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






                                                       S. Hrg. 111-1216

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

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

                                HEARING

                               before the

                   SUBCOMMITTEE ON WATER AND WILDLIFE

                                 of the

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                            NOVEMBER 9, 2009

                               __________

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

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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                     ONE HUNDRED ELEVENTH CONGRESS
                             FIRST SESSION

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

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

                   Subcommittee on Water and Wildlife

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

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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

                              ----------                              


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

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

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

             STATEMENT OF PETER HUGHES, PRESIDENT, 
                    RED BARN TRADING COMPANY

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