1.Short title; table of
contents
(a)This Act may be cited
as the Chesapeake Bay Program
Reauthorization and Improvement Act
.
(b)The table of contents for this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Modification of Chesapeake Bay Program under Clean
Water Act.
Sec. 3. Establishment of independent commission to oversee and
administer nutrient and sediment trading program for Chesapeake Bay
States.
Sec. 4. Chesapeake Bay watershed assurance
standards.
Sec. 5. Technical guidelines for environmental services
markets.
Sec. 6. Chesapeake Bay watershed pilot program for creating
environmental service markets.
2.Modification of
Chesapeake Bay Program under Clean Water Act
(a)Section 117(a) of the Federal Water
Pollution Control Act (33 U.S.C. 1267(a)) is amended—
(1)by redesignating
paragraphs (5) and (6) as paragraphs (6) and (9), respectively;
(2)by inserting after
paragraph (4) the following new paragraph:
(5)The term
Chesapeake Bay State
or State
means Delaware,
Maryland, New York, Pennsylvania, Virginia, West Virginia, and the District of
Columbia.
;
and
(3)by inserting after
paragraph (6), as redesignated, the following new paragraphs:
(7)The term chief executive
means—
(A)in the case of a
State or Commonwealth, the Governor of the State or Commonwealth; and
(B)in the case of the
District of Columbia, the Mayor of the District of Columbia.
(8)The term restoration activities
means
any Federal or State programs that directly protect, conserve, or restore
habitat, water resources, or water quality in the Chesapeake Bay watershed,
including programs that promote responsible land use and stewardship in the
Chesapeake Bay
ecosystem.
.
(b)Chesapeake Bay
crosscut financial reportSection 117 of the Federal Water Pollution
Control Act (33 U.S.C. 1267) is amended by striking subsection (j) and
inserting the following new subsection:
(j)
(1)Financial report
requiredBeginning with the
budget submission for fiscal year 2012, the Director of the Office of
Management and Budget, in consultation with other appropriate Federal agencies
and the chief executive of each Chesapeake Bay State, shall submit to Congress
a financial report containing—
(A)a summary of an
interagency crosscut budget that displays—
(i)the proposed
funding for any Federal restoration activity to be carried out in the
succeeding fiscal year, including any planned interagency or intra-agency
transfer, for each of the Federal agencies that carry out restoration
activities;
(ii)to the extent that information is
available, the estimated funding for any State restoration activity to be
carried out in the succeeding fiscal year;
(iii)all expenditures for Federal restoration
activities from the preceding 3 fiscal years, the current fiscal year, and the
succeeding fiscal year; and
(iv)all expenditures, to the extent that
information is available, for State restoration activities during the
equivalent time period described in clause (iii);
(B)a detailed
accounting of all funds received and obligated by all Federal agencies for
restoration activities during the current and preceding fiscal years, including
the identification of funds which were transferred to a Chesapeake Bay State
for restoration activities;
(C)to the extent that
information is available, a detailed accounting from each State of all funds
received and obligated from a Federal agency for restoration activities during
the current and preceding fiscal years; and
(D)a description of
each of the proposed Federal and State restoration activities to be carried out
in the succeeding fiscal year (corresponding to those activities listed in
clauses (i) and (ii) of subparagraph (A)).
(2)Not later than 30 days after the submission
by the President of the annual budget to Congress, the Director shall submit
the report required by paragraph (1) to the following congressional
committees:
(A)The Committees on
Agriculture, Appropriations, Natural Resources, Energy and Commerce, and
Transportation and Infrastructure of the House of Representatives.
(B)The Committees on Agriculture, Nutrition,
and Forestry, Appropriations, Environment and Public Works, and Commerce,
Science, and Transportation of the
Senate.
.
(c)Transparency and
accountabilitySection 117 of the Federal Water Pollution Control
Act (33 U.S.C. 1267) is amended by adding at the end the following new
subsection:
(k)Transparency and
accountability requirements
(1)Not later than 10
days after the end of each calendar quarter, each State that received funds
from a Federal agency under subsection (n)(1)(B) shall submit a report to the
head of the agency that—
(A)identifies the total amount of funds
received from the agency under such provisions during the preceding calendar
quarter;
(B)identifies the amount of funds received
from the agency under such provisions during the preceding calendar quarter or
earlier that were obligated or expended for projects or activities during the
preceding calendar quarter; and
(C)contains a list of
all projects or activities for which the funds were obligated or expended,
except that such list shall not include personal identifying information of
individual recipients.
(2)Not later than 30
days after the end of each calendar quarter, the head of each Federal agency
that made funds available under subsection (n)(1)(B) to any State shall provide
the information received in reports submitted under paragraph (1) to the
Administrator. The Administrator shall publish the information on a publicly
available website, as provided in paragraph (4).
(3)Not later than 180
days after the date of the enactment of the Chesapeake Bay Program Reauthorization and Improvement
Act, the head of each Federal agency providing funds under
subsection (n)(1)(B) shall require, as a condition of receipt of the funds, a
State recipient of the funds to provide the information required under
paragraph (1).
(4)
(A)The Administrator
shall establish and maintain, no later than 30 days after enactment of the
Chesapeake Bay Program Reauthorization and
Improvement Act, a user-friendly, public-facing website to foster
greater accountability and transparency in the use of funds provided under
subsection (n)(1)(B).
(B)The website shall provide the following:
(i)Accountability
information, including findings from audits, inspectors general, and the
Government Accountability Office.
(ii)Data on relevant
economic, financial, grant, and contract information in user-friendly visual
presentations to enhance public awareness of the use of covered funds.
(iii)Links to other
government websites where key information relating to efforts to improve the
water quality of the Chesapeake Bay watershed may be found.
(iv)Printable reports
on covered funds obligated by month to each State and congressional
district.
(v)Links to other
government websites with information concerning covered funds, including
Federal agency and State websites.
(C)The
Administrator shall enhance and update the website as
necessary.
.
(d)Independent
evaluation and technical advisory committee for Chesapeake bay
programSection 117 of the
Federal Water Pollution Control Act (33 U.S.C. 1267) is amended by inserting
after subsection (k), as added by subsection (c), the following new
subsection:
(l)Independent
evaluation and technical advisory committee
(1)There shall be an
Independent Evaluation and Technical Advisory Committee (in this subsection
referred to as the advisory committee
) established to review and
report on restoration activities in the Chesapeake Bay ecosystem, including
relevant topics suggested by the Chesapeake Executive Council and the
Chesapeake Bay Commission
(2)The Administrator and the Secretary of
Agriculture shall appoint the members of the advisory committee, which shall
consist of the following members:
(A)One individual affiliated with an
institution of higher education who has expertise in water quality.
(B)Two individuals
who are engineers or scientists from government and academia who have expertise
in water quality modeling.
(C)Two individuals
with professional experience and expertise concerning urban and agricultural
storm water issues.
(D)One individual
with professional experience and expertise concerning urban and suburban
development.
(E)One individual
with professional experience and expertise regarding water quality
modeling.
(F)One individual
affiliated with an environmental or conservation organization.
(G)One individual
affiliated with agriculture farm commodity programs.
(H)One individual affiliated with agriculture
conservation programs.
(I)One individual
with professional experience and expertise in economics.
(J)One individual
with professional experience and expertise in agronomy, crop science, or soil
science.
(K)One individual
with professional experience and expertise in wastewater treatment
systems.
(L)One individual
with professional experience and expertise in marine biology or fish and
wildlife habitats.
(M)One individual
with professional experience and expertise in implementing building
permits.
(3)A
member of the advisory committee shall be appointed for a term of two years and
is limited to three terms on the advisory committee.
(4)The advisory committee shall establish such
bylaws as may be appropriate to enable the advisory committee to carry out its
duties under this subsection. Such bylaws shall include provisions to prevent
any conflict of interest, or the appearance of any conflict of interest, in the
actions taken or recommendations made by the advisory committee or by any
member. As an advisory committee, the committee has no power to promulgate
regulations.
(5)The Department of Agriculture shall be the administering
agency for the advisory committee.
(6)
(A)The advisory committee
shall provide recommendations to the Administrator and Secretary of Agriculture
concerning administration of this section.
(B)Program and
activities reviewThe
advisory committee shall review, and provide recommendations to the
Administrator and Secretary of Agriculture concerning, whether—
(i)funds authorized
for the restoration activities are distributed and used in a manner that are
consistent with the objectives of improving the water quality in the Chesapeake
Bay ecosystem;
(ii)mechanisms are in
place to ensure that restoration activities are properly implemented;
(iii)mechanisms are in place to ensure that
progress toward water quality goals for the Chesapeake Bay ecosystem are
achieved;
(iv)the allocation of funds reflects each
Chesapeake Bay State’s responsibility and contribution towards achieving water
quality goals;
(v)restoration
activities are carried out in accordance with this section; and
(vi)the factual
information and assumptions incorporated in the Chesapeake Bay model are
accurate.
(C)Not later than December 31, 2011, and every
two years thereafter, the advisory committee shall submit to the Administrator,
the Secretary of Agriculture, and Congress regarding progress made toward
reaching water quality goals in the Chesapeake Bay ecosystem.
(7)To avoid duplication of effort, the
advisory committee shall coordinate activities with other Federal advisory
committees working in related areas.
(8)The
advisory committee shall meet at least quarterly.
(9)The advisory
committee does not have the authority to recommend or promulgate
regulations.
.
(e)Nutrient and
Sediment Trading Technical GuidelinesSection 117 of the Federal
Water Pollution Control Act (33 U.S.C. 1267) is amended by inserting after
subsection (l), as added by subsection (d), the following new subsection:
(m)Nutrient and
Sediment Trading Technical Guidelines
(1)Not later than May 12, 2012, the
Administrator, in consultation with the Secretary of Agriculture and Chesapeake
Bay States shall establish technical guidelines to be used by the Chesapeake
Bay Nutrient and Sediment Trading Commission in establishing an interstate
nutrient and sediment trading program for the Chesapeake Bay. Such guidelines
shall not apply to agricultural and non-industrial private forest lands.
(2)The
technical guidelines established under this subsection shall, at a
minimum—
(A)define and
standardize nutrient and sediment credits and establish procedures or standards
for ensuring equivalent water quality benefits for all credits;
(B)establish
procedures or standards for nutrient and sediments credits to ensure that
credit-generating practices from both point sources and nonpoint sources
(excluding agricultural and forest lands) are achieving reductions in nutrient
and sediments;
(C)establish
procedures or standards for generating, quantifying, trading, banking, and
applying credits to meet regulatory requirements;
(D)establish baseline
requirements, relevant to the credit being traded, that a credit seller must
meet before becoming eligible to generate saleable credits; and
(E)incorporate an
approach under the national pollutant discharge elimination system established
under section 402 that creates a general approval for trading, thereby avoiding
the need to reopen or reissue permits to incorporate individual
trades.
.
(f)Authorization of
appropriations and grant authoritySection 117 of the Federal Water Pollution
Control Act (33 U.S.C. 1267) is amended by inserting after subsection (m), as
added by subsection (e), the following new subsection:
(n)Authorization of
appropriations; grants
(1)There are authorized
to be appropriated to the Administrator for each of fiscal years 2010 through
2015—
(A)such sums as are necessary to carry out
this section; and
(B)such sums as may be necessary to support
the Chesapeake Bay States in carrying out section 303(d), with priority given
to Maryland, Virginia, Pennsylvania, and District of Columbia, which shall be
distributed in the following percentages and for the following purposes:
(i)30
percent for grants to any municipal, intermunicipal, interstate, or State
agency for construction of publicly owned treatment works, as defined in
section 212.
(ii)35 percent for grants to any municipality
that operates a municipal separate stormwater sewage system under section
402(p).
(iii)35 percent to the Secretary of Agriculture
to carry out section 1240Q(i) of the Food Security Act of 1985 (16 U.S.C.
3839bb–4(i)).
(2)Amounts appropriated
pursuant to the authorization of appropriations in paragraph (1) shall remain
available until expended.
(3)Reservation of
funds for states
(A)Of the amounts
appropriated pursuant to the authorization of appropriations in paragraph
(1)(B), the Administrator shall reserve the following percentages for
allocation pursuant to subparagraph (B):
(i)10
percent in fiscal year 2011.
(ii)20 percent in
fiscal year 2013.
(iii)50 percent in
fiscal year 2015.
(B)The Administrator
shall allot the amounts reserved pursuant to subparagraph (A) among States in
each fiscal year based on the Administrator’s finding, in consultation with the
Secretary of Agriculture, that the States have made sufficient progress toward
meeting water quality goals and are properly managing financial resources
intended to enable each State in meeting its water quality goals. The
Administrator, in consultation with the Secretary, shall base the finding upon
the report of the advisory committee required under subsection
(l).
.
(g)Total maximum
daily load for nitrogen, phosphorus, or sediment for Chesapeake
BaySection 117 of the Federal Water Pollution Control Act (33
U.S.C. 1267) is amended by inserting after subsection (n), as added by
subsection (f), the following new subsection:
(o)Total maximum
daily load for nitrogen, phosphorus, or sediment for Chesapeake Bay
(1)A total maximum
daily load established under section 303(d) for nitrogen, phosphorus, or
sediment for the Chesapeake Bay and its tributaries may include load
expressions for wasteload allocations or load allocations using time frames
other than daily (such as annual, monthly, or seasonal) for sectors, including
agriculture, where non-daily wasteload or load allocations are most appropriate
to implement applicable water quality standards.
(2)If a Chesapeake
Bay State develops a plan to implement a total maximum daily load under section
303(d) for phosphorus, nitrogen, or sediment for the Chesapeake Bay or its
tributaries that provides for reductions in loading through an iterative
process that employs adaptive management principles, permits may be issued
under section 402 for new or existing discharges that include waste load
allocations consistent with the plan and that demonstrate progress towards
achieving the waste load allocation, whether by treatment, trading, or other
means, in accordance with the schedule provided in the plan, as determined by
the permit issuing authority. In assessing sufficient progress by municipal
dischargers and other point sources toward meeting water quality goals and
plans, the Administrator and the States should take into account the
availability, cost, effectiveness, and appropriateness of practices,
techniques, methods, or other provisions for the control of such pollutants to
meet the requirements of section 402(p).
(3)Options for
offsetting of stormwater management requirementsIn order to meet Federal or State water
quality requirements in the Chesapeake Bay ecosystem, an individual or entity
undertaking land development activities requiring the management of stormwater
by on-site infiltration shall be permitted to meet the applicable infiltration
requirements by paying to offset them through the establishment of equivalent
stormwater management practices off-site within the Chesapeake Bay ecosystem.
Offsetting stormwater management practices shall include, at a minimum, the
establishment on agricultural lands of riparian forest buffers, streambank
fencing, or other best management
practices.
.
3.Establishment of
independent commission to oversee and administer nutrient and sediment trading
program for Chesapeake Bay StatesThe Federal Water Pollution Control Act is
amended by inserting after section 117 (33 U.S.C. 1267) the following new
section:
117A.Chesapeake Bay
Nutrient and Sediment Trading Commission
(a)In
this section:
(1)The term Commission
means
the Chesapeake Bay Nutrient and Sediment Trading Commission.
(2)The term
Chesapeake Bay State
means Delaware, Maryland, New York,
Pennsylvania, Virginia, West Virginia, and the District of Columbia.
(3)Chesapeake
Executive CouncilThe term Chesapeake Executive
Council means the signatories to the Chesapeake Bay Agreement.
(4)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.
(5)The
term nutrient
means nitrogen and phosphorous.
(b)Establishment of
Commission; purpose
(1)There is established
a Chesapeake Bay Nutrient and Sediment Trading Commission to oversee and
administer the nitrogen and phosphorus trading program for the Chesapeake Bay
States to insure credits are generated to attract market participants and
facilitate trading mechanisms among and within States to meet water quality
goals.
(2)Independent
establishmentThe Commission shall be an independent
establishment, as defined in section 104 of title 5, United States Code.
(3)The Commission shall be housed at the
Office of the Chesapeake Bay Program directed by the Chesapeake Executive
Council in accordance with the Chesapeake Bay Agreement.
(c)
(1)Credits for
water quality tradingIn
consultation with market developers and appropriate Federal agencies, the
Commission shall develop a system to facilitate and generate credits for
interstate water quality trading in the Chesapeake Bay States.
(2)Water quality
trading registryThe
Commission shall obtain information from the Administrator, the Secretary of
Agriculture, and other Federal agencies to operate and oversee a registry for
interstate water quality trading in the Chesapeake Bay States.
(3)The Commission
shall develop and maintain a system to record specific interstate water quality
trades in the Chesapeake Bay States.
(4)Point source and
non-point source tradesIn
consultation with market developers and appropriate Federal agencies, the
Commission shall develop a system to allow for trading to occur between point
source and non-point source dischargers in the Chesapeake Bay States.
(5)Consistency with
state programThe Commission shall not establish or operate a
program that conflicts with or modifies a State program.
(d)Use of technical
guidelinesThe Commission
shall rely on the Administrator to provide technical guidelines under section
117(m) and the Secretary of Agriculture to provide technical guidelines under
section 1245(b) of the Food Security Act of 1985 (16 U.S.C. 3845(b)).
(e)
(1)The Commission shall consist of five
members, of which—
(A)one member shall
be appointed by the Secretary of Agriculture;
(B)one member shall be appointed by the
Administrator of the Environmental Protection Agency; and
(C)three members
shall be appointed by the governors from each of the signatory States of the
Bay Agreement.
(2)With regard to the members appointed under
paragraph (1)(C)—
(A)one member shall
be a representative of the general public;
(B)not more than two of the members may have
similar professional experience or expertise in the same field; and
(C)at least one of the members shall be
experienced in a market based pollutant trading mechanism.
(3)The
members of the Commission shall serve a term of five years and may be
reappointed.
(4)The members of the Commission shall
designate one of the members to serve as chairperson.
(5)The
Commission shall meet at the call of the chairperson or a majority of its
members.
(f)The Commission may appoint, employ, fix the pay of, and
provide other allowances and benefits for such officers and employees of the
Commission as the members determine to be appropriate.
(g)The
Commission shall terminate on September 30,
2015.
.
4.Chesapeake Bay
watershed assurance standardsSection 1240Q of the Food Security Act of
1985 (16 U.S.C. 3839bb–4) is amended by adding at the end the following new
subsection:
(i)Chesapeake Bay
watershed assurance standards
(1)The purpose of this subsection is to
develop environmental assurance standards for the Chesapeake Bay States to use
to ensure that farmers and non-industrial private forest landowners in the
Chesapeake Bay watershed are implementing conservation activities to fulfill
water quality regulations under applicable Federal and State law.
(2)
(A)Establishment of
standardsFor the purposes of
this section, the Secretary shall use existing State partnerships and programs
to establish standards for risk assessment, conservation planning,
verification, water quality, and auditing practices that Chesapeake Bay States
can incorporate in their State management plan under section 117(g)(1) of the
Federal Water Pollution Control Act (33 U.S.C. 1267(g)(1)).
(B)The Secretary
shall provide conservation technical assistance—
(i)to
educate agricultural and private forest landowners in the Chesapeake Bay
watershed regarding State and Federal regulatory water quality requirements and
possible activities they could undertake to come into compliance with the
regulations; and
(ii)to assist such
landowners in conservation planning that will achieve and maintain regulatory
compliance.
(C)Memorandum of
understandingThe Secretary
may enter into a memorandum of understanding with the Administrator of the
Environmental Protection Agency and with the Chesapeake Bay States to
coordinate conservation planning for agricultural and non-industrial private
forest lands to meet applicable State water quality requirements.
(3)Effect of
assurance standardsAgricultural and private forest landowners
who develop and implement a conservation plan in accordance with this
subsection shall be deemed to be in full compliance with applicable Federal and
State water quality requirements under section 303(d) of the Federal Water
Pollution Control Act (33 U.S.C. 1313(d)).
(4)In this subsection:
(A)The term
Chesapeake Bay State
means Delaware, Maryland, New York,
Pennsylvania, Virginia, West Virginia, and the District of Columbia.
(B)The term
conservation planning
has the same meaning as established for
such term in the Natural Resources Conservation Service field office technical
guide, comprehensive nutrient management plans, and nutrient management
plans.
.
5.Technical
guidelines for environmental services markets
(a)Types of
guidelines required
(1)Section 1245(b) of
the Food Security Act of 1985 (16 U.S.C. 3845(b)) is amended by striking
paragraphs (1), (2), and (3) and inserting the following new paragraphs:
(1)Methodologies for quantifying environmental
service benefits.
(2)Baseline
methodologies for environmental service benefits.
(3)Methodologies to
account for reversals and leakage for environmental services markets.
(4)Methodologies for
verification of the environmental service benefits.
(5)A protocol to
report environmental service benefits.
(6)A registry to
collect, record, and maintain the benefits measured.
(7)A procedure to
verify and ensure compliance of the environmental service
benefits.
.
(2)Section 1245(c)(1)
of the Food Security Act of 1985 (16 U.S.C. 3845(c)(1)) is amended—
(A)by striking paragraph (2)
and inserting paragraph (5)
; and
(B)by striking
paragraph (3)
and inserting paragraph (6)
.
(b)Section 1245 of the Food Security Act of 1985 (16
U.S.C. 3845) is amended by adding at the end the following new
subsections:
(f)List of eligible
activities
(1)The Secretary shall
publish a list of eligible domestic agricultural and forestry activities that
result in environmental service benefits.
(2)Not later than 14 months after the date of the
enactment of the Chesapeake Bay Program
Reauthorization and Improvement Act, the Secretary shall publish
in the Federal Register the list of domestic agricultural and forestry
activities that are eligible for the guidelines established under subsection
(a).
(3)In
preparing the list under this subsection, the Secretary shall take into
consideration the recommendations of the entities referred to in subsection
(e).
(4)Not later than four
years after the date of the enactment of the Chesapeake Bay Program Reauthorization and Improvement
Act, and every two years thereafter, the Secretary shall add to
and revise the list prepared under this subsection. The additions and revisions
shall be made only after the Secretary provides an opportunity for public
notice of and an opportunity for comment on the proposed additions and
revisions.
(g)Guidelines for
provision of technical assistance
(1)As part of the regulations promulgated under this
title, the Secretary shall establish guidelines for the provision of technical
assistance to ensure—
(A)that environmental
service benefits have been implemented properly; and
(B)the quantification
of the benefits have resulted in an environmental benefit.
(2)Technical
Assistance Provider AccreditationAs part of the regulations
promulgated under this title, the Secretary shall establish a process and
requirements for periodic accreditation of certified technical assistance
providers for environmental service benefits to ensure that those technical
service providers are professionally qualified and have no conflicts of
interest. Each technical service provider meeting the requirements for
accreditation in accordance with this paragraph shall be listed in a publicly
accessible database, which shall be maintained and updated by the
Secretary.
.
6.Chesapeake Bay
watershed pilot program for creating environmental service
marketsSection 1240Q of the
Food Security Act of 1985 (16 U.S.C. 3839bb–4) is amended by inserting after
subsection (i), as added by section 102, the following new subsection:
(j)Pilot program
for creating environmental service markets
(1)The Secretary shall establish a pilot
program for the Chesapeake Bay watershed for the facilitation of creating
environmental service markets based on the guidelines outlined in section 1245
as long as those environmental service benefits do not result in taking
eligible land wholly out of agricultural production. The Secretary shall ensure
that the pilot program is consistent with the policies, protocols, and
regulations established under existing environmental service markets in the
Chesapeake Bay watershed.
(2)Transmission of
data to Chesapeake Bay Nutrient and Sediment Trading CommissionThe Secretary shall transmit to the
Chesapeake Bay Nutrient and Sediment Trading Commission such data acquired by
the Secretary as may be necessary to the effective administration of nutrient
and sediment trading programs administered by the Commission under section 117A
of the Federal Water Pollution Control
Act.
.