    [Senate Hearing 111-1216]
    [From the U.S. Government Publishing Office]

                                                           S. Hrg. 111-1216

      LEGISLATIVE HEARING ON GREAT WATER BODY LEGISLATION: S. 1816 AND S.
                                      1311

    =======================================================================

                                    HEARING

                                   before the

                       SUBCOMMITTEE ON WATER AND WILDLIFE

                                     of the

                                  COMMITTEE ON
                          ENVIRONMENT AND PUBLIC WORKS
                              UNITED STATES SENATE

                         ONE HUNDRED ELEVENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                NOVEMBER 9, 2009

                                   __________

      Printed for the use of the Committee on Environment and Public Works

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                   COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                         ONE HUNDRED ELEVENTH CONGRESS
                                 FIRST SESSION

                      BARBARA BOXER, California, Chairman
    MAX BAUCUS, Montana                  JAMES M. INHOFE, Oklahoma
    THOMAS R. CARPER, Delaware           GEORGE V. VOINOVICH, Ohio
    FRANK R. LAUTENBERG, New Jersey      DAVID VITTER, Louisiana
    BENJAMIN L. CARDIN, Maryland         JOHN BARRASSO, Wyoming
    BERNARD SANDERS, Vermont             MIKE CRAPO, Idaho
    AMY KLOBUCHAR, Minnesota             CHRISTOPHER S. BOND, Missouri
    SHELDON WHITEHOUSE, Rhode Island     LAMAR ALEXANDER, Tennessee
    TOM UDALL, New Mexico
    JEFF MERKLEY, Oregon
    KIRSTEN GILLIBRAND, New York
    ARLEN SPECTER, Pennsylvania

                        Bettina Poirier, Staff Director
                     Ruth Van Mark, Minority Staff Director
                                  ----------

                       Subcommittee on Water and Wildlife

                     BENJAMIN L. CARDIN, Maryland, Chairman
    FRANK R. LAUTENBERG, New Jersey      MIKE CRAPO, Idaho
    SHELDON WHITEHOUSE, Rhode Island     JOHN BARRASSO, Wyoming
    TOM UDALL, New Mexico                LAMAR ALEXANDER, Tennessee
    JEFF MERKLEY, Oregon                 JAMES M. INHOFE, Oklahoma (ex
    BARBARA BOXER, California (ex            officio)
        officio)

                                C O N T E N T S

                                  ----------
                                                                       Page

                                NOVEMBER 9, 2009
                               OPENING STATEMENTS

    Cardin, Hon. Benjamin L., U.S. Senator from the State of Maryland     1
    Crapo, Hon. Mike, U.S. Senator from the State of Idaho...........     4
    Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma,
      prepared statement.............................................     4
    Vitter, Hon. David, U.S. Senator from the State of Louisiana,
      prepared statement.............................................   208

                                   WITNESSES

    Fox, J. Charles, Special Assistant to the Administrator,
      Chesapeake Bay Program, U.S. Environmental Protection Agency...    37
        Prepared statement...........................................    40
        Responses to additional questions from:
            Senator Cardin...........................................    51
            Senator Inhofe...........................................    55
            Senator Vitter...........................................    61
    Griffith, Bryon, Director, Gulf of Mexico Program, U.S.
      Environmental Protection Agency................................    63
        Prepared statement...........................................    66
        Responses to additional questions from:
            Senator Cardin...........................................    72
            Senator Inhofe...........................................    77
            Senator Vitter...........................................    80
    Swanson, Ann, Executive Director, Chesapeake Bay Commission......   145
        Prepared statement...........................................   148
        Responses to additional questions from Senator Inhofe........   155
    Boesch, Donald F., President, University of Maryland Center for
      Environmental Science..........................................   162
        Prepared statement...........................................   164
        Responses to additional questions from:
            Senator Cardin...........................................   169
            Senator Inhofe...........................................   170
    Hughes, Peter, President, Red Barn Trading Company...............   174
        Prepared statement...........................................   176
        Responses to additional questions from Senator Inhofe........   183
    Bodine, Susan Parker, Partner, Barnes and Thornburg..............   186
        Prepared statement...........................................   188
        Responses to additional questions from Senator Inhofe........   199

      LEGISLATIVE HEARING ON GREAT WATER BODY LEGISLATION: S. 1816 AND S.
                                      1311

                                  ----------

                            MONDAY, NOVEMBER 9, 2009

                                   U.S. Senate,
             Committee on Environment and Public Works,
                            Subcommittee on Water and Wildlife,
                                                        Washington, DC.
        The subcommittee met, pursuant to notice, at 3 p.m. in room
    406, Dirksen Senate Office Building, Hon. Benjamin L. Cardin
    (chairman of the subcommittee) presiding.
        Present: Senators Cardin and Crapo.

             OPENING STATEMENT OF HON. BENJAMIN L. CARDIN,
                U.S. SENATOR FROM THE STATE OF MARYLAND

        Senator Cardin. Good afternoon, everyone. Welcome to the
    Subcommittee on Water and Wildlife of the Environment and
    Public Works Committee.
        I particularly want to thank Senator Crapo for his
    cooperation in scheduling a Monday hearing. It is not easy to
    schedule a hearing on Monday, and I appreciate his cooperation.
    At the time, we were unclear as to the ability of having
    hearings in the EPW Committee this time of the year, and we
    knew Monday was a time that would be available. And Senator
    Crapo cooperated with us, and I thank him very much for it.
        We really do have the opportunity today to talk about two
    of the most important bodies of water in our country, the
    Chesapeake Bay and the Gulf of Mexico. The Chesapeake Bay is
    the largest estuary in North America; 17 million people live in
    the Chesapeake Bay watershed, and it includes six States and
    the District of Columbia; 3,600 species of plants, animals and
    fish; 500 million pounds of seafood every year. It goes on and
    on and on. And I keep talking about the Bay because it is
    critically important to this region's history, to its culture,
    to its economy, and to its future.
        The Gulf of Mexico is the ninth largest body of water in
    the world; five U.S. States, six Mexican states and Cuba all
    are impacted by the Gulf of Mexico; 1,631 miles of coastline in
    the United States; 61 million people live in the region; $20
    billion in tourism industry every year; $29 billion in
    agricultural production. Clearly, it is a very important body
    of water for the economy of our Nation.
        Both bodies of water are in trouble. Sediment in nutrients
    such as nitrogen and phosphorus are flowing into both bodies of
    water. The overgrowth of algae creates oxygen starved dead
    zones. In the Chesapeake Bay, there are 7,000 square miles of
    dead zone. In the Gulf of Mexico, the dead zones equal the size
    of the State of New Jersey.
        It impacts the ability of the Bay and the Gulf to be
    productive bodies of water. In the Bay, we have seen the
    endangerment of the blue crab, which is so symbolic of our
    State, an icon of our seafood industry. And we know that we are
    in trouble because of these dead zones, which are creating a
    problem for juvenile crabs and the crab production. That is
    just one example. I could list many, many more.
        In the Gulf of Mexico, we know that wetlands are being
    destroyed at an alarming rate. Between 1998 and 2004, over
    400,000 acres of wetlands were destroyed. When the EPW
    Committee went to New Orleans, we had a chance to see firsthand
    the importance in the Gulf of Mexico of the wetlands. It acts
    as what they were called speed bumpers for storms that come in,
    and the loss of the wetlands puts the shoreline at much, much
    greater risk.
        Now, the sources of the problems comes from agriculture,
    from stormwater runoff, from wastewater treatment facility
    plants, and airborne. The Chesapeake Bay Program is a
    critically important part of trying to deal with a strategy to
    abate the increased pollution and to restore the Bay's quality.
    We have already had two oversight hearings. This is our third
    hearing on the Chesapeake Bay. The program itself was
    established by law 20 years ago in the Clean Water Act.
    President Obama as recently as May 12, 2009, declared the
    Chesapeake Bay a national treasure and ordered Federal agencies
    and departments to prepare and submit annual action plans.
        S. 1816, the Chesapeake Bay Water and Ecosystem Restoration
    Act, builds on that Executive Order establishing 2025 as the
    restoration deadline date. It is cosponsored by Senator Carper
    on our committee, and I am pleased also that Senators Mikulski
    and Kaufman have joined in this effort.
        It provides $1.5 billion in authorization to control urban
    and suburban stormwater runoff. Why that is important is that
    we have already provided substantial increased funds for
    agricultural activities in the farm bill and for the wastewater
    treatment facility plants in the President's budget, as well as
    the American Recovery and Reinvestment Act.
        The bill provides specific help for farmers and foresters,
    and 10 percent of the implementation grants are reserved for
    the States of Delaware, New York and West Virginia,
    acknowledging the importance of these States as it relates to
    the supplies of fresh water.
        The Gulf of Mexico Program was established in 1988 by the
    EPA as a non-regulatory office. There is no statutory authority
    for the Gulf of Mexico Program. Bills have been introduced in
    the past 15 years, I have been told, but this is the first
    hearing on the legislative support for the Gulf of Mexico
    Program.
        I point out that these are two major bodies of water, but
    there are other bodies of water that this committee is
    interested in. Puget Sound, Senator Cantwell has recently
    introduced legislation, and we certainly will be looking at
    Puget Sound from the point of view of the appropriate
    legislative authority for congressional action or for Federal
    action in this area. The Great Lakes, the largest bodies of
    fresh water in the world, clearly a great interest to this
    committee. Lake Tahoe, that borders California and Nevada,
    another body of water that this committee will take a look at.
        But today we will focus on the Chesapeake Bay and the Gulf
    of Mexico. We have our work cut out for us, and we have two
    panels of witnesses, Government experts, as well as people who
    have been working in this area for a long time, and we look
    forward to their testimonies.
        With that, let me turn it over to Senator Crapo.
        [The prepared statement of Senator Cardin follows:]

                     Statement of Hon. Benjamin L. Cardin,
                    U.S. Senator from the State of Maryland

        I want to thank our witnesses for coming before the Water
    and Wildlife subcommittee today to discuss the need to re-
    authorize the Chesapeake Bay Program and finally formally
    authorize the Gulf of Mexico Program.
        This subcommittee has held two oversight hearings on the
    Chesapeake Bay Program, where we heard from elected
    representatives, private citizens, and agency officials on the
    health of the Bay and the status of restoration efforts.
        Today's hearing will focus on expert views on legislation
    to help restore two great water bodies: the Chesapeake Bay and
    the Gulf of Mexico. We will hear from two panels of witnesses
    who will share their insight on how inter-agency and Federal-
    State partnerships in the Chesapeake Bay Program and Gulf of
    Mexico Program can help us restore and protect these important
    water bodies.
        The Chesapeake Bay and Gulf of Mexico are two of our
    Nation's most treasured water bodies. The Bay is home to 17
    million people as well as our Nation's capital. It is the
    largest estuary in North America and has been internationally
    recognized as a region of ecological significance. The Gulf of
    Mexico is the ninth-largest body of water in the world and
    contains half of the coastal wetlands in the United States. It
    links five of our States to Mexico, Cuba, and the Caribbean
    Sea.
        Both the Bay and the Gulf are rich with resources that
    provide the backbone for our regions' economies. They are home
    to commercial fisheries and support recreation and tourism.
    They are also both rich in biodiversity, supporting thousands
    of species of fish, wildlife, and plants.
        But they are also seriously threatened by pollutants,
    especially nutrients and sediments.
        Two of the biggest dead zones in U.S. waters are in the
    Gulf of Mexico and Chesapeake Bay. The dead zone in the Gulf is
    the size of New Jersey. In the summer of 2003, the area of low
    oxygen in the Chesapeake stretched for over 100 miles.
        Unfortunately, dozens of the United States' best known bays
    are starved for oxygen, ranging from Tampa Bay in Florida to
    San Francisco Bay in California and even up into the Puget
    Sound in Washington State.
        In Maryland, we have seen how pollution endangers the
    iconic Chesapeake blue crab. With the notable exception of last
    year, we have seen 10 years of unprecedented low blue crab
    populations. The shrinking crab population means smaller
    harvests for our watermen, an already beleaguered industry in
    these difficult economic times.
        In the Gulf, the rapid loss of coastal wetlands is
    especially troubling, since these wetlands serve as the first
    line of defense against devastating storms.
        Today we focus on legislative efforts to strengthen and
    formalize two programs that have been working to bring together
    Federal agencies, States, and international partners in Mexico
    to restore and protect these water bodies.
        The Chesapeake Bay Program was established under the Clean
    Water Act as a formal program office in the EPA more than 20
    years ago. The Gulf of Mexico program has been operating for
    roughly the same time, but only as an administratively
    organized effort, not a formally authorized program. Over the
    past 20 years, these two programs have made significant
    progress and laid the foundation for the legislation we're
    discussing today.
        S. 1816, the Chesapeake Clean Water and Ecosystem
    Restoration Act, provides the strong, new tools that States
    need to restore the Bay. It provides $1.5 billion in grants to
    control urban and suburban stormwater runoff: the only
    increasing pollution source in the Bay. It also helps farmers
    and foresters access farm bill funds so they can implement
    conservation practices to improve water quality.
        And for the first time, it recognizes the importance of the
    headwater States by setting aside 10 percent of State
    implementation grants for Delaware, New York, and West
    Virginia.
        We will also hear witness views on S. 1311, the Gulf of
    Mexico Restoration and Protection Act.
        As I noted, the Gulf program has never had formal
    authorization in the Clean Water Act. In 1991, the first bill
    to establish the Gulf program was introduced by Senator Phil
    Gramm of Texas. Over the course of the next 15 years,
    authorization bills have been introduced six times, but no
    congressional action ensued. And again this year, Senator
    Wicker has introduced the Gulf authorization bill.
        My staff informs me that although this legislation has been
    introduced numerous times over the last 15 years, today will
    mark the first time that any of the Gulf of Mexico
    authorization bills have been the subject of a Senate hearing.
    That is an unfortunate string of inaction that ends today.
        The great water bodies of this Nation deserve our
    attention. This subcommittee has devoted considerable time to
    the Chesapeake Bay, and starting today to the Gulf of Mexico.
    We expect to turn our attention in the near future to the Puget
    Sound, where Senator Cantwell has recently introduced important
    restoration legislation. We will also return to the Great
    Lakes, the largest bodies of fresh water in the world, and to
    Lake Tahoe, the blue gem that straddles the California-Nevada
    border.
        But today we focus on the Chesapeake and the Gulf of
    Mexico. We look forward to hearing from our witnesses and their
    views on the bills before us today.

                 OPENING STATEMENT OF HON. MIKE CRAPO,
                  U.S. SENATOR FROM THE STATE OF IDAHO

        Senator Crapo. Thank you very much, Mr. Chairman.
        Before I make my remarks, I would like to ask unanimous
    consent that Senator Inhofe's statement be included in the
    record.
        Senator Cardin. Without objection.
        [The prepared statement of Senator Inhofe follows:]

                      Statement of Hon. James M. Inhofe,
                    U.S. Senator from the State of Oklahoma

        I appreciate the opportunity to discuss these great water
    body bills today. I am extremely concerned about the
    implications that these bills may have on States, local land
    use decisions, and EPA's authority. I am particularly troubled
    by the approach taken in S. 1816, the Chesapeake Clean Water
    and Ecosystem Restoration Act.
        In my statement submitted for the record for the last
    Chesapeake Bay hearing, on August 3rd, I said that ``taking
    care of a resource like the Chesapeake Bay requires the buy-in
    of all interested stakeholders, from businesses, to fishermen,
    to land users and developers upstream, be actively involved and
    engaged. A top-down, heavy handed Federal approach will not
    lead to the kind of real world changes that are necessary to
    ensure the health of the Bay.'' I am disappointed that the bill
    before us today features exactly that top-down, heavy handed
    Federal approach I warned about.
        This bill requires that States provide EPA with adequate
    smart growth plans. As I have stated in the past, the Federal
    Government should not tell States how to proceed on
    development; furthermore, as a strong Federalist, I think it is
    dangerous to have Washington make decisions that should be up
    to local communities. Allowing the EPA to approve decisions
    about taxes, jobs, and local land use is simply unacceptable.
        I have heard from a number of groups who will be affected
    by these bills. I request that the statements of the Maryland
    State Builders Association; William Walker, Ph.D., Executive
    Director, Mississippi Department of Marine Resources; the
    Virginia Agribusiness Council; Virginia Grain Producers
    Association; Maryland Grain Producers Association; New York
    Corn Growers Association; National Corn Growers Association;
    and National Association of Wheat Growers, the National
    Cattleman's Beef Association, and a letter received from nearly
    50 agricultural organizations within the watershed be inserted
    into the record and that the record remain open for 2 weeks to
    allow the committee to gather a full and complete record on the
    impacts of these bills as we move forward.
        Unfortunately, I see this bill as another part of a hostile
    agenda aimed squarely at rural America and removing States and
    local officials as decisionmakers and instead placing them as
    merely following the dictates of Washington. Whether it's new
    energy taxes from cap-and-trade legislation or more unfunded
    environmental mandates, it's clear that this bill is yet one
    more raw deal for rural America.
        Let me be clear, I have indicated to Senator Cardin my
    support for a reauthorization of the current Chesapeake Bay
    program, and I would like to work with Senator Cardin to make
    that happen. However, I cannot be supportive of a massive
    Federal expansion of EPA's authority, which poses serious
    consequences for agriculture and local development and which
    could pave the way for this approach in other great water
    bodies, like the Great Lakes and the Gulf of Mexico.

        [The referenced material follows:]

       [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Crapo. Thank you. Senator Inhofe would have been
    here today, but he is attending the services of one of his
    constituents who was unfortunately killed at Fort Hood. And so
    he asks for his regrets to be provided here for his not being
    able to attend.
        And Mr. Chairman, I want to thank you for holding this
    hearing today. It is two very important issues, as you have
    well explained. I very much appreciate the attention that you
    are giving to both the Chesapeake Clean Water and Ecosystem
    Restoration Act and to the Gulf of Mexico Restoration and
    Protection Act.
        I want to compliment you for your hard work on these issues
    and on this legislation, and frankly, on your strong focus on
    making sure that we achieve restoration in the Chesapeake Bay
    watershed.
        There are some concerns, of course, and some issues that we
    have with regard to the legislation, and we will get into that
    a little bit probably here with some of the witnesses to work
    through some of these issues, but you really deserve the credit
    for making sure that we move forward in this very, very
    important area.
        I also want to add my thanks to the witnesses for being
    here. It is good to see Mr. Fox here. He reminded me just a few
    minutes ago that the last time he was here, I was sitting in
    the Chairman's seat, and was the issue arsenic back then? So it
    is interesting how things go around.
        And we appreciate the work that all of you have done,
    working over the weekend and doing the necessary preparation
    for this hearing.
        I am going to withhold any further comments, Mr. Chairman,
    until we get to the witnesses, so we can proceed as soon as
    possible with their testimony. And once again, I thank you for
    holding this hearing.
        Senator Cardin. Well, thank you very much. I really
    appreciate it, Senator Crapo.
        Our first panel of witnesses are governmental witnesses. J.
    Charles ``Chuck'' Fox. Chuck Fox serves as EPA's Senior Adviser
    to the Chesapeake Bay Program. He has dedicated many years to
    protecting the environment and natural resources in Maryland
    and in the Chesapeake Bay. Before coming to the Chesapeake Bay
    Program, Mr. Fox served as an Assistant Administrator of EPA's
    Office of Water and as Secretary of the Maryland Department of
    Natural Resources.
        Bryon Griffith is the Director of the Gulf of Mexico
    Program and co-chairs the Gulf of Mexico Alliance Federal Work
    Group. He has served in the EPA for 30 years and at the Gulf of
    Mexico Program since 1991. As Director of the Gulf of Mexico
    Program, Mr. Griffith works with State and Federal authorities
    as well as partners in Mexico to restore and protect the Gulf.
    He will be speaking today about his experiences working in this
    regional partnership and what opportunities there are for
    Congress to improve it.
        We appreciate both you gentlemen being here today, and we
    will start with Mr. Fox.

         STATEMENT OF J. CHARLES FOX, SPECIAL ASSISTANT TO THE
       ADMINISTRATOR, CHESAPEAKE BAY PROGRAM, U.S. ENVIRONMENTAL
                           PROTECTION AGENCY

        Mr. Fox. Thank you, Mr. Chairman.
        Senator Crapo, it is good to see you again.
        At the outset, we would like to commend you, Mr. Chairman,
    for developing legislation to strengthen and reauthorize the
    Chesapeake Bay Program. Over the past several months, you have
    successfully engaged leaders from throughout the watershed. You
    have incorporated many useful comments and ideas. S. 1816 is a
    thoughtful and highly constructive initiative to address the
    nutrient and sediment pollution problems in the Chesapeake Bay
    and its watershed. Thank you for your leadership.
        The Administration strongly supports reauthorization of the
    Chesapeake Bay Program. We welcome the objectives and many of
    the specific elements of S. 1816. We look forward to our
    continued work with you and other Members of Congress to
    improve the program's efficiency and effectiveness.
        The 26-year history of the Chesapeake Cleanup Program
    suggests that we will simply not be successful without new
    tools at our disposal. President Obama's Executive Order on the
    Chesapeake Bay defined a new era of Federal leadership, one
    that is characterized by new levels of accountability,
    performance, partnership and innovation. Earlier today, we
    released a draft strategy for the Chesapeake, beginning a
    formal 60-day public comment period on a series of proposed
    initiatives that were sparked by the Executive Order.
        Many of our proposed actions to improve water quality are
    wholly consistent with key elements of S. 1816. For example,
    our draft strategy also states a goal of implementing all
    pollution control measures by 2025 that are sufficient to
    achieve water quality standards. Specific provisions in S. 1816
    to expand the Stormwater Permit Program for urban and suburban
    runoff, to provide more accountability for agricultural
    pollution control, and to establish offset requirements for new
    and increased nutrient discharges are also highly consistent
    with the Executive Order.
        Last week, EPA articulated its expectations for the
    development of watershed implementation plans consistent with
    the pollution limits articulated in the emerging TMDL. Our
    expectations for these plans and the schedules for their
    implementation are also consistent with S. 1816. Importantly,
    like 1816, we also have defined a series of consequences which
    we may take in the event that progress is not sufficient to
    meet our water quality goals.
        The Administration's draft strategy also calls for new
    Federal rulemakings to reduce pollution from concentrated
    animal feeding operations, urban and suburban stormwater, and
    new or expanding sources of nutrient or sediment pollution.
    With these rulemakings, EPA will strengthen and clarify Federal
    requirements to reduce major sources of runoff pollution.
        In the interim, EPA will issue detailed guidance documents
    to assist the States in establishing appropriate new pollution
    control programs that are consistent with the limits in the
    TMDL.
        Mr. Chairman, in 1983, you presided over the Maryland House
    of Delegates as its Speaker when Governor Harry Hughes proposed
    a package of Bay initiatives. It was the beginning of the
    modern Chesapeake Bay Cleanup Program. At that time, everyone
    understood that saving the Bay was a long-term proposition.
    However, I don't think anyone imagined that water quality would
    have changed so little 26 years later.
        Of course, we have made progress, and as you have made
    clear on many occasions we would be much further away from our
    goals if we had not taken actions that we had. We share your
    view that today is the time for new leadership and bold action.
    My two young children are in the audience today. It is my hope
    and that of so many people and communities in the watershed
    that we can secure a new, more healthy Chesapeake Bay for their
    future.
        Thank you again for this opportunity.
        [The prepared statement of Mr. Fox follows:]

      [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Cardin. Well, thank you. I take it you mentioned
    your two children thinking that we would go a little softer on
    you on the questions?
        [Laughter.]
        Mr. Fox. That was my strategy at my confirmation hearing. I
    don't think it will work today.
        [Laughter.]
        Senator Cardin. Mr. Griffith.

    STATEMENT OF BRYON GRIFFITH, DIRECTOR, GULF OF MEXICO PROGRAM,
                  U.S. ENVIRONMENTAL PROTECTION AGENCY

        Mr. Griffith. Thank you, Mr. Chairman and members of the
    committee. Good afternoon, and thank you very much for the
    opportunity to discuss S. 1311, the Gulf of Mexico Protection
    Act.
        The Gulf of Mexico Program is a regional initiative of EPA.
    It is located in coastal Mississippi on the Federal campus of
    the NASA Stennis Space Center, strategically on the center
    northern region of the Gulf Coast.
        I would like to just briefly describe a few of the
    important aspects of Senate Bill 1311 and the underlying
    program efforts that we would put forth to its implementation
    for you this afternoon.
        The Gulf of Mexico is the ninth largest body of water in
    the world and borders five Gulf States: Texas, Louisiana,
    Mississippi, Alabama, and Florida. Its coastal areas contain 30
    percent of the wetlands of the continental United States and
    are home to enormous diversity of natural resources spanning
    semi-arid to subtropical ecologies.
        The region's coastal economy is inextricably tied to its
    natural resources. In 2006, the Gulf Coast GDP was $2.2
    trillion, supporting over 20 million jobs with over 620,000 of
    those tied to tourism and recreation alone. The Gulf produces
    52 percent of U.S. crude oil and 54 percent of domestic natural
    gas production. Its waters produce 1.2 billion pounds of fish
    and shellfish annually, and it is also home to 6 of the top 10
    leading shipping ports of the United States.
        However, our coastal wetlands and barrier islands are
    disappearing at an alarming rate, as was mentioned earlier, due
    to both the unintended impacts of meeting demands for enhanced
    shipping, flood control, energy development and climate change.
    Ranged over 150 rivers spanning 31 States spawns the second
    largest zone of hypoxia in the world. Considering that the
    Nation's population is estimated to increase by 130 million by
    2050 and the Gulf Coast counties alone will account for a 10
    percent increase, the demands of food and energy and trade will
    challenge the ecosystem's resilience at an unprecedented scale.
        The Gulf Program was originally created in 1988. In the 21
    years since the program began, we have had numerous successes
    in serving as the Federal, State and local programs'
    integrator. A sampling of these successes include the recovery
    of numerous impaired water bodies across the five-State region,
    the restoration and protection of over 30,000 acres of coastal
    habitat, and the implementation of the first ever early warning
    detection system for harmful algal blooms, with a focus on red
    tides.
        These red tide detection technologies are actually being
    put to use this very week as a large outbreak of red tides has
    basically taken on and challenged Vera Cruz and Tamaulipas, two
    of our Mexican states to the south.
        A cornerstone of the Gulf Program's relationship is the
    Gulf of Mexico Alliance and the support we provide it, a
    collaborative effort among Texas, Louisiana, Mississippi,
    Alabama and Florida to protect its ecosystems and its
    underlying economy. Since the formation of the Governors'
    Alliance in 2004, our program has served as the foundation for
    the partnership's technical and financial assistance. We also
    co-lead the collaboration of the 13-member Federal Working
    Group with NOAA and the Department of the Interior.
        In June 2009, the Alliance released its second action plan
    after accomplishing virtually 100 percent of the objectives of
    its first plan. The program's excellent support for the
    Alliance and participating Federal agencies resulted in the
    Joint Ocean Commission recognizing this collaborative as a
    model for ocean governance alliances nationally.
        We note that the Administration has embarked upon an effort
    through the establishment of the Interagency Ocean Policy Task
    Force to create a national policy for the oceans and coast and
    the Great Lakes, which is to be complemented with a recommended
    framework for coastal and marine special planning.
        EPA's Gulf of Mexico Program embodies the science-based
    approach envisioned in the Task Force's interim report as well
    as holistic coordination and collaboration with regional
    entities.
        The Gulf of Mexico Program has been very effective in
    supporting the growth activities of the Gulf of Mexico Alliance
    and improving wetlands conditions and water qualities in
    targeted areas. However, the region is experiencing changes
    faster and on a larger scale than any U.S. coastal region.
        A nearly enclosed, shallow, subtropical sea, the Gulf's
    ecosystem is vulnerable to very small changes in temperature,
    salinity and sea level rise. Coastal wetlands are being lost in
    coastal Louisiana alone at a rate of 25 to 30 square miles per
    year. Barrier islands are disappearing with the passage of each
    coastal storm, leaving communities more vulnerable to much
    smaller storms such as Hurricane Ida, a late season tropical
    storm that will reach landfall in the northern Gulf this
    evening.
        The Gulf Coast's natural barriers, our shock absorbers if
    you will, are degrading to the point where even a relatively
    small storm such as this will deliver increasingly costly
    economic damages and more widespread public health risks.
        These rapidly evolving physical changes in the ocean and
    atmosphere, coupled with the increasing pressures on our
    coastal environment, make it difficult to imagine tackling
    these issues with yesterday's technologies and practices. The
    challenge facing the Gulf Program is to evolve at an
    appropriate pace to successfully support the Gulf States'
    capacity to respond to the changing environment.
        To succeed, the program will have to continue to achieve
    high and effective leveraging of the projects and activities
    implemented across the region to support action plan two. EPA
    strongly supports the restoration and protection goals of
    Senate Bill 1311, which supports our work leveraging partners
    and resources to enhance and sustain this valuable treasure.
        Thank you again for the opportunity to be here, and I look
    forward to your questions.
        [The prepared statement of Mr. Griffith follows:]

       [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Cardin. Well, once again, let me thank both of you
    for being here and your extraordinary work on behalf of our
    environment. Both of you have long track records of involvement
    throughout your professional careers and bringing together
    diverse interests for policies that work.
        Mr. Fox, I couldn't agree with you more. As we said
    earlier, if we did not have the Chesapeake Bay Program, if we
    didn't make the efforts, the Bay would be in much worse shape
    today than it is. And while we are all disappointed we are not
    further along, but it was extraordinary accomplishments by
    legislation enacted both by the State of Virginia, the State of
    Maryland, controlling land use and tremendous sacrifices that
    were made by the people of our States, recognizing it was
    necessary in order to get the Bay plan moving forward.
        So I applaud you for your leadership over the years, and it
    is going to take, I think, some additional efforts now to get
    us to the next plateau.
        Now, the first question my staff asked me to ask each of
    you is whether you support the respective bills. I don't know
    if I want to trust my luck here. I thought that you statements
    were pretty strong, both of you, in support of the respective
    bills. But is there anything in these bills that you want to
    bring to our attention that could cause a problem with the
    Administration?
        Mr. Fox, let me start with you, with S. 1816.
        Mr. Fox. Mr. Chairman, I think as you appropriately
    noticed, our statement is appropriately supportive of your
    legislation. We do not officially have an Administration
    position on your bill at this point, and we could certainly
    talk with you more about whether or not that would be something
    valuable.
        We have appreciated the opportunity to provide technical
    assistance, and we will continue to do so.
        Senator Cardin. And we will let you know. Again, if there
    are provisions in here that present particular challenges,
    please let us know about it, but as you pointed out, many of
    the provisions were negotiated with EPA very much involved in
    our discussions.
        Mr. Griffith, as it relates to S. 1311, the Gulf of Mexico
    Restoration and Protection Act, would you like to further
    elaborate as to the Administration's position?
        Mr. Griffith. Mr. Chairman, as was pointed out in my
    testimony, EPA does strongly support the provisions of Senate
    Bill 1311. The structure indeed matches the structure and
    evolution of the program to date.
        Senator Cardin. Thank you.
        Mr. Fox, the legislation builds on the work of the
    Executive Council, and you mentioned 2025 as the date in our
    testimony for the implementations to be completed. We picked
    that date because of the Executive Council. The original bill
    that we sent around for review had an earlier date, but we
    decided to go with 2025 because it appears like it is the date
    that the interested community believes is attainable. Do you
    have any further observations as to whether that is the
    appropriate date we should be shooting for?
        Mr. Fox. Like you, Mr. Chairman, I think I have grown
    impatient over the years for action. But upon reflection of
    these dates, I think it is fair to say that there is widespread
    support for 2025 as the date by which we could achieve full
    implementation of the practices necessary to restore water
    quality.
        I think it is important, too, to be mindful that these
    control measures will not be cheap, and in today's economy,
    given the realities facing many sectors of our economy,
    particularly the agricultural sector, the idea that an
    additional 5 years could be helpful seems to make a lot of
    sense. Time really is money, and 2025 is still a very ambitious
    goal.
        Senator Cardin. The legislation authorizes an Interstate
    Nutrient Trading Program to achieve reductions in nitrogens and
    phosphorus in the Bay. Any comment as to the advisability of us
    establishing this Interstate Trading Program?
        Mr. Fox. If you had asked me about a month ago about the
    prospects for a trading program in the Chesapeake, my answer
    might be different than it is today. And that is because the
    most recent model and scientific information we have generated
    suggests that in fact there is perhaps more nutrients to trade.
    One of my fears about a trading program a month ago was in fact
    that there might not be enough nutrients to trade. Today, it
    appears differently.
        And so, I think for all the reasons that you know and are
    articulated in the legislation, a trading program makes a lot
    of sense for the Chesapeake. I think we will be able to deliver
    better results, cheaper and faster, and we look forward to
    trying to work and implement something like that.
        Senator Cardin. Thank you.
        Mr. Griffith, could you just share with us the challenges
    of working not only with multiple States, but working between
    Mexico and the United States as it relates to the Gulf of
    Mexico? What lessons have been learned over the last 20 years
    that could guide us to try to establish achievable goals for
    the Gulf?
        Mr. Griffith. Thank you, Mr. Chairman.
        First and foremost, the thing that has guided principally
    the relationship and the rapid development of programs with
    Mexico is actually the shared resource, the shared water body
    itself, and the influence is largely, as in the northern Gulf,
    it is with Mexico. The influence is the river systems on the
    coastal ecology, both from the standpoint of hypoxic zones as
    well as the rapid--even in many cases more rapid degradation of
    the coral reef structures.
        Our work on harmful algal blooms was some of the lowest
    hanging fruit for which we could actually test for ourselves
    the complexity and difficulty of working with Mexico,
    particularly with the broad range of technical, science and
    resource departments in that particular governance structure.
        It has proven to be extremely successful, largely from the
    standpoint of a technology exchange program. Mexico is at a
    point where they have a voracious appetite for anything and
    everything the U.S. has that would complement their coastal
    environmental programs' infrastructure and support. So we know
    that the well is deep in that early experience with ocean
    observing to really jointly address the issues of ag non-point
    source practices and their impacts on the coastal ecology, as
    an example.
        Senator Cardin. Just to follow it up, it is tough to see a
    program that would have specific enforcement targets when you
    are dealing with two countries. Is that something that can be
    agreed to? Or will it require a more formal relationship
    between Mexico and the United States?
        Mr. Griffith. I would certainly think that that would
    require a more formal relationship with Mexico and the United
    States, not the least of which is the complexity of the science
    to basically annotate the contributions and where they are
    actually coming from.
        Senator Cardin. So you basically believe that the way this
    legislation moves forward is what is appropriate at this time?
        Mr. Griffith. Yes, sir. It is a building block approach.
        Senator Cardin. Thank you.
        Senator Crapo.
        Senator Crapo. Thank you very much, Mr. Chairman.
        I will start with you, Mr. Griffith. You mentioned in your
    testimony the Presidential Interagency Ocean Policy Task Force.
    How do you foresee the Gulf of Mexico Program working with the
    new ocean policy that is contemplated there? And are there any
    improvements to S. 1311 that would help that transition move
    more smoothly?
        Mr. Griffith. That is a very tough question, Senator Crapo,
    in the sense that that development is ongoing. But specifically
    to answer your question, and I can speak at it through several
    eyes, one of which is the region's focus on actually
    establishing the Gulf of Mexico Program and the attempt to
    avoid duplication in an effort to really focus an aggregation
    of Federal environmental programs on the coastal priorities.
        We are hopeful and very expectant that the Ocean Policy
    Task Force will take into account the Federal structure of the
    Gulf Program as they determine how exactly they are going to
    implement programs on the ground.
        As far as the alliance that we support, which is largely
    the center of Senate Bill 1311, that Alliance, as was mentioned
    earlier as a national construct for effective regional
    governance, has actually been folded into the Ocean Policy Task
    Force's framework under the government's Advisory Council. And
    so the Gulf States Governors' Alliance will actually be one of
    the principal voices of advice and program direction to the
    Task Force.
        Senator Crapo. Thank you very much.
        And Mr. Fox, I want to go through several items with you
    with regard to the Chesapeake Bay legislation. As I am sure you
    are aware, some concerns have been raised about whether the
    legislation is too heavy in terms of top-down control from
    Washington and has too heavy a hand in that regard.
        The first question I wanted to talk to you about is the
    creation of a statutory TMDL. Some have said that that would
    literally freeze in place both science and policy and take away
    from the EPA the flexibility that it would need to make
    adjustments as necessary as further science and further
    understandings are developed.
        Could you comment on that, please?
        Mr. Fox. Some of that I believe, Mr. Crapo, is a fair
    comment about the way the legislation is presently drafted. I
    am not sure, though, that that was the intent of the drafters.
    The way the bill is in fact constructed presently there are two
    references to two different TMDLs, one of which actually was a
    pre-TMDL exercise called the tributary strategies done several
    years ago, and it was constructed in the legislation as a
    backstop mechanism.
        I am a firm believer in adaptive management and not locking
    in science today that we would ultimately want to evolve over
    time. In all of our conversations with the Chairman and his
    staff, I think there is support for that. So I personally think
    this is a fair criticism of the bill the way it is drafted, but
    it is not my sense that that was the intent of it, and I would
    imagine that the Chair would be interested in learning more
    about how to fix this particular part of the bill.
        Senator Crapo. All right. Thank you very much.
        Another piece that I am interested in is the provision that
    the EPA could withhold Clean Water Act funds as punishment for
    a State failing to meet its nutrient reduction goals. In my
    mind, as we look at the infrastructure needs that our States
    are facing, whether it be in clean water or clean air or
    drinking water, the incredible amount of need that there is out
    there in the States for these kinds of issues, it seems to me
    to be the wrong move to be depriving States of these resources
    in the very context in which they are trying to work and move
    forward.
        Could you comment on that as well?
        Mr. Fox. It is also a fair point. Presently under current
    law, we have the authority to withhold section 319 non-point
    source funds, section 106 State grant funds, as well as section
    117 Chesapeake Bay funds for various reasons, including
    nonperformance by the States. Of course, we are always
    reluctant to do this because you never want to cut off your
    nose to spite your face. This is all about improving clean
    water.
        At the same time, I think what we have learned through 30
    years of environmental statutes and management programs is it
    is really important to have consequences, and removing new
    Federal funds is an important consequence potentially for
    inaction. It is one that has been a hallmark of the Clean Air
    Act.
        In this case, it is potentially withholding of Federal
    highway funds that have helped move States along and local
    governments along in improving air quality. And having some
    kind of consequence like this, to me, makes perfect sense. It
    is something that has been part of the Clean Water Act since
    its beginning.
        Senator Crapo. Thank you. I can just say, although not in
    the context of the Bay, I certainly often have a number of
    small communities or others in Idaho who face fines and
    penalties that literally deprive them of the ability to try to
    meet the objectives that they are expected to meet under
    Federal law.
        I just had one other question, if I might, Mr. Chairman.
    And that is the issue of whether the EPA has the authority, and
    I believe it does in this legislation, to take the States'
    delegated programs and authorities from them if they fail to
    comply, and basically have the EPA step in and begin running
    the program.
        I, for one, believe that we need to have the full
    involvement of our States and local communities in
    environmental protection and in the implementation of Federal
    environmental law and do not like to see the pathway expanded
    or an increased movement toward taking delegation and
    authorities back from the States and local communities to the
    Federal Government.
        Could you comment on that issue as well?
        Mr. Fox. Yes. Presently, all of the States in the country
    that have delegated programs, and I believe today they are all
    but maybe three or four, 46 of them have delegated programs.
    They all have them under a specific delegation agreement with
    EPA. EPA at any time can revoke that delegation agreement under
    current law so that we can assume a State program.
        Nobody ever wants to do that. To my knowledge, it has never
    happened in the history of the Water Program. There have been
    threats that it should happen. EPA has been petitioned at
    various times to take back State programs. It generally leads
    to very constructive dialogues with the States about how to
    improve their program.
        So I think it is an important lesson for me about the value
    of consequences is it sometimes creates a conversation and a
    dialogue that ultimately leads to the end point that everyone
    wants without having to ultimately invoke those actual
    consequences. We do it all the time with our permit objections,
    for example.
        Senator Crapo. Thank you very much.
        Senator Cardin. Senator Crapo, thank you for your
    questions. I think they are all extremely important,
    particularly on the Bay bill. Let me point out, we very much
    want the States to be able to act and to use the tools that are
    available. And we extend the tools that are available under
    this Act.
        Governor Kaine and Governor O'Malley, the Governors of
    Virginia and Maryland, both support this legislation, knowing
    full well that there will be accountability, and there is
    always the danger, but that they feel so strongly that there
    needs to be an enforcement mechanism in the law to achieve the
    goals that are set out, and they also believe they need more
    flexibility that this statute would give them in order to
    achieve those goals.
        But I think the points that you raise are extremely
    important. The first point, Mr. Fox, is absolutely correct. We
    want to make sure that science allows us to always have the
    best programs in place, so we intend to deal with that.
        Let me thank our two witnesses very much for their
    testimony, and we look forward to continuing to work with both
    of you.
        Mr. Fox. Thank you.
        Mr. Griffith. Thank you, sir.
        Senator Cardin. As the second panel comes forward, let me
    without objection introduce into the record letters of support
    for the record. We have received 28 letters in support of S.
    1816, the Chesapeake Clean Water and Ecosystem Restoration Act.
    These letters come from governments, national and regional
    NGOs, and even private individuals. For example, we have a
    letter from Governor O'Malley of Maryland, Governor Kaine of
    Virginia, and Mayor Fenty of the District of Columbia; a letter
    from Ducks Unlimited; a letter from the Nature Conservancy; a
    letter from the New York Upper Susquehanna Coalition and
    letters from five Pennsylvania NGOs, including Citizens for
    Pennsylvania's Future.
        So without objection, all those letters will be introduced
    into the record.
        [The referenced letters follow:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Crapo. I have no objection, Mr. Chairman. I would
    like to follow up on that. I note in Senator Inhofe's opening
    statement that he had asked that a number of letters also be
    introduced.
        Senator Cardin. Oh, absolutely. Those letters also will be
    included in the record.
        We now are joined by Ann Swanson. Ann Swanson has been a
    leader in the Chesapeake Bay restoration effort for over 25
    years and has spent the last 20 years as the Executive Director
    of the Chesapeake Bay Commission. She is also a trained
    wildlifeologist and ecologist. In 2001, she was awarded the Bay
    Region's highest award as the Conservationist of the Year.
        Although she has worked primarily in the Chesapeake Bay,
    Ms. Swanson's expertise has been tapped by other great water
    bodies programs across the country and even abroad.
        Dr. Donald Boesch is an internationally known marine
    ecologist and President of the University of Maryland Center
    for Environmental Science. He has conducted research and
    published extensively on the environmental issues facing both
    the Gulf of Mexico and the Chesapeake Bay. He has also served
    on numerous advisory boards, including the National Research
    Council, ensuring that world class science is applied to
    protecting these two nationally significant ecosystems.
        Dr. Boesch will provide us with a scientific perspective on
    restoring and protecting these two great water bodies.
        Mr. Peter Hughes has been a leader in facilitating nutrient
    credit trading between point source and non-point sources and
    assisting farmers in improving water quality through on-farm
    nutrient control. In 2005, he founded Red Barn Trading Company,
    the only privately held entity with certified nutrient credits
    in the Commonwealth of Pennsylvania. It is also the only entity
    that has brokered point to non-point credit sales in the
    Commonwealth.
        And Susan Parker Bodine is a Partner at the law firm of
    Barnes and Thornburg, where she practices environmental law
    with a focus on public policy issues, including wetlands, water
    pollution and water resources. She has previously served as an
    Assistant Administrator of the Office of Solid Waste and
    Emergency Response and Staff Director and Senior Council to the
    Subcommittee on Water Resources and Environment within the
    House Committee on Transportation and Infrastructure.
        It is a pleasure to have all four of you with us. Without
    objection, your full statements will be made a part of our
    record. You may proceed as you wish, and we will start off with
    Ms. Swanson, and then we will go to Dr. Boesch. Is that fine?

     STATEMENT OF ANN SWANSON, EXECUTIVE DIRECTOR, CHESAPEAKE BAY
                               COMMISSION

        Ms. Swanson. Well, first of all, Senator Cardin and Senator
    Crapo, thank you so much for this opportunity to come before
    you and represent the Chesapeake Bay Commission. As you heard,
    my name is Ann Swanson, and I have served as the Executive
    Director of the Commission for the past 21 years.
        The Commission is the only State-level organization that
    works watershed-wide. Our 21 members are largely elected
    officials from both parties, representing the General
    Assemblies and Administration of Maryland, Pennsylvania and
    Virginia.
        Because we were created in 1980 and are a leader in the
    Chesapeake Bay Program, we have been involved in every major
    policy negotiation since the program got its start in 1983.
        I would like to really begin by thanking Senator Cardin for
    introducing this landmark legislation. I can say I have
    probably worked on more than 50 pieces of legislation in my
    time with the Commission, and I do believe this is probably the
    most profoundly important piece of legislation yet.
        The other thing I should say is that half of my family is
    from Idaho. So Senator Crapo, I would also like to thank you
    very much for coming here today to listen to the concerns of
    both the Chesapeake and the Gulf of Mexico.
        The Bay restoration effort is now more than three decades
    old. And section 117 is, of course, what authorizes it. It has
    been authorized a number of times, and I think the important
    point to make here is that with each authorization comes a
    maturity of the program and therefore a maturity of the
    appropriate policies to be acted on as the Congress moves the
    program forward.
        The Clean Water Act covers all point sources of pollution,
    encompassing municipal waste, wastewater, concentrated
    feedlots, but the important point in the Chesapeake, where
    roughly 60 percent of the nutrient pollution comes from the
    other type of source, or non-point source, we need this
    legislation to really cover all sources, to make sure that they
    are all controlled in meaningful ways.
        And I should emphasize here that doesn't necessarily mean
    regulatory ways. But the point is that it would be very
    accountable, programs to meet those load reductions, and that
    the States would develop programs with some confidence that
    they would actually get the pollutants out of the water.
        In my brief minutes before you, I want to make five key
    points that I think really summarize the Commission's strong
    support for this piece of legislation.
        The first is that the bill does indeed, as Mr. Fox
    suggested, respect the collaborative nature of this program.
    And I cannot emphasize that enough. A week never goes by where
    I am not at meetings with representatives from all the
    jurisdictions in the watershed, any number of Federal agencies,
    in a variety of combinations depending upon the subject.
        The point is that right now we have been very aggressively
    negotiating a TMDL process because we tried to do it
    voluntarily and over the course of roughly 10 years of trying,
    we didn't succeed. So instead, we have now developed a program
    with 2-year milestones, with end term dates of 2025, and with a
    very clear process and expectations for exactly how much
    pollution needs to come out of the Bay to define clean water.
        That puts us uniquely in a place that nowhere else in the
    country is. We have a 64,000-square mile TMDL and one of the
    most vulnerable estuarine systems on the planet. And we have
    negotiated. This legislation directly reflects that
    negotiation. And so on that point, from a State point of view,
    I think it is extremely important because it is saying what the
    States have agreed to do.
        The second thing is that the bill uses that clean air
    construct, that construct that uses consequences not to
    actually ever levy them, but to say it is possible so that it
    really pushes the envelope and pushes the interest at the State
    and local level to get the job done.
        The third is that the bill clearly articulates Federal
    Government expectations in clean water. It sets a cap. It says
    what is needed.
        The fourth is there is an interstate trading program.
    Suffice it to say that this puts the Chesapeake Bay Program in
    the modern framework. It is using markets to get at
    conservation instead of strictly public investment. And that is
    critical to this piece of legislation and to pursuing cost
    effective approaches that can matter.
        Finally, it is about financial assistance. I say that last
    to leave you with that mark. But it is not just Federal
    financial assistance. It is enormous leverage at the State
    level. The other thing is it is very guided. It is very guided
    toward stormwater, which is the fastest growing pollutant in
    our watershed and the only one that is growing. And the other
    thing is it focuses on technical assistance for farmers,
    something that is sorely needed if we are really going to get
    vast and total cooperation.
        So with that, I would like to end by saying this program is
    so important. The collaborative nature that the Federal
    Government started here is wholly appropriate for the Gulf of
    Mexico. It is what the Federal Government can do. It can really
    nurture interstate relations, and at this point it seems both
    of the pieces of legislation are well constructed for those
    regions, place and time right now.
        Thank you very much.
        [The prepared statement of Ms. Swanson follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Cardin. Thank you for your testimony.
        Dr. Boesch.

        STATEMENT OF DONALD F. BOESCH, PRESIDENT, UNIVERSITY OF
               MARYLAND CENTER FOR ENVIRONMENTAL SCIENCE

        Mr. Boesch. Yes, Senator Cardin, Senator Crapo, it is a
    great pleasure to be here before you.
        As I describe in my written testimony, I am very familiar
    with both the Chesapeake Bay Program and the Gulf of Mexico
    Program, having divided my scientific career working on these
    two great water bodies.
        I am very pleased to note that both authorizing bills make
    reference to reliance on scientific information, monitoring and
    science based decisionmaking. It is simply not possible to
    restore and manage these complex ecosystems without
    understanding the forces that have degraded them and caused
    their natural variability.
        But science must move beyond diagnosis and prognosis toward
    prescription and treatment. We must be able to effectively
    monitor the patient's return to health. Rigorous scientific
    guidance and assessment are critical to achieving real results
    efficiently and to accurate accounting to the Congress and the
    American people.
        The bills on these two great water bodies share a common
    focus on improving water quality and living resources. Yet they
    differ significantly in the level of specificity regarding
    goals, objectives, requirements of State partners and
    organizational components.
        Largely, as Ms. Swanson indicated, this is a result of
    their geographic scope and environmental diversity, but also
    the evolution of the programs. The Gulf of Mexico Program seeks
    to address water quality and associated living resources in
    five States bordering the Gulf of Mexico, a coast as long as
    that from Florida to Maine. Except for the area receiving the
    effluents of the Mississippi River, Gulf water quality issues
    are manifest principally in the bays and estuaries of the
    coast, and the Gulf Program must address the diverse
    circumstances of these coastal waters.
        The Chesapeake Bay Program, on the other hand, is a more
    mature partnership of Federal Government and the six States and
    the District of Columbia that drain into the Bay. Four of these
    States don't even border on the Chesapeake Bay. The Chesapeake
    Bay Program has incrementally evolved to a point of addressing
    very specific pollutant load reduction objectives, as was
    discussed, for which unfortunately we have continued to fall
    short.
        Consequently, it is highly appropriate that S. 1816
    emphasizes the Federal responsibility under the Clean Water Act
    to, indeed, achieve clean water through very specific
    Chesapeake Bay watershed implementation plans, including the
    measures, programs, milestones, deadlines and enforcement
    mechanisms needed to implement them.
        Its requirement for incremental 2-year periods of
    implementation with assurances that alternative mechanisms are
    applied as contingencies represents a significant advance over
    what we have been doing for the last 20 years. This moves the
    Chesapeake Bay Program beyond the largely voluntary approaches
    to reduce non-point sources of nutrients and sediments that
    have limited the effectiveness of the program but will require
    sustained and targeted Federal technical and financial
    assistance.
        From my work as a scientific adviser to European nations,
    working to restore the Baltic Sea, I have observed that the
    only fully effective approaches to control nutrient pollution
    from most significant non-point sources, that is agricultural
    non-point sources, have come from closely linking Government
    payments to the achievement of mandatory requirements. It
    should be pointed out that strategic Federal investments are
    also going to be required on the scientific programs that make
    sure that we are achieving the results and learning as we
    progress.
        The nearest analog to the Chesapeake for the Gulf of Mexico
    is the effort to reduce nutrient loadings to alleviate the very
    low oxygen conditions that characterize the Gulf dead zone. The
    EPA Gulf of Mexico Program has contributed to the Watershed
    Nutrient Task Force which is setting out to do this, and I
    think it could play a larger role in achieving commitments of
    the Gulf hypoxia plan.
        In this way, the evolution of the Chesapeake Bay Program
    and the steps now proposed under S. 1816 are very much a
    pathfinder for Gulf of Mexico hypoxia abatement. Modern
    concepts of adaptive management, which was mentioned by Mr.
    Fox, involve not just changing tactics based on trial and
    error, but on very systematic approaches to learning by doing,
    which constantly test assumptions against reality and therefore
    achieve quicker and more efficient outcomes. It requires a
    close interplay between the models that we use to prescribe the
    approaches being taken and the observations that verify their
    effectiveness. That is going to be particularly important going
    forth.
        The Chesapeake Bay Program has very good and substantial
    modeling and monitoring programs, but in my opinion they need
    to be more tightly integrated to truly achieve adaptive
    management. And in that regard, Mr. Chairman, I noticed your
    bill requires that EPA develop a strategy for implementation of
    adaptive management principles to assure full implementation of
    the plan.
        This adaptive approach is not just a strategy and effort by
    scientists and engineers. It requires full engagement of
    decisionmakers at all levels. And I am particularly pleased
    that the announcement today by the Federal agencies includes
    the initiation of ChesapeakeStat, which is modeled after our
    Governor's BayStat, again involving very high level
    decisionmaking, analyzing the data, assessing progress and
    moving on.
        Finally, let me just point out that one of the very
    critical aspects of these programs is their scientific
    integrity. We have a vibrant scientific community that provides
    a compass and a self-correcting mechanism that should be
    effectively engaged. Recently the Chesapeake Bay Program has
    engaged the National Research Council as an independent
    evaluator of its nutrient reduction strategies and
    achievements. So as we look forward, I hope the bill will make
    sure that we continue to maintain that scientific integrity of
    these programs.
        Thanks for the opportunity.
        [The prepared statement of Mr. Boesch follows:]

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        Senator Cardin. Thank you for your testimony.
        Mr. Hughes.

                 STATEMENT OF PETER HUGHES, PRESIDENT,
                        RED BARN TRADING COMPANY

        Mr. Hughes. Senator Cardin and Senator Crapo, I thank you
    for the opportunity to speak here today.
        I believe that the role of the Federal Government is
    critical to the success of the Bay restoration effort. I am
    here today to lend a voice from an agricultural perspective,
    more specifically, animal agriculture in the neighboring State
    of Pennsylvania.
        I grew up on a dry land wheat farm in Washington State, and
    I have been out in Pennsylvania 10 years. Eight years ago, I
    started an ag consulting company, an engineering company, just
    to work with farmers within the Chesapeake Bay region. Today,
    we have over 650 clients within the Chesapeake Bay, and I don't
    mean to trump Ms. Swanson's connection with Idaho, but my wife
    and business partner, Molly, is from Boise and holds a master's
    degree from the University of Idaho. So thank you.
        Senator Cardin. I am starting to feel that Senator Crapo
    has more witnesses here from his side than our side.
        [Laughter.]
        Mr. Hughes. We do serve the gamut of Pennsylvania
    agriculture from the 30-head Amish dairy to the 2,500-head
    dairy CAFO located on the Mason-Dixon Line. Pennsylvania
    agriculture may not have a mental connection to the Chesapeake
    Bay itself, but I don't know a single farmer that does not have
    a direct relationship with the stream that runs through his or
    her land. We must think of the Chesapeake Bay as a report card
    for environmental compliance and focus our stewardship efforts
    on the localized streams and rivers that ultimately flow into
    the Bay.
        There are a myriad of regulations backed by the Clean Water
    Act for the protection of these local streams and watersheds.
    If we are to meet and exceed the expectations of the Executive
    Order of the Chesapeake Bay Protection and Restoration, we in
    the ag industry must first and foremost focus on our local
    bodies of water.
        The enforcement of regulations under the Clean Water Act is
    only one tool in the toolbox for Chesapeake Bay restoration. A
    boots on the ground approach local effort needs to be supported
    through strengthening the technical assistance of the public
    and private sectors. Agriculture desperately needs the
    leadership and technical assistance provided by soil
    conservation districts, natural resource conservation service,
    crop consultants, land grant universities, and extension
    agents.
        The bill as proposed will bring significant new money to
    the system, with critical emphasis on the needed technical
    assistance. The Chesapeake Bay Ecosystem Restoration Act offers
    a path forward that both ensures the future of the Nation's
    largest freshwater estuary and gives local stakeholders the
    responsibility and financial and technical support to do their
    part.
        Three years ago, Pennsylvania's DEP put forth a nutrient
    credit trading policy. As a part of that policy, since we
    already had agricultural clients within the watershed, we
    formed a sister company called Red Barn Trading. As was noted
    before, we entered into agreements for the first point to non-
    point source trade with a local municipality. We continue
    working with developers and waste treatment plants so that they
    are able to meet their NPDES permit requirements.
        A geographically based cap and trade system is a vehicle
    for sound economic and environmental compliance. Since the
    Chesapeake Bay does not recognize the State geographical
    boundaries on a map, it is my contention that for a cap and
    trade system to truly work, we need a robust, multi-State
    Chesapeake Bay trading framework. This bill will bolster the
    fledgling credit trading market and allow for economic and
    environmental sustainability.
        The bill introduced by Senator Cardin creates a framework
    for water quality trading for nitrogen and phosphorus that will
    offer farmers new economic opportunities for the water quality
    improvements they implement. In order to have a robust water
    quality trading market, we must break down the geographical
    State barriers that are currently inhibiting a successful
    market.
        This can only happen if the Environmental Protection Agency
    is given authority to establish a water quality trading program
    that extends to all Bay States, which will result in a level
    playing field for the credit trading market.
        Now only would such a measure bring down the cost of
    wastewater treatment plant upgrades, it would provide an
    economic and environmental incentive for agriculture and other
    non-point sources to carry their fair share of the load toward
    Chesapeake Bay restoration.
        Agriculture is willing to do their part for the restoration
    of the Bay provided that farmers have real and factual clarity
    of what is expected of them. Agriculture will go above and
    beyond compliance through creative and innovative practices,
    but it can only attain this goal if there is reason and clarity
    of the process. The bill proposed by Senator Cardin offers the
    path forward in directional funding that is so desperately
    needed.
        It has been an honor for me to have the opportunity to
    share my views with you in regard to the responsibilities of
    agriculture and the Chesapeake Bay. I would ask for the support
    of the Chesapeake Bay initiative by keeping our farms
    sustainable and environmentally responsible.
        Thank you.
        [The prepared statement of Mr. Hughes follows:]

       [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Cardin. Mr. Hughes, thank you very much for your
    testimony.
        Ms. Bodine.

              STATEMENT OF SUSAN PARKER BODINE, PARTNER,
                          BARNES AND THORNBURG

        Ms. Bodine. Thank you, Chairman Cardin, Ranking Member
    Crapo. Thank you for the invitation to appear before you today
    to talk about S. 1816, the Chesapeake Clean Water and Ecosystem
    Restoration Act, as well as S. 1311, the Gulf of Mexico
    Restoration and Protection Act.
        Let me start with S. 1816. My full analysis of the bill is
    in my written statement, so I just want to highlight a few
    points.
        First, let me say that I am very impressed by the
    collaboration and cooperation among all the jurisdictions in
    the Chesapeake Bay watershed. As Ms. Swanson pointed out, each
    jurisdiction is committed to restoration, and they have been
    working together. And by working together, EPA, the District of
    Columbia, and the States in the watershed, as well as local
    governments, have the authorities and the tools that they need
    to achieve this goal. This is a model of cooperative
    federalism.
        So I have to step back and ask, what is the purpose of S.
    1816? Because if it is to provide additional authorities, I
    have to question whether it is necessary. EPA has the authority
    to control air emissions across jurisdictions. State and local
    governments have the authority to control land use and to
    control non-point source runoff. And of course, the Clean Water
    Act, the Federal Water Pollution Control Act, provides for
    controls on point sources of pollutants into bodies of water.
    Collectively, those tools are there, and the tools are held by
    the group of people who are already working together.
        If the goal of the bill is to provide additional funding,
    then it could actually be a lot shorter, and the funding levels
    actually could be higher as well. But what we have is a bill,
    S. 1816, that would codify a TMDL for the Chesapeake Bay in the
    statute. It also gives States and EPA extensive new authorities
    and creates new mandates that are then enforceable by citizen
    suits.
        I am concerned that these provisions may have some
    unintended consequences, and I would like to summarize those
    concerns.
        First, under the language of the bill as introduced, the
    load allocations that are in the Chesapeake Bay, what comes out
    in December 2010, would be codified in Federal law. This is the
    point that I believe Mr. Fox and Senator Crapo were discussing
    earlier, that you don't want to freeze science. You don't want
    to codify the load allocations in Federal law no matter what
    the models show later because these models are constantly
    evolving. It shouldn't take an act of Congress to allow States
    and EPA to revise a water quality implementation program to
    reflect best available science.
        Second, the bill would authorize States to issue permits
    under section 402 of the Clean Water Act to any pollution
    source that the State determines is necessary to achieve the
    nitrogen, phosphorus and sediment load reductions in the
    implementation plan. Now, 402 permits are designed to address
    point source discharges of pollutants. These are collected in a
    channel. You have pollutants that you can measure, and you
    issue permits to control that.
        What you have authorized are section 402 permits for any
    source of pollution. That includes air deposition. There isn't
    actually a geographical limit. So as drafted, you could have
    one State, for example, the State of New York, issuing 402
    permits for utilities in Ohio. That is how the bill is drafted.
    You have granted very broad authority for section 402 permits
    for any pollution source. These permits would also then apply
    to non-point sources. And again, it is unclear how that would
    work.
        Third, you have given EPA similar authority. If the State
    doesn't come forward with their implementation plan, then EPA
    has the authority, and in fact the bill says ``shall,'' ``shall
    promulgate such regulations or issue such permits as EPA
    determines is necessary to control pollution.'' That is
    enormously broad. It is authority for any regulations, any
    permits that EPA determines is necessary to control pollution.
    That is authorizing EPA to determine where highways are. That
    is authorizing EPA to determine what is built. That could be
    determining that some land uses can't be allowed anymore, or
    land uses have to change. This is an enormous expansion of
    Federal authority.
        Finally, I have two more points on S. 1816. One is that the
    mandates on EPA are enforceable in the bill through citizen
    suits. So you could have the agency craft a reasonable program,
    and I am sure that they would, but you could then have a
    citizen say, well, we don't think that goes far enough and then
    file suit in Federal court to try and mandate changes.
        Last, to the extent that the bill sets up enforceable
    mechanisms against States, I believe that it would be found to
    be unconstitutional because under the Tenth Amendment, Congress
    doesn't have the authority to commandeer State legislatures and
    direct them to carry out a Federal regulatory program. EPA can
    carry out a program. Of course, EPA can use its spending, the
    Federal Government can use spending power, as has been pointed
    out, but you can't directly mandate a State to implement a
    Federal regulatory program. And so to the extent that it
    purports to do that, I believe that section would be found to
    be unconstitutional.
        I just want to make one point on S. 1311. I know I am over
    my time. I apologize. On S. 1311, I provided some analysis in
    my written testimony, and I would just ask the committee to
    look at all of the existing groups that are working
    collaboratively under the existing program, and then make sure
    that those organizations and functions are matched up with the
    authorization. Some of the language in the authorization that
    is used is different. It is unclear if all the groups are
    supposed to be now in a single entity or not. So I would just
    ask as a technical matter to make sure that that works.
        Thank you.
        [The prepared statement of Ms. Bodine follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Cardin. Well, thank you very much for your
    testimony.
        Again, I thank all of our witnesses for their testimony.
        Ms. Bodine, let me first tell you I think I disagree with
    some of your interpretations, but we appreciate that and we can
    certainly tighten up the language to make sure that it carries
    out its intent. It is certainly my intent that there would be
    updates on the standards based upon science. So we will make
    sure that is clear. We thought it was clear, but obviously
    there has been some issues raised on that. So that is clearly
    our intent.
        And let me just make one more observation, and I appreciate
    your observations about the collaborative effort of the
    Chesapeake Bay Program. It has been a success since day one. I
    have always been impressed by the States that do not border the
    Chesapeake Bay, with their commitment and understanding how
    important their freshwater supply to the Bay is, and willing to
    be part of the Chesapeake Bay Program, and willing to implement
    policies in their State in order to protect the Bay. So it has
    been a collaborative effort.
        I mention that because the impetus for this reauthorization
    bill comes from the States and our partners. It does not come
    from the Federal Government. It really comes from our States.
    And they recognize the reality that we have missed the targets
    substantially in recent years and that there is need to
    reenergize a process that will accomplish the goals that are
    set out based upon good science and based upon the States
    having the tools, the partners having the tools to accomplish
    what is the goals that are established internally by this
    collaborative effort based upon good science.
        And that is the whole framework of the reauthorization
    bill. It is not something that was developed by the Federal
    Government. It was actually developed by the partners which we
    have worked with to be able to achieve the results.
        But I think your comments are extremely helpful, and we
    look forward to working with you on that. The bottom line is
    the Bay is in trouble today, and we have got to do a better
    job. I think all of our partners understand that and are
    looking for a framework to take the Bay Program to the next
    level.
        Dr. Boesch, I would just, if I could ask you first, dealing
    with the ecological significant of both bodies of water, the
    Bay and the Gulf, there are a lot of similarities. There are
    some differences, obviously the jurisdictional differences I
    would point out. Both are losing wetlands. Both are dealing
    with dead zones.
        How similar are the problems in these two bodies of water?
        Mr. Boesch. Well, I think that they are very similar----
        Senator Cardin. Is your microphone on?
        Mr. Boesch. There is habitat loss, as you said, with
    respect to wetlands, submerged aquatic vegetation. There are
    problems of water quality. Largely, now that the Clean Water
    Act was successful in reducing toxic inputs and the like, now
    the focus is in most of the estuaries along the Gulf Coast. The
    No. 1 water quality problem is nutrients, excess nutrients,
    much like the Chesapeake Bay.
        And also, all of these systems are contending with the
    limits of living resource utilization, over-fishing issues,
    habitat losses, by-catch issues in the Gulf of Mexico. So in
    some sense, they are all very closely related.
        The difference, as I pointed out, is that we in the
    Chesapeake have been trying to do this in a coordinated way of
    one drainage basin went to one estuary. Whereas, the Gulf of
    Mexico has the problem of having to deal with a whole variety
    of different coastal bodies, bays and estuaries all over the
    coast and be sensitive to the differences of Texas to Florida,
    and the kinds of environments, the kinds of organisms, and the
    kinds of human issues and problems.
        As I said earlier, I would predict that you will see
    eventually an evolution of the Gulf of Mexico Program so it
    takes some of the same kind of approaches that you have in your
    bill with respect to requirements, deadlines, goals and so on
    moving forward.
        Senator Cardin. You also mentioned the fact that the Bay
    legislation calls for the formal incorporation of adaptive
    management. And you were explaining that, and I want you to get
    more into the record on that because you were also explaining
    how the Bay Program incorporates some of the BayStat that the
    Governor had for accountability. Could you just go into more
    detail as to what this means?
        Mr. Boesch. Sure. Well, adaptive management is an approach
    that has been developed in a wide variety of natural resource
    management circumstances. And basically, it involves learning
    by doing. So it is based on the understanding that at the end
    of the day we don't always have the exact prescription about
    what it is going to take to restore a system to health, or even
    what that health may look like, but that we learn progressively
    by doing restoration.
        And so we have in the Chesapeake Bay Program, for example,
    world class modeling capability that models the water and the
    nutrients flowing off the watershed and delivers them into the
    Bay, and then the Bay responds, its production is affected and
    dead zones are created, etc. And these models are used to
    develop our management goals.
        And as you recall, a few years ago the GAO and others
    brought light to the question that models are fine for
    identifying goals, but you can't be relied on to count progress
    simply on the basis of model projections. You have to actually
    verify that progress.
        We have on the other hand a very effective monitoring
    program, a very substantial, sophisticated monitoring program
    in the watershed and in the Bay. And so we are able to observe
    the outcomes of our efforts. Adaptive management requires
    bringing those together. How well do the observations fit your
    forecast, if you will, by the models?
        And so adaptive management will help us understand right
    away, if we apply it diligently, how effective the various
    management practices are, so we can then improve both the
    practices and the models. We can improve those practices. And
    then ultimately, comparing the observations with the model
    projections allows determination of how well the patient is
    doing and what is the prognosis for recovery.
        So this is this adaptive approach that really pulls it
    together. And as I indicated, in many other ecosystem
    restorations, the Everglades is a good case, this adaptive
    approach is being applied. The important thing to recognize is
    it isn't just an exercise for the scientists and engineers.
    This is an exercise for decisionmakers.
        So in Maryland, as you know, Senator, Governor O'Malley has
    developed, from day one of his coming into office, a model that
    he used in governing the city of Baltimore of management by
    accountability measures, taking that approach to Bay
    restoration, which he termed BayStat. So he as the senior
    decisionmaker in the State is actually asking these questions.
    What do the models show? What do the observations yield? In a
    way, BayStat is forcing us to integrate models and outcomes to
    produce adaptive decisionmaking that affects, for example, his
    decisions on allocation of budget priorities to the most cost
    effective approaches and so on.
        So it is a powerful concept. It is not the easiest thing in
    the world to do. It involves a lot of hard work, but ultimately
    I think it will yield better results and more efficient
    progress toward the restoration goals.
        Senator Cardin. I wanted you to go through that because,
    Senator Crapo, we are very proud of Governor O'Malley's
    management system that really holds departments accountable for
    certain specific results, and then the Governor literally can
    see on a regular basis whether they have achieved those
    results. And it very much affects his budget, so there is a
    clear accountability here.
        There is currently a subcommittee working on the Budget
    Committee looking at ways that we can deal with accountability
    in Federal budgeting. And I have called to their attention the
    Maryland model, originally the Baltimore City model because I
    do think accountability is going to be a very, very important
    part of the Bay Program. We have got to use the best management
    practices. We have to figure out a way that we can hold people
    accountable. I know Governor O'Malley is very much committed to
    doing that, and we are trying to adopt that in the overall
    framework, which I think all of us want to see done.
        Senator Crapo.
        Senator Crapo. Well, thank you very much, Mr. Chairman.
        And I also agree with the need for accountability in trying
    to achieve some of these national policy objectives that we
    establish. And I just want to make sure that in the process
    that we maintain the viability of State and local and private
    sector stakeholders, and really the strength of the
    collaborative process. And I am not suggesting that you are
    not. I just want to be sure that we do do that.
        And Ms. Swanson, I am not going to ask you a question, but
    I want to thank you, first of all, for your acknowledgment of
    your Idaho ties, and frankly, for your commitment to
    collaboration in the area. I am a completely strong believer
    that those who live where the issues are and where the problems
    are, and who are willing to roll up their sleeves and get
    together and collaborate are the ones that can come up with the
    kinds of creative solutions that will help us achieve success
    in these endeavors. So thank you for your commitment to that.
        Mr. Hughes, I do want to ask you a question. I thank you
    for your Idaho ties as well, and I appreciate you mentioning
    the University of Idaho, not only in the context of your wife
    graduating from there, but also in your mention of land grant
    universities. You indicated that programs that are operated
    through groups like land grant universities or local soil
    conservation districts and other private sector voluntary
    efforts are very significant and very important in terms of
    dealing with non-point source issues.
        Could you elaborate on that a little bit?
        Mr. Hughes. I sure can. It is critically important for the
    technical service, for the technical knowledge that is provided
    by soil conservation service, by the natural resource
    conservation districts. These are the people that farmers rely
    on for their information. These are the people that farmers
    rely on to know what are the right land practices to do.
        Historically, we have even moved our office to the local
    county conservation district because of the amount of farms
    that come and receive technical service through the farm
    service agency and the local conservation districts. Penn State
    University Extension is also there.
        Farmers don't do a very good job about talking with each
    other about what is working and not working on their farm. But
    they will go to land grant universities, to technical service
    providers who see a wide variety of different practices that
    are done on farms and adopt those themselves. It is critically
    important that we support land grant universities. I am a
    graduate of a land grant university. And we have to make sure
    that the money is being put in the right area of emphasis.
        Senator Crapo. Well, I appreciate your effort and your
    focus there.
        And just one more question. I am changing topics completely
    here a little bit, but it is a quick question also. Senator
    Cardin's bill discusses a framework for trading phosphorus and
    nitrogen. And I was curious, I understand sediment is also an
    issue in the Bay area. Does Pennsylvania's trading program deal
    at all with sediment?
        Mr. Hughes. It does deal with sediment. There really right
    now is not a market for sediment, though there are many, you
    know, pounds of nitrogen and phosphorus that are tied to that
    soil particle within sediment. We really have from a waste
    treatment plan, NPDES needs of nitrogen being the gold
    standard. Phosphorus, I would say being the silver standard as
    far as meeting their compliance.
        So although it is recognized within our nutrient credit
    trading program, I would say the No. 1 nutrient of need is
    nitrogen, followed by phosphorus. And we are still looking for
    a sediment market to take place.
        Senator Crapo. All right. Thank you.
        And Susan, I appreciate seeing you again and having you
    here. I would like to ask you to elaborate, if you would a
    little bit, on a couple of points that you made. You indicated
    that the legislation as currently drafted would really allow
    the regulation of any pollution source without geographic
    limitation or even topical limitation, and also that it would
    allow the EPA to require permits for virtually, if I understood
    you correctly, virtually any kind of activity, like the siting
    of highways or construction and development activities or the
    like.
        Did I understand you correctly there? And could you just
    elaborate a little bit on that?
        Ms. Bodine. Yes, thank you, Senator Crapo. That is exactly
    what I said, and I guess I would point out that, you know, the
    State authority, it is on page 39 of the introduced bill, it
    literally says States can issue permits under 402 for any
    pollution source the State determines is necessary to achieve
    the goals in their implementation plan.
        There is no limit on that, and any source, again, can be
    upland of the Bay. It can be, as I said before, air deposition.
    It could even be in another State. I don't know how they would
    actually enforce it, but that is technically how the bill is
    drafted in terms of expanded State authorities.
        And then similarly, if you look at page 49 of the bill, it
    says, ``EPA shall promulgate such regulations or issue such
    permits as EPA determines is necessary to meet the pollution
    goals.''
        That is without limit. There are no caveats on that
    authority. It is unfettered authority to literally do anything
    to meet pollution goals and recognize that that goes, then,
    very far upstream and you are talking now about land use. You
    are talking about highways. You are talking about buildings.
    You could be talking about whether or not you would be
    requiring green roofs or requiring gutter extensions. I mean,
    it can get into a level of detail, again, the authority is
    there that has never been seen before in terms of Federal
    authority over people living in the watershed.
        Senator Crapo. All right. Thank you very much.
        I notice I have gone over my time.
        Senator Cardin. With Senator Crapo's permission, we will do
    a second round. I have just a couple of questions I would like
    to ask, and will not be too long.
        Ms. Swanson, if we could follow up on the point that Ms.
    Bodine is talking about. Some of this language is standard
    language that we include to make sure that is regulatory
    authority to implement the terms of the Act, but they are
    limited by the terms of the Act. What we are doing here,
    though, is giving the States the necessary authority to be able
    to respond to the challenges that are there, fully mindful that
    States need to operate within their framework, consistent with
    the requirements of their own laws, but also this national
    program.
        Could you just review for us how the authority as you see
    it in this bill would operate, and how the collaborative effort
    among the States works in this regard?
        Ms. Swanson. Yes. And I am very glad to answer this
    question because it is something that the 5 minutes didn't
    allow me to do, but it is certainly in my testimony is really
    emphasize how important that State flexibility is. And in fact,
    the Chesapeake Bay Commission's support of this legislation is
    largely due to that flexibility.
        Essentially, what the legislation does is at the Federal
    level it does indeed codify that load allocation. I fully agree
    with the witness that that load allocation should be able to be
    not just the total cap allocation, which would include both the
    waste load allocation and the load allocation.
        But the point is that pollutant cap, that allocation load,
    should be set by the Bay Program. And so right now, the
    legislation does indeed reference the current load allocation,
    but that could change as the models change, and it should
    because those models are based on monitoring. They are based on
    State reporting. They are based on State information.
        So the Federal legislation would basically set that cap,
    which would allow for trading, as Peter Hughes has described.
    The second thing it would then do is also guide the development
    of State watershed implementation plans. Those watershed
    implementation plans are designed to then numerically reach the
    cumulative sum of those caps.
        Importantly, what the States would basically have to do is
    pick and choose. If septic systems, if waste treatment
    facilities make sense in a certain State in terms of how they
    are going to meet those allocation goals, they can choose for
    those practices. In other areas, agriculture by far and away
    dictates their loads. A place like Pennsylvania is surely going
    to reach largely for agriculture, as opposed to, say, septic
    systems where there are 759,000 septic systems in the
    watershed. So they are going to reach to the place that makes
    the most sense to cost effectively reduce.
        The other thing that the bill does is it does require a
    process. It does require that every 2 years, you would have to
    essentially report in on what your plan is, and also if you
    began to slip, what you intent is to fill that gap. That is
    something that the Bay jurisdictions, regardless of the
    collaborative effort, they have never had that level of
    accountability.
        And you know, accountability changes the way government
    behaves. Certainly, as a government employee, it changes my
    behavior. You know, if I have to report on something, I make
    pretty damn sure that I have done it. So it does that.
        The other thing the bill does is it sets a halfway point,
    where it says by halfway through this activity through 2025,
    you should have basically in place 60 percent of those programs
    designed to reach those reductions. Those can be regulatory or
    those can be otherwise binding, contracts with farmers,
    aggregators such as Red Barn could be really effective in the
    process.
        So to me, that is what the bill does. If it exceeds its
    reach in terms of that flexibility, then I am not sure that
    that is what was intended, and I know the Commission would be
    happy to work with legislative staff to correct it.
        Senator Cardin. Thank you very much.
        Mr. Hughes, I just really wanted to compliment you on your
    program, compliment you on your testimony. We are looking for
    revenue sources for farmers. I mean, the tough markets here,
    and the trading program we look at as being one of the real
    pluses for the agricultural community.
        We also have a set aside of 20 percent for technical
    assistance to help farming because we know they also don't have
    the dollars available to implement the best practices, and we
    want to give them the ability to accomplish that. So we did
    take to heart your experiences in Pennsylvania in crafting this
    bill, and we look forward to your additional comments to make
    sure it is effective in helping the agricultural community.
        Senator Crapo.
        Senator Crapo. Thank you, Mr. Chairman.
        I don't really have any more questions, so if you want to
    do another round, or not.
        Senator Cardin. I think I am going to suggest that the
    record is open, and Ms. Swanson's last point is very much in
    order. We are looking for ways to make sure the bill does what
    it is intended to do. We certainly don't want to give a State
    the authority to issue permits of operations in another State,
    so that will clearly be, I can assure you that is not, first, I
    don't think legally we could do it. We couldn't enforce it, but
    it is certainly not the intent.
        And as Ms. Swanson pointed out, the intent here is to give
    the partners the authority they need, consistent with their
    plans, which have to be approved. So there is accountability
    here. They just can't do things that are inconsistent with the
    plans that have already been approved by the Federal, but we
    are working with EPA.
        Ms. Swanson. Senator Cardin, that is a very important
    point, that EPA oversight of those plans, because the States
    must submit plans that are approved. They have to be sufficient
    to meet the water quality standards. They have to be defined in
    that WIPP. So it is that back and forth, that iterative process
    that is so important to the Chesapeake.
        Senator Cardin. And of course, every 2 years, we do have a
    chance to adjust that, and we certainly want to be judged by
    best science, so we will make sure that is the case.
        I would like to just take a moment to thank the two legal
    interns from the University of Maryland School of Law, my alma
    mater, who helped in this, Sylvia Chai and Matt Peters, for
    their help in preparing for this hearing, and with their
    drafting of the Chesapeake Clean Water and Ecosystem
    Restoration Act.
        I think everyone knows here that the University of Maryland
    is the top environmental law program in the Nation. I am not
    sure I am going to get in trouble with my colleague on that,
    but we are very proud of the students who helped us in this
    effort.
        And with that, the record will remain open for additional
    questions that may be asked. And again, I thank the witnesses
    and I thank Senator Crapo for the arrangements that this
    hearing could take place on a Monday.
        Thank you very much.
        Senator Crapo. Thank you.
        Senator Cardin. The hearing is adjourned.
        [Whereupon, at 4:25 p.m. the subcommittee was adjourned.]
        [An additional statement submitted for the record follows:]

                        Statement of Hon. David Vitter,
                    U.S. Senator from the State of Louisiana

        Madam Chair, I would like to thank you for the opportunity
    to discuss legislation before this committee on America's great
    water bodies, in particular the Gulf of Mexico. I am a
    cosponsor of this legislation and am hopeful for its successful
    implementation.
        The bill would amend the Clean Water Act to statutorily
    establish the Program Office of the Gulf of Mexico Program as
    an office within the EPA. Given that the office and director
    already exist at EPA, this legislation would codify into law
    the program.
        S. 1311 requires the office to coordinate EPA and Federal
    action with State and local authorities, assist in developing
    specific action plans to carry out the program, foster
    stewardship and community outreach, disseminate information
    about the Gulf and focus on activities that will result in
    measureable improvements in water quality. It also allows EPA
    to enter into interagency agreements and give grants for
    monitoring the water quality and ecosystem, researching the
    effects of environmental changes on such water quality,
    developing cooperative strategies that address the water
    quality and needs of Gulf resources. This legislation would
    authorize $10 million for fiscal year 2010, $15 million for
    fiscal year 2011, and $25 million for fiscal years 2012-2014.
        Unlike the other great water body programs such as Great
    Lakes and Chesapeake Bay, the Gulf of Mexico Program has never
    been established in legislation under the Federal Water
    Pollution Control Act. The Gulf States Governors' Alliance
    considers the EPA Gulf of Mexico Program's unique technical and
    collaborative management capacities as essential to their
    future success in addressing the priority environmental issues
    that threaten the ecological and economic sustainability of the
    coastal region.
        I am hopeful that this grant program will provide the
    opportunity for further interagency collaboration for the
    benefit of the Gulf of Mexico and Louisiana's water resources.
    I am also cognizant that the EPA should not be under the
    impression that this legislation expands EPA authority over
    Gulf of Mexico resources in any manner that would increase
    permitting or regulatory authority. This legislation is meant
    as a partnership and investment in Gulf of Mexico resources. I
    look forward to its proper implementation.

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