[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
__________
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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
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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
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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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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.
[all]