[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3852 Introduced in House (IH)]
111th CONGRESS
1st Session
H. R. 3852
To amend the Federal Water Pollution Control Act to improve and
reauthorize the Chesapeake Bay Program.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
October 20, 2009
Mr. Cummings (for himself, Mr. Connolly of Virginia, Mr. Van Hollen,
Mr. Sarbanes, Mr. Moran of Virginia, Ms. Edwards of Maryland, Ms.
Norton, Mr. Scott of Virginia, Mr. Hoyer, Mr. Oberstar, and Ms. Eddie
Bernice Johnson of Texas) introduced the following bill; which was
referred to the Committee on Transportation and Infrastructure
_______________________________________________________________________
A BILL
To amend the Federal Water Pollution Control Act to improve and
reauthorize the Chesapeake Bay Program.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Chesapeake Clean Water and Ecosystem
Restoration Act of 2009''.
SEC. 2. FINDINGS.
Congress finds that--
(1) the Chesapeake Bay and the tributary waters of the
Chesapeake Bay are natural resources of outstanding ecological,
economic, and cultural importance to the United States;
(2) for more than 20 years, the Federal Government and the
States of the Chesapeake Bay Watershed, the Chesapeake Bay
Commission, and various local government, scientific, and
citizen advisory boards have worked through the Chesapeake Bay
Program of the Environmental Protection Agency to develop an
unparalleled body of scientific information and cooperative
partnerships to advance the Chesapeake Bay restoration effort;
(3) despite significant efforts by Federal, State, and
local governments and other interested parties, water pollution
in the Chesapeake Bay prevents the attainment of existing State
water quality standards and the ecological goals of the Federal
Water Pollution Control Act (33 U.S.C. 1251 et seq.);
(4) the Chesapeake Bay Program partnership has developed a
rich body of environmental data based on an extensive network
of monitors, which provide a critical measure of success in
attainment of the goals of the restoration effort;
(5) the Chesapeake Bay Program partnership has also
developed some of the world's foremost water quality and
ecosystem computer models, which are invaluable planning tools
for resource managers;
(6) the major pollutants affecting the water quality of the
Chesapeake Bay and related tidal waters are nitrogen,
phosphorus, and sediment;
(7) the largest developed land use in the Chesapeake Bay
watershed, and the largest single-sector source of nitrogen,
phosphorus, and sediment pollution, is agriculture;
(8) successful implementation of conservation practices
have resulted in significant reductions in pollutant loads from
the agricultural sector;
(9) to speed continued progress in the agricultural sector,
the Federal Government and State governments have initiated a
number of agricultural conservation programs, including the
Chesapeake Bay watershed initiative under section 1240Q of the
Food Security Act of 1985 (16 U.S.C. 3839bb-4);
(10) atmospheric deposition of nitrogen oxides and ammonia
on the Chesapeake Bay watershed contributes as much as \1/3\ of
the nitrogen pollution in the Chesapeake Bay;
(11) for years, a steady stream of technology development
and increasingly stringent permit requirements have resulted in
a steady decline in the nitrogen and phosphorus pollution
derived from wastewater treatment plants in the Chesapeake Bay
watershed;
(12) suburban and urban development is the fastest growing
land use sector in the Chesapeake Bay watershed, and stormwater
runoff from that sector is the only major source of pollution
in the watershed that is increasing;
(13) during the period beginning in 1990 and ending in
2000, impervious cover, the hardened surfaces through which
water cannot penetrate, increased by nearly 250,000 acres,
about 41 percent, or the size of 5 Districts of Columbia;
(14) during that period, the population of the Chesapeake
Bay watershed grew by just 8 percent;
(15) the population of the watershed is estimated to be
growing by about 157,000 people per year;
(16) continuing at that rate, the population will increase
to nearly 20,000,000 by 2030;
(17) about 58 percent of the watershed of the Chesapeake
Bay is undeveloped and mostly forested, but as many as 100
hundred acres of forest are lost to development each day;
(18) States, local governments, developers, and nonprofit
organizations have developed numerous low-impact development
techniques since the late 1990s, which use natural area
protection, envirotranspiration, infiltration, and pervious
surfaces to reduce stormwater runoff and associated sediment
and nutrient pollution;
(19) many of those techniques are less expensive than
traditional stormwater management techniques, yet can achieve
equivalent reduction in nutrients and sediment or can reduce
the need for construction of traditional stormwater management
techniques;
(20) the decline of key aquatic habitats and species has
resulted in a loss of the important water quality benefits that
the habitats and species traditionally provided;
(21) native oysters, the numbers of which have declined
precipitously in the Chesapeake Bay in significant part because
of diseases brought into the watershed by nonnative oysters,
are natural filters that once effectively filtered a volume of
water equivalent to that of the entire Chesapeake Bay in a
matter of days;
(22) although less well-understood, menhaden, a species of
fish found in the Chesapeake Bay, also provide important
filtering capacity as well as a number of other key ecosystem
functions;
(23) wetlands are a vital part of any major ecosystem;
(24) studies have demonstrated that nontidal wetlands near
the Chesapeake Bay removed as much as 89 percent of the
nitrogen and 80 percent of the phosphorus that entered the
wetlands through upland runoff and precipitation;
(25) riparian forests remove as much as 90 percent of
nitrogen and phosphorus that would otherwise enter the water;
(26) the loss of riparian forests and wetlands in the
Chesapeake Bay has resulted in diminished water quality, among
other effects;
(27) in certain locations in the Chesapeake Bay, nutria, a
nonnative species, has caused extensive destruction of key
wetlands; and
(28) in spite of the achievements of the Chesapeake Bay
Program partnership and increasing knowledge about ecosystem
functions, the restoration of the Chesapeake Bay will require
increased accountability and equity in reducing pollutant
levels and other impediments to water quality.
SEC. 3. CHESAPEAKE BAY PROGRAM.
Section 117 of the Federal Water Pollution Control Act (33 U.S.C.
1267) is amended to read as follows:
``SEC. 117. CHESAPEAKE BAY 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' means the basic
standard or level used for measuring (as applicable)--
``(A) the nutrient control requirements credit
sellers must achieve before becoming eligible to
generate saleable nutrient credits; or
``(B) the nutrient load reductions required of
individual dischargers to meet water quality standards
or goals under a TMDL or watershed implementation plan.
``(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); and
``(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).
``(5) 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.
``(6) Chesapeake bay ecosystem.--The term `Chesapeake Bay
ecosystem' means the ecosystem of the Chesapeake Bay watershed.
``(7) Chesapeake bay program.--The term `Chesapeake Bay
Program' means the program directed by the Chesapeake Executive
Council in accordance with the Chesapeake Bay Agreement.
``(8) Chesapeake bay state.--The term `Chesapeake Bay
State' means any of--
``(A) the States of Delaware, Maryland, New York,
or West Virginia;
``(B) the Commonwealths of Pennsylvania or
Virginia; or
``(C) the District of Columbia.
``(9) Chesapeake bay watershed.--The term `Chesapeake Bay
watershed' means the Chesapeake Bay and the area consisting of
19 tributary basins within the Chesapeake Bay States through
which precipitation drains into the Chesapeake Bay.
``(10) Chesapeake executive council.--The term `Chesapeake
Executive Council' means the signatories to the Chesapeake Bay
Agreement.
``(11) 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.
``(12) Director.--The term `Director' means the Director of
the Chesapeake Bay Program Office of the Environmental
Protection Agency.
``(13) Local government.--The term `local government' means
any county, city, or other general purpose political
subdivision of a State with jurisdiction over land use.
``(14) 95th percentile precipitation event.--The term `95th
percentile precipitation event' means a precipitation event
whose precipitation total is greater than or equal to 95
percent of all 24-hour storm events on an annual basis.
``(15) Point-of-regulation.--The term `point-of-regulation'
means any entity that--
``(A) is subject to a limitation on pollution or
other regulation under this Act; and
``(B) has sufficient technical capacity and legal
authority to meet the obligations of the entity under
this Act.
``(16) TMDL.--
``(A) In general.--The term `TMDL' means the total
maximum daily load that the Administrator establishes
or approves for nitrogen, phosphorus, and sediment
loading to the waters in the Chesapeake Bay and tidal
tributaries identified on the list of a Chesapeake Bay
State under section 303(d).
``(B) Inclusions.--The term `TMDL' may include
nitrogen, phosphorus, and sediment allocations in
temporal units of greater than daily duration if
applicable allocations--
``(i) are demonstrated to achieve water
quality standards; and
``(ii) do not lead to exceedances of other
applicable water quality standards for local
receiving waters.
``(17) 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) 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, institutions of higher education,
basin commissions, 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) Chesapeake bay stewardship 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.--On the request of the chief executive of
a Chesapeake Bay State, the Administrator--
``(A) shall make an implementation grant to the
Chesapeake Bay State, or a designee of the Chesapeake
Bay State (such as a soil conservation district,
nonprofit organization, local government, institution
of higher education, basin commission, or interstate
agency) for the purpose of implementing an approved
watershed implementation plan under subsection (j) and
achieving the goals established under the Chesapeake
Bay Agreement, subject to such terms and conditions as
the Administrator considers to be appropriate; and
``(B) may make a monitoring grant to--
``(i) a Chesapeake Bay State, or a designee
of a Chesapeake Bay State (such as a soil
conservation district, nonprofit organization,
local government, institution of higher
education, basin commission, or interstate
agency), for the purpose of monitoring the
ecosystem of freshwater tributaries to the
Chesapeake Bay; or
``(ii) the States of Delaware or Maryland,
the Commonwealth of Virginia, the District of
Columbia, or a designee (such as a soil
conservation district, nonprofit organization,
local government, institution of higher
education, basin commission, or interstate
agency) for the purpose of monitoring the
Chesapeake Bay, including the tidal waters of
the Chesapeake Bay.
``(2) Administration.--In making implementation grants to
each of the Chesapeake Bay States for a fiscal year under this
subsection, the Administrator shall ensure that not less than--
``(A) 10 percent of the funds available to make
such grants are made to the States of Delaware, New
York, and West Virginia; and
``(B) 20 percent of the funds available to make
such grants are made to Chesapeake Bay States for the
sole purpose of providing technical assistance to
agricultural producers and foresters to access
conservation programs and other resources devoted to
improvements in water quality in the Chesapeake Bay and
the tributaries of the Chesapeake Bay.
``(3) Proposals.--
``(A) Implementation grants.--
``(i) In general.--A Chesapeake Bay State
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 proposed
actions that the Chesapeake Bay State
commits to take within a specified time
period 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 fish,
shellfish, wildlife, and other
living resources of the
Chesapeake Bay and related
tributaries, habitats of those
species and resources, and
ecological relationships to
sustain all fisheries and
provide for a balanced
ecosystem;
``(cc) to restore, enhance,
and protect those habitats and
natural areas that are vital to
the survival and diversity of
the living resources of the
Chesapeake Bay and related
tributaries;
``(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, foresters, 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) a commitment to dedicate not
less than 20 percent of a grant to a
Chesapeake Bay State under this
subsection to support technical
assistance for agricultural and
forestry 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
fiscal year.
``(B) Monitoring grants.--
``(i) In general.--A Chesapeake Bay State
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
Director that such a monitoring system
includes such parameters as the
Director determines necessary to assess
progress toward achieving the goals of
this section; and
``(III) the estimated cost of the
monitoring proposed to be conducted
during the fiscal 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 consult with--
``(I) the basin commissions and the
Chesapeake Bay States regarding the
design and implementation of the
freshwater monitoring systems
established under this subsection,
giving particular attention to the
measurement of the water quality
effectiveness of agricultural
conservation program implementation
(including geospatial agricultural
conservation program data), including
activities carried out pursuant to the
Chesapeake Bay Watershed Initiative
under section 1240Q of the Food
Security Act of 1985 (16 U.S.C. 3839bb-
4);
``(II) Old Dominion University, the
Virginia Institute of Marine Science,
the University of Maryland Center for
Environmental Science, and the
Chesapeake Bay States regarding the
estuarine monitoring systems
established under this subsection;
``(III) the Chesapeake Bay Program
Scientific and Technical Advisory
Committee regarding independent review
of monitoring designs giving particular
attention to integrated freshwater and
estuarine monitoring strategies; and
``(IV) Federal departments and
agencies regarding cooperation in
implementing monitoring programs.
``(f) Federal Facilities and Action Plan.--
``(1) Subwatershed planning and restoration.--A Federal
agency that owns or operates a facility (as defined by the
Administrator) or carries our activities 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 or carries out
activities in the Chesapeake Bay watershed shall ensure that
the property, actions taken by the agency with respect to the
property, and the activities of the agency comply with the
Chesapeake Bay Agreement, the Federal Agencies Chesapeake
Ecosystem Unified Plan, and any subsequent agreements and
plans.
``(3) Forest cover at federal facilities.--Not later than
January 1, 2012, the Administrator shall coordinate with the
heads of each Federal agency that owns or operates a facility
(as defined by the Administrator) within the Chesapeake Bay
watershed to develop plans to maximize forest cover at the
facility through the preservation of existing forest cover and
the development of reforestation plans with respect to a
facility that has been disturbed or developed in the past.
``(4) Federal annual action plan and progress report.--The
Administrator, in accordance with Executive Order 12508
entitled `Chesapeake Bay Protection and Restoration' and signed
on May 12, 2009 (74 Fed. Reg. 23099), shall--
``(A) make available to the public, not later than
March 31 of each year--
``(i) a Chesapeake Bay 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; and
``(ii) an annual progress report that--
``(I) assesses the key ecological
attributes that reflect the health of
the Chesapeake Bay ecosystem;
``(II) reviews indicators of
environmental conditions in the
Chesapeake Bay;
``(III) distinguishes between the
health of the Chesapeake Bay 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
``(VI) describes how Federal
funding and actions will be coordinated
with the actions of States, basin
commissions, and others;
``(B) create and maintain, with the concurrence of
the Secretary of Agriculture, a Chesapeake Bay-wide
database containing comprehensive data on
implementation of conservation management practices in
the Chesapeake Bay watershed that--
``(i) includes baseline conservation
management practice implementation data as of
the effective date of the Chesapeake Clean
Water and Ecosystem Restoration Act of 2009;
``(ii) includes data on subsequent
conservation management practice implementation
projects funded by or reported to the
Administrator or the Secretary;
``(iii) presents the required data in
statistical or aggregate form without
identifying any--
``(I) individual owner, operator,
or producer; or
``(II) specific data gathering
site; and
``(iv) is made available to the public not
later than December 31, 2010.
``(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
implemented by Chesapeake Bay States 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 the watershed of the
Chesapeake Bay;
``(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
States 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
States for living resources associated with the
Chesapeake Bay ecosystem.
``(2) Chesapeake bay stewardship grants program.--The
Administrator, in cooperation with the Chesapeake Executive
Council, shall--
``(A) establish a Chesapeake Bay Stewardship Grants
Program; and
``(B) in carrying out that program--
``(i) offer technical assistance and
assistance grants under subsection (d) to
implement--
``(I) cooperative watershed
strategies that address the water
quality, habitat, and living resource
needs in the Chesapeake Bay ecosystem;
``(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 Bay ecosystem; and
``(III) innovative nitrogen,
phosphorus, or sediment reduction
efforts; and
``(ii) give preference to cooperative
projects that involve local governments.
``(h) Total Maximum Daily Load.--
``(1) TMDL.--
``(A) Establishment.--Not later than December 31,
2010, the Administrator shall establish a Chesapeake
Bay-wide TMDL.
``(B) Requirements.--The Administrator shall not
establish or approve a TMDL described in subparagraph
(A) unless the TMDL is developed in accordance with the
requirements of section 303(d)(1)(C) of this Act, and
includes--
``(i) wasteload allocations for nitrogen,
phosphorus, and sediment necessary to implement
the applicable water quality standards in the
Chesapeake Bay watershed and achieve those
standards in the Chesapeake Bay and tidal
tributaries;
``(ii) enforceable or otherwise binding
load allocations for all nonpoint sources,
including atmospheric deposition, agricultural
runoff, and stormwater sources for which a
permit under section 402 is not required; and
``(iii) a requirement for no net increase
of nitrogen, phosphorus, and sediment loads
above the pollutant limitations necessary to
meet water quality standards for the Chesapeake
Bay and tidal tributaries, including no net
projected increased pollutant levels from--
``(I) new or increased impervious
surfaces;
``(II) concentrated animal feeding
operations;
``(III) transportation systems; and
``(IV) septic systems.
``(2) Permits.--
``(A) In general.--Effective beginning on January
1, 2011, a new or reissued permit issued by the
Administrator under section 402(a) or a State
authorized to administer a permit program under section
402(b) shall include limits consistent with all
applicable wasteload allocations in the Chesapeake Bay
TMDL.
``(B) Permits.--
``(i) In general.--Effective beginning on
January 1, 2011, each Chesapeake Bay State
shall submit to the Administrator copies of any
permit for discharges of nitrogen, phosphorus,
or sediment into the Chesapeake Bay watershed
that is allowed to continue beyond 5 years
pursuant to a State law analogous to section
558(c) of title 5, United States Code, not
later than 60 days after the expiration date of
the permit.
``(ii) Review.--The Administrator shall
have the opportunity to review and object to
the continuance of the permit in accordance
with the process described in section 402(d)
for permits proposed to be issued by a State.
``(i) Actions by States.--
``(1) Watershed implementation plans.--
``(A) Plans.--
``(i) In general.--Not later than May 12,
2011, each Chesapeake Bay State shall, after
providing for notice and 1 or more public
hearings, adopt and submit to the Administrator
for approval a watershed implementation plan
for the portion of each of the 92 tidal water
segments that is subject to the jurisdiction of
the Chesapeake Bay State that together comprise
the Chesapeake Bay.
``(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) agricultural runoff;
``(II) point sources, including
point source stormwater discharges;
``(III) nonpoint source stormwater
runoff; and
``(IV) septic systems and other
onsite sewage disposal systems.
``(iii) Pollution limitations.--
``(I) In general.--The tributary
pollution limitations shall be the
nitrogen, phosphorous, and sediment cap
loads identified in the tributary cap
load agreement numbered EPA 903-R-03-
007, dated December 2003, and entitled
`Setting and Allocating the Chesapeake
Bay Basin Nutrient and Sediment Loads:
The Collaborative Process, Technical
Tools and Innovative Approaches', or a
Chesapeake Bay TMDL established by the
Administrator.
``(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 pollution
sources;
``(II) include programs to achieve
voluntary reductions from pollution
sources, including funding commitments
necessary to implement those programs;
``(III) include any additional
requirements or actions that the
Chesapeake Bay 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
if a permittee, local government, or
any other party fails to adhere to
assigned pollutant limitations,
implementation schedules, or permit
terms;
``(V) include a schedule for
implementation divided into 2-year
periods, along with computer modeling
to demonstrate the projected reductions
in nitrogen, phosphorus, and sediment
loads associated with each 2-year
period;
``(VI) include the stipulation of
alternate actions as contingencies;
``(VII) account for how the
Chesapeake Bay State will address
additional loadings from growth through
offsets or other actions; and
``(VIII) provide assurances that--
``(aa) if compared to an
estimated 2008 baseline, the
initial plan shall be designed
to achieve, not later than May
31, 2017, at least 60 percent
of the nitrogen, phosphorous,
and sediment limitations
described in clause (iii)(I);
``(bb) the management
measures required to achieve a
50-percent reduction of
nitrogen, phosphorous, and
sediment limitations shall be
in effect upon submission of
the plan;
``(cc) the Chesapeake Bay
State will have adequate
personnel, 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
``(dd) in a case in which a
Chesapeake Bay State has relied
on a local government for the
implementation of any plan
provision, the Chesapeake Bay
State has the responsibility
for ensuring adequate
implementation of the
provision.
``(B) Implementation.--
``(i) In general.--In implementing a
watershed implementation plan, each Chesapeake
Bay 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; and
``(IV) appropriate provisions to
adapt to climate changes.
``(ii) Deadline.--Not later than May 12,
2025, each Chesapeake Bay 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 sediment.
``(C) Progress reports.--Not later than May 12,
2014, and biennially thereafter, each Chesapeake Bay
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 Bay
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 Bay State has failed to
fully implement in accordance with the approved
watershed implementation plan of the Chesapeake
Bay State;
``(iii) includes monitored and collected
water quality data;
``(iv) includes Chesapeake Bay Program
computer modeling data 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 Bay State;
``(v) includes, for the subsequent 2-year
period, implementation goals and Chesapeake Bay
Program computer modeling data detailing the
projected pollution reductions to be achieved
if the Chesapeake Bay State fully implements
the subsequent round of management measures;
``(vi) identifies compliance information,
including violations, actions taken by the
Chesapeake Bay State to address the violations,
and dates, if any, on which compliance was
achieved; and
``(vii) specifies any revisions to the
watershed implementation plan submitted under
this paragraph that the Chesapeake Bay State
determines are necessary to attain the
applicable pollutant limitations for nitrogen,
phosphorus, and sediment.
``(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),
for the purpose of achieving the nitrogen, phosphorus,
and sediment reductions required under a watershed
implementation plan, a Chesapeake Bay State may issue a
permit in accordance with section 402 for any pollution
source the Chesapeake Bay State determines to be
necessary.
``(B) Enforcement.--The Administrator shall enforce
any permits issued in accordance with the watershed
implementation plan in the same manner as other permits
issued under section 402 are enforced.
``(3) Reduction of pollution from impervious surfaces.--
``(A) In general.--Not later than January 1, 2013,
each unit of local government within the Chesapeake Bay
watershed that discharges stormwater through a storm
sewer system, regardless of storm sewer system
ownership and without regard to the size of the
population, shall obtain and comply with a permit under
section 402(p).
``(B) Requirements.--A permit under section 402(p)
for a unit of local government within the Chesapeake
Bay watershed shall include requirements to ensure that
a project to develop land within the jurisdiction of
such unit of local government that affects land that is
more than 1 acre in size and that is less than 5
percent covered by impervious surfaces prior to the
project is carried out in a manner that not less than
the volume of the 95th percentile precipitation event
shall infiltrate, evapotranspirate from, or be
harvested and used on such site after the project is
completed.
``(4) Phosphate ban.--
``(A) Phosphorus in cleaning agents.--Each
Chesapeake Bay 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 of 2009, 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 Bay 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 of 2009, 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.
``(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 of 2009, the Administrator shall establish
minimum criteria 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 Bay State, the Administrator shall determine
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 criteria
established under paragraph (1), the Chesapeake Bay
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 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--
``(i) shall approve a watershed
implementation plan if the plan meets all
applicable requirements under this section; and
``(ii) may approve the plan in part and
disapprove the plan in part if only a portion
of the plan meets those requirements.
``(C) Conditional approval.--The Administrator--
``(i) may conditionally approve a revised
watershed implementation plan based on a
commitment of the Chesapeake Bay 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) shall treat a conditional approval
as a disapproval under this paragraph if the
Chesapeake Bay State fails to comply with the
commitment of the Chesapeake Bay State.
``(D) Full approval required.--A new or revised
watershed implementation plan shall not be treated as
meeting the requirements of this section until the
Administrator approves the entire new or revised plan.
``(E) Corrections.--In any case in which the
Administrator determines that the action of the
Administrator approving, disapproving, conditionally
approving, or promulgating any new or revised watershed
implementation plan was in error, the Administrator--
``(i) may, 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 Bay State; and
``(ii) shall make the determination of the
Administrator, and the basis for that
determination, available to the public.
``(F) 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 the watershed implementation plan
for any area is inadequate to attain or maintain applicable
pollution limitations, the Administrator--
``(A) shall notify the Chesapeake Bay State of, and
require the Chesapeake Bay 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; and
``(D) shall require the Chesapeake Bay State to
comply with the requirements applicable under the
initial watershed implementation plan, except that the
Administrator may adjust any dates (other than
attainment dates) applicable under those requirements,
as appropriate.
``(5) Federal implementation.--If a Chesapeake Bay State
fails to submit a watershed implementation plan, to submit a
biennial report, or to correct a previously missed 2-year
commitment made in a watershed implementation plan, the
Administrator shall, after issuing a notice to the State and
providing a 90-day period in which the failure may be
corrected--
``(A) notwithstanding the requirements of sections
601(a) and 603(g) of this Act, reserve up to 75 percent
of a Chesapeake Bay State's capitalization grant for a
State water pollution control revolving fund to be
available for projects and activities authorized under
section 603(c) of this Act that are selected by the
Administrator, after a notice to the State, to be
carried out within such State;
``(B) withhold all funds otherwise available to the
Chesapeake Bay State under this Act other than those
funds authorized under title VI of this Act;
``(C) develop and administer a watershed
implementation plan for that Chesapeake Bay State until
such time as the Chesapeake Bay State has remedied the
plan, reports, or achievements to the satisfaction of
the Administrator;
``(D) require that all permits issued under section
402 for new or expanding discharges of nitrogen,
phosphorus, or sediment acquire offsets that exceed by
100 percent an amount that would otherwise be required,
taking into account attenuation, equivalency, and
uncertainty; and
``(E) for the purposes of developing and
implementing a watershed implementation plan under
subparagraph (C)--
``(i) notwithstanding any other provision
of this Act (including any exclusion or
exception contained in a definition under
section 502), promulgate such regulations or
issue such permits as the Administrator
determines to be necessary to control pollution
sufficient to meet the water quality goals
defined in the watershed implementation plan;
and
``(ii) enforce any permits issued in
accordance with the watershed implementation
plan in the same manner as other permits issued
under section 402 are enforced.
``(6) Nitrogen and phosphorus trading program.--
``(A) Establishment.--Not later than May 12, 2012,
the Administrator, in cooperation with each Chesapeake
Bay State, shall establish an interstate nitrogen and
phosphorus trading program for the Chesapeake Bay for
the generation, trading, and use of nitrogen and
phosphorus credits to facilitate the attainment and
maintenance of the Chesapeake Bay-wide TMDL for
nitrogen and phosphorus.
``(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;
``(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
dischargers;
``(iv) establish baseline requirements that
a credit seller must meet before becoming
eligible to generate saleable credits;
``(v) establish points-of-regulation at the
sub-State level to facilitate trading and
promote water quality goals under which--
``(I) States may designate point
sources as points-of-regulation, but
not nonpoint dischargers;
``(II) States shall aggregate
multiple nonpoint dischargers to serve
as points-of-regulation; and
``(III) the Administrator shall
establish guidelines or standards to
ensure that points-of-regulation shall
be generally consistent across States;
``(vi) ensure that credits are used in
accordance with permit requirements under the
national pollutant discharge elimination system
established under section 402 and trade
requirements have been adequately incorporated
into the permits;
``(vii) ensure that private contracts
between credit buyers and credit sellers
contain adequate provisions to ensure
enforceability under applicable law;
``(viii) establish procedures or standards
for providing public transparency on nutrient
trading activity;
``(ix) ensure that, if the local receiving
water is impaired for the nutrient being traded
but a TMDL 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 the local
receiving water; and
``(II) dischargers in the watershed
may not rely on credits produced
outside of the watershed;
``(x) 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;
``(xi) except as part of a consent
agreement, prohibit the purchase of credits
from any entity that is in significant
noncompliance with an enforceable permit issued
under section 402;
``(xii) consider and incorporate, to the
maximum extent practicable, elements of State
trading programs in existence as of the date of
enactment of the Chesapeake Clean Water and
Ecosystem Restoration Act of 2009; and
``(xiii) allow for, as appropriate, the
aggregation and banking of credits by third
parties.
``(C) Facilitation of trading.--In order to attract
market participants and facilitate the cost-effective
achievement of water quality goals, the Administrator
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, including
the Administrator, in consultation with the
Secretary of Agriculture, 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 creates a general approval for trading
avoiding the need to reopen or reissue permits
to incorporate individual trades.
``(7) Authority relating to development.--The Administrator
shall--
``(A) establish and issue, for any project
affecting land that is more than 1 acre in size and
that is less than 5 percent covered by impervious
surfaces prior to such project that proposes to
increase the overall percentage of impervious surfaces,
guidance relating to site planning, design,
construction, and maintenance strategies to ensure that
not less than the volume of the 95th percentile
precipitation event shall infiltrate, evapotranspirate
from, or be harvested and used on such site after the
project is completed; and
``(B) establish and issue model 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.
``(8) Assistance with respect to stormwater discharges.--
``(A) Grant program.--The Administrator may provide
grants to any local government within the Chesapeake
Bay watershed that adopts the guidance, ordinances, and
guidelines issued 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, ordinances, and
guidelines issued under paragraph (7); and
``(ii) implementing a project that is
designed, constructed, and maintained to meet
the relative performance standard described in
subsection (i)(3)(B).
``(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 of 2009, the
Administrator, in consultation with the Chesapeake Executive
Council, shall--
``(A) review consumer and commercial products, the
use of which may affect the water quality of the
Chesapeake Bay watershed or associated tributaries, to
determine whether further product nutrient content
restrictions are necessary to restore or maintain water
quality in the Chesapeake Bay watershed 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 report detailing the findings of the
review under subparagraph (A).
``(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 of 2009, 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 tidal waters; and
``(3) to specify conditions under which scientific research
on Asian oysters may be conducted within the Chesapeake Bay and
tidal waters.
``(l) 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.--The failure of a State to
submit a watershed implementation plan or biennial report, or
to correct a previously missed 2-year commitment made in a
watershed implementation plan, by the applicable deadline
established under this section shall--
``(A) constitute a violation of this Act; and
``(B) subject the State to--
``(i) enforcement action by the
Administrator; and
``(ii) civil actions commenced pursuant to
section 505.
``(3) Failure of administrator to act.--The failure of the
Administrator to act under this section shall subject the
Administrator to civil actions commenced pursuant to section
505.
``(m) Evaluation by the Inspector General.--The Inspector General
of the Environmental Protection Agency shall evaluate the
implementation of this section on a periodic basis of not less than
once every 3 years.
``(n) Authorization of Appropriations.--
``(1) Implementation and monitoring 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 provide implementation grants
under subsection (e)(3)(A), $80,000,000 for
each of fiscal years 2010 through 2015, to
remain available until expended;
``(ii) to carry out a freshwater monitoring
program under subsection (e)(3)(B), $5,000,000
for each of fiscal years 2010 through 2015; and
``(iii) 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.
``(B) Cost sharing.--The Federal share of the cost
of a program carried out using funds from a grant
provided--
``(i) under subparagraph (A)(i) shall not
exceed 50 percent; and
``(ii) under clause (ii) or (iii) of
subparagraph (A) shall not exceed 80 percent.
``(2) Chesapeake stewardship grants.--There is authorized
to be appropriated to carry out subsection (g)(2) $15,000,000
for each of fiscal years 2010 through 2014.
``(3) Stormwater 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.
``(4) Limitation on administrative expenses.--Not more than
10 percent of the annual amount of any grant provided by the
Administrator or Secretary under any program described in
paragraphs (1), (2), or (3) may be used for administrative
expenses.
``(5) Availability.--Amounts authorized to be appropriated
under this subsection shall remain available until expended.''.
SEC. 4. NONPOINT SOURCE MANAGEMENT PROGRAMS.
Section 319(j) of the Federal Water Pollution Control Act (33
U.S.C. 1329) is amended by striking ``not to exceed $70,000,000'' and
all that follows through the period and inserting ``$500,000,000 for
each of the fiscal years 2010 through 2015.''.
<all>