I 111th CONGRESS 1st Session H. R. 3852 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.

1.

Short title

This Act may be cited as the Chesapeake Clean Water and Ecosystem Restoration Act of 2009.

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.

3.

Chesapeake Bay Program

Section 117 of the Federal Water Pollution Control Act (33 U.S.C. 1267) is amended to read as follows:

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.

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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..