includes a listing of all the
management measures described in clause
(i) that the Chesapeake Basin State has
failed to fully implement in accordance
with the approved watershed
implementation plan of the Chesapeake
Basin State;
(iii) includes monitored and
collected water quality data;
(iv) includes appropriate computer
modeling data or other appropriate
analyses that detail the nitrogen,
phosphorus, and sediment load
reductions projected to be achieved as
a result of the implementation of the
management measures and mechanisms
carried out by the Chesapeake Basin
State;
(v) demonstrates reasonable
additional progress made by the State
toward achievement of the requirements
and deadlines described in subparagraph
(A)(iv)(VIII)(aa) and clauses (i) and
(ii) of subparagraph (B);
(vi) includes, for the subsequent 2-
year period, implementation goals and
Chesapeake Basin Program computer
modeling data detailing the projected
pollution reductions to be achieved if
the Chesapeake Basin State fully
implements the subsequent round of
management measures;
(vii) identifies compliance
information, including violations,
actions taken by the Chesapeake Basin
State to address the violations, and
dates, if any, on which compliance was
achieved; and
(viii) specifies any revisions to the
watershed implementation plan submitted
under this paragraph that the
Chesapeake Basin State determines are
necessary to attain the applicable
pollutant limitations for nitrogen,
phosphorus, and sediments.
(2) Issuance of permits.--
(A) In general.--Notwithstanding any other
provision of this Act (including any exclusion
or exception contained in a definition under
section 502) and in accordance with State laws
(including regulations), after providing
appropriate opportunities for public comment,
for the purpose of achieving the nitrogen,
phosphorus, and sediment reductions required
under a watershed implementation plan, a
Chesapeake Basin State, or, if the State is not
authorized to administer the permit program
under section 402, the Administrator, may
impose limitations or other controls, including
permit requirements, on any discharge or runoff
from a pollution source, including point and
nonpoint sources, located within the Chesapeake
Basin State that the program administrator
determines to be necessary.
(B) Enforcement.--The Chesapeake Basin States
and the Administrator shall enforce any permits
issued in accordance with the watershed
implementation plan in the same manner as
permits issued under section 402 are enforced.
(C) Additional enforcement standards.--No
Federal enforcement action shall be brought
pursuant to section 309 against an agricultural
producer that is in compliance with all of the
applicable planning and scheduled
implementation requirements of the following,
as required by Federal, State, or other
locally-applicable law and consistent with an
approved State watershed implementation plan:
(i) State permits issued pursuant to
section 402.
(ii) A soil conservation plan
approved by the Federal Government or a
State or local government, soil
conservation district, or other
applicable agency.
(iii) A government-approved nutrient
management plan.
(iv) A State or locally approved
erosion and sediment control plan.
(v) Any other applicable requirement
described in an approved State
watershed implementation plan.
(D) De minimis exemptions.--The Administrator
(with respect to the District of Columbia) or a
Chesapeake Basin State that is authorized to
administer a permit program under section 402,
after consultation with stakeholders (including
wastewater utilities, municipalities,
developers, agricultural producers,
institutions of higher education, and other
interested parties) shall establish de minimis
exemptions for permits issued under this
paragraph.
(3) Stormwater permits.--
(A) In general.--Effective beginning January
1, 2013, the Chesapeake Basin State shall
provide assurances to the Administrator that--
(i) the owner or operator of any
development or redevelopment project
possessing an impervious footprint that
exceeds a threshold to be determined by
the Administrator through rulemaking,
will use site planning, design,
construction, and maintenance
strategies for the property to maintain
or restore, to the maximum extent
technically feasible, the
predevelopment hydrology of the
property with regard to the
temperature, rate, volume, and duration
of flow, using onsite infiltration,
evapotranspiration, and reuse
approaches, if feasible; and
(ii) as a further condition of
permitting such a development or
redevelopment, the owner or operator of
any development or redevelopment
project possessing an impervious
footprint that exceeds a threshold to
be determined by the Administrator
through rulemaking will compensate for
any unavoidable impacts to the
predevelopment hydrology of the
property with regard to the
temperature, rate, volume, and duration
of flow, such that--
(I) the compensation within
the affected subwatershed shall
provide in-kind or out-of-kind
mitigation of function at
ratios to be determined by the
Administrator through
rulemaking;
(II) the compensation outside
the affected subwatershed shall
provide in-kind or out-of-kind
mitigation, at ratios to be
determined by the Administrator
through rulemaking, within the
tributary watershed in which
the project is located; and
(III) if mitigation of
unavoidable impacts is not
feasible, the Administrator may
approve stringent fee-in-lieu
systems.
(B) Regulations.--
(i) In general.--Not later than May
12, 2011, the Administrator shall
promulgate regulations that--
(I) define the term
`predevelopment hydrology' for
purposes of subparagraph (A);
(II) establish the thresholds
under subparagraph (A);
(III) establish the
compensation ratios under items
(I) and (II) of subparagraph
(A)(ii); and
(IV) establish the fee-in-
lieu systems under subparagraph
(A)(ii)(III).
(ii) Requirement.--In developing the
regulations under clause (i), including
establishing minimum standards for new
development and redevelopment, the
Administrator shall take into
consideration, based on an evaluation
of field science and practice, factors
such as--
(I) the benefit to--
(aa) overall
watershed protection
and restoration of
redevelopment of
brownfields or other
previously developed or
disturbed sites; and
(bb) water quality
improvement through
lot-level stormwater
management.
(iii) Treatment of pending stormwater
permits.--In consultation with the
Chesapeake Basin States and interested
stakeholders, and taking into
consideration any compliance schedules
developed by any Chesapeake Basin State
prior to June 30, 2010, the
Administrator shall develop guidance
regarding the treatment of pending
stormwater permits for the Chesapeake
Basin States.
(C) Failure to provide assurances.--If a
Chesapeake Basin State that submits a Watershed
Implementation Plan under this subsection fails
to provide the assurances required under
subparagraph (A), effective beginning on May
12, 2013, the Administrator may withhold funds
otherwise available to the Chesapeake Basin
State under this Act, in accordance with
subparagraphs (A) and (B) of subsection (j)(5).
(4) Phosphate ban.--
(A) Phosphorus in cleaning agents.--Each
Chesapeake Basin State shall provide to the
Administrator, not later than 3 years after the
date of enactment of the Chesapeake Clean Water
and Ecosystem Restoration Act, assurances that
within the jurisdiction, except as provided in
subparagraph (B), a person may not use, sell,
manufacture, or distribute for use or sale any
cleaning agent that contains more than 0.0
percent phosphorus by weight, expressed as
elemental phosphorus, except for a quantity not
exceeding 0.5 percent phosphorus that is
incidental to the manufacture of the cleaning
agent.
(B) Prohibited quantities of phosphorus.--
Each Chesapeake Basin State shall provide to
the Administrator, not later than 3 years after
the date of enactment of the Chesapeake Clean
Water and Ecosystem Restoration Act, assurances
that, within the jurisdiction, a person may
use, sell, manufacture, or distribute for use
or sale a cleaning agent that contains greater
than 0.0 percent phosphorus by weight, but does
not exceed 8.7 percent phosphorus by weight, if
the cleaning agent is a substance that the
Administrator, by regulation, excludes from the
limitation under subparagraph (A), based on a
finding that compliance with that subparagraph
would--
(i) create a significant hardship on
the users of the cleaning agent; or
(ii) be unreasonable because of the
lack of an adequate substitute cleaning
agent.
(C) Failure to provide assurances.--If a
Chesapeake Basin State that submits a Watershed
Implementation Plan under this subsection fails
to provide the necessary assurances under
subparagraphs (A) and (B) by not later than 3
years after the date of enactment of the
Chesapeake Clean Water and Ecosystem
Restoration Act, the Administrator may withhold
funds otherwise available to the Chesapeake
Basin State under this Act, in accordance with
subparagraphs (A) and (B) of subsection (j)(5).
(j) Action by Administrator.--
(1) In general.--Not later than 60 days after the
date of enactment of the Chesapeake Clean Water and
Ecosystem Restoration Act, the Administrator shall
establish any minimum criteria that the Administrator
determines to be necessary that any proposed watershed
implementation plan must meet before the Administrator
may approve such a plan.
(2) Completeness finding.--
(A) In general.--Not later than 60 days after
the date on which the Administrator receives a
new or revised proposed watershed
implementation plan from a Chesapeake Basin
State, the Administrator shall make a
completeness determination based on whether the
minimum criteria for the plan established under
paragraph (1) have been met.
(B) Effect of finding of incompleteness.--If
the Administrator determines under subparagraph
(A) that all or any portion of a submitted
watershed implementation plan does not meet the
minimum completeness criteria established under
paragraph (1), the Chesapeake Basin State
submitting the plan shall be treated as not
having made the submission.
(3) Approval and disapproval.--
(A) Deadline.--Not later than 90 days after
determining that a watershed implementation
plan meets minimum completeness criteria in
accordance with paragraph (2)(A), the
Administrator shall approve or disapprove the
plan.
(B) Full and partial approval and
disapproval.--In carrying out this paragraph,
the Administrator shall--
(i) approve a watershed
implementation plan if the
Administrator determines that the plan
meets all applicable requirements under
subsection (i)(1); and
(ii) approve the plan in part and
disapprove the plan in part if only a
portion of the watershed implementation
plan meets those requirements.
(C) Conditional approval.--The Administrator
shall--
(i) conditionally approve the
original or a revised watershed
implementation plan based on a
commitment of the Chesapeake Basin
State submitting the plan to adopt
specific enforceable management
measures by not later than 1 year after
the date of approval of the plan
revision; but
(ii) treat a conditional approval as
a disapproval under this paragraph if
the Chesapeake Basin State fails to
comply with the commitment of the
Chesapeake Basin State.
(D) Scope of review.--In reviewing watershed
implementation plans for approval or
disapproval, the Administrator shall--
(i) limit the scope of the review to
the adequacy of the plan to attain
water quality standards; and
(ii) not impose, as a condition of
approval, any additional requirements.
(E) Full approval required.--An original or
revised watershed implementation plan shall not
be treated as meeting the requirements of this
section until the Administrator approves the
entire original or revised plan.
(F) Corrections.--In any case in which the
Administrator determines that the action of the
Administrator approving, disapproving, or
conditionally approving any original or revised
State watershed implementation plan was in
error, the Administrator shall--
(i) in the same manner as the
approval, disapproval, conditional
approval, or promulgation, revise the
action of the Administrator, as
appropriate, without requiring any
further submission from the Chesapeake
Basin State; and
(ii) make the determination of the
Administrator, and the basis for that
determination, available to the public.
(G) Effective date.--The provisions of a
State watershed implementation plan shall take
effect upon the date of approval of the plan.
(4) Calls for plan revision.--In any case in which
the Administrator determines that watershed
implementation plan for any area is inadequate to
attain or maintain applicable pollution limitations,
the Administrator--
(A) shall notify the Chesapeake Basin State
of, and require the Chesapeake Basin State to
revise the plan to correct the inadequacies;
(B) may establish reasonable deadlines (not
to exceed 180 days after the date on which the
Administrator provides the notification) for
the submission of a revised watershed
implementation plan;
(C) shall make the findings of the
Administrator under paragraph (3) and notice
provided under subparagraph (A) public;
(D) shall require as an element of any
revised plan by the Chesapeake Basin State that
the State adhere to the requirements applicable
under the original watershed implementation
plan, except that the Administrator may adjust
any dates (other than attainment dates)
applicable under those requirements, as
appropriate; and
(E) shall disapprove any revised plan
submitted by a Chesapeake Basin State that
fails to adhere to the requirements described
in subparagraph (D).
(5) Federal implementation.--If a Chesapeake Basin
State that has submitted a watershed implementation
plan under (1)(A)(i) fails to submit a required revised
watershed implementation plan, submit a biennial
report, correct a previously missed 2-year commitment
made in a watershed implementation plan, or remedy a
disapproval of a watershed implementation plan, the
Administrator shall, by not later than 30 days after
the date of the failure and after issuing a notice to
the State and providing a period of not less than 1
year during which the failure may be corrected--
(A) notwithstanding sections 601(a) and
603(g), reserve up to 75 percent of the amount
of the capitalization grant to the Chesapeake
Basin State for a water pollution control
revolving fund under section 603 for activities
that are--
(i) selected by the Administrator;
and
(ii) consistent with the watershed
implementation plans described in
subparagraphs (B) and (C);
(B) withhold all funds otherwise available to
the Chesapeake Basin State (or a designee)
under this Act, except for the funds available
under title VI;
(C) develop and administer a watershed
implementation plan for the Chesapeake Basin
State until the Chesapeake Basin State has
remedied the plan, reports, or achievements to
the satisfaction of the Administrator;
(D) in addition to requiring compliance with
all other statutory and regulatory
requirements, require that all permits issued
under section 402 for new or expanding
discharges of nitrogen, phosphorus, or sediment
shall acquire offsets that exceed, by a ratio
to be determined by the Administrator through
rulemaking, the quantities of nitrogen,
phosphorus, or sediment that would be
discharged under the permit, taking into
account attenuation, equivalency, and
uncertainty; and
(E) for the purposes of developing and
implementing a watershed implementation plan
under subparagraph (C)--
(i) continue all applicable
requirements for nonpoint sources
included as part of the most recently
approved watershed implementation plan
of the Chesapeake Basin State;
(ii) issue such permits to point
sources as the Administrator determines
to be necessary to control pollution
sufficient to meet the pollution
reductions required to meet applicable
water quality standards;
(iii) enforce such nonpoint source
requirements in the same manner and
with the same stringency as required
under most recently approved watershed
implementation plan of the Chesapeake
Basin State; and
(iv) enforce such point source
permits in the same manner as other
permits issued under section 402 are
enforced.
(6) Nitrogen, phosphorus, and sediment trading
programs.--
(A) Establishment.--Not later than May 12,
2012, the Administrator, in cooperation with
each Chesapeake Basin State, shall establish,
by regulation, an interstate nitrogen and
phosphorus trading program for the Chesapeake
Basin for the generation, trading, and use of
nitrogen and phosphorus credits to facilitate
the attainment and maintenance of water quality
standards in the Chesapeake Bay and the
Chesapeake Bay tidal segments.
(B) Trading system.--The trading program
established under this subsection shall, at a
minimum--
(i) define and standardize nitrogen
and phosphorus credits and establish
procedures or standards for ensuring
equivalent water quality benefits for
all credits;
(ii) establish procedures or
standards for certifying, verifying,
and enforcing nitrogen and phosphorus
credits to ensure that credit-
generating practices from both point
sources and nonpoint sources are
achieving actual reductions in nitrogen
and phosphorus, including provisions
for allowing the use of third parties
to verify and certify credits sold
within and across State lines;
(iii) establish procedures or
standards for generating, quantifying,
trading, and applying credits to meet
regulatory requirements and allow for
trading to occur between and across
point source or nonpoint sources,
including a requirement that purchasers
of credits that propose to satisfy all
or part of the obligation to reduce
nitrogen and phosphorus through the use
of credits shall compensate, through
further limitations on the discharges
of the purchaser or through a new
trade, for any deficiency in those
reductions that results from the
failure of a credit seller to carry out
any activity that was to generate the
credits;
(iv) establish baseline requirements
that a credit seller shall meet before
becoming eligible to generate saleable
credits, which shall be at least as
stringent as applicable water quality
standards, total maximum daily loads
(including applicable wasteload and
load allocations), and watershed
implementation plans;
(v) ensure that credits and trade
requirements are incorporated, directly
or by reference, into enforceable
permit requirements under the national
pollutant discharge elimination system
established under section 402 or the
system of the applicable State
permitting authority for all credit
purchasers covered by the permits;
(vi) ensure that private contracts
between credit buyers and credit
sellers contain adequate provisions to
ensure enforceability under applicable
law;
(vii) establish procedures or
standards to ensure public transparency
for all nutrient trading activities,
including the establishment of a
publicly available trading registry,
which shall include--
(I) the information used in
the certification and
verification process; and
(II) recorded trading
transactions (such as the
establishment, sale, amounts,
and use of credits);
(viii) in addition to requiring
compliance with all other statutory and
regulatory requirements, ensure that,
in any case in which a segment of the
Chesapeake Basin is impaired with
respect to the nutrient being traded
and a total maximum daily load for that
segment has not yet been implemented
for the impairment--
(I) trades are required to
result in progress toward or
the attainment of water quality
standards in that segment; and
(II) sources in that segment
may not rely on credits
produced outside of the
segment;
(ix) require that the application of
credits to meet regulatory requirements
under this section not cause or
contribute to exceedances of water
quality standards, total maximum daily
loads, or wasteload or load allocations
for affected receiving waters,
including avoidance of localized
impacts;
(x) except as part of a consent
agreement, consent judgment, or
enforcement order, prohibit the
purchase of credits from any entity
that is in significant noncompliance
with an enforceable permit issued under
section 402;
(xi) consider and incorporate, to the
extent consistent with the minimum
requirements of this Act, as determined
by the Administrator, in consultation
with the Secretary of Agriculture,
elements of State trading programs in
existence on the date of enactment of
the Chesapeake Clean Water and
Ecosystem Restoration Act;
(xii) allow for, as appropriate, the
aggregation and banking of credits by
third parties; and
(xiii) provide for appropriate
temporal consistency between the time
period during which the credit is
generated and the time period during
which the credit is used.
(C) Facilitation of trading.--In order to
attract market participants and facilitate the
cost-effective achievement of water-quality
goals, the Administrator, in consultation with
the Secretary of Agriculture, shall ensure that
the trading program established under this
paragraph--
(i) includes measures to mitigate
credit buyer risk;
(ii) makes use of the best available
science in order to minimize
uncertainty and related transaction
costs to traders by supporting research
and other activities that increase the
scientific understanding of nonpoint
nutrient pollutant loading and the
ability of various structural and
nonstructural alternatives to reduce
the loads;
(iii) eliminates unnecessary or
duplicative administrative processes;
and
(iv) incorporates a permitting
approach under the national pollutant
discharge elimination system
established under section 402 that--
(I) allows trading to occur
without requiring the reopening
or reissuance of the base
permits to incorporate
individual trades; and
(II) incorporates any such
trades, directly through a
permit amendment or addendum,
or indirectly by any
appropriate mechanism, as
enforceable terms of those
permits on approval of the
credit purchase by the
permitting authority, in
accordance with the
requirements of the Chesapeake
Basin Program, this Act, and
regulations promulgated
pursuant to this Act.
(D) Sediment trading.--
(i) In general.--Not later than 180
days after the date of enactment of the
Chesapeake Clean Water and Ecosystem
Restoration Act, the Administrator, in
consultation with the Secretary of
Agriculture, shall convene a task
force, to be composed of
representatives from the Chesapeake
Basin States and public and private
entities--
(I) to identify any
scientific, technical, or other
issues that would hinder the
rapid deployment of an
interstate sediment trading
program; and
(II) to provide to the
Administrator recommendations
to overcome any of the
obstacles to rapid deployment
of such a trading system.
(ii) Interstate sediment trading
program.--
(I) Establishment.--Based on
the recommendations of the task
force established under clause
(i), the Administrator, in
cooperation with each
Chesapeake Basin State, shall
establish an interstate
sediment trading program for
the Chesapeake Basin for the
generation, trading, and use of
sediment credits to facilitate
the attainment and maintenance
water quality standards in the
Chesapeake Bay and the
Chesapeake Bay tidal segments.
(II) Requirement.--The
interstate sediment trading
program established under
subclause (I) shall include, at
a minimum, definitions,
procedures, standards,
requirements, assurances,
allowances, prohibitions, and
evaluations comparable to the
interstate nitrogen and
phosphorus trading program
established under subparagraph
(A).
(III) Deadline.--Upon a
finding of the Administrator,
based on the recommendation of
the task force established
under clause (i), that such a
sediment trading program would
substantially advance the
achievement of Bay water
quality objectives and would be
feasible, the interstate
trading program under this
clause shall be established by
the later of--
(aa) May 12, 2014;
and
(bb) the date on
which each issue
described in clause (i)
can be feasibly
overcome.
(E) Evaluation of trading.--
(i) Reports.--Not less frequently
than once every 5 years after the date
of establishment of the interstate
nitrogen and phosphorus trading program
under this paragraph, the Administrator
shall submit to Congress a report
describing the results of the program
with respect to enforceability,
transparency, achievement of water
quality results, and whether the
program has resulted in any localized
water pollution problem.
(ii) Improvements.--Based on the
reports under clause (i), the
Administrator shall make improvements
to the trading program under this
paragraph to ensure achievement of the
environmental and programmatic
objectives of the program.
(F) Effect on other trading systems.--Nothing
in this paragraph affects the ability of a
State to establish or implement an applicable
intrastate trading program.
(7) Authority relating to development.--The
Administrator shall--
(A) establish, for projects resulting in
impervious development, guidance relating to
site planning, design, construction, and
maintenance strategies to ensure that the land
maintains predevelopment hydrology with regard
to the temperature, rate, volume, and duration
of flow;
(B) compile a database of best management
practices, model stormwater ordinances, and
guidelines with respect to the construction of
low-impact development infrastructure and
nonstructural low-impact development techniques
for use by States, local governments, and
private entities; and
(C) not later than 180 days after
promulgation of the regulations under
subsection (i)(3)(B), issue guidance, model
ordinances, and guidelines to carry out this
paragraph.
(8) Assistance with respect to stormwater
discharges.--
(A) Grant program.--The Administrator may
provide grants to any local government within
the Chesapeake Basin that adopts the guidance,
best management practices, ordinances, and
guidelines issued and compiled under paragraph
(7).
(B) Use of funds.--A grant provided under
subparagraph (A) may be used by a local
government to pay costs associated with--
(i) developing, implementing, and
enforcing the guidance, best management
practices, ordinances, and guidelines
issued and compiled under paragraph
(7); and
(ii) implementing projects designed
to reduce or beneficially reuse
stormwater discharges.
(9) Consumer and commercial product report.--Not
later than 3 years after the date of enactment of the
Chesapeake Clean Water and Ecosystem Restoration Act,
the Administrator, in consultation with the Chesapeake
Executive Council, shall--
(A) review consumer and commercial products
(such as lawn fertilizer), the use of which may
affect the water quality of the Chesapeake
Basin or associated tributaries, to determine
whether further product nutrient content
restrictions are necessary to restore or
maintain water quality in the Chesapeake Basin
and those tributaries; and
(B) submit to the Committees on
Appropriations, Environment and Public Works,
and Commerce, Science, and Transportation of
the Senate and the Committees on
Appropriations, Natural Resources, Energy and
Commerce, and Transportation and Infrastructure
of the House of Representatives a product
nutrient report detailing the findings of the
review under subparagraph (A).
(10) Agricultural animal waste-to-bioenergy
deployment program.--
(A) Definitions.--In this paragraph:
(i) Agricultural animal waste.--The
term `agricultural animal waste' means
manure from livestock, poultry, or
aquaculture.
(ii) Eligible technology.--The term
`eligible technology' means a
technology that converts or proposes to
convert agricultural animal waste
into--
(I) heat;
(II) power; or
(III) biofuels.
(B) Grant program.--The Administrator, in
coordination with the Secretary of Agriculture,
may provide grants to any person or partnership
of persons for the purpose of carrying out
projects to deploy an eligible technology in
agricultural animal waste-to-bioenergy
treatment that has significant potential to
reduce agricultural animal waste volume,
recover nutrients, improve water quality,
decrease pollution potential, and recover
energy.
(C) Project selection.--
(i) In general.--In selecting
applicants for grants under this
paragraph, the Administrator shall
select projects that--
(I) reduce--
(aa) impacts of
agricultural animal
waste on surface and
groundwater quality;
(bb) emissions to the
ambient air; and
(cc) the release of
pathogens and other
contaminants to the
environment; and
(II) quantify--
(aa) the degree of
waste stabilization to
be realized by the
project; and
(bb) nutrient
reduction credits that
could contribute to the
nitrogen and phosphorus
trading program for the
Chesapeake Basin under
this subsection.
(ii) Prioritization.--The
Administrator shall prioritize projects
based on--
(I) the level of nutrient
reduction achieved;
(II) geographic diversity
among the Chesapeake Basin
States; and
(III) differing types of
agricultural animal waste.
(D) Federal share.--The amount of a grant
awarded under this paragraph shall not exceed
50 percent of the cost of the project to be
carried out using funds from the grant.
(k) Prohibition on Introduction of Asian Oysters.--Not later
than 2 years after the date of enactment of the Chesapeake
Clean Water and Ecosystem Restoration Act, the Administrator
shall promulgate regulations--
(1) to designate the Asian oyster as a `biological
pollutant' in the Chesapeake Bay and tidal waters
pursuant to section 502;
(2) to prohibit the issuance of permits under
sections 402 and 404 for the discharge of the Asian
oyster into the Chesapeake Bay and Chesapeake Bay tidal
segments; and
(3) to specify conditions under which scientific
research on Asian oysters may be conducted within the
Chesapeake Bay and Chesapeake Bay tidal segments.
(l) Chesapeake Nutria Eradication Program.--
(1) Grant authority.--Subject to the availability of
appropriations, the Secretary of the Interior (referred
to in this subsection as the `Secretary'), may provide
financial assistance to the States of Delaware,
Maryland, and Virginia to carry out a program to
implement measures--
(A) to eradicate or control nutria; and
(B) to restore marshland damaged by nutria.
(2) Goals.--The continuing goals of the program shall
be--
(A) to eradicate nutria in the Chesapeake
Basin ecosystem; and
(B) to restore marshland damaged by nutria.
(3) Activities.--In the States of Delaware, Maryland,
and Virginia, the Secretary shall require that the
program under this subsection consist of management,
research, and public education activities carried out
in accordance with the document published by the United
States Fish and Wildlife Service entitled `Eradication
Strategies for Nutria in the Chesapeake and Delaware
Bay Watersheds', dated March 2002, or any updates to
the document.
(m) Review of Studies on the Impacts of Menhaden on the Water
Quality of the Chesapeake Bay.--
(1) Research review.--The Administrator, in
cooperation and consultation with the Administrator of
the National Oceanic and Atmospheric Administration,
shall--
(A) prepare a report that reviews and
summarizes existing, peer reviewed research
relating to the impacts of menhaden on water
quality, including the role of menhaden as
filter feeders and the impacts on dissolved
oxygen levels, nutrient levels, phytoplankton,
zooplankton, detritus, and similar issues by
menhaden at various life stages;
(B) identify important data gaps or
additional menhaden population studies, if any,
relating to the impacts of the menhaden
population on water quality; and
(C) provide any recommendations for
additional research or study.
(2) Report and recommendations.--Not later than 5
years after the date of enactment of the Chesapeake
Clean Water and Ecosystem Restoration Act, the
Administrator shall submit the report and
recommendations required in paragraph (1) to--
(A) the Committee on Commerce, Science, and
Transportation and the Committee on Environment
and Public Works Committee of the Senate; and
(B) the Committee on Natural Resources and
the Committee on Transportation and
Infrastructure Committee of the House of
Representatives.
(n) Effect on Other Requirements.--
(1) In general.--Nothing in this section removes or
otherwise affects any other obligation for a point
source to comply with other applicable requirements
under this Act.
(2) Violations by states.--
(A) Enforcement action by administrator.--The
failure of a Chesapeake Basin State that
submits a watershed implementation plan under
subsection (i) to submit a biennial report,
meet or correct a previously missed 2-year
commitment made in a watershed implementation
plan, or implement a watershed implementation
plan or permit program under this section
shall--
(i) constitute a violation of this
Act; and
(ii) subject the State to an
enforcement action by the
Administrator.
(B) Enforcement action by citizens.--
(i) In general.--The failure of a
Chesapeake Basin State that submits a
watershed implementation plan under
subsection (i) to meet or correct a
previously missed 2-year commitment
made in a watershed implementation plan
or implement a watershed implementation
plan or permit program under this
section shall subject the appropriate
State officer to a civil action seeking
injunctive relief commenced by a
citizen on behalf of the citizen.
(ii) Jurisdiction, venue, notice, and
litigation costs.--
(I) In general.--A citizen
may commence a civil action on
behalf of the citizen against a
State under clause (i), subject
to the requirements for notice,
venue, and intervention
described in subsections (b)
and (c) of section 505 for a
suit brought under section
505(a)(1)(A).
(II) Jurisdiction.--
Jurisdiction over a suit
brought under subclause (I)
shall be the district courts,
as described in section 505(a).
(III) Litigation costs.--The
court may award litigation
costs for suit brought under
subclause (I), as described in
section 505(d).
(iii) Savings clause.--Nothing in
this subsection affects the ability of
a citizen to bring an action for civil
enforcement on behalf of the citizen
under section 505.
(o) Evaluations.--
(1) In general.--The Inspectors General of the
Environmental Protection Agency and the Department of
Agriculture shall jointly evaluate and submit to
Congress reports describing the implementation of this
section not less frequently than once every 3 years.
(2) Independent reviews.--
(A) In general.--The Administrator shall
enter into a contract with the National Academy
of Sciences or the National Academy of Public
Administration under which the Academy shall
conduct 2 reviews of the Chesapeake Basin
restoration efforts under this section.
(B) Inclusions.--Each review under
subparagraph (A) shall include an assessment
of--
(i) progress made toward meeting the
goals of this section;
(ii) efforts by Federal, State, and
local governments and the private
sector in implementing this section;
(iii) the methodologies (including
computer modeling) and data (including
monitoring data) used to support the
implementation of this section; and
(iv) the economic impacts,
including--
(I) a comprehensive analysis
of the costs of compliance;
(II) the benefits of
restoration;
(III) the value of economic
losses avoided; and
(IV) a regional analysis of
items (I) through (III), by
Chesapeake Basin State and by
sector, to the maximum extent
practicable.
(C) Reports.--The National Academy of
Sciences or the National Academy of Public
Administration shall submit to the
Administrator a report describing the results
of the reviews under this paragraph, together
with recommendations regarding the reviews
(including any recommendations with respect to
efforts of the Environmental Protection Agency
or any other Federal or State agency required
to implement applicable water quality standards
in the Chesapeake Basin and achieve those
standards in the Chesapeake Bay and Chesapeake
Bay tidal segments), if any, by not later
than--
(i) May 12, 2015, with respect to the
first review required under this
paragraph; and
(ii) May 12, 2020, with respect to
the second review required under this
paragraph.
(p) Authorization of Appropriations.--
(1) Chesapeake basin program office.--There is
authorized to be appropriated to the Chesapeake Basin
Program Office to carry out subsection (b)(2)
$20,000,000 for each of fiscal years 2010 through 2015.
(2) Implementation, monitoring, and centers of
excellence grants.--
(A) Authorization of appropriations.--In
addition to amounts authorized to be
appropriated or otherwise made available to
carry out this section, there are authorized to
be appropriated to the Administrator--
(i) to carry out a program to
establish and support centers of
excellence for water quality and
agricultural policies and practices
under subsection (e)(1)(C), $10,000,000
for each of fiscal years 2010 through
2015;
(ii) to provide implementation grants
under subsection (e)(3)(A), $80,000,000
for each of fiscal years 2010 through
2015, to remain available until
expended;
(iii) to carry out a freshwater
monitoring program under subsection
(e)(3)(B), $5,000,000 for each of
fiscal years 2010 through 2015;
(iv) to carry out a Chesapeake Bay
and tidal water monitoring program
under subsection (e)(3)(B), $5,000,000
for each of fiscal years 2010 through
2015; and
(v) to carry out the Chesapeake
nutrient trading guarantee pilot
program under subsection (e)(1)(D),
$20,000,000 for the period of fiscal
years 2010 through 2015.
(B) Cost sharing.--The Federal share of the
cost of a program carried out using funds from
a grant provided--
(i) under subparagraph (A)(ii) shall
not exceed--
(I) 80 percent, with respect
to funds provided for the
provision of technical
assistance to agricultural
producers and forest owners;
and
(II) with respect to all
other activities under that
subparagraph--
(aa) for the States
of Delaware, New York,
and West Virginia,
shall not exceed 75
percent; and
(bb) for the States
of Maryland,
Pennsylvania, and
Virginia and for the
District of Columbia,
shall not exceed 50
percent; and
(ii) under clauses (i), (iii), or
(iv) of subparagraph (A) shall not
exceed 80 percent.
(3) Chesapeake stewardship grants.--There is
authorized to be appropriated to carry out subsection
(h)(2) $15,000,000 for each of fiscal years 2010
through 2015.
(4) Storm water pollution planning and implementation
grants.--
(A) Authorization of appropriations.--In
addition to amounts authorized or otherwise
made available to carry out this section, there
are authorized to be appropriated to the
Administrator--
(i) to carry out subsection
(j)(8)(B)(i), $10,000,000; and
(ii) to carry out subsection
(j)(8)(B)(ii), $1,500,000,000.
(B) Cost-sharing.--A grant provided for a
project under--
(i) subsection (j)(8)(B)(i) may not
be used to cover more than 80 percent
of the cost of the project; and
(ii) subsection (j)(8)(B)(ii) may not
be used to cover more than 75 percent
of the cost of the project.
(5) Nutria eradication grants.--
(A) In general.--There is authorized to be
appropriated to the Secretary of the Interior
to provide financial assistance in the
Chesapeake Basin under subsection (l)
$4,000,000 for each of fiscal years 2010
through 2015.
(B) Cost-sharing.--
(i) Federal share.--The Federal share
of the cost of carrying out the program
under subsection (l) may not exceed 75
percent of the total costs of the
program.
(ii) In-kind contributions.--The non-
Federal share of the cost of carrying
out the program under subsection (l)
may be provided in the form of in-kind
contributions of materials or services.
(6) Agricultural animal waste-to-bioenergy deployment
grants.--There is authorized to be appropriated to
carry out the agricultural animal waste-to-bioenergy
deployment program under subsection (j) $30,000,000 for
the period of fiscal years 2010 to 2015, to remain
available until expended.
(7) Limitation on administrative costs.--Not more
than 10 percent of the annual amount of any grant
provided by the Administrator or Secretary under any
program described in this subsection may be used for
administrative costs.
(8) Availability.--Amounts authorized to be
appropriated under this subsection shall remain
available until expended.
(q) Severability.--A determination that any provisions of
this section is invalid, illegal, unenforceable, or in conflict
with any other law shall not affect the validity, legality, or
enforceability of the remaining provisions of this section.
* * * * * * *
Sec. 309. (a)(1) Whenever, on the basis of any
information available to him, the Administrator finds that any
person is in violation of any condition or limitation which
implements section 301, 302, 306, 307, 308, 318, or 405 of this
Act in a permit issued by a State under an approved permit
program under [section 402] section 117,402, or 404 of this
Act, he shall proceed under his authority in paragraph (3) of
this subsection or he shall notify the person in alleged
violation and such State of such finding. If beyond the
thirtieth day after the Administrator's notification the State
has not commenced appropriate enforcement action, the
Administrator shall issue an order requiring such person to
comply with such condition or limitation or shall bring a civil
action in accordance with subsection (b) of this section.
(2) Whenever, on the basis of information available to
him, the Administrator finds that violations of permit
conditions or limitations as set forth in paragraph (1) of this
subsection are so widespread that such violations appear to
result from a failure of the State to enforce such permit
conditions or limitations effectively, he shall so notify the
State. If the Administrator finds such failure extends beyond
the thirtieth day after such notice, he shall give public
notice of such finding. During the period beginning with such
public notice and ending when such State satisfies the
Administrator that it will enforce such conditions and
limitations (hereafter referred to in this section as the
period of federally assumed enforcement''), except where an
extension has been granted under paragraph (5)(B) of this
subsection, the Administrator shall enforce any permit
condition or limitation with respect to any person--
(A) by issuing an order to comply with such condition
or limitation, or
(B) by bringing a civil action under subsection (b)
of this section.
(3) Whenever on the basis of any information available to
him the Administrator finds that any person is in violation of
section 301, 302, 306, 307, 308, 318, or 405 of this Act, or is
in violation of any permit condition or limitation implementing
any of such sections in a permit issued under section 117 or
section 402 of this Act by him or by a State or in a permit
issued under section 404 of this Act by a State, he shall issue
an order requiring such person to comply with such section or
requirement, or he shall bring a civil action in accordance
with subsection (b) of this section.
* * * * * * *
(d) Any person who violates section 301, 302, 306, 307,
308, 311(b)(3), 318 or 405 of this Act, or any permit condition
or limitation implementing any of such sections in a permit
issued undersection 117 or section 402 of this Act by the
Administrator, or by a State, or in a permit issued under
section 404 of this Act by a State, or any requirement imposed
in a pretreatment program approved under section 402(a)(3) or
402(b)(8) of this Act, and any person who violates any order
issued by the Administrator under subsection (a) of this
section, shall be subject to a civil penalty not to exceed
$25,000 per day for each violation. In determining the amount
of a civil penalty the court shall consider the seriousness of
the violation or violations, the economic benefit (if any)
resulting from the violation, any history of such violations,
any good-faith efforts to comply with the applicable
requirements, the economic impact of the penalty on the
violator, and such other matters as justice may require. For
purposes of this subsection, a single operational upset which
leads to simultaneous violations of more than one pollutant
parameter shall be treated as a single violation.
* * * * * * *
(g) Administrative Penalties.--
(1) Violations.--Whenever on the basis of any
information available--
(A) the Administrator finds that any person
has violated section 301, 302, 306, 307, 308,
318, or 405 of this Act, or has violated any
permit condition or limitation implementing any
of such sections in a permit issued
undersection 117 or section 402 of this Act by
the Administrator or by a State, or in a permit
issued under section 404 by a State, or
* * * * * * *
(7) Effect of action on compliance.--No action by the
Administrator or the Secretary under this subsection
shall affect any person's obligation to comply with any
section of this Act or with the terms and conditions of
any permit issued pursuant to [section 402]section 117,
402, or 404 of this Act.
* * * * * * *
Sec. 313. (a) Each department, agency, or instrumentality
of the executive, legislative, and judicial branches of the
Federal Government (1) having jurisdiction over any property or
facility, or (2) engaged in any activity resulting, or which
may result, in the discharge or runoff of pollutants, and each
officer, agent, or employee thereof in the performance of his
official duties, shall be subject to, and comply with, all
Federal, State, interstate, and local requirements,
administrative authority, and process and sanctions respecting
the control and abatement of water pollution in the same
manner, and to the same extent as any nongovernmental entity
including the payment of reasonable service charges. The
preceding sentence shall apply (A) to any requirement whether
substantive or procedural (including any recordkeeping or
reporting requirement, any requirement respecting permits and
any other requirement, whatsoever), (B) to the exercise of any
Federal, State, or local administrative authority, and (C) to
any process and sanction, whether enforced in Federal, State,
or local courts or in any other manner. This subsection shall
apply notwithstanding any immunity of such agencies, officers,
agents, or employees under any law or rule of law. Nothing in
this section shall be construed to prevent any department,
agency, or instrumentality of the Federal Government, or any
officer, agent, or employee thereof in the performance of his
official duties, from removing to the appropriate Federal
district court any proceeding to which the department, agency,
or instrumentality or officer, agent, or employee thereof is
subject pursuant to this section, and any such proceeding may
be removed in accordance with 28 U.S.C. 1441 et seq. No
officer, agent, or employee of the United States shall be
personally liable for any civil penalty arising from the
performance of his official duties, for which he is not
otherwise liable, and the United States shall be liable only
for those civil penalties arising under Federal law or imposed
by a State or local court to enforce an order or the process of
such court. The President may exempt any effluent source of any
department, agency, or instrumentality in the executive branch
from compliance with any such a requirement if he determines it
to be in the paramount interest of the United States to do so;
except that no exemption may be granted from the requirements
of section 306 or 307 of this Act. No such exemptions shall be
granted due to lack of appropriation unless the President shall
have specifically requested such appropriation as a part of the
budgetary process and the Congress shall have failed to make
available such requested appropriation. Any exemption shall be
for a period not in excess of one year, but additional
exemptions may be granted for periods of not to exceed one year
upon the President's making a new determination. The President
shall report each January to the Congress all exemptions from
the requirements of this section granted during the preceding
calendar year, together with his reason for granting such
exemption. In addition to any such exemption of a particular
effluent source, the President may, if he determines it to be
in the paramount interest of the United States to do so, issue
regulations exempting from compliance with the requirements of
this section any weaponry, equipment, aircraft, vessels,
vehicles, or other classes or categories of property, and
access to such property, which are owned or operated by the
Armed Forces of the United States (including the Coast Guard)
or by the National Guard of any State and which are uniquely
military in nature. The President shall reconsider the need for
such regulations at three-year intervals.
(b)(1) The Administrator shall coordinate with the head
of each department, agency, or instrumentality of the Federal
Government having jurisdiction over any property or facility
utilizing federally owned wastewater facilities to develop a
program of cooperation for utilizing wastewater control systems
utilizing those innovative treatment processes and techniques
for which guidelines have been promulgated under section
304(d)(3). Such program shall include an inventory of property
and facilities which could utilize such processes and
techniques.
(2) Construction shall not be initiated for facilities
for treatment of wastewater at any Federal property or facility
after September 30, 1979, if alternative methods for wastewater
treatment at such property or facility utilizing innovative
treatment processes and techniques, including but not limited
to methods utilizing recycle and reuse techniques and land
treatment are not utilized, unless the life cycle cost of the
alternative treatment works exceeds the life cycle cost of the
most cost effective alternative by more than 15 per centum. The
Administrator may waive the application of this paragraph in
any case where the Administrator determines it to be in the
public interest, or that compliance with this paragraph would
interfere with the orderly compliance with the conditions of a
permit issued pursuant to section 402 of this Act.
(c) Reasonable Service Charges.--Reasonable service charges
described in subsection (a) include any requirement to pay a
reasonable fee, assessment, or charge imposed by any State or
local agency to defray or recover the cost of stormwater
management in the same manner and to the same extent as any
nongovernmental entity.
(d) No Treatment as Tax or Levy.--A fee, assessment, or
charge described in this section--
(1) shall not be considered to be a tax or other levy
subject to an assertion of sovereign immunity; and
(2) may be paid using appropriated funds.
* * * * * * *
SEC. 320. NATIONAL ESTUARY PROGRAM.
(a) Management Conference.--
(1) Nomination of estuaries.--* * *
* * * * * * *
(b) Purposes of Conference.--The purposes of any
management conference convened with respect to an estuary under
this subsection shall be to--
(1) assess trends in water quality, natural
resources, and uses of the estuary;
(2) collect, characterize, and assess data on toxics,
nutrients, and natural resources within the estuarine
zone to identify the causes of environmental problems;
(3) develop the relationship between the inplace
loads and point and nonpoint loadings of pollutants to
the estuarine zone and the potential uses of the zone,
water quality, and natural resources;
(4) develop a comprehensive conservation and
management plan that recommends priority corrective
actions and compliance schedules addressing point and
nonpoint sources of pollution to restore and maintain
the chemical, physical, and biological integrity of the
estuary, including restoration and maintenance of water
quality, a balanced indigenous population of shellfish,
fish and wildlife, and recreational activities in the
estuary, and assure that the designated uses of the
estuary are protected;
(5) develop plans for the coordinated implementation
of the plan by the States as well as Federal and local
agencies participating in the conference;
(6) monitor the effectiveness of actions taken
pursuant to the plan; and
(7) review all Federal financial assistance programs
and Federal development projects in accordance with the
requirements of Executive Order 12372, as in effect on
September 17, 1983, to determine whether such
assistance program or project would be consistent with
and further the purposes and objectives of the plan
prepared under this section.
For purposes of paragraph (7), such programs and projects shall
not be limited to the assistance programs and development
projects subject to Executive Order 12372, but may include any
programs listed in the most recent Catalog of Federal Domestic
Assistance which may have an effect on the purposes and
objectives of the plan developed under this sectionor section
117.
* * * * * * *
Chapter 11 of Title 31, United States Code
* * * * * * *
SEC. 1105. BUDGET CONTENTS AND SUBMISSION TO CONGRESS.
(a) On or after the first Monday in January but not later
than the first Monday in February of each year, the President
shall submit a budget of the United States Government for the
following fiscal year. Each budget shall include a budget
message and summary and supporting information. The President
shall include in each budget the following:
(1) * * *
* * * * * * *
[(33)](35)(A)(i) a detailed, separate analysis, by
budget function, by agency, and by initiative area (as
determined by the administration) for the prior fiscal
year, the current fiscal year, the fiscal years for
which the budget is submitted, and the ensuing fiscal
year identifying the amounts of gross and net
appropriations or obligational authority and outlays
that contribute to homeland security, with separate
displays for mandatory and discretionary amounts,
including--
(I) summaries of the total amount of such
appropriations or new obligational authority
and outlays requested for homeland security;
(II) an estimate of the current service
levels of homeland security spending;
(III) the most recent risk assessment and
summary of homeland security needs in each
initiative area (as determined by the
administration); and
(IV) an estimate of user fees collected by
the Federal Government on behalf of homeland
security activities;
(ii) with respect to subclauses (I) through (IV) of
clause (i), amounts shall be provided by account for
each program, project and activity; and
(iii) an estimate of expenditures for homeland
security activities by State and local governments and
the private sector for the prior fiscal year and the
current fiscal year.
(B) In this paragraph, consistent with the Office of
Management and Budget's June 2002 ``Annual Report to
Congress on Combatting Terrorism'', the term ``homeland
security'' refers to those activities that detect,
deter, protect against, and respond to terrorist
attacks occurring within the United States and its
territories.
(C) In implementing this paragraph, including
determining what Federal activities or accounts
constitute homeland security for purposes of budgetary
classification, the Office of Management and Budget is
directed to consult periodically, but at least
annually, with the House and Senate Budget Committees,
the House and Senate Appropriations Committees, and the
Congressional Budget Office.
[(35)](36) as supplementary materials, a separate
analysis of the budgetary effects for all prior fiscal
years, the current fiscal year, the fiscal year for
which the budget is submitted, and ensuing fiscal years
of the actions the Secretary of the Treasury has taken
or plans to take using any authority provided in the
Emergency Economic Stabilization Act of 2008,
including--
(A) an estimate of the current value of all
assets purchased, sold, and guaranteed under
the authority provided in the Emergency
Economic Stabilization Act of 2008 using
methodology required by the Federal Credit
Reform Act of 1990 (2 U.S.C. 661 et seq.) and
section 123 of the Emergency Economic
Stabilization Act of 2008;
(B) an estimate of the deficit, the debt held
by the public, and the gross Federal debt using
methodology required by the Federal Credit
Reform Act of 1990 and section 123 of the
Emergency Economic Stabilization Act of 2008;
(C) an estimate of the current value of all
assets purchased, sold, and guaranteed under
the authority provided in the Emergency
Economic Stabilization Act of 2008 calculated
on a cash basis;
(D) a revised estimate of the deficit, the
debt held by the public, and the gross Federal
debt, substituting the cash-based estimates in
subparagraph (C) for the estimates calculated
under subparagraph (A) pursuant to the Federal
Credit Reform Act of 1990 and section 123 of
the Emergency Economic Stabilization Act of
2008; and
(E) the portion of the deficit which can be
attributed to any action taken by the Secretary
using authority provided by the Emergency
Economic Stabilization Act of 2008 and the
extent to which the change in the deficit since
the most recent estimate is due to a reestimate
using the methodology required by the Federal
Credit Reform Act of 1990 and section 123 of
the Emergency Economic Stabilization Act of
2008.
[(36)](37) information on estimates of appropriations
for the fiscal year following the fiscal year for which
the budget is submitted for the following medical care
accounts of the Veterans Health Administration,
Department of Veterans Affairs account:
(A) Medical Services.
(B) Medical Support and Compliance.
(C) Medical Facilities.
(38) a separate statement for the Chesapeake Nutrient
Trading Guarantee Fund established under section
117(e)(1)(E) of the Federal Water Pollution Control Act
(33 U.S.C. 1267(e)(1)(E)) (as amended by the Chesapeake
Clean Water and Ecosystem Restoration Act), which shall
include the estimated amount of deposits into the Fund,
obligations, and outlays from the Fund.