1.This Act may be cited as the
Chesapeake Clean Water and Ecosystem
Restoration Act of 2009
.
2.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)conservation
practices have resulted in significant reductions in pollution 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 watershed population of the Chesapeake Bay 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 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, infiltration, and pervious surfaces to reduce stormwater runoff and
associated sediment and nutrient pollution;
(19)many of those
techniques are less expensive than traditional pollution stormwater control
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 wetland near the Chesapeake Bay removed as much as
89 percent of the nitrogen and 80 percent of the phosphorus that entered the
wetland through upland runoff, groundwater, 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
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
significantly stronger tools to manage pollution levels and other impediments
to water quality.
3.Section 117 of the
Federal Water Pollution Control Act (33 U.S.C. 1267) is amended to read as
follows:
117.
(a)In
this section:
(1)The term administrative cost means the cost of
salaries and fringe benefits incurred in administering a grant under this
section.
(2)The term Asian oyster means the species
Crassostrea ariakensis.
(3)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 sources to meet water quality standards or
goals under a TMDL or watershed implementation plan.
(4)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)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)The term Chesapeake Bay ecosystem means
the ecosystem of the Chesapeake Bay watershed.
(7)The term Chesapeake Bay Program means the
program directed by the Chesapeake Executive Council in accordance with the
Chesapeake Bay Agreement.
(8)The term Chesapeake Bay State means any
of—
(A)the States of
Delaware, Maryland, New York, Pennsylvania, Virginia, and West Virginia;
or
(B)the District of
Columbia.
(9)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 CouncilThe term Chesapeake Executive
Council means the signatories to the Chesapeake Bay Agreement.
(11)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)The
term director means the Director of the Chesapeake Bay Program
Office of the Environmental Protection Agency.
(13)The term local government means any
county, city, or other general purpose political subdivision of a State with
jurisdiction over land use.
(14)The
term menhaden means members of stocks or populations of the
species Brevoortia tyrannus.
(15)The term nutria means the
species Myocaster coypus.
(16)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.
(17)The term signatory jurisdiction means a
jurisdiction of a signatory to the Chesapeake Bay Agreement.
(18)
(A)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 mainstem and tidal
tributaries identified on the list of a Chesapeake Bay State under section
303(d).
(B)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.
(19)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 cooperation with the Chesapeake Executive Council (and
as a member of the Council), the Administrator shall continue the Chesapeake
Bay Program.
(2)
(A)The Administrator shall maintain in the Environmental
Protection Agency a Chesapeake Bay Program Office.
(B)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)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 cooperation with the Chesapeake Executive Council, the
Administrator may provide technical assistance, and assistance grants, to
nonprofit organizations, State and local governments, colleges, universities,
and interstate agencies to carry out this section, subject to such terms and
conditions as the Administrator considers appropriate.
(2)
(A)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 programThe Federal share of an assistance
grant provided under paragraph (1) to carry out an implementing activity under
subsection (h)(2) shall not exceed 75 percent of eligible project costs, as
determined by the Administrator.
(3)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 shall not exceed 10 percent of the
annual grant award.
(e)Implementation
and monitoring grants
(1)On the request of the chief executive of the Chesapeake
Bay State, the Administrator—
(A)shall make an
implementation grant to the Chesapeake Bay State, or a designee of a Chesapeake
Bay State (such as a soil conservation district, nonprofit organization, local
government, college, university, interstate basin commission, or interstate
agency), for the purpose of implementing the TMDL plans of the Chesapeake Bay
State 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, college, university,
interstate 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, Maryland, or Virginia, the District of Columbia, or a designee (such
as a nonprofit organization, local government, college, university, or
interstate agency) for the purpose of monitoring the Chesapeake Bay, including
the tidal waters of the Chesapeake Bay.
(2)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 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)
(A)
(i)A Chesapeake Bay State described in paragraph (1) may
apply for a grant under this subsection for a fiscal year by submitting to the
Administrator a comprehensive proposal to implement programs and achieve the
goals established under the Chesapeake Bay Agreement.
(ii)Implementation
grant contentsA 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 finfish, shellfish, waterfowl, and other living
resources, habitats of those species and resources, and ecological
relationships to sustain all fisheries and provide for a balanced
ecosystem;
- (cc)to preserve,
protect, and restore those habitats and natural areas that are vital to the
survival and diversity of the living resources of the Chesapeake Bay and
associated rivers;
- (dd)to develop,
promote, and achieve sound land use practices that protect and restore
watershed resources and water quality, reduce or maintain reduced pollutant
loadings for the Chesapeake Bay and related tributaries, and restore and
preserve aquatic living resources;
- (ee)to promote
individual stewardship and assist individuals, community-based organizations,
businesses, local governments, and schools to undertake initiatives to achieve
the goals and commitments of the Chesapeake Bay Agreement; or
- (ff)to provide
technical assistance to agricultural producers, 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 the grant of the Chesapeake Bay 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)
(i)A Chesapeake Bay State described in paragraph (1) may
apply for a grant under this subsection for a fiscal year by submitting to the
Administrator a comprehensive proposal to monitor freshwater or estuarine
ecosystems, including water quality.
(ii)Monitoring
grant contentsA proposal under this subparagraph shall
include—
(I)a description of
the proposed monitoring system;
(II)certification by
the Chesapeake Bay Program Director that such a monitoring system includes such
parameters as the Chesapeake Bay Program Director determines to be necessary to
assess progress toward achieving the goals of the
Chesapeake Clean Water and Ecosystem
Restoration Act of 2009; and
(III)the estimated
cost of the monitoring proposed to be conducted during the fiscal year.
(iii)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)The
Administrator shall—
(I)consult with the
Interstate Commission on the Potomac River Basin, the Susquehanna River Basin
Commission, 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 the Chesapeake
Bay Watershed Initiative under section 1240Q of the Food Security Act of 1985
(16 U.S.C. 3839bb–4);
(II)consult with 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)consult with 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)consult with
Federal departments and agencies regarding cooperation in implementing
monitoring programs.
(f)Federal
facilities coordination
(1)Subwatershed
planning and restorationA Federal agency that owns or operates a
facility (as defined by the Administrator) within the Chesapeake Bay watershed
shall participate in regional and subwatershed planning and restoration
programs.
(2)Compliance with
agreements and plansThe head of each Federal agency that owns or
occupies real property in the Chesapeake Bay watershed shall ensure that the
property, and actions taken by the agency with respect to the property, comply
with—
(A)the Chesapeake Bay
Agreement;
(B)the Federal
Agencies Chesapeake Ecosystem Unified Plan;
(C)the Chesapeake Bay
action plan developed in accordance with subparagraph (g)(1)(A); and
(D)any subsequent
agreements and plans.
(g)Federal annual
action plan and progress reportThe Administrator, in accordance
with Executive Order 13508 entitled Chesapeake Bay Protection and
Restoration
and signed on May 12, 2009 (74 Fed. Reg. 23099),
shall—
(1)make available to
the public, not later than March 31 of each year—
(A)a Chesapeake 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
(B)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;
(2)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—
(A)includes baseline
conservation management practice implementation data as of the effective date
of the Chesapeake Clean Water and Ecosystem
Restoration Act of 2009;
(B)includes data on
subsequent conservation management practice implementation projects funded by
or reported to the Agency or the Department;
(C)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
(D)is made available
to the public not later than December 31, 2010.
(h)
(1)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 Agreement signatories for wetland, riparian forests, and other
types of habitat associated with the Chesapeake Bay ecosystem; and
(E)the restoration,
protection, creation, and enhancement goals established by the Chesapeake Bay
Agreement signatories for living resources associated with the Chesapeake Bay
ecosystem.
(2)Chesapeake Bay
Stewardship Grants ProgramThe 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 local governments,
soil conservation districts, academic institutions, and nonprofit organizations
in the Chesapeake Bay region 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.
(i)
(1)
(A)Not
later than December 31, 2010, the Administrator shall establish a Chesapeake
Bay-wide TMDL.
(B)The
Administrator shall not establish or approve a TMDL described in subparagraph
(A) unless the TMDL 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 the tidal tributaries of the
Chesapeake Bay;
(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;
(iii)a margin of
safety so as to ensure that the TMDL does not exceed any applicable water
quality standard; and
(iv)a requirement for
no net increase of nitrogen, phosphorus, and sediment loads above the pollution
limitations necessary to meet water quality standards for the Chesapeake Bay,
including no net projected increased pollutant loads from—
(I)new or increased
impervious surfaces;
(II)concentrated
animal feeding operations;
(III)transportation
systems; and
(IV)septic
systems.
(2)
(A)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)
(i)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)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.
(j)
(1)Watershed
implementation plans
(A)
(i)Not later than May 12, 2011, each Chesapeake Bay State
shall, after providing for reasonable 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)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)
(I)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, date 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)A
watershed implementation plan shall be designed to attain, at a minimum, the
pollution limitations described in subclause (I).
(iv)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 in case a permittee, local jurisdictions, or any other party fails to
adhere to assigned pollutant limitations, implementation schedules, or permit
terms;
(V)include a schedule
for implementation 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 based on modeled loads, the initial plan shall be
designed to achieve, not later than May 31, 2017, at least 60 percent of the
nutrient and sediment limitations described in clause (iii)(I);
- (bb)the management
measures required to achieve a 50-percent reduction of nutrient 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)
(i)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)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 sediments.
(C)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 sediments.
(2)
(A)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)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)
(A)Effective beginning January 1, 2013, the Chesapeake Bay
State shall provide assurances to the Administrator that—
(i)the owner or
operator of any development or redevelopment project possessing an impervious
footprint that exceeds a threshold to be determined by the Administrator
through rulemaking, will use site planning, design, construction, and
maintenance strategies for the property to maintain or restore, to the maximum
extent technically feasible, the predevelopment hydrology of the property with
regard to the temperature, rate, volume, and duration of flow; and
(ii)as a further
condition of permitting such a development or redevelopment, the owner or
operator of any development or redevelopment project possessing an impervious
footprint that exceeds a threshold to be determined by the Administrator
through rulemaking will compensate for any unavoidable impacts to the
predevelopment hydrology of the property with regard to the temperature, rate,
volume, and duration of flow, such that—
(I)the compensation
within the jurisdictional boundaries of the local government shall provide
in-kind mitigation of function at a ratio to be determined by the Administrator
through rulemaking; and
(II)the compensation
outside the jurisdictional boundaries of the local government shall provide
in-kind mitigation, at a ratio to be determined by the Administrator through
rulemaking, within the tributary watershed in which the project is
located.
(B)Not
later than December 31, 2012, the Administrator shall promulgate regulations
that—
(i)define the term
predevelopment hydrology in subparagraph (A);
(ii)establish the
thresholds under subparagraph (A); and
(iii)establish the
compensation ratios under subparagraph (A)(ii).
(4)
(A)Phosphorus in
cleaning agentsEach 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 phosphorusEach 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.
(k)
(1)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)
(A)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 incompletenessIf 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)
(A)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 disapprovalIn 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)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)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)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)The provisions of a State watershed implementation plan
shall take effect upon the date of approval of the plan.
(4)In any case in which the Administrator determines that
watershed implementation plan for any area is inadequate to attain or maintain
applicable pollution limitations, the Administrator—
(A)shall notify the
Chesapeake 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)make the findings
of the Administrator under paragraph (3) and notice provided under subparagraph
(A) public; and
(D)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)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)withhold all funds
otherwise available to the Chesapeake Bay State under this Act;
(B)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;
(C)require that all
permits issued under section 402 for new or expanding discharges of nitrogen,
phosphorus, or sediments acquire offsets that exceed by 100 percent an amount
that would otherwise be required, taking into account attenuation, equivalency,
and uncertainty; and
(D)for the purposes
of developing and implementing a watershed implementation plan under
subparagraph (B)—
(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)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)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 and verifying 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 sources;
(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;
(II)States may
aggregate multiple sources 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)sources 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)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 allows trading to occur without requiring
the reopening or reissuance of permits to incorporate individual trades.
(7)Authority
relating to developmentThe Administrator shall—
(A)establish, for
projects resulting in impervious development, guidance relating to site
planning, design, construction, and maintenance strategies to ensure that the
land maintains predevelopment hydrology with regard to the temperature, rate,
volume, and duration of flow;
(B)establish 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; and
(C)not later than 180
days after promulgation of the regulations under subsection (j)(3)(B), issue
such guidance, model ordinances, and guidelines as are necessary to carry out
this paragraph.
(8)Assistance with
respect to stormwater discharges
(A)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)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
projects designed to reduce stormwater discharges.
(9)Consumer and
commercial product reportNot 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 product nutrient report detailing the
findings of the review under subparagraph (A).
(l)Prohibition on
introduction of Asian oystersNot 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.
(m)Chesapeake
nutria eradication program
(1)Subject to the availability of appropriations, the
Secretary of the Interior (referred to in this subsection as the
Secretary), may provide financial assistance to the States of
Delaware, Maryland, and Virginia to carry out a program to implement
measures—
(A)to eradicate or
control nutria; and
(B)to restore
marshland damaged by nutria.
(2)The
continuing goals of the program shall be—
(A)to eradicate
nutria in the Chesapeake Bay ecosystem; and
(B)to restore
marshland damaged by nutria.
(3)In
the States of Delaware, Maryland, and Virginia, the Secretary shall require
that the program under this subsection consist of management, research, and
public education activities carried out in accordance with the document
published by the United States Fish and Wildlife Service entitled
Eradication Strategies for Nutria in the Chesapeake and Delaware Bay
Watersheds
, dated March 2002, or any updates to the document.
(n)Study on the
impacts of the commercial harvesting of menhaden on the water quality of the
Chesapeake Bay
(1)In
this subsection:
(A)The term Fisheries Commission means the
Atlantic States Marine Fisheries Commission established under the interstate
compact consented to and approved by pursuant to the Act of May 4, 1942 (56
Stat. 267, chapter 283) and the Act of May 19, 1949 (63 Stat. 70, chapter
238).
(B)Except
as otherwise provided, the term fishing—
(i)means—
(I)the commercial
catching, taking, or harvesting of menhaden, except when incidental to
harvesting that occurs in the course of commercial or recreational
fish-catching activities directed at a species other than menhaden;
(II)the attempted
commercial catching, taking, or harvesting of menhaden; or
(III)any operation at
sea in support of, or in preparation for, any activity described in subclause
(I) or (II); and
(ii)does not include
any scientific research authorized by the Federal Government or by any State
government.
(2)Not
later than 5 years after the date of enactment of the
Chesapeake Clean Water and Ecosystem
Restoration Act of 2009, building on the research underway or
conducted under the oversight of the National Oceanic and Atmospheric
Administration, the Administrator, in cooperation and consultation with the
Administrator of the National Oceanic and Atmospheric Administration and the
Fisheries Commission, shall conduct and submit to Congress a study for the
purposes of determining—
(A)progress toward
understanding the structure of the menhaden population of the Atlantic Coast of
the United States and of the Chesapeake Bay;
(B)the role of the
population as filter feeders, including the role of the population with respect
to impacting water clarity, dissolved oxygen levels, and other ecosystem
functions;
(C)the role of the
population as prey species for predatory fish in the Chesapeake Bay and in
coastal ecosystems;
(D)the impact on the
Atlantic coastal and Chesapeake Bay ecosystems of fishing for menhaden;
(E)the impact on
attainment of the water quality goals of this Act of commercial fishing for
menhaden; and
(F)the
recommendations of the Administrator, if any, for future sustainable management
of such fishing and additional research needed to fully address the progress,
roles, and impacts described in this paragraph.
(o)Effect on other
requirements
(1)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)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 actThe failure of the Administrator to act
under this section shall subject the Administrator to civil actions commenced
pursuant to section 505.
(p)Evaluation by
the Inspector GeneralThe 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.
(q)Authorization of
appropriations
(1)Implementation
and monitoring grants
(A)Authorization of
appropriationsIn 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)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 grantsThere is authorized to be appropriated to
carry out subsection (h)(2) $15,000,000 for each of fiscal years 2010 through
2014.
(3)Storm water
pollution planning and implementation grants
(A)Authorization of
appropriationsIn 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 (k)(8)(B)(i), $10,000,000; and
(ii)to carry out
subsection (k)(8)(B)(ii), $1,500,000,000.
(B)A
grant provided for a project under—
(i)subsection
(k)(8)(B)(i) may not be used to cover more than 80 percent of the cost of the
project; and
(ii)subsection
(k)(8)(B)(ii) may not be used to cover more than 75 percent of the cost of the
project.
(4)Nutria
eradication grants
(A)There is authorized to be appropriated to the Secretary
of the Interior to provide financial assistance in the Chesapeake Bay watershed
under subsection (m) $4,000,000 for each of fiscal years 2010 through
2015.
(B)
(i)The Federal share of the cost of carrying out the program
under subsection (m) may not exceed 75 percent of the total costs of the
program.
(ii)The non-Federal share of the cost of carrying out
the program under subsection (m) may be provided in the form of in-kind
contributions of materials or services.
(5)Limitation on
administrative expensesNot more than 10 percent of the annual
amount of any grant provided by the Administrator or Secretary under any
program described in paragraph (1), (2), (3), or (4) may be used for
administrative expenses.
(6)Amounts
authorized to be appropriated under this subsection shall remain available
until
expended.
.
1.This Act may be cited as the
Chesapeake Clean Water and Ecosystem
Restoration Act
.
2.Congress finds that—
(1)the Chesapeake Bay and
the tributary waters of the Chesapeake Basin 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 Maryland, Pennsylvania, and Virginia,
the District of Columbia, the Chesapeake Bay Commission, and various local
government, scientific, and citizen advisory boards have worked through the
Chesapeake Basin 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)pursuant to a memorandum
of understanding executed among the States of Delaware and New York in 2000,
and the State of West Virginia in 2002, those States began formal participation
in the Chesapeake Basin Program water quality restoration effort;
(4)despite significant
efforts by Federal, State, and local governments and other interested parties,
water pollution in the Chesapeake Bay—
(A)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.); and
(B)therefore, requires the
development and implementation of a total maximum daily load under section
303(d) of that Act (33 U.S.C. 1313(d));
(5)a primary reason for the
schedule to develop a Chesapeake Bay total maximum daily load is the Virginia
total maximum daily load consent decree dated 1999, which settled the civil
action styled American Canoe Ass’n, Inc. v. EPA, Civil No. 98-979-A (E.D. Va.),
under which the Environmental Protection Agency must establish a Chesapeake Bay
total maximum daily load by not later than May 1, 2011;
(6)the principals’ staff
committee of the Chesapeake Basin Program, consisting of officials from each
Chesapeake Bay State, the District of Columbia, the Chesapeake Bay Commission,
and the Environmental Protection Agency, has requested a slightly accelerated
schedule, under which the Environmental Protection Agency should complete a
Chesapeake Bay total maximum daily load by not later than December 31,
2010;
(7)the Chesapeake Bay total
maximum daily load will address all segments of the Chesapeake Bay and tidal
tributaries that are identified on the currently applicable lists of waters
impaired by nitrogen, phosphorus, and sediment of Chesapeake Bay States under
section 303(d) of the Federal Water Pollution Control Act (33 U.S.C.
1313(d));
(8)the Chesapeake Basin
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;
(9)the Chesapeake Basin
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;
(10)the major pollutants
affecting the water quality of the Chesapeake Bay and related tidal waters are
nitrogen, phosphorus, and sediment;
(11)the largest developed
land use in the Chesapeake Basin, and 1 of the largest single-sector source of
nitrogen, phosphorus, and sediment pollution, is agriculture;
(12)conservation practices
have resulted in significant reductions in pollution loads from the
agricultural sector;
(13)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);
(14)atmospheric deposition
of nitrogen oxides and ammonia on the Chesapeake Basin contributes as much as
1/3 of the nitrogen pollution in the Chesapeake
Bay;
(15)the
Clean Air Act (42 U.S.C. 7401 et seq.)
has proven to be an effective tool in reducing a number of air pollutants,
including air pollutants that result in the deposition of nitrogen in the
waters and landscape of the Chesapeake Basin;
(16)final regulations under
the Clean Air Act (42 U.S.C. 7401 et
seq.) relating to stationary, local area, and mobile sources of air pollution
are expected to result in continuous reductions in the deposition of nitrogen
in the Chesapeake Basin that improves air and water quality;
(17)for years, a steady
stream of technology development, increasingly stringent permit requirements,
and multibillion dollar investment at wastewater treatment plants in the
Chesapeake Basin States have resulted in a steady decline in the nitrogen and
phosphorus pollution derived from wastewater treatment plants in the Chesapeake
Basin;
(18)polluted stormwater
runoff from existing and new suburban and urban development is the only major
source of pollution in the watershed that is increasing;
(19)during the period
beginning in 1990 and ending in 2000, impervious cover, the hardened surfaces
through which water cannot penetrate, increased more rapidly than population
growth;
(20)during that period, the
watershed population of the Chesapeake Basin grew by an average of 10
percent;
(21)the population of the
watershed is estimated to be growing by about 157,000 people per year;
(22)continuing at that rate,
the population will increase to nearly 20,000,000 by 2030;
(23)overall, approximately
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;
(24)States, local
governments, developers, and nonprofit organizations have developed numerous
low-impact development techniques since the late 1990s, which use natural area
protection, infiltration, and pervious surfaces to reduce stormwater runoff and
associated sediment and nutrient pollution;
(25)urban and suburban
redevelopment—
(A)are additional techniques
for reducing stormwater impacts; and
(B)generate less total
stormwater runoff and less runoff per housing unit because those
techniques—
(i)help absorb the demand
for new homes and businesses;
(ii)use less land area;
and
(iii)do not displace
currently natural, agricultural, or open space land uses that act as stormwater
filters;
(26)many of those techniques
are less expensive than traditional stormwater pollution control management
techniques and, combined with more traditional techniques, have greatly reduced
the polluted runoff from new projects;
(27)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;
(28)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;
(29)although less
well-understood, menhaden, a species of fish found in the Chesapeake Bay, also
provide important ecosystem functions;
(30)wetlands and floodplains
are vital parts of the Chesapeake Basin ecosystem, and wetlands in the
headwaters of a watershed, through their water holding capabilities, can
substantially reduce flood peaks and downstream erosion;
(31)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, groundwater, and precipitation;
(32)riparian forests remove
as much as 90 percent of nitrogen and phosphorus that would otherwise enter the
water;
(33)the loss of forests and
wetlands in the Chesapeake Basin has resulted in diminished water quality, loss
of underwater bay grasses, and a decline in the quantity of wildlife, fish, and
other aquatic species, among other effects;
(34)(A)the Chesapeake Basin
supports more than 3,600 plant and animal species, including waterfowl, and
commercially and recreationally important fisheries; and
(B)restoration and
protection of those living resources—
(i)is important for
ecological health, recreation, and tourism; and
(ii)provides diverse
economic benefits for local communities;
(35)(A)less than 2 percent of
the 11,700 miles of shoreline of the tidal Chesapeake Bay is accessible to the
public;
(B)with the population of
the Chesapeake Basin increasing and development converting land to roads and
subdivisions, that accessibility is decreasing;
(C)there exists a similar
access gap to nontidal rivers and streams throughout the Chesapeake Basin;
and
(D)it is critical to
increase and enhance public access opportunities for fishing, hunting, boating,
and other recreational pursuits as part of comprehensive ecosystem restoration
efforts;
(36)in certain locations in
the Chesapeake Basin, nutria, a nonnative species, have caused extensive
destruction of key wetlands;
(37)activities relating to
commercial shipping and recreational boating can adversely influence water
quality;
(38)the Chesapeake Bay is a
multibillion dollar economic force for the mid-Atlantic region;
(39)the Federal Water
Pollution Control Act (33 U.S.C. 1251 et seq.) provides for State leadership in
protecting and restoring United States waters, with the Environmental
Protection Agency providing guidance, technical and financial assistance, and
oversight;
(40)the Department of
Agriculture—
(A)has developed a rich body
of approved conservation practices for farms and ranchlands;
(B)provides critical
technical assistance to producers; and
(C)continues to play a
critical role in sustaining the agricultural economy of the nation while also
improving the stewardship of the lands and waters of the United States;
and
(41)in spite of the
achievements of the Chesapeake Basin Program partnership and increasing
knowledge about ecosystem functions, the restoration of the Chesapeake Bay will
require significantly stronger tools to manage pollution levels and other
impediments to water quality.
3.Section 117 of the
Federal Water Pollution Control Act (33 U.S.C. 1267) is amended to read as
follows:
117.
(a)In
this section:
(1)The term administrative cost means the cost of
salaries and fringe benefits incurred in administering a grant under this
section.
(2)The term Asian oyster means the species
Crassostrea ariakensis.
(3)The
term baseline—
(A)means the basic standard
or level of the nutrient control requirements a credit seller shall achieve to
be eligible to generate saleable nutrient credits; and
(B)consists of the nutrient
load reductions required of individual sources to meet water quality standards
and load or waste load allocations under all applicable total maximum daily
loads and watershed implementation plans.
(4)The term basin commissions means—
(A)the Interstate Commission
on the Potomac River Basin established under the interstate compact consented
to and approved by Congress under the Joint Resolution of July 11, 1940 (54
Stat. 748, chapter 579) and Public Law 91–407 (84 Stat. 856);
(B)the Susquehanna River
Basin Commission established under the interstate compact consented to and
approved by Congress under Public Law 91–575 (84 Stat. 1509) and Public Law
99–468 (100 Stat. 1193); and
(C)the Chesapeake Bay
Commission, a tri-State legislative assembly representing Maryland, Virginia,
and Pennsylvania created in 1980 to coordinate Bay-related policy across State
lines and to develop shared solutions.
(5)The term Chesapeake Basin means—
(A)the Chesapeake Bay;
and
(B)the area consisting of 19
tributary basins within the Chesapeake Basin States through which precipitation
drains into the Chesapeake Bay.
(6)Chesapeake basin
ecosystemThe term Chesapeake Basin ecosystem means
the ecosystem of the Chesapeake Basin.
(7)The term Chesapeake Basin Program means the
program, formerly known as the Chesapeake Bay Program
, directed
by the Chesapeake Executive Council in accordance with the Chesapeake Bay
Agreement (including any successor programs).
(8)The term Chesapeake Basin State means any
of—
(A)the States of Delaware,
Maryland, New York, Pennsylvania, Virginia, and West Virginia; or
(B)the District of
Columbia.
(9)The term Chesapeake Bay Agreement means
the formal, voluntary agreements executed to achieve the goal of restoring and
protecting the Chesapeake Basin ecosystem and the living resources of the
Chesapeake Basin ecosystem and signed by the Chesapeake Executive
Council.
(10)Chesapeake bay tidal
segmentThe term Chesapeake Bay tidal segment means
any of the 92 tidal segments that—
(A)make up the Chesapeake
Bay; and
(B)are identified by a
Chesapeake Basin State pursuant to section 303(d).
(11)
(A)The term Chesapeake Bay TMDL means the total
maximum daily load (including any revision) established or approved by the
Administrator for nitrogen, phosphorus, and sediment loading to the waters in
the Chesapeake Bay and the Chesapeake Bay tidal segments.
(B)The
term Chesapeake Bay TMDL includes nitrogen, phosphorus, and
sediment allocations in temporal units of greater-than-daily duration, if the
allocations—
(i)are demonstrated to
achieve water quality standards; and
(ii)do not lead to
violations of other applicable water quality standards for local receiving
waters.
(12)Chesapeake executive
councilThe term Chesapeake Executive Council means
the signatories to the Chesapeake Bay Agreement.
(13)The term cleaning agent means a laundry
detergent, dishwashing compound, household cleaner, metal cleaner, degreasing
compound, commercial cleaner, industrial cleaner, phosphate compound, or other
substance that is intended to be used for cleaning purposes.
(14)The
term credit means a unit provided for 1 pound per year of
nitrogen, phosphorus, or sediment that is—
(A)delivered to the tidal
portion of the Chesapeake Bay; and
(B)eligible to be sold under
the trading programs established by this section.
(15)The
term director means the Director of the Chesapeake Basin Program
Office of the Environmental Protection Agency.
(16)The term local government means any
county, city, or other general purpose political subdivision of a State with
jurisdiction over land use.
(17)The
term menhaden means members of stocks or populations of the
species Brevoortia tyrannus.
(18)The
term nutria means the species Myocaster coypus.
(19)The
term offset means a reduction of loading of nitrogen, phosphorous,
or sediment, as applicable, in a manner that ensures that the net loading
reaching the Chesapeake Bay and the Chesapeake Bay tidal segments from a
source—
(A)does not increase;
or
(B)is reduced.
(20)The term signatory jurisdiction means a
jurisdiction of a signatory to the Chesapeake Bay Agreement.
(21)The term tributary basin means an area of land
or body of water that—
(A)drains into any of the 19
Chesapeake Bay tributaries or tributary segments; and
(B)is managed through
watershed implementation plans under this Act.
(b)Renaming and
continuation of chesapeake bay program
(1)In cooperation with the Chesapeake Executive Council (and
as a member of the Council), the Administrator shall—
(A)rename the Chesapeake Bay
Program, as in existence on the date of enactment of the Chesapeake Clean Water
and Ecosystem Restoration Act, as the Chesapeake Basin Program
;
and
(B)continue to carry out the
Chesapeake Basin Program.
(2)
(A)The Chesapeake Executive Council shall meet not less
frequently than once each year.
(B)
(i)Subject to clause (ii), a meeting of the Chesapeake
Executive Council shall be held open to the public.
(ii)The
Chesapeake Executive Council may hold executive sessions that are closed to the
public.
(3)
(A)The Administrator shall maintain in the Environmental
Protection Agency a Chesapeake Basin Program Office.
(B)The
Chesapeake Basin Program Office shall provide support to the Chesapeake
Executive Council by—
(i)implementing and
coordinating science, research, modeling, support services, monitoring, data
collection, and other activities that support the Chesapeake Basin
Program;
(ii)developing and making
available, through publications, technical assistance, and other appropriate
means, information pertaining to the environmental quality and living resources
of the Chesapeake Basin ecosystem;
(iii)in cooperation with
appropriate Federal, State, and local authorities, assisting the signatories to
the Chesapeake Bay Agreement in developing and implementing specific action
plans to carry out the responsibilities of the signatories to the Chesapeake
Bay Agreement;
(iv)coordinating the actions
of the Environmental Protection Agency with the actions of the appropriate
officials of other Federal agencies and State and local authorities in
developing strategies to—
(I)improve the water quality
and living resources in the Chesapeake Basin ecosystem; and
(II)obtain the support of
the appropriate officials of the agencies and authorities in achieving the
objectives of the Chesapeake Bay Agreement; and
(v)implementing outreach
programs for public information, education, and participation to foster
stewardship of the resources of the Chesapeake Basin.
(c)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 cooperation with the Chesapeake Executive Council, the
Administrator may provide technical assistance, and assistance grants, to soil
conservation districts, nonprofit organizations, State and local governments,
basin commissions, and institutions of higher education to carry out this
section, subject to such terms and conditions as the Administrator considers
appropriate.
(2)
(A)Except as provided in subparagraph (B), the Federal share
of an assistance grant provided under paragraph (1) shall be determined by the
Administrator in accordance with guidance issued by the Administrator.
(B)Chesapeake basin
stewardship grants programThe Federal share of an assistance
grant provided under paragraph (1) to carry out an implementing activity under
subsection (h)(2) shall not exceed 75 percent of eligible project costs, as
determined by the Administrator.
(3)An assistance grant under paragraph (1) shall be provided
on the condition that non-Federal sources provide the remainder of eligible
project costs, as determined by the Administrator.
(4)Nutrient trading
guarantee pilot programThe project manager of the Chesapeake
nutrient trading guarantee program established under subsection (e)(1)(D) shall
be eligible to receive technical assistance or technical assistance grants
under this subsection.
(e)Implementation,
monitoring, and centers of excellence grants
(1)
(A)The Administrator shall make an implementation grant to
the Chesapeake Basin State, or a designee of a Chesapeake Basin State
(including a soil conservation district, nonprofit organization, local
government, institution of higher education, basin commission, or interstate
agency), for the purposes of implementing an approved watershed implementation
plan of the Chesapeake Basin State under subsection (i) and achieving the goals
established under the Chesapeake Bay Agreement, subject to such terms and
conditions as the Administrator considers to be appropriate.
(B)The Administrator may make a monitoring grant to—
(i)a Chesapeake Basin State,
designee of a Chesapeake Basin State, soil conservation district, nonprofit
organization, local government, institution of higher education, or basin
commission for the purpose of monitoring the ecosystem of freshwater
tributaries to the Chesapeake Bay; or
(ii)any of the States of
Delaware, Maryland, or Virginia (or a designee), the District of Columbia (or a
designee), nonprofit organization, local government, institution of higher
education, or interstate agency for the purpose of monitoring the Chesapeake
Bay, including the tidal waters of the Chesapeake Bay.
(C)Centers of excellence
grantsThe Administrator, in consultation with the Secretary of
Agriculture, may make grants to institutions of higher education, consortia of
such institutions, or public, non-affiliated nonprofit organizations for the
purpose of establishing and supporting centers of excellence for water quality
and agricultural practices—
(i)to develop new
technologies and innovative policies and practices for agricultural producers
to reduce nitrogen, phosphorous, and sediment pollution;
(ii)to quantify the expected
load reductions of those pollutants to be achieved in the Chesapeake Basin
through the implementation of current and newly developed technologies,
policies, and practices; and
(iii)to provide to the
Administrator and the Secretary recommendations for—
(I)the widespread deployment
of those technologies, policies, and practices among agricultural producers;
and
(II)the application of those
technologies, policies, and practices in Chesapeake Basin computer
models.
(D)Chesapeake nutrient
trading guarantee pilot program
(i)The Administrator, in consultation with the Chesapeake
Basin States and the Secretary of Agriculture, shall establish a Chesapeake
nutrient trading guarantee pilot program (referred to in this subparagraph as
the guarantee pilot program
) to support the interstate trading
program established under subsection (j)(6).
(ii)The
purposes of the guarantee pilot program are—
(I)to develop innovative
policies and practices to more efficiently and effectively implement best
management practices, primarily on agricultural land;
(II)to leverage public
funding to raise private capital to accelerate the restoration of the
Chesapeake Bay by providing a Federal guarantee on nutrient credit purchases;
and
(III)to support nutrient
trading throughout the Chesapeake Basin.
(iii)
(I)The Administrator shall designate a project manager to
carry out the guarantee pilot program.
(II)The
project manager shall be an institution of higher education, a nonprofit
organization, or a basin commission that—
- (aa)demonstrates thorough
knowledge and understanding of best management practices that result in
nutrient reductions in the Chesapeake Basin;
- (bb)demonstrates thorough
knowledge and understanding of the Chesapeake watershed computer model of the
Environmental Protection Agency;
- (cc)demonstrates thorough
knowledge and understanding of the relevant environmental regulations relating
to the Chesapeake Basin;
- (dd)has a demonstrated
history of discharging fiduciary responsibilities with transparency and in
accordance with all applicable accounting standards; and
- (ee)has relevant experience
with pollution offsets and transactions involving pollution offsets.
(III)
- (aa)The project manager shall provide guarantees to
purchasers of nutrient credits under the interstate trading program established
under subsection (j)(6).
- (bb)In carrying out the guarantee pilot program, the project
manager shall—
(AA)identify best management
practices that result in the greatest reduction in pollution levels;
(BB)establish offset metrics
for calculation, verification, and monitoring protocols in collaboration with
Federal and State programs;
(CC)manage and oversee
project verification and monitoring processes;
(DD)establish procedures
that minimize transaction costs and eliminate unnecessary or duplicative
administrative processes;
(EE)take ownership of the
nutrient reduction offsets from any private funding source for an activity
carried out under this subparagraph;
(FF)enter into agreements
with private funding sources that enable a private funding source, at the
conclusion of a project, to sell the verified nutrient reduction offset to the
program manager at an agreed upon price, or to sell the verified nutrient
reduction offsets; and
(GG)manage the Chesapeake
Nutrient Trading Guarantee Fund.
(iv)Credit purchaser
requirementsAs a condition of receiving a guarantee under this
subparagraph, a purchaser shall comply with—
(I)the regulations
promulgated by the Administrator under subsection (j)(6);
(II)any application
procedure that the Administrator, in consultation with the project manager,
determines to be necessary; and
(III)any other applicable
laws (including regulations).
(v)The
guarantee pilot program shall terminate on the date that is 5 years after the
date of the establishment of the interstate trading program under subsection
(j)(6).
(vi)
(I)The project manager shall—
- (aa)ensure public
transparency for all nutrient trading activities through a publicly available
trading registry; and
- (bb)submit an annual report
to the Administrator, the Committee on Environment and Public Works of the
Senate, and the Committee on Transportation and Infrastructure of the House of
Representatives.
(II)A
report under subclause (I)(bb) shall include a description of—
- (aa)the activities funded by
the guarantee pilot program;
- (bb)the nutrient reductions
achieved by each project carried out under the guarantee pilot program;
- (cc)the efficiency of each
project carried out under the guarantee pilot program, measured in pounds of
pollution reduced per dollar expended;
- (dd)the total quantity of
nitrogen, phosphorus, and sediment reduced; and
- (ee)the total amount of
private funds leveraged.
(E)Chesapeake Nutrient
Trading Guarantee Fund
(i)There is established in the Treasury of the United States a
fund to be known as the Chesapeake Nutrient Trading Guarantee
Fund
(referred to in this subparagraph as the Fund
), to
be administered by the Administrator, to be available for 5 years after the
date of the establishment of the interstate trading program under subsection
(j)(6) and subject to appropriation, for the purposes described in subparagraph
(D)(ii).
(ii)The Fund shall consist of such amounts as are appropriated
to the Fund under subsection (p)(2)(v).
(iii)Amounts
in the Fund may not be made available for any purpose other than a purpose
described in clause (i).
(iv)Subject
to clause (v), the Fund shall terminate on the date that is 5 years after the
date of establishment of the interstate trading program under subsection
(j)(6).
(v)On the termination of the Fund, the Administrator
shall—
(I)require the return of any
unobligated amounts in the Fund to the Secretary of the Treasury; or
(II)reauthorize the use of
the Fund for the purposes described in clause (i).
(vi)
(I)Not later than 60 days after the end of each fiscal year
beginning with the first fiscal year after the date of the establishment of the
interstate trading program under subsection (j)(6), the Administrator shall
submit to the Committee on Appropriations of the House of Representatives, the
Committee on Appropriations of the Senate, the Committee on Environment and
Public Works of the Senate, and the Committee on Transportation and
Infrastructure of the House of Representatives a report on the operation of the
Fund during the fiscal year.
(II)Each
report shall include, for the fiscal year covered by the report, the
following:
- (aa)A statement of the
amounts deposited in the Fund.
- (bb)A description of the
expenditures made from the Fund for the fiscal year, including the purpose of
the expenditures.
- (cc)Recommendations for
additional authorities to fulfill the purpose of the Fund.
- (dd)A statement of the
balance remaining in the Fund at the end of the fiscal year.
(2)
(A)Subject to subparagraph (C), in making implementation
grants to each of the Chesapeake Basin States for a fiscal year under this
subsection, the Administrator shall ensure that not less than—
(i)10 percent of the funds
available to make such grants are made to the States of Delaware, New York, and
West Virginia (or designees of those States); and
(ii)20 percent of the funds
available to make such grants are made to States (or designees of the States)
for the sole purpose of providing technical assistance to agricultural
producers and forest owners to access conservation programs and other resources
devoted to improvements in, and protection of, water quality in the Chesapeake
Bay and the tributaries of the Chesapeake Bay, in accordance with subparagraph
(B).
(B)A State (or designees of a State) may use any soil
conservation district, nonprofit organization, private sector vendor, or other
appropriately qualified provider to deliver technical assistance to
agricultural producers and forest owners under subparagraph (A)(ii).
(C)This paragraph shall not apply to any implementation grant
provided to the District of Columbia.
(3)
(A)
(i)A Chesapeake Basin State described in paragraph (1) may
apply for a grant under this subsection for a fiscal year by submitting to the
Administrator a comprehensive proposal to implement programs and achieve the
goals established under the Chesapeake Bay Agreement.
(ii)Implementation grant
contentsA proposal under clause (i) shall include—
(I)a description of the
proposed actions that the Chesapeake Basin State commits to take within a
specified time period, including 1 or more of actions that are designed—
- (aa)to achieve and maintain
all applicable water quality standards, including standards necessary to
support the aquatic living resources of the Chesapeake Bay and related
tributaries and to protect human health;
- (bb)to restore, enhance, and
protect the finfish, shellfish, waterfowl, and other living resources, habitats
of those species and resources, and ecological relationships to sustain all
fisheries and provide for a balanced ecosystem;
- (cc)to preserve, protect,
and restore those habitats and natural areas that are vital to the survival and
diversity of the living resources of the Chesapeake Bay and associated
rivers;
- (dd)to develop, promote, and
achieve sound land use practices that protect and restore watershed resources
and water quality, reduce or maintain reduced pollutant loadings for the
Chesapeake Bay and related tributaries, and restore and preserve aquatic living
resources;
- (ee)to promote individual
stewardship and assist individuals, community-based organizations, businesses,
local governments, and schools to undertake initiatives to achieve the goals
and commitments of the Chesapeake Bay Agreement; or
- (ff)to provide technical
assistance to agricultural producers, forest owners, and other eligible
entities, through technical infrastructure, including activities, processes,
tools, and agency functions needed to support delivery of technical services,
such as technical standards, resource inventories, training, data, technology,
monitoring, and effects analyses;
(II)except with respect to
any implementation grant proposal by the District of Columbia, a commitment to
dedicate not less than 20 percent of the grant funding for the Chesapeake Bay
under this subsection to support technical assistance for agricultural and
forest land or nutrient management practices that protect and restore watershed
resources and water quality, reduce or maintain reduced pollutant loadings for
the Chesapeake Bay and related tributaries, and restore and preserve aquatic
living resources; and
(III)the estimated cost of
the actions proposed to be taken during the year.
(B)
(i)An eligible entity described in paragraph (1)(B) may
apply for a grant under this subsection for a fiscal year by submitting to the
Administrator a comprehensive proposal to monitor freshwater or estuarine
ecosystems, including water quality.
(ii)Monitoring grant
contentsA proposal under this subparagraph shall include—
(I)a description of the
proposed monitoring system;
(II)certification by the
Chesapeake Basin Program Director that such a monitoring system includes such
parameters as the Chesapeake Basin Program Director determines to be necessary
to assess progress toward achieving the goals of the Chesapeake Clean Water and
Ecosystem Restoration Act; and
(III)the estimated cost of
the monitoring proposed to be conducted during the year.
(iii)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)The
Administrator shall—
(I)with regard to the
freshwater monitoring system, consult with the basin commissions, institutions
with expertise in clean water and agricultural policy and practices, and the
Chesapeake Basin States regarding the design and implementation of the
monitoring systems established under this subsection—
- (aa)giving particular
attention through fine scale instream and infield stream-edge and groundwater
analysis to the measurement of the water quality effectiveness of agricultural
conservation program implementation, including the Chesapeake Bay Watershed
Initiative under section 1240Q of the Food Security Act of 1985 (16 U.S.C.
3839bb–4); and
- (bb)analyzing the
effectiveness of stormwater pollution control and mitigation using green
infrastructure techniques in subwatersheds that have high levels of impervious
surfaces;
(II)with regard to the
estuarine monitoring system, consult with institutions of higher education with
expertise in estuarine systems and the Chesapeake Basin States regarding the
monitoring systems established under this subsection;
(III)consult with the
Chesapeake Basin Program Scientific and Technical Advisory Committee regarding
independent review of monitoring designs giving particular attention to
integrated freshwater and estuarine monitoring strategies; and
(IV)consult with Federal
departments and agencies, including the Department of Agriculture, regarding
cooperation in implementing monitoring programs.
(f)Federal facilities
coordination
(1)Subwatershed planning
and restorationA Federal agency that owns or operates a facility
(as defined by the Administrator) within the Chesapeake Basin shall participate
in regional and subwatershed planning and restoration programs.
(2)Compliance with
agreements and plansThe head of each Federal agency that owns or
occupies real property in the Chesapeake Basin shall ensure that the property,
and actions taken by the agency with respect to the property, comply
with—
(A)the Chesapeake Bay
Agreement;
(B)the Federal Agencies
Chesapeake Ecosystem Unified Plan;
(C)the Chesapeake Basin
action plan developed in accordance with subparagraph (g)(1)(A); and
(D)any subsequent agreements
and plans.
(3)Forest cover at Federal
facilitiesNot later than January 1, 2012, the Administrator,
with the advice of the Chief of the Forest Service and the appropriate
Chesapeake Basin State forester, shall coordinate with the head of each Federal
agency that owns or operates a facility within the Chesapeake Basin (as
determined by the Administrator) to develop plans to maximize forest cover at
the facility through—
(A)the preservation of
existing forest cover; or
(B)with respect to a
facility that has been previously disturbed or developed, the development of a
reforestation plan.
(g)Federal annual action
plan and progress reportThe Administrator, in accordance with
Executive Order 13508 entitled Chesapeake Bay Protection and
Restoration
and signed on May 12, 2009 (74 Fed. Reg. 23099),
shall—
(1)make available to the
public, not later than March 31 of each year—
(A)a Chesapeake Basin action
plan describing, in the greatest practicable degree of detail, how Federal
funding proposed in the annual budget of the United States submitted by the
President to Congress will be used to protect and restore the Chesapeake Bay
during the upcoming fiscal year;
(B)an annual progress report
that—
(i)assesses the key
ecological attributes that reflect the health of the Chesapeake Basin
ecosystem;
(ii)reviews indicators of
environmental conditions in the Chesapeake Bay;
(iii)distinguishes between
the health of the Chesapeake Basin ecosystem and the results of management
measures;
(iv)assesses implementation
of the action plan during the preceding fiscal year;
(v)recommends steps to
improve progress in restoring and protecting the Chesapeake Bay and
tributaries; and
(vi)describes how Federal
funding and actions will be coordinated with the actions of States, basin
commissions, and others; and
(C)an annual report,
detailed at the State and sector level where applicable, submitted by the
Administrator to the Chesapeake Basin States and the public on specific
recently completed, pending, or proposed regulations, guidance documents,
permitting requirements, enforcement actions, and other activities carried out
in accordance with the Executive Order, including actions relating to the
Chesapeake Bay TMDL and State watershed implementation plans.
(2)create and maintain, with
the concurrence of the Secretary of Agriculture, a Chesapeake Basin-wide
database containing comprehensive data on implementation of agricultural
conservation management practices in the Chesapeake Basin that—
(A)includes conservation
management practice implementation data, including, to the maximum extent
feasible, all publicly and privately funded conservation practices, as of the
effective date of the Chesapeake Clean Water and Ecosystem Restoration
Act;
(B)includes data on
subsequent conservation management practice implementation projects funded by,
or reported to, the Department of Agriculture, the appropriate department of
any Chesapeake Basin State, a local soil and water conservation district, or
any similar institution;
(C)except with respect to
data associated with a permit or recorded in the trading registry, as provided
in subsection (j)(6)(B)(viii), presents the required data to the Administrator
in statistical or aggregate form without identifying any—
(i)individual owner,
operator, or producer; or
(ii)specific data gathering
site;
(D)is made available to the
public not later than December 31, 2010; and
(E)is updated not less
frequently than once every 2 years.
(h)
(1)The Administrator, in coordination with other members
of the Chesapeake Executive Council, shall ensure that management plans are
developed and implemented by Chesapeake Basin States to achieve and
maintain—
(A)for each of the
Chesapeake Basin States—
(i)the sediment and nutrient
goals of the Chesapeake Bay Agreement for the quantity of sediment, nitrogen,
and phosphorus entering the Chesapeake Bay and the tidal tributaries of the
Chesapeake Bay; and
(ii)the water quality
requirements necessary to restore living resources in the Chesapeake Bay and
the tidal tributaries of the Chesapeake Bay; and
(B)for the signatory
States—
(i)the Chesapeake Bay
Basinwide Toxins Reduction and Prevention Strategy goal of reducing or
eliminating the input of chemical contaminants from all controllable sources to
levels that result in no toxic or bioaccumulative impact on the living
resources of the Chesapeake Basin ecosystem or on human health;
(ii)habitat restoration,
protection, creation, and enhancement goals established by Chesapeake Bay
Agreement for wetland, riparian forests, and other types of habitat associated
with the Chesapeake Basin ecosystem; and
(iii)the restoration,
protection, creation, and enhancement goals established by the Chesapeake Bay
Agreement for living resources associated with the Chesapeake Basin
ecosystem.
(2)Chesapeake basin
stewardship grants programThe Administrator, in cooperation with the
Chesapeake Executive Council, shall—
(A)establish a Chesapeake
Basin Stewardship Grants Program; and
(B)in carrying out that
program—
(i)offer technical
assistance and assistance grants under subsection (d) to States (or designees
of States), local governments, soil conservation districts, institutions of
higher education, nonprofit organizations, basin commissions, and private
entities in the Chesapeake Basin region to implement—
(I)cooperative watershed
strategies that address the water quality, habitat, and living resource needs
in the Chesapeake Basin;
(II)locally based protection
and restoration programs or projects within a watershed that complement the
State watershed implementation plans, including the creation, restoration, or
enhancement of habitat associated with the Chesapeake Basin ecosystem;
(III)activities for
increased spawning and other habitat for migratory fish by removing barriers or
constructing fish passage devices, restoring streams with high habitat
potential for cold water fisheries such as native brook trout, or other habitat
enhancements for fish and waterfowl;
(IV)activities for increased
recreational access to the Chesapeake Bay and the tidal rivers and freshwater
tributaries of the Chesapeake Bay; and
(V)innovative nitrogen,
phosphorus, or sediment reduction efforts; and
(ii)give preference to
cooperative projects that involve local governments, soil conservation
districts, and sportsmen associations, especially cooperative projects that
involve public-private partnerships.
(i)
(1)Watershed
implementation plans
(A)
(i)Not later than November 1, 2011, each Chesapeake Basin
State, after providing for reasonable notice and 1 or more public meetings, may
submit to the Administrator for approval a watershed implementation plan for
the Chesapeake Basin State.
(ii)The
watershed implementation plan shall establish reduction targets, key actions,
and schedules for reducing, to levels that will attain water quality standards,
the loads of nitrogen, phosphorus, and sediment, including pollution
from—
(I)point sources, including
point source stormwater discharges; and
(II)nonpoint sources.
(iii)
(I)The pollution limitations shall be the nitrogen,
phosphorus, and sediment load and wasteload allocations sufficient to meet
Chesapeake Bay and Chesapeake Bay tidal segment water quality standards.
(II)A
watershed implementation plan shall be designed to attain, at a minimum, the
pollution limitations described in subclause (I).
(iv)Each watershed implementation plan shall—
(I)include State-adopted
management measures, including rules or regulations, permits, consent decrees,
and other enforceable or otherwise binding measures, to require and achieve
reductions from point and nonpoint pollution sources;
(II)include programs to
achieve voluntary reductions from pollution sources, including an estimate of
the funding commitments necessary to implement the programs and a plan for
working to secure the funding;
(III)include any additional
requirements or actions that the Chesapeake Basin State determines to be
necessary to attain the pollution limitations by the deadline established in
this paragraph;
(IV)provide for enforcement
mechanisms, including a penalty structure for failures, such as fees or
forfeiture of State funds, including Federal funds distributed or otherwise
awarded by the State to the extent the State is authorized to exercise
independent discretion in amounts of such distributions or awards, for use in
case a permittee, local jurisdictions, or any other party fails to adhere to
assigned pollutant limitations, implementation schedules, or permit
terms;
(V)include a schedule for
implementation that—
- (aa)is divided into 2-year
periods, along with computer modeling, or other appropriate analysis, to
demonstrate the projected reductions in nitrogen, phosphorus, and sediment
loads associated with each 2-year period; and
- (bb)demonstrates reasonable
additional progress toward achievement of the goals described in—
(AA)subclause (VIII)(aa);
and
(BB)clauses (i) and (ii) of
subparagraph (B);
(VI)include the stipulation
of alternate actions as contingencies;
(VII)account for how the
Chesapeake Basin State will address additional loadings from growth through
reserved allocations, offsets, planned future controls, implementation of new
technologies, or other actions;
(VIII)provide assurances
that—
- (aa)if compared to an
estimated 2008 baseline based on modeled loads, the initial plan shall be
designed to achieve, not later than May 31, 2017, at least 60 percent of the
nutrient and sediment reduction requirements described in clause
(iii)(I)(bb);
- (bb)the Chesapeake Basin
State will have adequate personnel and funding (or a plan to secure such
personnel or funding), and authority under State (and, as appropriate, local)
law to carry out the implementation plan, and is not prohibited by any
provision of Federal or State law from carrying out the implementation plan;
and
- (cc)to the extent that a
Chesapeake Basin State has relied on a local government for the implementation
of any plan provision, the Chesapeake Basin State has the responsibility for
ensuring adequate implementation of the provision;
(IX)include adequate
provisions for public participation; and
(X)upon the approval of the
Administrator, be made available to the public on the Internet.
(B)
(i)In implementing a watershed implementation plan, each
Chesapeake Basin State shall follow a strategy developed by the Administrator
for the implementation of adaptive management principles to ensure full
implementation of all plan elements by not later than May 12, 2025,
including—
(I)biennial evaluations of
State actions;
(II)progress made toward
implementation;
(III)determinations of
necessary modifications to future actions in order to achieve objectives
including achievement of water quality standards; and
(IV)appropriate provisions
to adapt to climate changes.
(ii)Not
later than May 12, 2025, each Chesapeake Basin State shall—
(I)fully implement the
watershed implementation plan of the State; and
(II)have in place all the
mechanisms outlined in the plan that are necessary to attain the applicable
pollutant limitations for nitrogen, phosphorus, and sediments.
(C)Not later than May 12, 2014, and biennially thereafter,
each Chesapeake Basin State shall submit to the Administrator a progress report
that, with respect to the 2-year period covered by the report—
(i)includes a listing of all
management measures that were to be implemented in accordance with the approved
watershed implementation plan of the Chesapeake Basin State, including a
description of the extent to which those measures have been fully
implemented;
(ii)includes a listing of
all the management measures described in clause (i) that the Chesapeake Basin
State has failed to fully implement in accordance with the approved watershed
implementation plan of the Chesapeake Basin State;
(iii)includes monitored and
collected water quality data;
(iv)includes appropriate
computer modeling data or other appropriate analyses that detail the nitrogen,
phosphorus, and sediment load reductions projected to be achieved as a result
of the implementation of the management measures and mechanisms carried out by
the Chesapeake Basin State;
(v)demonstrates reasonable
additional progress made by the State toward achievement of the requirements
and deadlines described in subparagraph (A)(iv)(VIII)(aa) and clauses (i) and
(ii) of subparagraph (B);
(vi)includes, for the
subsequent 2-year period, implementation goals and Chesapeake Basin Program
computer modeling data detailing the projected pollution reductions to be
achieved if the Chesapeake Basin State fully implements the subsequent round of
management measures;
(vii)identifies compliance
information, including violations, actions taken by the Chesapeake Basin State
to address the violations, and dates, if any, on which compliance was achieved;
and
(viii)specifies any
revisions to the watershed implementation plan submitted under this paragraph
that the Chesapeake Basin State determines are necessary to attain the
applicable pollutant limitations for nitrogen, phosphorus, and
sediments.
(2)
(A)Notwithstanding any other provision of this Act
(including any exclusion or exception contained in a definition under section
502) and in accordance with State laws (including regulations), after providing
appropriate opportunities for public comment, for the purpose of achieving the
nitrogen, phosphorus, and sediment reductions required under a watershed
implementation plan, a Chesapeake Basin State, or, if the State is not
authorized to administer the permit program under section 402, the
Administrator, may impose limitations or other controls, including permit
requirements, on any discharge or runoff from a pollution source, including
point and nonpoint sources, located within the Chesapeake Basin State that the
program administrator determines to be necessary.
(B)The
Chesapeake Basin States and the Administrator shall enforce any permits issued
in accordance with the watershed implementation plan in the same manner as
permits issued under section 402 are enforced.
(C)Additional enforcement
standardsNo Federal enforcement action shall be brought pursuant
to section 309 against an agricultural producer that is in compliance with all
of the applicable planning and scheduled implementation requirements of the
following, as required by Federal, State, or other locally-applicable law and
consistent with an approved State watershed implementation plan:
(i)State permits issued
pursuant to section 402.
(ii)A soil conservation plan
approved by the Federal Government or a State or local government, soil
conservation district, or other applicable agency.
(iii)A government-approved
nutrient management plan.
(iv)A State or locally
approved erosion and sediment control plan.
(v)Any other applicable
requirement described in an approved State watershed implementation
plan.
(D)The Administrator (with respect to the District of
Columbia) or a Chesapeake Basin State that is authorized to administer a permit
program under section 402, after consultation with stakeholders (including
wastewater utilities, municipalities, developers, agricultural producers,
institutions of higher education, and other interested parties) shall establish
de minimis exemptions for permits issued under this paragraph.
(3)
(A)Effective beginning January 1, 2013, the Chesapeake Basin
State shall provide assurances to the Administrator that—
(i)the owner or operator of
any development or redevelopment project possessing an impervious footprint
that exceeds a threshold to be determined by the Administrator through
rulemaking, will use site planning, design, construction, and maintenance
strategies for the property to maintain or restore, to the maximum extent
technically feasible, the predevelopment hydrology of the property with regard
to the temperature, rate, volume, and duration of flow, using onsite
infiltration, evapotranspiration, and reuse approaches, if feasible; and
(ii)as a further condition
of permitting such a development or redevelopment, the owner or operator of any
development or redevelopment project possessing an impervious footprint that
exceeds a threshold to be determined by the Administrator through rulemaking
will compensate for any unavoidable impacts to the predevelopment hydrology of
the property with regard to the temperature, rate, volume, and duration of
flow, such that—
(I)the compensation within
the affected subwatershed shall provide in-kind or out-of-kind mitigation of
function at ratios to be determined by the Administrator through
rulemaking;
(II)the compensation outside
the affected subwatershed shall provide in-kind or out-of-kind mitigation, at
ratios to be determined by the Administrator through rulemaking, within the
tributary watershed in which the project is located; and
(III)if mitigation of
unavoidable impacts is not feasible, the Administrator may approve stringent
fee-in-lieu systems.
(B)
(i)Not later than May 12, 2011, the Administrator shall
promulgate regulations that—
(I)define the term
predevelopment hydrology for purposes of subparagraph (A);
(II)establish the thresholds
under subparagraph (A);
(III)establish the
compensation ratios under items (I) and (II) of subparagraph (A)(ii);
and
(IV)establish the
fee-in-lieu systems under subparagraph (A)(ii)(III).
(ii)In
developing the regulations under clause (i), including establishing minimum
standards for new development and redevelopment, the Administrator shall take
into consideration, based on an evaluation of field science and practice,
factors such as—
(I)the benefit to—
- (aa)overall watershed
protection and restoration of redevelopment of brownfields or other previously
developed or disturbed sites; and
- (bb)water quality
improvement through lot-level stormwater management.
(iii)Treatment of pending
stormwater permitsIn consultation with the Chesapeake Basin
States and interested stakeholders, and taking into consideration any
compliance schedules developed by any Chesapeake Basin State prior to June 30,
2010, the Administrator shall develop guidance regarding the treatment of
pending stormwater permits for the Chesapeake Basin States.
(C)Failure to provide
assurancesIf a Chesapeake Basin State that submits a Watershed
Implementation Plan under this subsection fails to provide the assurances
required under subparagraph (A), effective beginning on May 12, 2013, the
Administrator may withhold funds otherwise available to the Chesapeake Basin
State under this Act, in accordance with subparagraphs (A) and (B) of
subsection (j)(5).
(4)
(A)Phosphorus in cleaning
agentsEach Chesapeake Basin State shall provide to the
Administrator, not later than 3 years after the date of enactment of the
Chesapeake Clean Water and Ecosystem Restoration Act, assurances that within
the jurisdiction, except as provided in subparagraph (B), a person may not use,
sell, manufacture, or distribute for use or sale any cleaning agent that
contains more than 0.0 percent phosphorus by weight, expressed as elemental
phosphorus, except for a quantity not exceeding 0.5 percent phosphorus that is
incidental to the manufacture of the cleaning agent.
(B)Prohibited quantities
of phosphorusEach Chesapeake Basin State shall provide to the
Administrator, not later than 3 years after the date of enactment of the
Chesapeake Clean Water and Ecosystem Restoration Act, assurances that, within
the jurisdiction, a person may use, sell, manufacture, or distribute for use or
sale a cleaning agent that contains greater than 0.0 percent phosphorus by
weight, but does not exceed 8.7 percent phosphorus by weight, if the cleaning
agent is a substance that the Administrator, by regulation, excludes from the
limitation under subparagraph (A), based on a finding that compliance with that
subparagraph would—
(i)create a significant
hardship on the users of the cleaning agent; or
(ii)be unreasonable because
of the lack of an adequate substitute cleaning agent.
(C)Failure to provide
assurancesIf a Chesapeake Basin State that submits a Watershed
Implementation Plan under this subsection fails to provide the necessary
assurances under subparagraphs (A) and (B) by not later than 3 years after the
date of enactment of the Chesapeake Clean Water and Ecosystem Restoration Act,
the Administrator may withhold funds otherwise available to the Chesapeake
Basin State under this Act, in accordance with subparagraphs (A) and (B) of
subsection (j)(5).
(j)
(1)Not later than 60 days after the date of enactment of the
Chesapeake Clean Water and Ecosystem Restoration Act, the Administrator shall
establish any minimum criteria that the Administrator determines to be
necessary that any proposed watershed implementation plan must meet before the
Administrator may approve such a plan.
(2)
(A)Not later than 60 days after the date on which the
Administrator receives a new or revised proposed watershed implementation plan
from a Chesapeake Basin State, the Administrator shall make a completeness
determination based on whether the minimum criteria for the plan established
under paragraph (1) have been met.
(B)Effect of finding of
incompletenessIf the Administrator determines under subparagraph
(A) that all or any portion of a submitted watershed implementation plan does
not meet the minimum completeness criteria established under paragraph (1), the
Chesapeake Basin State submitting the plan shall be treated as not having made
the submission.
(3)
(A)Not
later than 90 days after determining that a watershed implementation plan meets
minimum completeness criteria in accordance with paragraph (2)(A), the
Administrator shall approve or disapprove the plan.
(B)Full and partial
approval and disapprovalIn carrying out this paragraph, the
Administrator shall—
(i)approve a watershed
implementation plan if the Administrator determines that the plan meets all
applicable requirements under subsection (i)(1); and
(ii)approve the plan in part
and disapprove the plan in part if only a portion of the watershed
implementation plan meets those requirements.
(C)The Administrator shall—
(i)conditionally approve the
original or a revised watershed implementation plan based on a commitment of
the Chesapeake Basin State submitting the plan to adopt specific enforceable
management measures by not later than 1 year after the date of approval of the
plan revision; but
(ii)treat a conditional
approval as a disapproval under this paragraph if the Chesapeake Basin State
fails to comply with the commitment of the Chesapeake Basin State.
(D)In reviewing watershed implementation plans for approval
or disapproval, the Administrator shall—
(i)limit the scope of the
review to the adequacy of the plan to attain water quality standards;
and
(ii)not impose, as a
condition of approval, any additional requirements.
(E)An original or revised watershed implementation plan
shall not be treated as meeting the requirements of this section until the
Administrator approves the entire original or revised plan.
(F)In
any case in which the Administrator determines that the action of the
Administrator approving, disapproving, or conditionally approving any original
or revised State watershed implementation plan was in error, the Administrator
shall—
(i)in the same manner as the
approval, disapproval, conditional approval, or promulgation, revise the action
of the Administrator, as appropriate, without requiring any further submission
from the Chesapeake Basin State; and
(ii)make the determination
of the Administrator, and the basis for that determination, available to the
public.
(G)The provisions of a State watershed implementation plan
shall take effect upon the date of approval of the plan.
(4)In any case in which the Administrator determines that
watershed implementation plan for any area is inadequate to attain or maintain
applicable pollution limitations, the Administrator—
(A)shall notify the
Chesapeake Basin State of, and require the Chesapeake Basin State to revise the
plan to correct the inadequacies;
(B)may establish reasonable
deadlines (not to exceed 180 days after the date on which the Administrator
provides the notification) for the submission of a revised watershed
implementation plan;
(C)shall make the findings
of the Administrator under paragraph (3) and notice provided under subparagraph
(A) public;
(D)shall require as an
element of any revised plan by the Chesapeake Basin State that the State adhere
to the requirements applicable under the original watershed implementation
plan, except that the Administrator may adjust any dates (other than attainment
dates) applicable under those requirements, as appropriate; and
(E)shall disapprove any
revised plan submitted by a Chesapeake Basin State that fails to adhere to the
requirements described in subparagraph (D).
(5)If a Chesapeake Basin State that has submitted a
watershed implementation plan under (1)(A)(i) fails to submit a required
revised watershed implementation plan, submit a biennial report, correct a
previously missed 2-year commitment made in a watershed implementation plan, or
remedy a disapproval of a watershed implementation plan, the Administrator
shall, by not later than 30 days after the date of the failure and after
issuing a notice to the State and providing a period of not less than 1 year
during which the failure may be corrected—
(A)notwithstanding sections
601(a) and 603(g), reserve up to 75 percent of the amount of the capitalization
grant to the Chesapeake Basin State for a water pollution control revolving
fund under section 603 for activities that are—
(i)selected by the
Administrator; and
(ii)consistent with the
watershed implementation plans described in subparagraphs (B) and (C);
(B)withhold all funds
otherwise available to the Chesapeake Basin State (or a designee) under this
Act, except for the funds available under title VI;
(C)develop and administer a
watershed implementation plan for the Chesapeake Basin State until the
Chesapeake Basin State has remedied the plan, reports, or achievements to the
satisfaction of the Administrator;
(D)in addition to requiring
compliance with all other statutory and regulatory requirements, require that
all permits issued under section 402 for new or expanding discharges of
nitrogen, phosphorus, or sediment shall acquire offsets that exceed, by a ratio
to be determined by the Administrator through rulemaking, the quantities of
nitrogen, phosphorus, or sediment that would be discharged under the permit,
taking into account attenuation, equivalency, and uncertainty; and
(E)for the purposes of
developing and implementing a watershed implementation plan under subparagraph
(C)—
(i)continue all applicable
requirements for nonpoint sources included as part of the most recently
approved watershed implementation plan of the Chesapeake Basin State;
(ii)issue such permits to
point sources as the Administrator determines to be necessary to control
pollution sufficient to meet the pollution reductions required to meet
applicable water quality standards;
(iii)enforce such nonpoint
source requirements in the same manner and with the same stringency as required
under most recently approved watershed implementation plan of the Chesapeake
Basin State; and
(iv)enforce such point
source permits in the same manner as other permits issued under section 402 are
enforced.
(6)Nitrogen, phosphorus,
and sediment trading programs
(A)Not
later than May 12, 2012, the Administrator, in cooperation with each Chesapeake
Basin State, shall establish, by regulation, an interstate nitrogen and
phosphorus trading program for the Chesapeake Basin for the generation,
trading, and use of nitrogen and phosphorus credits to facilitate the
attainment and maintenance of water quality standards in the Chesapeake Bay and
the Chesapeake Bay tidal segments.
(B)The trading program established under this subsection
shall, at a minimum—
(i)define and standardize
nitrogen and phosphorus credits and establish procedures or standards for
ensuring equivalent water quality benefits for all credits;
(ii)establish procedures or
standards for certifying, verifying, and enforcing nitrogen and phosphorus
credits to ensure that credit-generating practices from both point sources and
nonpoint sources are achieving actual reductions in nitrogen and phosphorus,
including provisions for allowing the use of third parties to verify and
certify credits sold within and across State lines;
(iii)establish procedures or
standards for generating, quantifying, trading, and applying credits to meet
regulatory requirements and allow for trading to occur between and across point
source or nonpoint sources, including a requirement that purchasers of credits
that propose to satisfy all or part of the obligation to reduce nitrogen and
phosphorus through the use of credits shall compensate, through further
limitations on the discharges of the purchaser or through a new trade, for any
deficiency in those reductions that results from the failure of a credit seller
to carry out any activity that was to generate the credits;
(iv)establish baseline
requirements that a credit seller shall meet before becoming eligible to
generate saleable credits, which shall be at least as stringent as applicable
water quality standards, total maximum daily loads (including applicable
wasteload and load allocations), and watershed implementation plans;
(v)ensure that credits and
trade requirements are incorporated, directly or by reference, into enforceable
permit requirements under the national pollutant discharge elimination system
established under section 402 or the system of the applicable State permitting
authority for all credit purchasers covered by the permits;
(vi)ensure that private
contracts between credit buyers and credit sellers contain adequate provisions
to ensure enforceability under applicable law;
(vii)establish procedures or
standards to ensure public transparency for all nutrient trading activities,
including the establishment of a publicly available trading registry, which
shall include—
(I)the information used in
the certification and verification process; and
(II)recorded trading
transactions (such as the establishment, sale, amounts, and use of
credits);
(viii)in addition to
requiring compliance with all other statutory and regulatory requirements,
ensure that, in any case in which a segment of the Chesapeake Basin is impaired
with respect to the nutrient being traded and a total maximum daily load for
that segment has not yet been implemented for the impairment—
(I)trades are required to
result in progress toward or the attainment of water quality standards in that
segment; and
(II)sources in that segment
may not rely on credits produced outside of the segment;
(ix)require that the
application of credits to meet regulatory requirements under this section not
cause or contribute to exceedances of water quality standards, total maximum
daily loads, or wasteload or load allocations for affected receiving waters,
including avoidance of localized impacts;
(x)except as part of a
consent agreement, consent judgment, or enforcement order, prohibit the
purchase of credits from any entity that is in significant noncompliance with
an enforceable permit issued under section 402;
(xi)consider and
incorporate, to the extent consistent with the minimum requirements of this
Act, as determined by the Administrator, in consultation with the Secretary of
Agriculture, elements of State trading programs in existence on the date of
enactment of the Chesapeake Clean Water and Ecosystem Restoration Act;
(xii)allow for, as
appropriate, the aggregation and banking of credits by third parties;
and
(xiii)provide for
appropriate temporal consistency between the time period during which the
credit is generated and the time period during which the credit is used.
(C)In order to attract market participants and facilitate
the cost-effective achievement of water-quality goals, the Administrator, in
consultation with the Secretary of Agriculture, shall ensure that the trading
program established under this paragraph—
(i)includes measures to
mitigate credit buyer risk;
(ii)makes use of the best
available science in order to minimize uncertainty and related transaction
costs to traders by supporting research and other activities that increase the
scientific understanding of nonpoint nutrient pollutant loading and the ability
of various structural and nonstructural alternatives to reduce the
loads;
(iii)eliminates unnecessary
or duplicative administrative processes; and
(iv)incorporates a
permitting approach under the national pollutant discharge elimination system
established under section 402 that—
(I)allows trading to occur
without requiring the reopening or reissuance of the base permits to
incorporate individual trades; and
(II)incorporates any such
trades, directly through a permit amendment or addendum, or indirectly by any
appropriate mechanism, as enforceable terms of those permits on approval of the
credit purchase by the permitting authority, in accordance with the
requirements of the Chesapeake Basin Program, this Act, and regulations
promulgated pursuant to this Act.
(D)
(i)Not later than 180 days after the date of enactment of
the Chesapeake Clean Water and Ecosystem Restoration Act, the Administrator, in
consultation with the Secretary of Agriculture, shall convene a task force, to
be composed of representatives from the Chesapeake Basin States and public and
private entities—
(I)to identify any
scientific, technical, or other issues that would hinder the rapid deployment
of an interstate sediment trading program; and
(II)to provide to the
Administrator recommendations to overcome any of the obstacles to rapid
deployment of such a trading system.
(ii)Interstate sediment
trading program
(I)Based
on the recommendations of the task force established under clause (i), the
Administrator, in cooperation with each Chesapeake Basin State, shall establish
an interstate sediment trading program for the Chesapeake Basin for the
generation, trading, and use of sediment credits to facilitate the attainment
and maintenance water quality standards in the Chesapeake Bay and the
Chesapeake Bay tidal segments.
(II)The
interstate sediment trading program established under subclause (I) shall
include, at a minimum, definitions, procedures, standards, requirements,
assurances, allowances, prohibitions, and evaluations comparable to the
interstate nitrogen and phosphorus trading program established under
subparagraph (A).
(III)Upon
a finding of the Administrator, based on the recommendation of the task force
established under clause (i), that such a sediment trading program would
substantially advance the achievement of Bay water quality objectives and would
be feasible, the interstate trading program under this clause shall be
established by the later of—
- (aa)May 12, 2014; and
- (bb)the date on which each
issue described in clause (i) can be feasibly overcome.
(E)
(i)Not
less frequently than once every 5 years after the date of establishment of the
interstate nitrogen and phosphorus trading program under this paragraph, the
Administrator shall submit to Congress a report describing the results of the
program with respect to enforceability, transparency, achievement of water
quality results, and whether the program has resulted in any localized water
pollution problem.
(ii)Based
on the reports under clause (i), the Administrator shall make improvements to
the trading program under this paragraph to ensure achievement of the
environmental and programmatic objectives of the program.
(F)Effect on other trading
systemsNothing in this paragraph affects the ability of a State
to establish or implement an applicable intrastate trading program.
(7)Authority relating to
developmentThe Administrator shall—
(A)establish, for projects
resulting in impervious development, guidance relating to site planning,
design, construction, and maintenance strategies to ensure that the land
maintains predevelopment hydrology with regard to the temperature, rate,
volume, and duration of flow;
(B)compile a database of
best management practices, model stormwater ordinances, and guidelines with
respect to the construction of low-impact development infrastructure and
nonstructural low-impact development techniques for use by States, local
governments, and private entities; and
(C)not later than 180 days
after promulgation of the regulations under subsection (i)(3)(B), issue
guidance, model ordinances, and guidelines to carry out this paragraph.
(8)Assistance with respect
to stormwater discharges
(A)The Administrator may provide grants to any local
government within the Chesapeake Basin that adopts the guidance, best
management practices, ordinances, and guidelines issued and compiled under
paragraph (7).
(B)A grant provided under subparagraph (A) may be used by a
local government to pay costs associated with—
(i)developing, implementing,
and enforcing the guidance, best management practices, ordinances, and
guidelines issued and compiled under paragraph (7); and
(ii)implementing projects
designed to reduce or beneficially reuse stormwater discharges.
(9)Consumer and commercial
product reportNot later than 3 years after the date of enactment
of the Chesapeake Clean Water and Ecosystem Restoration Act, the Administrator,
in consultation with the Chesapeake Executive Council, shall—
(A)review consumer and
commercial products (such as lawn fertilizer), the use of which may affect the
water quality of the Chesapeake Basin or associated tributaries, to determine
whether further product nutrient content restrictions are necessary to restore
or maintain water quality in the Chesapeake Basin and those tributaries;
and
(B)submit to the Committees
on Appropriations, Environment and Public Works, and Commerce, Science, and
Transportation of the Senate and the Committees on Appropriations, Natural
Resources, Energy and Commerce, and Transportation and Infrastructure of the
House of Representatives a product nutrient report detailing the findings of
the review under subparagraph (A).
(10)Agricultural
animal waste-to-bioenergy deployment program
(A)In
this paragraph:
(i)Agricultural animal
wasteThe term agricultural animal waste means
manure from livestock, poultry, or aquaculture.
(ii)The term eligible technology means a
technology that converts or proposes to convert agricultural animal waste
into—
(I)heat;
(II)power; or
(III)biofuels.
(B)The Administrator, in coordination with the Secretary of
Agriculture, may provide grants to any person or partnership of persons for the
purpose of carrying out projects to deploy an eligible technology in
agricultural animal waste-to-bioenergy treatment that has significant potential
to reduce agricultural animal waste volume, recover nutrients, improve water
quality, decrease pollution potential, and recover energy.
(C)
(i)In selecting applicants for grants under this paragraph,
the Administrator shall select projects that—
(I)reduce—
- (aa)impacts of agricultural
animal waste on surface and groundwater quality;
- (bb)emissions to the ambient
air; and
- (cc)the release of pathogens
and other contaminants to the environment; and
(II)quantify—
- (aa)the degree of waste
stabilization to be realized by the project; and
- (bb)nutrient reduction
credits that could contribute to the nitrogen and phosphorus trading program
for the Chesapeake Basin under this subsection.
(ii)The
Administrator shall prioritize projects based on—
(I)the level of nutrient
reduction achieved;
(II)geographic diversity
among the Chesapeake Basin States; and
(III)differing types of
agricultural animal waste.
(D)The amount of a grant awarded under this paragraph shall
not exceed 50 percent of the cost of the project to be carried out using funds
from the grant.
(k)Prohibition on
Introduction of Asian OystersNot later than 2 years after the
date of enactment of the Chesapeake Clean Water and Ecosystem Restoration Act,
the Administrator shall promulgate regulations—
(1)to designate the Asian
oyster as a biological pollutant
in the Chesapeake Bay and tidal
waters pursuant to section 502;
(2)to prohibit the issuance
of permits under sections 402 and 404 for the discharge of the Asian oyster
into the Chesapeake Bay and Chesapeake Bay tidal segments; and
(3)to specify conditions
under which scientific research on Asian oysters may be conducted within the
Chesapeake Bay and Chesapeake Bay tidal segments.
(l)Chesapeake nutria
eradication program
(1)Subject to the availability of appropriations, the
Secretary of the Interior (referred to in this subsection as the
Secretary
), may provide financial assistance to the States of
Delaware, Maryland, and Virginia to carry out a program to implement
measures—
(A)to eradicate or control
nutria; and
(B)to restore marshland
damaged by nutria.
(2)The
continuing goals of the program shall be—
(A)to eradicate nutria in
the Chesapeake Basin ecosystem; and
(B)to restore marshland
damaged by nutria.
(3)In
the States of Delaware, Maryland, and Virginia, the Secretary shall require
that the program under this subsection consist of management, research, and
public education activities carried out in accordance with the document
published by the United States Fish and Wildlife Service entitled
Eradication Strategies for Nutria in the Chesapeake and Delaware Bay
Watersheds
, dated March 2002, or any updates to the document.
(m)Review of studies on
the impacts of menhaden on the water quality of the chesapeake bay
(1)The Administrator, in cooperation and consultation with
the Administrator of the National Oceanic and Atmospheric Administration,
shall—
(A)prepare a report that
reviews and summarizes existing, peer reviewed research relating to the impacts
of menhaden on water quality, including the role of menhaden as filter feeders
and the impacts on dissolved oxygen levels, nutrient levels, phytoplankton,
zooplankton, detritus, and similar issues by menhaden at various life
stages;
(B)identify important data
gaps or additional menhaden population studies, if any, relating to the impacts
of the menhaden population on water quality; and
(C)provide any
recommendations for additional research or study.
(2)Report and
recommendationsNot later than 5 years after the date of
enactment of the Chesapeake Clean Water and Ecosystem Restoration Act, the
Administrator shall submit the report and recommendations required in paragraph
(1) to—
(A)the Committee on
Commerce, Science, and Transportation and the Committee on Environment and
Public Works Committee of the Senate; and
(B)the Committee on Natural
Resources and the Committee on Transportation and Infrastructure Committee of
the House of Representatives.
(n)Effect on other
requirements
(1)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)
(A)Enforcement action by
AdministratorThe failure of a Chesapeake Basin State that
submits a watershed implementation plan under subsection (i) to submit a
biennial report, meet or correct a previously missed 2-year commitment made in
a watershed implementation plan, or implement a watershed implementation plan
or permit program under this section shall—
(i)constitute a violation of
this Act; and
(ii)subject the State to an
enforcement action by the Administrator.
(B)Enforcement action by
citizens
(i)The failure of a Chesapeake Basin State that submits a
watershed implementation plan under subsection (i) to meet or correct a
previously missed 2-year commitment made in a watershed implementation plan or
implement a watershed implementation plan or permit program under this section
shall subject the appropriate State officer to a civil action seeking
injunctive relief commenced by a citizen on behalf of the citizen.
(ii)Jurisdiction, venue,
notice, and litigation costs
(I)A citizen may commence a civil action on behalf of the
citizen against a State under clause (i), subject to the requirements for
notice, venue, and intervention described in subsections (b) and (c) of section
505 for a suit brought under section 505(a)(1)(A).
(II)Jurisdiction
over a suit brought under subclause (I) shall be the district courts, as
described in section 505(a).
(III)The court may award litigation costs for suit brought under
subclause (I), as described in section 505(d).
(iii)Nothing in this subsection affects the ability of a
citizen to bring an action for civil enforcement on behalf of the citizen under
section 505.
(o)
(1)The Inspectors General of the Environmental Protection
Agency and the Department of Agriculture shall jointly evaluate and submit to
Congress reports describing the implementation of this section not less
frequently than once every 3 years.
(2)
(A)The Administrator shall enter into a contract with the
National Academy of Sciences or the National Academy of Public Administration
under which the Academy shall conduct 2 reviews of the Chesapeake Basin
restoration efforts under this section.
(B)Each
review under subparagraph (A) shall include an assessment of—
(i)progress made toward
meeting the goals of this section;
(ii)efforts by Federal,
State, and local governments and the private sector in implementing this
section;
(iii)the methodologies
(including computer modeling) and data (including monitoring data) used to
support the implementation of this section; and
(iv)the economic impacts,
including—
(I)a comprehensive analysis
of the costs of compliance;
(II)the benefits of
restoration;
(III)the value of economic
losses avoided; and
(IV)a regional analysis of
items (I) through (III), by Chesapeake Basin State and by sector, to the
maximum extent practicable.
(C)The
National Academy of Sciences or the National Academy of Public Administration
shall submit to the Administrator a report describing the results of the
reviews under this paragraph, together with recommendations regarding the
reviews (including any recommendations with respect to efforts of the
Environmental Protection Agency or any other Federal or State agency required
to implement applicable water quality standards in the Chesapeake Basin and
achieve those standards in the Chesapeake Bay and Chesapeake Bay tidal
segments), if any, by not later than—
(i)May 12, 2015, with
respect to the first review required under this paragraph; and
(ii)May 12, 2020, with
respect to the second review required under this paragraph.
(p)Authorization of
appropriations
(1)Chesapeake basin
program officeThere is authorized to be appropriated to the
Chesapeake Basin Program Office to carry out subsection (b)(2) $20,000,000 for
each of fiscal years 2010 through 2015.
(2)Implementation,
monitoring, and centers of excellence grants
(A)Authorization of
appropriationsIn addition to amounts authorized to be
appropriated or otherwise made available to carry out this section, there are
authorized to be appropriated to the Administrator—
(i)to carry out a program to
establish and support centers of excellence for water quality and agricultural
policies and practices under subsection (e)(1)(C), $10,000,000 for each of
fiscal years 2010 through 2015;
(ii)to provide
implementation grants under subsection (e)(3)(A), $80,000,000 for each of
fiscal years 2010 through 2015, to remain available until expended;
(iii)to carry out a
freshwater monitoring program under subsection (e)(3)(B), $5,000,000 for each
of fiscal years 2010 through 2015;
(iv)to carry out a
Chesapeake Bay and tidal water monitoring program under subsection (e)(3)(B),
$5,000,000 for each of fiscal years 2010 through 2015; and
(v)to carry out the
Chesapeake nutrient trading guarantee pilot program under subsection (e)(1)(D),
$20,000,000 for the period of fiscal years 2010 through 2015.
(B)The Federal share of the cost of a program carried out
using funds from a grant provided—
(i)under subparagraph
(A)(ii) shall not exceed—
(I)80 percent, with respect
to funds provided for the provision of technical assistance to agricultural
producers and forest owners; and
(II)with respect to all
other activities under that subparagraph—
- (aa)for the States
of Delaware, New York, and West Virginia, shall not exceed 75 percent;
and
- (bb)for the States
of Maryland, Pennsylvania, and Virginia and for the District of Columbia, shall
not exceed 50 percent; and
(ii)under clauses (i),
(iii), or (iv) of subparagraph (A) shall not exceed 80 percent.
(3)Chesapeake stewardship
grantsThere is authorized to be appropriated to carry out
subsection (h)(2) $15,000,000 for each of fiscal years 2010 through
2015.
(4)Storm water pollution
planning and implementation grants
(A)Authorization of
appropriationsIn 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)A
grant provided for a project under—
(i)subsection (j)(8)(B)(i)
may not be used to cover more than 80 percent of the cost of the project;
and
(ii)subsection (j)(8)(B)(ii)
may not be used to cover more than 75 percent of the cost of the
project.
(5)Nutria eradication
grants
(A)There is authorized to be appropriated to the Secretary
of the Interior to provide financial assistance in the Chesapeake Basin under
subsection (l) $4,000,000 for each of fiscal years 2010 through 2015.
(B)
(i)The Federal share of the cost of carrying out the program
under subsection (l) may not exceed 75 percent of the total costs of the
program.
(ii)The non-Federal share of the cost of carrying out
the program under subsection (l) may be provided in the form of in-kind
contributions of materials or services.
(6)Agricultural animal
waste-to-bioenergy deployment grantsThere is authorized to be
appropriated to carry out the agricultural animal waste-to-bioenergy deployment
program under subsection (j) $30,000,000 for the period of fiscal years 2010 to
2015, to remain available until expended.
(7)Limitation on
administrative costsNot more than 10 percent of the annual
amount of any grant provided by the Administrator or Secretary under any
program described in this subsection may be used for administrative
costs.
(8)Amounts
authorized to be appropriated under this subsection shall remain available
until expended.
(q)A
determination that any provisions of this section is invalid, illegal,
unenforceable, or in conflict with any other law shall not affect the validity,
legality, or enforceability of the remaining provisions of this
section.
.
4.Section 309 of the
Federal Water Pollution Control Act (33 U.S.C. 1319) is amended—
(1)in subsection (a)—
(A)in paragraph (1), in the
first sentence, by striking section 402
and inserting
section 117, 402,
;
(B)in paragraph (3), by
inserting section 117 or
before section
402
;
(2)in subsection (d), in the
first sentence, by inserting section 117 or
after a
permit issued under
; and
(3)in subsection (g)—
(A)in paragraph (1)(A), by
inserting section 117 or
before section 402
;
and
(B)in paragraph (7), by
striking section 402
and inserting section 117,
402,
.
5.Federal responsibility
to pay for stormwater programsSection 313 of the Federal Water Pollution
Control Act (33 U.S.C. 1323) is amended by adding at the end the
following:
(c)Reasonable service
chargesReasonable service charges described in subsection (a)
include any requirement to pay a reasonable fee, assessment, or charge imposed
by any State or local agency to defray or recover the cost of stormwater
management in the same manner and to the same extent as any nongovernmental
entity.
(d)No treatment as tax or
levyA fee, assessment, or charge described in this
section—
(1)shall not be considered
to be a tax or other levy subject to an assertion of sovereign immunity;
and
(2)may be paid using
appropriated
funds.
.
6.Relationship to national
estuary programSection 320(b)
of the Federal Water Pollution Control Act (33 U.S.C. 1330(b)) is amended in
the last sentence by inserting or section 117
after this
section
.
7.Separate appropriations
accountSection 1105(a) of
title 31, United States Code, is amended—
(1)by redesignating
paragraphs (35) and (36) as paragraphs (36) and (37), respectively;
(2)by redesignating the
second paragraph (33) (relating to obligational authority and outlays requested
for homeland security) as paragraph (35); and
(3)by adding at the end the
following:
(38)a separate statement for
the Chesapeake Nutrient Trading Guarantee Fund established under section
117(e)(1)(E) of the Federal Water Pollution Control Act (33 U.S.C.
1267(e)(1)(E))(as amended by the Chesapeake Clean Water and Ecosystem
Restoration Act), which shall include the estimated amount of deposits into the
Fund, obligations, and outlays from the
Fund.
.
September 28, 2010
Reported with an amendment